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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 THE WHANGANUI RIVER AS A LEGAL PERSON ABIGAIL HUTCHISON 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. Context 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 REFERENCES 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 ua-TeManaOTeAwaTupua.pdf>. 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/ Record%20of%20Understanding%202012. pdf>. 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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