Can we successfully endow nature with a legal personality, or is this another framework to create another absurd fiction. There is a well established legal and regulatory framework for protecting natural resources, benefiting the appointed guardians and armies of wealthy lawyers. The strength of this framework is, that it creates a balance between the interests of both people and the environment. While measures are already in place to protect the environment, nature needs all the protection it can get. Our consumer orientated structure of economic growth at all costs, is hardly helping. The current outlook for policies to look after nature doesn’t look very promising. Can another “out there” proposal of Legal Personality help nature more?
(A legal definition of legal personality first) The legal personality means to be capable of having legal rights and duties within a certain legal system. Such as to enter into contracts, sue, and be sued. Legal personality is a pre-requisite to legal capacity. It’s the ability of any legal person to amend rights and obligations. Legal persons are of two kinds: natural persons – people – and judicial persons – groups of people, such as corporations, which are treated by law as if they were persons. While people acquire legal personhood when they are born. Judicial persons do so when they are incorporated in accordance with law. ( Definition and translation)
A tree or a river with a legal personality.
A river has been granted the same legal rights as a person in New Zealand. Parliament has now recognized the Whanganui River on the North Island, as a living entity. Long revered by New Zealand’s Maori people, the river’s interests will now be represented by two people, one member from the Maori tribes, known as iwi, and one from the Crown, this recognition allows it to be represented in court if need arises. This was in March this year and only two weeks later, the Indian state of Uttarakhand gave the Ganges river and it’s main tributary, the Yamuna river, the status of living human entities, with legal personalities. Henceforth, polluting or damaging these rivers, will be the legal equivalent to harming a person.
One week after declaring the rivers Ganges and Yamuna as legal persons. The rivers, streams, rivulets, lakes, meadows and jungles in other areas were also named as legal persons. The friends of the earth Australia, are saying that granting legal personality to the great barrier reef will have little effect on the way the reef is run. The great barrier reef authority, will still oversee everyday activities on the reef. While tourists will continue to enjoy the beauty of the reef. The main difference would be, that the trustees would have the power to enforce the reef’s rights, if these were not respected by government. The courts findings in the Indian case, noted, that past generations handed the earth to us in it’s pristine glory and we are morally bound to hand over the same earth, to future generations.
Natural resources with legal personality.
I know the initial inclination of some people is to say it’s pretty strange to give a natural resource a legal personality. But it’s no stranger than family trusts, companies or incorporated societies. (That’s the words of New Zealand’s treaty negotiations minister Chris Finlayson.) This recognition gives the river the same rights, as individuals in court proceedings. We recognize companies as persons, so we make contracts with them. Now we recognize a river as a person, so we don’t have to fight about who owns it. With sweeping implications for our modern system of laws, that give corporations more rights than people and nature, having very limited rights.
Our human existence depends on the health and well being of our living earth. And the existence of corporations depends on the wealth and well-being of human society. In our “hunter gatherer past” living in balance with nature was easier, and our dependence was self evident. Now we have reached and exceeded the limits of the earths capacity. Should the fact of our dependence, once again be self evident. The recognition of the river in New Zealand and a few others at this stage, represent a neat compromise in removing the fraught questions of ownership, from the picture. Instead focusing on the legal personality of the river and how best to manage it. I’m sure many other groups will be looking at this decision very closely.
Objections to legal personality.
If other legal personality cases were successful, could it result in nature competing with humans for access to resources, water, grazing, air and forestry. Shifting our relationship and undermining some human intentions to look after nature. What are the rivers liabilities to a person who’s land has been flooded? Could health and safety prosecute the river if I fell in and got sick, or it may be said the river wasn’t employing anyone to be there in the first instance? After all the river has a legal personality now, not just a natural one. Significant as the New Zealand action is, it represents a first step on the ladder. But lets hope it represents the first step of rethinking and restructuring our current systems of law regarding nature.
The anomalies created by giving a river the rights and liabilities of a living person could help. Or is this policy of legal personality logically flawed? offering little benefit to nature, risks harming people and is wide open to abuse by lawyers and vested green interest groups. Finally does it matter at all who benefits, as long as nature wins in the end.