39 Alternative L.J. 179 (2014)
The Whanganui River as a Legal Person

handle is hein.journals/alterlj39 and id is 185 raw text is: ARTDCLES





he Whanganui River in New Zealand will be
granted legal personhood status when the
Whanganui Iwi Deed of Settlement is passed
into law. The river's transformation from property to
a legal person has reconceptualised the legal person.
It has pushed the boundaries of our understanding
of what is regarded as property and what is not. This
article examines the transformation of the river from
property to an entity with legal personhood status and
discusses how the river's legal personality has created
a new category of legal person beyond the natural
person and the corporation. First, the article discusses
how the river's new legal personhood status challenges
the anthropocentric view that the legal person should
be confined to humans, and argues that because the
legal person is a legal fiction it can be applied to non-
human beings also. Second, the article discusses how
society's values dictate what is given legal personhood
status and what is seen as property. Third, it argues
that the traditional Maori relationship to the river
is responsible for the change in society's values and
demonstrates how the Maori worldview characterises
the legal personality of the river. Fourth, the article
discusses the concept of corporate personality in an
attempt to define the river's new legal personhood.
Finally, the article considers whether the river's
personhood status, capable of having rights and duties,
will have sufficient strength to prevail over any other
property interests in the river.
On 5 August 2014, the New Zealand government
and representatives of the Whanganui Iwi signed
Ruruku Whakatupua (Whanganui Iwi 'Deed of
Settlement')', which will grant the Whanganui River
legal standing. The Deed of Settlement comprises
two documents, Ruruku Whakatupua - Te Mana o Te
Awa Tupua ('Framework Document'), which contains
the agreed terms of a new legal framework for the
river, and Ruruku Whakatupua - Te Mana o Te Iwi o
Whanganui, which includes the other elements of the
native title settlement.2
The river does not yet have legal personhood status.
While the Deed of Settlement has been signed by
the Whanganui Iwi, it must still be passed into law by
the NZ Parliament.' Only then will the river gain legal
personhood status, and therefore legal standing. The
Framework Document for the river states that the river
has the rights, powers, duties and liabilities of a legal
person.4 Therefore, the river will be able to enforce

its own legal rights against other legal persons through
various enforcement procedures in New Zealand law.'
The river has been the subject of a long-standing
native title claim by the Whanganui Iwi who claim
possession of the river's resources and rangatiratanga
(chieftainship or ownership) over the river.6 The Deed
of Settlement will form part of the settlement of the
historical Treaty of Waitangi claim of the Whanganui
Iwi. The act of granting legal personhood status
to the river seeks to compensate the Whanganui
Iwi for grievances against them by the settlement
of Europeans in New Zealand, but is also brought
about by concern for the river's health and the desire
to preserve the resource for future generations of
Whanganui Iwi and the New Zealand community in
general.7 The Framework Document outlines that
the river's interests will be represented by Te Pou
Tupua (the guardians or human face of the river). One
person will be appointed by the Crown and the other
by the Whanganui Iwi. The guardians will be guided
by a list of values (Tupua te Kawa) when acting in the
river's interest, which are outlined in the Framework
Document.8 The values make it clear that the creation
of a legal personality for the river is intended to
reflect the Whanganui Iwi view that the river is a living
entity in its own right and is incapable of being owned
as property in an absolute sense.
Legal personhood
The granting of legal personhood to the river is the first
example of extending the legal personhood category
to a non-human and inanimate object.9 By granting the
river legal standing the river is no longer an object, but
has been transformed to a legal person which has rights
and duties itself and which can enforce these rights
against other legal persons. With the exception of New
Zealand's new legal personhood category, the legal
person has been confined to the natural person and
the artificial person, the corporation. New Zealand's
act of granting legal personhood and therefore standing
to a non-human entity prompts an in-depth discussion
of how the legal person has been defined by law, and
the restrictions which have prevented the extension of
legal personhood to anything, beyond the corporation,
which is not human.
The discussion about legal personhood, and what
should be given legal standing, has been defined by
the anthropocentric understanding of society and law.
Indeed, discussions around what should be given legal
personhood status do not go beyond a discussion of

I. The Office of Treaty Settlements, Ruruku
Whakatupua Te Maa 0 Te Awa
Tupua (2002) Office of Treaty Settlements
<http://nzO I .terabyte.co.nz/ots/Docum
entLibrary%SC I 4080SRurukuWhakatup
2. Ibid.
3. Ibid.
4. Ibid 2.3.
5. Brian Bix, Jurisprudence Theory and
Context (Carolina Academic Press, 6th ed,
2012) 132.
6. Thomas Faunce, 'Planetary Medicine and
the Waitangi Tribunal Whanganui River
Report: Global Health Law Embracing
Ecosystems as Patients' (2013) 20 journal of
Law and Medicine 528, 529.
7. Whanganui River Maori Trust
Board, Record of Understanding (2010)
Whanganui River Maori Trust Board
<http://www wrmth.co.nz/newupdates/
8. Ruruku Whakatupua - Te Mano a Te Awa
Tupua, above n 1, 2.1.
9. While in September 2008 Ecuador
recognised the rights of nature in its
constitution, and the rights of nature
were recognised at the World Peoples'
Conference on Climate Change and Rights
of Mother Earth, neither has specifically
granted legal personhood to nature or a
natural object within nature.

AItLJ Vol 39:3 2014- 179

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