“Some people will say it’s pretty strange to give a natural resource a legal personality,” said New Zealand’s Treaty Negotiations Minister, “but it’s no stranger than family trusts, or companies, or incorporated societies.” Well, it’s a little stranger than that, but I agree with his point.
If corporations can have legal rights (and they do, especially the ones I represent), there’s no reason a society can’t give rights to any other non-human thing. It might or might not be a good idea, and people can and certainly do argue about which rights a thing should have, if any. But the basic theory is fine, and not especially new.
So it is okay, in my view, that the Whanganui River in New Zealand is now legally considered a person.
Here comes the part where I regale you with my extensive knowledge of the historical background to this dispute, knowledge I gained just now on Wikipedia. A Dutch person “discovered” New Zealand in 1642 (it’s named after Zeeland). Turned out there were already people on it—Polynesians called the Māori—although they had “only” been there for maybe four hundred years at the time. If it seems surprising any place on Earth was uninhabited for that long, look at a map and think about how long it’d take you to paddle to New Zealand. (The answer turns out to be “about 3,000 years.”) The next European visitors were James Cook et al., in 1769. Later, after the usual chaos, warfare, and mass death from disease, the British ended up in charge. They did, as usual, sign a treaty with the natives, and, again as usual, “there is no consensus as to exactly what was agreed.” Over the last few decades in particular, there have been a number of disputes and apologies and settlement agreements. This is one of those.
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Anyway, the Whanganui, on the North Island, is the country’s longest navigable river. Most of it is now in a national park, and wow, is that gorgeous. But for several hundred years, it has been the home and eel-fishing grounds of several Māori tribes. According to the bill commentary, it “has a long history of providing physical and spiritual support to Whanganui iwi,” the people of the area, and they have a long history of wanting more control over it.
The Settlement Act does that in the novel way of making the river a person and assigning it guardians. Sections 12 and 14 make it a legal person called “Te Awa Tupua”—not just the river but “all its physical and metaphysical elements”—and that it “has all the rights, powers, duties, and liabilities of a legal person.” Of course, a river can’t actually do anything except flow, and so the bill creates the office of “Te Pou Tupua” to act in its behalf.
This has two officials, one nominated by the iwi and one by the government. The only requirement seems to be the nominator’s satisfaction that any nominee has the “mana, skills, knowledge, and experience to achieve the purpose and perform the functions” of the office. The bill doesn’t define “mana,” but I guess you know it when you see it. I, at least, would fully support making “mana,” or maybe “mojo,” a requirement for nominees here in the U.S. (and maybe the “necessary mojo” should also be a requirement for presidents?). If senators were debating whether Gorsuch “had the mojo” to serve on the Supreme Court, I’d probably watch those hearings.
Those with sufficient mana etc. to serve are given the power to take legal action in the river’s name. The river (and the office) is an entity for tax purposes, although it looks like it’s a charity. It has trademark rights. To the extent the Crown owned a “fee simple estate” (you too can know what that is, if you go to law school) in the riverbed, it is now vested in Te Awa Tupua—so the river now owns itself again, sort of, except for certain listed rights. It looks like fishing rights are not affected, so the river can’t keep people from throwing hooks in it, which seems like an important right for a legal person to have. But again, the actual humans involved in all this can define the rights however they like.
