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New Zealand Grappling with the “Rights of Nature”
Mon, 09/17/2012 - 09:55
Can we begin to reconceptualize how we interact with Nature and afford it the legal protections that are now available only to people? Along with Bolivia and Ecuador, New Zealand appears to be in the vanguard of this fascinating, welcome trend.
In his blog about the Northern Territory of New Zealand, Bob Gosford reports that a court there “has recognised – perhaps for the first time in legal history – that a river has personality sufficient to allow it to be heard in a court of law.” (A tip of the hat to Tim Gregory for passing this news along.) Gosford cites reporter Kate Shuttleworth in the New Zealand Herald:
The Whanganui River will become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi [“peoples” in Maori] and the Crown tonight. This is the first time a river has been given a legal identity. A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law – “in the same way a company is, which will give it rights and interests” … Under the agreement the river is given legal status under the nameTe Awa Tupua – two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.
The New Zealand Minister for Treaty for Waitangi Negotiations Christopher Finlayson said of the agreement:
Whanganui River iwi have sought to protect the river and have their interests acknowledged by the Crown through the legal system since 873. They pursued this objective in one of New Zealand’s longest running court cases. Today’s agreement which recognises the status of the river as Te Awa Tupua (an integrated, living whole) and the inextricable relationship of iwi with the river is a major step towards the resolution of the historical grievances of Whanganui iwi and is important nationally.
These latest developments signal an unexpected fulfillment of Christopher Stone’s prophetic proposal of the early 1970s – that nature be given formal legal rights in courts of law. His classic essay, “Should Trees Have Standing? Towards Legal Rights for Natural Objects,” was widely ridiculed at the time, but it was also embraced by U.S. Supreme Court Justice William O. Douglas in a famous dissent in the case of Sierra Club v. Morton.
More recently, the Ecuadorian government has been a champion for Nature’s rights since ratifying a new constitutional provision guaranteeing Nature “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”
American courts are not likely to embrace “standing rights” for Nature any time soon, however. They have rejected the idea every time it has been presented to them. But it certainly helps that another “modern” nation, which has found a way to invent legal rights of personhood for corporations, has found a way to give Nature legal standing.
Another interesting recent development in New Zealand involves a struggle between the government, through Prime Minister John Key, and the Maori Council over the ownership and control of the nation’s rivers and lakes.
The government claims that the water belongs to everyone – and that the government, as its trustee, is entitled to allocate usage rights of the water as it sees fit. Historically, some users of the water have been power companies that use the water in their power stations, and landowners whose land is more valuable for agriculture because of access to water.
This system has been acceptable to the Maori until Prime Minister Key announced his intention to auction off the right to use water from the Mighty River. The Maori were willing to recognize customary, historic uses of streams, lakes, rivers, aquifers and springs – but they are not willing to let those rights become tradeable market assets. “The moment the Government moves to privatize access rights or make those access rights enjoy a character very close to a tradeable property right, you wake up the taniwha of Maori ancestral rights.”
There is now a great debate in New Zealand about who “owns” the water. The Government is claiming ownership and thus its right to do what it wishes, including selling off access rights. But the Maori claim that their ancestral rights should prevail. Those ancestral rights are not about “ownership,” say the Tapuika Tiaki tribe, but about stewardship of the water. As one spokesman put it, the talk about “ownership” is confusing “because at the end of the day ownership in the Western ideology is not what we seek. We seek to be recognized in our role as kaitiaki or guardians of water so that if there’s any allocation or allocation of rights to water, then Maori need to be significantly involved.”
The Government thinks it can resolve such issues after the sale of water, which it wishes to do very quickly; the Maori disagree.
An essay in the New Zealand Herald notes why the Maori are so adamant:
Without authority, Maori can't fulfil their duty as kaitiaki - caretakers of their environment. The "rangatiratanga notion of ownership implies a particular relationship of care, but you can only care for something if you have authority to care for it. But it doesn't create an exclusive Pakeha-type ownership".
Nin Tomas, associate professor of law at the University of Auckland, writes that Western thinking treats “natural resources, and specifically land ... as things without an inherent or legal personality of their own. They are merely chattels available for humans to exploit at will.”
The Maori perception includes the "overt recognition" of the earth as a living entity, with humans as subjects rather than masters.
Tomas argues that Maori traditional values “provide a bedrock of duties owed to the environment. In the context of these duties, Western property rights, in the form of use rights, should be restricted in their application so that destruction of the environment to satisfy short-term human wants and needs is viewed as socially unacceptable.”
New Zealand’s cultural and legal struggles in moving to a paradigm of stewardship, rather than ownership, may be a preview of what’s ahead for other Western nations.