Can a national park be a person?

Written By: - Date published: 9:00 am, September 6th, 2016 - 17 comments
Categories: Conservation, Environment, Maori Issues - Tags: , , ,

Te Urewera national park has been granted legal personhood, meaning nobody owns it. The park has the same rights and powers as a citizen. The ruling could set a new precedent for land rights and conservation around the world.

The Māori Law Review article on Te Urewera Act 2014,

A new dawn for conservation management in Aotearoa New Zealand has arrived with the enactment of Te Urewera Act 2014.  Te Urewera, named a national park in 1954 and most recently managed as Crown land by the Department of Conservation became Te Urewera on 27 July 2014: “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person” (section 11(1)).  Te Urewera Act is undoubtedly legally revolutionary here in Aotearoa New Zealand and on a world scale.

Why Rights? (from the Community Environmental Legal Defense Fund),

Environmental degradation is advancing around the world. The United Nations has warned that we are heading toward “major planetary catastrophe.”  There is a growing recognition that we must fundamentally change the relationship between humankind and nature.

Making this fundamental shift means recognizing our dependence on nature and respecting our need to live in harmony with the natural world.  This means securing the highest legal protection on nature and sustainability. It means placing the highest societal value on ecosystems and a healthy planet.  Recognizing rights of both humankind and nature to health and well-being helps achieve those legal protections and societal values.

Universal Declaration of Rights of Mother Earth:

Preamble

We, the peoples and nations of Earth:

considering that we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny;

gratefully acknowledging that Mother Earth is the source of life, nourishment and learning and provides everything we need to live well;

recognizing that the capitalist system and all forms of depredation, exploitation, abuse and contamination have caused great destruction, degradation and disruption of Mother Earth, putting life as we know it today at risk through phenomena such as climate change;

convinced that in an interdependent living community it is not possible to recognize the rights of only human beings without causing an imbalance within Mother Earth;

affirming that to guarantee human rights it is necessary to recognize and defend the rights of Mother Earth and all beings in her and that there are existing cultures, practices and laws that do so;

conscious of the urgency of taking decisive, collective action to transform structures and systems that cause climate change and other threats to Mother Earth;

proclaim this Universal Declaration of the Rights of Mother Earth, and call on the General Assembly of the United Nation to adopt it, as a common standard of achievement for all peoples and all nations of the world, and to the end that every individual and institution takes responsibility for promoting through teaching, education, and consciousness raising, respect for the rights recognized in this Declaration and ensure through prompt and progressive measures and mechanisms, national and international, their universal and effective recognition and observance among all peoples and States in the world.

World People’s Conference on Climate Change and the Rights of Mother Earth, Cochabamba, Bolivia, April 22, 2010 (full text)

Moana Jackson on the Bolivian constitution,

In Bolivia you cannot make a decision that infringes on the rights of Mother Earth. If we have a constitution based on the rights of Papatūānuku then we will have no need to protest Statoil, because by its very nature it is infringing the mana of Papatūānuku.

17 comments on “Can a national park be a person?”

  1. Ad 1

    Don’t ask for what you wish for too soon, lest you fall into a whole bunch of unintended consequences.

    Things other than humans have been proposed to have the same rights as humans for millennia. In fact the will to impute even greater power than humans is at the core of our common spiritual impulses and goes back into the earliest moments.

    Projecting our own powerlessness to nature as abasement before sublime power hasn’t worked, obviously.

    The unintended consequences get pretty apparent when you start peaking around the corner. Who would have thought that assigning personhood to corporations would have gone so bad?

    In U.S. Santa Clara V Southern Pacific Railroad, the US Supreme Court set the precedent that corporations are persons under the 14th amendment.

    In the 1978 case Marshall v Barlow, incorporated businesses were grated the same protection human citizens have from Police searches.

    In Citizens United v Federal Election Commission, the court struck down a ban on corporations spending money on behalf of candidates in political campaigns.

    A dumpload of hindsight and unintended consequences. So before we go off with UN declarations, have a go at peeking around the corner of what this would mean in reality.

    • Bill 1.1

      Bad comparison Ad.

      A corporation is a human business construct that, acting in accordance with economic rules, is geared towards hegemony… that we gifted infinite lifespan to.

      That’s entirely different to an eco-system or an area of wilderness/nature or whatever that has no economic incentives and no agency within the business sphere.

      Given that we’ve (western capitalism) viewed nature as some kind of mechanistic object to be used and abused in the interests of profit generation, I’m viewing the assigned ‘person-hood’ as nothing but hugely positive.

      You can’t currently use and abuse other people at a whim to make money for yourself – eg, just chop off that child’s hair to sell to a wig manufacturer or gouge that person’s gold fillings for personal gain. But we can currently do almost anything we want to nature given that we’ve placed the making of money above anything else. (Hell, as far as AGW goes, we’re currently placing profit way above the future viability of our own eco-sphere)

      This legislation addresses to some extent the imbalanced and insane way we view the world and worth and wealth. It might mean that profit can’t be argued as being more important than the integrity of the source the profit is to be derived from – ie, suggesting that the child’s locks ought to be taken in the name of profit (and anyway, they’ll grow back).

      That’s essentially been the way business has argued in favour of exploitation. Now, I guess, the goal posts have shifted. So exploitation of a natural resource becomes couched in terms not at all different to those surrounding that child’s head of hair.

      • Ad 1.1.1

        Nature is also a human construct. So it’s entirely relevant.
        Law is also a human construct. So it’s entirely relevant.
        How personhood is defined is a human construct. So it’s entirely relevant.
        And we take more and more of our legal guidance from the US Supreme Court rather than the British.

        I don’t see announcing an imagined global juridical order with no framework other than defining it as an absence is useful. Terra nullius is pretty similar as a concept, and that didn’t work out too well a few hundred years ago in our nearest neighbour.

        • weka 1.1.1.1

          Myself, I’m not convinced that personhood is the best way to go, but it may be the pragmatic thing to do, because it frames things in ways that the Western mind set can cope with. Getting Westerners to see themseves as part of nature again is a big problem, and this framing may be the most expedient, which is important given the whole climate change thing.

          “Nature is also a human construct”

          And that’s a great example. The hubris in that comment is stunning enough, but it’s the power and control issues behind it that are probably more concerning. Let’s just say that most human cultures historically haven’t considered nature to be something humans invented, so you’re positing a particularly abstract and unusual concept there. A self-serving one too, given the context.

          • Ad 1.1.1.1.1

            Personhood is also a human construct.
            There’s no way around the ‘self-serving’ hubris of your own humanity.
            Lots to argue about in your last paragraph.

            Given our dominance of the earth, it would be better to have the old RMA apply to every country across the earth. That’s as likely to happen as anything you’re proposing, but still more useful.

        • Bill 1.1.1.2

          Sure Ad. All ideas and concepts that we can possibly have are ‘human constructs’.

          That banality aside, what I said in relation to your comment was that a corporation is a human business construct. And that the fact it’s a business model leads to all types of priorities, assumptions and dynamics that are tied to the idea of something as a business.

          Terra nullius was a green light for people, or a specified group of people, to do as they damned well pleased. Assigning legal personhood to nature stops similar bullshit in its tracks.

        • Murray Simmonds 1.1.1.3

          “Nature is also a human construct. So it’s entirely relevant.”

          Yeah???

          So that means – like – “Nature” wasn’t already here on earth long before the human being evolved???

          Interesting point of view – – Nothing exists outside of the human head?

          No doubt the philosophers have a term for this kind of reasoning, but I, for one, don’t buy into it.

          • Bill 1.1.1.3.1

            I blame those French Stalinists and their rush for relevance compelling them to come up with a pile of ‘post’ type flim-flams – eg, post modernism, deconstructionism or whatever they call it and other….stuff.

            I’d buy the notion that the thing we ascribe the name to was there before us and will persist (common sense) and that the term ‘nature’ with all its subjectivity is what Ad was really referring to.

            Then again. Maybe he’s from Akaroa 😉

    • weka 1.2

      “Who would have thought that assigning personhood to corporations would have gone so bad?”

      Um, anyone with half a brain.

      As Bill says, the comparison between Nature Rights and corporations having personhood is not useful or valid because they’re such different things.

      You appear at best to be saying that giving personhood to anything that isn’t human might be a problem, and that there might be unintended consequences. I’m pretty sure those are the arguments used for human rights too (giving women the vote was going to cause all sorts of problems). How about you be a bit more specific.

      The point of the post is to get people thinking about what Nature Rights might be, why they might be a good idea, how we might do that etc, not to just go oooh, scarey thing over there.

      “Things other than humans have been proposed to have the same rights as humans for millennia.”

      Leaving aside the problem with the word ‘same’ there, yes, many human societies historically have had a different relationship with nature. Native peoples tend to see themselves as part of nature, that all of nature has inherent value, and that the relationship is one of reciprocity and respect. It’s not about wanting to impute greater powers than humans, it’s about understanding how things work. Power relations 101, it’s about time we thought about that in terms of nature, thanks for bringing that up.

      • DoublePlusGood 1.2.1

        “Who would have thought that assigning personhood to corporations would have gone so bad?”
        W.S. Gilbert, for one, in the light opera Utopia Limited. The absurdity of that idea is thoroughly lampooned.

      • Ad 1.2.2

        “Anyone with half a brain”. And still you didn’t get the analogy. Nevermind.

        To me what you are proposing is a globalisation of a kind of law. The world appears to be running away from such globalisation of juridical order as quickly as it can. Law for me is all about the force behind it – otherwise it’s just words. Maybe states and kingdoms won’t solve our relationship with the earth, any more than corporations, but neither will blithely assigning the earth personhood.

        The best chance our version of humanity had of such a redefinition of our relationship with the earth was immediately after World War II during the formation of the United Nations. Instead of of a rights framework based upon common need, rights were generally framed in terms of constraints upon the physical person. That rights framework remains inescapable, and it simply doesn’t work.

        The second best chance was during the negotiations over the Antarctica Treaty that came into force in 1961. Previously lots of countries including New Zealand had claims over it. But we all agreed to give those up – and now it exists in some none-state state. That’s a set of treaties that didn’t require anything so nebulous as an alteration in global personhood.

        The next part of a problem is the instrumental force needed to defend and sustain this new concept over land. Most absences don’t last in this world. without hard force to sustain them. Might be fine for the Uruweras, but not many other places.

        I think this legal idea from the Uruweras is only ever going to be applicable to tiny states who are largely immaterial to the functioning of the world, and who have large tracts of non-degraded land, and who also have forceful groups of people who can step out of the machine of the world.

        Otherwise, there are faster and more effective means of holding us to common account with a massive area of wilderness. They are called National Parks.

        • Bill 1.2.2.1

          If this was adopted elsewhere….no more need for people to camp out in a national park in the US to identify and catalogue an endangered species in order to build some case against a profit seeking enterprise.

          The onus would shift to those seeking the profit to justify their project on the same grounds as would apply to a natural person. And that’s a fucking powerful legal position from the perspective of any nature under threat from profit seeking businesses.

          Go a step further and consider general government inaction on AGW. Assigning personhood to nature is a big bloody stick to beat them with in the courts…I guess charges of negligence (of this legal person – nature) could be drawn up without too much difficulty. Maybe some variant of assault and battery as well? Perhaps even a murder charge or two…

  2. Bill 2

    Excellent and long over-due!

  3. McFlock 3

    I tend to agree with Ad.

    This is a rather pointless legal fiction that simply provides fodder for lawyers who will be paid by people with rich pockets. Nature or a park have even less agency than a “corporation”. I mean legal or social agency, not to be conflated with any metaphysical analogies or beliefs.

    Basically, how will actions be taken to protect this “person’s” rights? What about rights to exchange its assets for benefit? Will lawyers claiming to act in the interest of this “person” end up arguing that this park has a right to divest itself of some old-growth native timber? Will it be “represented” in trust by some board of tory notables who charitably offer their time to make such decisions for this “person”? Will this “person” be required to file a theft report if someone nicks wood or minerals from it, or grazes cattle illegally?

    If the weather turns and a tramper dies, will this “person” be charged for workplace safety violations? Can it be sued? If this person becomes bankrupt, will it be a victim of its own choices? Is this legal fiction a sneaky path to de facto privatisation, or is it a shield behind which the government can avoid its obligations? Will it become these things?

    I’m all for environmental preservation being a central platform for policy and commercial controls, and I love our national parks and reserves, but this is just paperwork. Nobody knows what the final objective might be.

    • Bill 3.1

      What about rights to exchange its assets for benefit?

      It does this. We call it the life cycle.

      Will lawyers claiming to act in the interest of this “person” end up arguing that this park has a right to divest itself of some old-growth native timber?

      Again. Forested areas already do this through the process of decay.

      Will it be “represented” in trust by some board of tory notables who charitably offer their time to make such decisions for this “person”?

      Well, as alluded to above, unless they can successfully argue that nature is a frustrated capitalist entity, then who the fuck cares?

      Will this “person” be required to file a theft report if someone nicks wood or minerals from it, or grazes cattle illegally?

      As with natural people, it’s the authorities who pursue crimes committed by one against another (whether reported by the victim or another)

      If the weather turns and a tramper dies, will this “person” be charged for workplace safety violations?

      Ain’t a workplace.

      Can it be sued? If this person becomes bankrupt, will it be a victim of its own choices?

      it has no financial assets or monetary worth. That answer those ones sufficiently?

      Is this legal fiction a sneaky path to de facto privatisation, or is it a shield behind which the government can avoid its obligations? Will it become these things?

      It’s intended to prevent ownership, no? I think it probably does that better than those who agreed to this reckon. Not privatisation. Not a shield for government to hide behind – more a stick for government to be whacked with.

      • mikes 3.1.1

        “Not a shield for government to hide behind – more a stick for government to be whacked with.”

        Except government creates statutes so what will matter is any statutes created specifically regarding these new legal entities.

      • McFlock 3.1.2

        What about rights to exchange its assets for benefit?

        It does this. We call it the life cycle.

        Your comment is exactly the sort of conflation that I was talking about. Some rich prick hires lawyers to persuade the court that the “person” really would be cool with losing a bunch of ugly old trees in exchange for cash paid to a random greenwashing trust, we’d call it “legal”.

        Doc workers maintain huts. Sightseeing helicopter pilots are paid. So parks are a workplace. Parks have lots of assets and monetary worth – they just need to be logged/mined/stripped/hunted/fished or built on. So they can be sued, and privatised that way.

        How does it prevent ownership? All it does is create an entity that can be sued, removes the government as an active preserver of this “person’s” rights, the cops already fail to prosecute crimes against real people (let alone imaginary “people”), and so on.

        To whack the government with a stick requires two things: a stick that has no agency, and a real person to hold it. If you call the stick a person, it’ll just lie on the ground and rot.

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