A River's Rights: Thoughts On Granting Legal Personhood

December 14, 2019

River as Person 
Earlier this year I had the privilege of hearing from Dame Tariana Turia and Turama Hawira at the 2nd Annual Assembly of First Nations National Water Symposium in Niagara Falls. Dame Turia and Mr. Hawira are the first co-appointed voices of New Zealand’s Whanganui River, which was granted legal personhood by the Te Awa Tupua (Whanganui River Claims Settlement) Act in March 2017.

This pioneering statute gave effect to a settlement negotiation between the Crown and the Māori that was decades in the making and which marked a significant milestone in the 140 year-long struggle by the Indigenous people of New Zealand’s North Island to re-assert sovereignty over their ancestral territories.

Long vital to both the subsistence and the spiritual and cultural identity of the local Māori tribe (known as the Whanganui Iwi), the Whanganui River has been damaged by centuries of colonial development that has altered the river’s course to support tourism and hydropower generation, dirtied its waters, and extracted its gravel for infrastructure projects.

The passage of the Te Awa Tupua Act was notable in many respects, including the creation of Te Pou Tupua, an office that is “the human face” of the river, and appointment of two persons to speak on behalf of the river and oversee a multi-million dollar fund to support environmental initiatives. However, the intention of this legislation goes beyond just environmental protection.

The River Is Me
The legal status conferred by the Te Awa Tupua Act is distinct from the more familiar idea of corporate “personhood”. While corporations possess a limited subset of the rights and duties of “natural” persons, the intention of the Act is to confer full personhood upon the river that is indistinguishable from the rights of the people who live along its banks. The name of the Act, Te Awa Tupua, is a concept that embodies the unified biophysical and metaphysical elements of the river.

This legislative intent reflects the spirit of the settlement between the Crown and the Whanganui Iwi, as well as the immense significance of the river to their people. The river is celebrated as the ancestor of the Whanganui Iwi, and when Dame Turia spoke earlier this year she shared a saying that captures the importance of the river to the cultural and spiritual identity of the Whanganui Iwi:

          “The great river flows from the mountains to sea. I am the river and the river is me.”

As Gerrard Albert, one of the Māori settlement negotiators explained, “We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”

For the Māori, then, the recognition of the rights of Te Awa Tupua is about much more than environmental protection. The passage of the Act is a step toward reconciliation with the Crown, which has attempted, as well as possible within the bounds of Western law, to recognize the true significance of the river to the Māori.

Mixed Results
There have been other efforts to recognize natural features as persons, with mixed success. A former national park on New Zealand’s North Island, known as Te Urewera, was also granted personhood, and the same process is underway for nearby Mount Taranaki. This past summer, Bangladesh granted all of its rivers legal personhood, though the practical import of that decision is unclear.

The same month that the Whanganui River was granted personhood, an Indian court granted the Ganges and Yamuna Rivers rights as living entities, citing the Whanganui River precedent. However, this decision was overturned on appeal by the Indian Supreme Court, which agreed with the government that the designation was legally untenable in Indian law.

Closer to home, earlier this year voters in Toledo, Ohio passed a citizen-based initiative to amend their city charter to add the “Lake Erie Bill of Rights” that was intended to allow citizens to sue on behalf of the lake when environmental harms occurred. Within months, the Ohio Chamber of Commerce introduced language into an appropriations bill that effectively nullified the Bill of Rights.

It’s unclear what impacts the Bill might have had, had it survived. Beyond its uncertain jurisdictional validity, there’s also the question of whether it would have had any teeth. Legal commentator Richard Lazarus points out that the environmental damage done to Lake Erie stems more from a lack of political will than from the absence of legal avenues for recourse: “There is no lack of legal authority, either federal or state, to address what is clearly an extremely serious public health and environmental issue.”

New Approaches Are Needed
Far more promising in terms of providing meaningful environmental protection is the New Zealand approach. The declaration of the Whanganui River’s status flowed from a long and complex settlement negotiation and reflected a genuine commitment by the Crown to recognize and create space within the legal and political discourse for Indigenous worldviews. Moreover, the status declaration was buttressed by the creation of an office to ensure ongoing representation of the river’s rights and the allocation of money to support its restoration.

It will be interesting to watch the impacts of the framework created by the Te Awa Tupua Act, and to ask ourselves what lessons we as Treaty People in Canada might learn about advancing both environmental protection and reconciliation with Indigenous peoples.

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Erin Burbidge, Board Member