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A River in New Zealand Gets a Legal Voice

The Whanganui River in New Zealand. Credit: James Shook, Wikimedia Commons

 

It speaks the language of riffles and babbles, not legal rights and codes, but the Whanganui River, New Zealand’s third largest, has received something no other river in the country – and possibly the world – yet has: a legal voice.

In a framework agreement signed last week between the Crown and the Whanganui River iwi (the local Māori people), the river will be recognized as a person when it comes to the law, much the way a company is.

In one of New Zealand’s longest running court cases, the iwi won for the river the status of an integrated, living whole, Te Awa Tupua, with rights and interests.  Two guardians, one appointed by the iwi and the other by the Crown, will protect those interests.

Coming four years after Ecuador’s new constitution granted legal rights to rivers, forests and other natural entities, the New Zealand agreement may give further impetus to the idea that nature has rights that should be legally protected, just as people do.

In most legal systems today rivers have no rights at all.  In legal parlance, they lack “standing” – the ability of a party to bring a lawsuit in court based upon their stake in the outcome.

In 1972 legal scholar Christopher D. Stone argued in his famous essay, “Should Trees Have Standing?”, that rivers and trees and other “objects” of nature do have rights, and these should be protected by granting legal standing to guardians of these voiceless entities of nature, much as the rights of children are protected by legal guardians designated for this purpose.

Stone’s argument struck a chord with U.S. Supreme Court Justice William O. Douglas.  That same year, Justice Douglas wrote a dissent in the case of Sierra Club v. Morton, in which he argued for the conferral of standing upon natural entities so that legitimate legal claims could be made for their preservation.

The river, Douglas wrote, “is the living symbol of all the life it sustains or nourishes—the fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it.”

As river after river runs dry and as more and more species lose their habitats and homes, the ethical implications of our water decisions beseech us to engage in this conversation.

A legal voice for rivers might sound extreme.  But, really, what is more extreme than a river deprived of water?


Note: Christopher Stone‘s essay was originally published as a law review article in 45 S. Cal. L. Rev. 450 (1972).

Sandra Postel is director of the Global Water Policy Project and lead water expert for National Geographic’s Freshwater Initiative.  She is the author of several acclaimed books, including the award-winning Last Oasis, a Pew Scholar in Conservation and the Environment, and one of the “Scientific American 50.”

Comments

  1. Jackie Hookimaw Witt
    Attawapiskat, Ontario Canada
    October 24, 2013, 3:53 pm

    Very interesting article. I wonder if such a law exists in Canada as well? Does anyone know?

  2. Touchais
    France
    March 13, 2013, 12:01 pm

    Please remind a few history : Adolf Hitler passed 3 laws in 1933 providing legal personality to wild animals and Rhin’s landscapes… I am not saying deep ecology is pre-fascist but that there is other ways to protect natural ressources.

  3. click here
    January 15, 2013, 3:33 pm

    Woah this blog is fantastic i like studying your articles. Stay up the good paintings! You already know, many individuals are looking around for this information, you can aid them greatly.

  4. Alan Campbell
    United Kingdom
    October 11, 2012, 3:31 am

    When the river floods and damages property can the people can now sue the river.

  5. khalil akar
    london
    October 10, 2012, 11:03 am

    Good day Sandra, i am an undergraduate at Brunel university in London and i am currently writing my dissertation on water scarcity. I am reading your book The Last Oasis and i was wondering if there was a way i could ask you a few questions? Your help is much appreciated. Thank you

  6. Joost Roberts
    the Netherlands
    September 19, 2012, 8:42 am

    I am preparing a Phd-study on decentralization of water resource management from a comparative legal perspective and I would like to point out that in South Africa rivers (which includes the riparian habitat) have a Right under the National Water Act 1998 on a certain quantity and quality of water, which is called the ecological Reserve. Nature can carry rights, although nature can’t speak out for itself and put forward a legal action to secure its rights.

    • Sandra Postel
      September 19, 2012, 10:04 am

      Yes, South Africa’s Reserve, which prioritizes meeting the basic water needs of people and ecosystems over other (e.g., industrial, agricultural) water allocations, broke new ground in water policy and ethics. As you point out, however, it does not do what this Maori-Crown agreement does, which is to give a legal voice to a river.

  7. Louren Pohatu
    Chirstchurch, NZ
    September 17, 2012, 4:02 am

    I know this scenic point very well. Each time I visit Whanganui I always go up the river, stop at the point, look out at the beauty of ‘my’ awa and know I am home.
    Te Awa Tupua, there is hope for the rest of New Zealand’s water ways.
    “ko au te awa, ko te awa te au” – (I am the river and the river is me).

    • Sandra Postel
      September 17, 2012, 9:22 am

      Especially after such beautiful comments as yours, I hope someday to visit the Whanganui myself. Thank you, Sandra

  8. Jim Olson
    Traverse City, Michigan
    September 15, 2012, 11:57 am

    Thank you for posting. The closest the U.S. has come to “legal rights” for nature, like rivers, is the citizen suit law first passed in Michigan, then in several other states and a few years later embedded into federal laws like Clean Air Act and Clean Water Act. Citizen suit laws, like the Michigan Environmental Protection Act, have granted citizens the right to “stand in” for rives, lakes, and trees to prohibit conduct likeliy to pollute, impair, or destroy air, water, natural resources or the public trust in those natural features. Professor Joe Sax (MIchigan and California) won the Blue Planet prize a few years ago for these laws. Unfortunately, several ideologicaly driven courts, including Justice Scalia led efforts on U.S. Supreme Court and a cloned effort by Michigan’s Court, have tried to gut the standing based on misplaced notions of separation of powers and a lack of understanding how real and actual a controversey over lakes and rivers is. But as important and meaningful these citizen laws are, including the body of judge made law that has evolved in the last 40 years, it takes a constitutional amendment and implementing agreement like the one for Whanganui River to bring home the reality of rivers and nature to our everyday commons and quality of life. It brings respect for nature, and shifts the burden on to those who would seek to alter her. The closest chance we have to this without constitutional amendment or legally enforceable agreements and laws, is the common law public trust doctrine, which is ancient and tied to nature as commons, and recognizes some commons as held in trust for all, demanding respect by law and shifting of the burden of proof. This of course is espcially so for water as human right and public trust, but given climate change and hydrological ciycle, all of water is one with the atmosphere and vapors, so it should be viewed more broadly. Thank you, again, for the post.

    • Sandra Postel
      September 17, 2012, 9:17 am

      Jim, thank you for this thoughtful and informative post. I know you’re on the front lines of these issues here in the US, and I so admire and appreciate the work you do. – Sandra

  9. Engr. Cristy G. Gallano
    Davao River Basin, Davao City, Philippines
    September 13, 2012, 7:52 pm

    This concept is worth “copying”. This is a first step to give space for water.

  10. arash
    Ir
    September 12, 2012, 12:44 pm

    when rights of a given river recognized by human courts, the question is: what is river’s nationality? which international court will respect whole upstream , downstream river, in 2 countries ?
    what is the list of rights?(for example; the right to flow, not being polluted,….)

  11. Robin Milam - Global Alliance for the Rights of Nature
    California USA
    September 10, 2012, 6:18 pm

    The Whanganui agreement recognizing the rights of the river is very encouraging. Congratulations to the iwi and the Crown for this significant step.

    As Dr. David Boyd notes, Ecuador recognizes Rights of Nature. In the United States dozens of communities including the City of Pittsburgh, PA have passed local ordinances that give standing to natural ecosystems recognizing Rights of Nature.

    To read more about the expanding global Rights of Nature movement, visit the Global Alliance for Rights of Nature at http://therightsofnature.org/.

  12. Dr. David R. Boyd
    Pender Island, BC, Canada
    September 10, 2012, 12:00 pm

    While this is certainly an inspiring development, it is not the first legal recognition of the rights of a river. Last year an Ecuador court recognized the legal rights of the Vilcabamba River, as set forth in the rights of nature section of Ecuador’s Constitution. These events are a welcome incorporation of Indigenous law into western law, and a vital step towards a sustainable future.

  13. Ross Chambers
    Sydney Australia
    September 7, 2012, 2:28 am

    ..,and James K Baxter is a child of the river, perhaps.

    RIP Hemi.

  14. Siena
    Aotearoa (New Zealand)
    September 5, 2012, 4:22 pm

    Kiaora Sandra. You are most welcome. I thank you for acknowledging a ‘A River in New Zealand Gets a Legal Voice’.

    It means so much to my people I am sure, to be acknowledged by National Geographic.

    Hei kona ra (Have a nice day).

  15. Sandra Postel
    September 5, 2012, 10:52 am

    I can’t thank you enough for taking the time to write about the Māori relationship with water in its various dimensions. Hei kona, Sandra

  16. Siena
    Aotearoa (New Zealand)
    September 5, 2012, 2:56 am

    Kiaora (Greetings) from the Land of the Long White Cloud (Aotearoa).

    In traditional Māori knowledge, wai (water) is classified in a number of ways. Some of these categories include:

    Te Mauri (the lifeforce) of evey Maori is their natural resource, Nga AWA (Rivers). WAI (water), he waiora (to sustain life), he waitapu (sacred water, waters used for ceremonial purposes), he waimāori – ( pure water, water rich in mauri, used for cleansing and for ceremonial purposes), he waimanawa-whenua – (water from under the land).

    All cultures have been fascinated by water – its moods, nature, strength and tranquility. Like fire, water is a crucial life-giving element that is also destructive. Sages have used water to guide and predict human behaviour, or for ritual purposes, believing that its cleansing properties reach beyond the physical plane of human existence.

    The spiritual plane

    In Māori culture, many tribes directly or indirectly consider water as the source or foundation of all life. This is reflected in traditions which speak of te taha wairua, often translated as ‘the spiritual plane (of existence)’.

    The term te taha wairua is widely used to refer to the ‘real world’, which lies both behind and within the world of normal experience. Much of life, according to the traditional world view, is concerned with coming to see, experience and understand the interplay of this ‘real world’ with our more limited everyday life. Te taha wairua can literally be translated as ‘the dimension of two waters’, a conception that likens spirituality to water.

    Our whenua and all contained therein are a part of our WAIRUA (sacred spiritual being) .

    We as their kaitiaki (Guardians) have been charged with the responsibility to care and nurture these sacred resources for the generations that are here now and those yet to be born.

    Hei kona. (Stay well)