When is a River Not a River? When it’s a Person.
Joe Sellman (2L)
The Whanganui River is 290 km long, making it the third longest river in New Zealand. And as of March 2017, the river is its own legal entity (a legal person).
The Te Awa Tupua (Whanganui River Claims Settlement) Act granted the Whanganui River “all the rights, powers, duties, and liabilities of a legal person.”
In Canada, there are no rivers with legal person status. If, for example, someone pollutes the North Saskatchewan River there are a number of possible legal actions that could be taken:
• If anyone suffered harm from the pollution, then they might be able to sue whoever polluted the river to compensate them for such harm.
• If there are applicable laws, the polluter might face a criminal or regulatory charge.
However, if no law is broken, and no harm is done to any people, then the river remains polluted and there is no recourse, nor is there any way to hold the polluters accountable and return the river to its former condition.
If we take the above example, but substitute the North Saskatchewan River in Canada with the Whanganui River in New Zealand, the river itself could sue the polluter for damage suffered by the river, as the river is now a legal person.
More than just providing a cause of action for the river, granting legal person status enables the river to engage with agencies and statutory processes to represent its own interests.
In reality, it is clear that granting a river legal person status does not change the fact that the river is still a river. That is, the physical river cannot make use of its rights and powers. Instead there needs to be human representation to act on behalf of the river. The Te Awa Tupua (Whanganui River Claims Settlement) Act accounts for this and creates the following structure of governance:
• Te Awa Tupua – is the legal person that comprises the indivisible whole of the river. This includes the full length of the river (from the mountains to the sea), all physical and metaphysical elements of the river, and all tributaries to the river and all connected lakes and wetlands.
• Tupua Te Kawa – this is the essence of Te Awa Tupua. This is the recognition that the river is a source of spiritual and physical sustenance for the environment and the communities along the river.
• Te Pou Tupoua – the human face of the river. This comprises of two persons who are duty bound to act in the interests of Te Awa Tupua, where the interests of the river are understood as Tupua Te Kawa.
• Te Karewao – the advisory group that supports Te Pou Tupou
The act further specifies how the various roles are filled. For example, for Te Pou Tupoua, one person is nominated by the Crown and the second person is nominated by the indigenous peoples of the region. Likewise, Te Karewao is comprised of representatives to be selected as specified in the act.
The Whanganui River is not the only river in the world to have been granted legal person status. Also in March 2017, the Ganges and Yamuna rivers in India were granted the same legal status as people by the High Court in the Uttarakhand state. This decision of the High Court was challenged by the Uttarakhand state government and the High Court decision was overturned by India’s Supreme Court in July 2017. According to the BBC, the state government successfully argued that declaring a river as a legal person was unsustainable. One such example of legal impracticality given was that granting a river legal person status could result in claims against the river, such as for flooding.
Even if there are unresolved liability issues with granting rivers legal person status, it does not necessarily mean that we should dismiss the idea. Firstly, the idea of unresolved liability issues is not unusual in law. Secondly, there are other non-human entities that are granted legal person status, such as corporations. Laws in Canada have been able to adapt to the idea of corporate entities as persons and our legislators and courts have made the necessary adaptations to issues of liability and even the applicability of the Charter, so why could we not do the same for rivers as legal persons?
Furthermore, granting rivers, or other natural entities and other geographical areas, legal person status might offer an effective and useful tool in the protection of the environment as well as reconciliation between the First Nations of Canada and the Government of Canada.