Places as Persons: Creating a New Framework for Māori-Crown Relations
Forthcoming, Jason Varuhas (ed), “The Frontiers of Public Law” (Hart Publishing, 2019)
30 Pages Posted: 24 May 2019
Date Written: April 29, 2019
In 2014, an Act of the Aotearoa New Zealand Parliament recognised the 2,127 square kilometre former Te Urewera National Park as being a ‘legal entity’ possessing ‘all the rights, powers, duties, and liabilities of a legal person’. In March of 2017, another enactment acknowledged the country’s 300-kilometre-long Whanganui River as ‘a legal person [with] all the rights, powers, duties, and liabilities of a legal person’. In late 2017, the Crown and Taranaki Māori signed a record of understanding that Parliament will in the future legislate to grant the 2,518-metre-tall Mount Taranaki/Mount Egmont legal personhood. By virtue of these legislative acts, the various geographic entities gain an independent existence in the eyes of the law. Rather than being mere Crown or public property, they own themselves. They are deemed to be holders of their own rights, which may be asserted in legal proceedings and other fora. In short, they are no longer ‘things’ over which human beings exercise dominion; they are ‘persons’ with which humans have a relationship.
The question, then, is why did Aotearoa New Zealand’s Parliament make the decision to grant legal personality to these natural features in order to reflect the ‘cosmological view’ of Māori? Our answer in this chapter is fundamentally constitutional in nature. Recognising personhood broke a deadlock between the Crown and some individual Iwi when settling historical pre-1992 injustices within the context of the Treaty of Waitangi. It was thus a form of principled compromise that permitted redress for the extensive Crown breaches of the Treaty, whilst creating the basis for a new future relationship. But beyond permitting a solution to historical injuries, the legal recognition of these places-as-persons also changes the way in which they are conceived of by the majority Pākehā nation and how all citizens will interact with them in the future. In part, this change will come from the different stewardship arrangements that have been established to speak for these now-persons and to safeguard their interests. That change also will reflect the fact that a legal shift in what these entities are seen as being – a move from conceiving of them purely in state law as instrumental things to persons with which an ongoing relationship exists – will alter how human interactions with them take place. That is to say, the inclusion of these places as persons within the web of laws and practices that govern Aotearoa New Zealand inevitably will make a difference to how those laws and practices operate in relation to those places beyond the norm of conservation law.
Keywords: rights of nature, indigenous rights, Māori, legal personality, constitutional development, Whanganui River, Te Urewera
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