Jamie Whyte thinks it is "legislative lunacy" for Parliament to recognise the Whanganui River as being "a person". Once again, it appears Jamie Whyte doesn't really know much about that of which he speaks.

In an opinion piece published on Monday, former Act Party leader Jamie Whyte decries what he sees as Parliament’s recent “legislative lunacy” in conferring personhood status on the Whanganui River. 

Sure, he admits, our law already deems all sorts of other things to be “legal persons”, with the attendant rights and duties this status entails. Companies. Ships. Even New Zealand as a nation.

But, Whyte argues, in each of these cases there’s a sound practical reason for such recognition. Doing so “solves the problem” involved with trying to deal with an entity made up of lots of different members, or where the individual filling an office may change.

By treating the thing, office or entity as if it were a person like you or me the law enables consistency and certainty over time. We know that when we interact with a company or a trust or other legal person that its rights and duties will remain the same no matter if the particular individuals involved with it change.

With a river, Whyte claims, there’s no equivalent “problem” to be solved. Instead he implies that the grant of personhood simply panders to some odd Maori worldview regarding the Whanganui River’s metaphysical status.

The fault with Whyte’s analysis is that it ignores the background circumstances to Parliament’s action. The declaration of personhood status actually does resolve a very real practical problem.

Because if the Whanganui River is not a person, then it is a thing. And if it is a thing, who owns it?

The traditional answer under our common law would be that no-one does, as no-one owns water. And with regard to the bed of the river, the Crown does because legislation says so.

Back in 1999, however, the Waitangi Tribunal issued a lengthy report that fundamentally undermined this answer. Maori had, and continued to claim, interests in the water of the Whanganui River that equate to ownership. And our common law recognises that such claims can establish a “native title” to a resource, even water.

In addition, Maori possessed and continued to assert rights of ownership over the Whanganui River bed. Those rights had been unilaterally overridden by legislation without any discussion with Maori, breaching Treaty guarantees.

Consequently, under both common law principles and the Treaty of Waitangi, Whanganui Maori had a very real claim to be recognised as being the owners of the Whanganui River.

So the subsequent negotiations between Maori and the Crown over remedying historic wrongs took place against a backdrop where the Waitangi Tribunal recommended that the Crown recognise Iwi as having ownership rights over the Whanganui River. Which was not something that the Crown was eager to do.

In that context, legislative recognition of the Whanganui River as a person in its own right represents a neat compromise. It removes fraught questions of “ownership” from the picture, instead focusing Maori and the Crown on the joint business of how best to manage the river.

The case of Te Urewera demonstrates even more clearly that the conferral of personhood can help compromise an otherwise intractable conflict. Since 2014, legislation has deemed the former Te Urewera National Park to be a “legal entity [with] all the rights, powers, duties, and liabilities of a legal person.”

However, this only occurred after then-Prime Minister John Key in 2010 reportedly vetoed a proposal to transfer title to the park from the Crown to the Ngai Tuhoe Iwi. Apparently, he was concerned at the likely political response to giving ownership of a National Park over to Maori.

Thus, the compromise of declaring Te Urewera to be in effect the owner of itself, with management and oversight by a joint Crown-Iwi board, was reached.

It is true these compromises can only work because they are consistent with a Maori worldview that does not see natural resources as things to be owned, but rather entities in their own right with which people interact. Treaty Negotiation Minister Chris Finlayson is right to note that for Maori, “their geographic region is part and parcel of who they are.”

But they also work because the legal traditions inherited from the United Kingdom are flexible enough to incorporate new ways of thinking about our world and how we relate to it. We recognise companies as persons so we can make contracts with them. And we recognise a river as a person so we don’t have to fight about who owns it.

(May I just point out here that this legal flexibility and the way it could be used to move past the thorny question of ownership was noted back in 2010 by my colleague at the Otago Law Faculty (and, probably more importantly, my wife) Professor Jacinta Ruru. You should go read what she and one of her students said about it here.)

I guess that Jamie Whyte may still regard this problem-solving approach as being ludicrous and unprincipled. In which case, I am sure that Maori would tautoko his korero in support of giving them full ownership rights over the places concerned. For after all, surely his classical liberal philosophy would never countenance the State continuing to claim ownership of property that was forcibly and unwillingly taken from its original owners?

Comments (28)

by Moz on March 20, 2017
Moz

surely his classical liberal philosophy would never countenance the State continuing to claim ownership of property that was forcibly and unwillingly taken from its original owners?

You're a funny little man, Prof Geddis. The delusion that others might try to be consistent just because you try to be will be the death of you.

Ken Parish in the NT is part of a group suggesting an agreement between the NT governemnt and various tribal groups to solve similar problems there. I have pointed out that it is likely to be less a solution and more just a positive change. You might find it interesting to read some of the detail. Or not, but anyway, link: http://clubtroppo.com.au/2017/03/16/what-might-a-treaty-look-like/

by Antoine on March 21, 2017
Antoine

There was a problem in the way in which the original announcement was communicated. Various media (including the BBC) did not seem to understand that the river was being made into a _legal_ person, instead seeming to think it was being given the status of a _natural_ person.

(See e.g. http://www.bbc.com/news/world-asia-39282918, which is where I first found out about it. "A river in New Zealand has become the first in the world to be granted the same legal rights as a person. The New Zealand parliament passed the bill recognising the Whanganui River, in North Island, as a living entity.")

A.

 

by Jamie Whyte on March 21, 2017
Jamie Whyte

Of course I know the history of this legislation and that it is designed to resolve a persistent conflict between the Crown and iwi. When resources are unowned, and people have compting interests in them, conflict is inevitable. Creating tradable rights over the the river would have been the best solution -- perhaps with iwi having initial ownership. Instead, parliament has effectively said, "OK, OK, let's not do with the river what iwi want done with it, nor what the Crown wants done with it, but what the river itself wants". Or if you think I am making it sound too silly, at least it must be saying this: "let's do what is in the interests not of iwi or of the Crown but what is in the interests of the river itself". Alas, it is still ludicrous, because rivers don't have interests. They don't have preferences and they can't enjoy benefis or suffer costs. So the representatives appointed for this new legal person, one from the Crown and one from Whanganui Iwi, literally cannot act in the interests of the river. Nor can rivers have duties, despite what the legislation says.

Two more ,less central points.

If I am wrong, and rivers really do have interests that can be transgressed and represented, why is only this one river a legal person. Why is the Waikato not also a legal person? All companies are legal persons; it does not take a special piece of legislation to confer legal personality on each individual company. On what basis could parliament now resist calls to grant legal personality to all features of nature venerated by people who feel a spiritual connection with them?

Your defense of the legislation is summarised in these two sentences: "We recognise companies as persons so we can make contracts with them. And we recognise a river as a person so we don’t have to fight about who owns it." But legal persons CAN be owned. The abolition of slavery made it illegal to own a natural person but merely legal persons, such as companies, can still be owned. The fight was not about who owns the Whaganui river but about about what should be done with or to it. Making it a legal person with an Iwi representative and a Crown representative simply shifts this fight to a squabble between these two representatives about what is really in the interests of the river. And both must be wrong, since rivers have no interests. So there is no reason to belive the squabble will be any more tractable than it ever has been.

 

by Andrew Geddis on March 21, 2017
Andrew Geddis

@Jamie,

So the representatives appointed for this new legal person, one from the Crown and one from Whanganui Iwi, literally cannot act in the interests of the river. Nor can rivers have duties, despite what the legislation says.

Why not? We have representatives that speak in the interests of persons unable to vocalise (or even hold) views all the time. Powers of attorney over persons in a coma, say. Or the parents of profoundly disabled individuals. Those individuals determine what those they speak for "want" or "need", much as Te Pou Tupua will speak for the River. Now, of course, I suspect you'll say that any purported interests of "the River" are really just ends that have been imposed onto the river by the person exercising guardianship status (noting, of course, that same claim can always be made of a guardian of a person in a coma). But for Whanganui Iwi, at least, this isn't a problem as they don't see any clear division between "the River" and themselves as people. So to say to these Iwi "you're just saying the River's interests are what you really want to have happen" makes no sense, as Maori would reply "but what I really want is a product of my relationship with the River". No doubt that sounds like metaphysical gobbledegook to you - but the whole point of this innovation is that it isn't (just) about how Western analytic philosophers think of the world. Because, surprise surprise, you/we aren't the only ones to interpret it.

And as for the River not being able to have any duties, yes it does. Check out s.25 of the legislation:

Te Awa Tupua and Te Pou Tupua are deemed to be the same person for the purposes of the Inland Revenue Acts and the liabilities and obligations placed on a person under those Acts.

So the river has to pay tax on any moneys paid to it as a result of current or future resource usage (via the mechanism of the individuals who act on its behalf). Equally, why can't the river now be sued for (say) nuisance or trespass if it continually floods its banks onto someone's property, thus creating a legal duty on it to forebear from doing so (which Te Pou Tupua would then be required to act on by funding preventative measures)? That is a perfectly legally possible outcome - because, remember, law is not philosophy.

The fight was not about who owns the Whaganui river but about about what should be done with or to it. Making it a legal person with an Iwi representative and a Crown representative simply shifts this fight to a squabble between these two representatives about what is really in the interests of the river.

It is true that a legal person can be owned. But it is not the case case that all legal persons must be owned. And if you think that the "who owns it" question was not important, I just don't think you really comprehend the history to either the Whanganui River or the Te Urewera settlements. Ownership questions really did matter.

Having now set up a Crown-Iwi co-management arrangement, you are of course right that now there will be possible disputes between the sides over what the River "wants/needs". But here I think you once again fail to notice the symbolic importance of those two sides coming together to discuss what is best for the River/place as a "thing in itself" (if I may). Or, at least, I speculate that the dynamic of such relationships will be different to a co-management body which is deciding what to do with the property of one of the parties. I guess only time will tell if that claim is falsified.

by Charlie on March 21, 2017
Charlie

I'm not sure this is a perfect parallel but it may serve to demonstrate a point.

I was born les than a mile from the river Trent in England in the 1950's. In those days the Trent was a cesspit of industrial and probably human waste. It was black and there was no life in it other than the infectious kind. I learned to sail dinghies on the Trent: Anyone who capsized got a tetanus injection, just in case!

When I was in college in the 70's the government introduced 'River Authorites' who had the legal authority to act on behalf of the river. Great strides were made at little coast to industry and over many years the pollution declined. It took a couple of decades for all the filth to come out of the nearby water table until today the Trent has trout spawning in it. Unthinkable in my childhood!

I'm not sure the personhood of the Wanganui is identical to that of British rivers but if the custodians have the legal teeth to act on behalf of it, then it's all good in my view.

 

 

by Nick Gibbs on March 21, 2017
Nick Gibbs

Very interesting. If my daughter drowns in the Whanganui River, will Work Place Health and Safety prosecute the river? Could I bring a private prosecution? Will the river be required to pay ACC levies? Will lawyers make a lot of money from this? 

Yes! Yes I think they will.

by mudfish on March 22, 2017
mudfish

Workplace h+s won't apply, it's in it's own place of residence and wasn't employing anyone. 

Is the Whanganui likely to be the longest lived person on earthworks? Or do we count Papatuanuku?

by Jamie Whyte on March 22, 2017
Jamie Whyte

@andrew

The comparison with the guardianship of someone in a coma here is useful. Representing the interests of this person is possible because the guardian may have known the person while able to communicate and hence can reasonably say what the person "would want". Or, if they didn't know the person, they may represent her on the basis of "what any normal human would want". Ultimately, recourse must be made to genuine wants. The problem with being the guardian of a river is not that it cannot communicate its wants but that it does not have any and never did. In this respect -- which is of central importance -- your analogy breaks down.

At this point you invoke traditional Maori ideas about rivers and their relationship with people and you claim that it is not only the ideas of analytic philosophers that should be built into the law. But the problem with the idea that rivers have wants and that those who care about them know what they are is not that this is a Maori idea. The problem is that it is false. The Iwi representative may genuinely believe that he channeling the preferences of the river, but she cannot be correct in this belief.

One other concern. If it is assumed that the Iwi representative has this spiritual connectioin with the river but the Crown representative does not, why will the Iwi representative not always trump the Crown representative in a dispute about what is in the river's interests? What is the point of the Crown representative?

by Baden Vertongen on March 22, 2017
Baden Vertongen
@Jamie
"Instead, parliament has effectively said, "OK, OK, let's not do with the river what iwi want done with it, nor what the Crown wants done with it, but what the river itself wants". Or if you think I am making it sound too silly, at least it must be saying this: "let's do what is in the interests not of iwi or of the Crown but what is in the interests of the river itself”.
Of course that is exactly what s131 of the Companies Act also says - that the directors of a company must act in what the director believes to be the best interests of the company.  While this can be varied, it is the basic starting point.  So if one can act in the best interests of the company itself (and not necessary the shareholders/owners) why is it impossible to imagine this can't also be done for a river?  
"If I am wrong, and rivers really do have interests that can be transgressed and represented, why is only this one river a legal person. Why is the Waikato not also a legal person? All companies are legal persons; it does not take a special piece of legislation to confer legal personality on each individual company."
The analogy is flawed here - all companies might be legal persons, but not all commercial arrangements are companies - there are trusts, partnerships, joint ventures etc which may have very different legal status and are used for a variety of reasons.  The more accurate analogy would be noting that all Awa Tupua are legal persons but all rivers are not Te Awa Tupua.   
"But legal persons CAN be owned."
No, that is not true at all.  See the Incorporated Societies Act 1908.  S10 provides that an incorporated society is a body corporate with perpetual succession - or in other words is a legal person.  But an incorporated society is not ‘owned’ - the starting point is that members specifically have no rights in the property of the society (s10) and a society is controlled by its board but not ‘owned’ by them.   Charitable trusts are similar - they can be incorporated and the board of the trust becomes a legal person (see s13 of the Charitable Trusts Act 1957) at which point the assets held by trustees vests in the board of the trust (s14), effectively meaning the trust owns itself it a way that is not all that different from the Te Awa Tupua structure.  
by Andrew Geddis on March 22, 2017
Andrew Geddis

@Jamie,

The problem with being the guardian of a river is not that it cannot communicate its wants but that it does not have any and never did. In this respect -- which is of central importance -- your analogy breaks down.

I'm not sure it does, actually. Take a child born with profound mental disabilities, such that her brain activity does not allow for anything beyond maintaining the bare functions of life. The parents of the child then play her Motzart, rub her with peppermint oil and take her for walks on the beach. When asked why, they say that they are doing what their child likes and looking after her interests - and as parents they share a bond with the child that gives them special knowledge about this. Would you really be able to respond "but your child cannot have any such interests - she is incapable of having any wants at all. All you are doing is putting your likes/preferences onto her. In fact, your child doesn't really meet the threshold for being "a person" at all."

Well, I guess you could respond that way. But I'm not sure they'd appreciate your application of analytic rigour to the situation.

In any case, as Baden points out above, our law already has situations where entities that cannot have "interests" are deemed to do so by virtue of those who speak for it. Looking for philosophical rigour in legal practice may be 

What is the point of the Crown representative?

To represent the Crown.

by Dennis Horne on March 22, 2017
Dennis Horne

How do those with Maori ancestry feel about the moon?

Can I keep barking at it for free?

 

by Andrew Geddis on March 22, 2017
Andrew Geddis

Oh, you're barking all right, Dennis.

by Charlie on March 22, 2017
Charlie

I'm not particularly bothered about the legal niceties of the arrangement and in this respect I think you 'legal eagles' are arguing about the number of angels dancing on a pin.

Broadly what matters in my view is that there is an adminstration that 'owns' the river, has the power to act and is measured by KPIs that ensure its long term health. You can frame that in Maori cultural terms or form Wanganui River Inc to acheive the same objective. I don't care.

I think Jamie needs to think about it in libertarian terms - I want the asset 'owned' and thus cared for, rather than just being a communal dumping ground and suffering 'the trajedy of the commons'.

by Jamie Whyte on March 22, 2017
Jamie Whyte

@andrew

I would indeed reply the way you say the unfortunate parents would not like. How does the fact that the parnts would not like my opinion show it to be false?

by Jamie Whyte on March 22, 2017
Jamie Whyte

@baden

You say I am wrong that legal persons can be owned. Companies are legal persons. And they can be owned.

I asked why, if the Whanganui river is to be a legal person, all rivers are not legal persons, adding that it does not take a seperate act of parliament to grant legal personality to each and every individual company. You repond by pointing out that it it is not only companies that are legal persons but also trust, joint ventures, etc. But so what? It does not take a seperate act of parliament to make each individual joint venture a legal person either. Your observation is irrelevant.

Finally, to act in the interests of a company must mean to act in the interests of its owners: that is, in the interests of things that have interests. If you do not think th interests of a company are derived from the interests of its owners, please explain what you think they are derived from?

 

by Katharine Moody on March 22, 2017
Katharine Moody

"but the whole point of this innovation is that it isn't (just) about how Western analytic philosophers think of the world. Because, surprise surprise, you/we aren't the only ones to interpret it."

Exactly. 

by Dennis Horne on March 23, 2017
Dennis Horne

Oh, you're barking all right, Dennis.

What? A straight-talking lawyer? Not really. Sidestepped the question.

Many river beds are privately owned and some big lake beds were gifted to Maori tribes. (The equivalent of the Taupo fishing licence fee goes to the local tribe but the fishery is administered by DoC.)

The reason the state treats certain entities as it does, is so somebody can be held to account when a problem arises. It's not friggy-pooh politics.

Reality is not determined by a clever lawyer making a case and another lawyer declaring he won.

Andrew Geddis: Another lawyer barking up the wrong tree...

by Andrew Geddis on March 23, 2017
Andrew Geddis

@Jamie,

I asked why, if the Whanganui river is to be a legal person, all rivers are not legal persons, adding that it does not take a seperate act of parliament to grant legal personality to each and every individual company.

That's because you have to follow a particular set of legal processes to create "a company", whereupon the law says it has a particular legal status. Status follows process. With regard the Whanganui River, Parliament considered the Waitangi Tribunal report that noted Whanganui Iwi's (possibly unique) relationship with the River and decided to recognise this in law through the novel deeming of personhood. In other words, the Whanganui River and its relation with Maori is not the same as (all) other Rivers. There's a well known judicial saying - "in law, context is everything". This makes the search for coherence very difficult, which no doubt is infuriating for those from other disciplines. But ... there you go.

Finally, to act in the interests of a company must mean to act in the interests of its owners: that is, in the interests of things that have interests. If you do not think th interests of a company are derived from the interests of its owners, please explain what you think they are derived from?

That's just not true: Companies Act, s.131 : "A director must act in good faith and in what they believe to be the best interests of the company." There's lots of case law to say that this isn't the same as "its owners". It allows, for example, directors to agree to spend company money on charity endeavours without any firm cost-benefit analysis on the basis that "it will make the company look good".

You might find this article on the matter interesting. 

by Andrew Geddis on March 23, 2017
Andrew Geddis

@Jamie,

How does the fact that the parnts would not like my opinion show it to be false?

And yet our law deems the child to be a person and affirms the parents' right to act as they do in her "interests". So ... perhaps the problem is that law simply isn't rational all the way down?

Or, rather, we have laws that work for human beings in the world as they see it, not that accord to neat philosophical categories. Personally, I'm not unhappy about that.

by Baden Vertongen on March 23, 2017
Baden Vertongen

@Jamie

"You say I am wrong that legal persons can be owned. Companies are legal persons. And they can be owned"


But this is just a classic use of a logical fallacy.  Yes a company is a legal person and can be owned.  But not all legal persons are companies.  And some types of legal persons cannot be owned - there are incorporated societies and charitable trusts for example.  Just because my bike is red this does not mean all bikes must be red. 



"I asked why, if the Whanganui river is to be a legal person, all rivers are not legal persons, adding that it does not take a separate act of parliament to grant legal personality to each and every individual company."



The same logical fallacy occurs here - just because one river is an entity does not mean all have to be, just in the same way all legal persons are not companies and not all business arrangements are not legal persons/companies.  There is a second logical fallacy here too in arguing that the form in which something has been done is a reason to discount the outcome. 

 


"Finally, to act in the interests of a company must mean to act in the interests of its owners"


You say that.  As Andrew and I have pointed out the Companies Act says something different.  Lets let the marketplace of ideas decide which is correct and which is an alternative fact.  

The key sticking point you seem to have though is identifying how decision makers can act in the interests of a legal person that might be different from a set of 'owners'.  

But we do this now.  As above - the directors of a company have to do this.  A charitable trust is a legal person that is not 'owned' but must act for a specific charitable purpose - something that benefits the wider community rather than a closed set of 'owners' or members.  

We also kinda do (or try to) manage rivers with a focus on the interest, or 'health', of a river itself now.  The 2014 National Policy Statement for Freshwater Management sets out a range of objectives and policies for decision makers to follow and while they include objectives associated with the human interaction with the river it is also a key objective to safeguard "the life-supporting capacity, ecosystem processes and indigenous species including their associated ecosystems, of fresh water".   

If we already have legal entities that aren't 'owned', where decision makers have to act in the best interests of the entity itself (or for a wider purpose than that of 'owners'), and we currently try to manage freshwater with a focus on the health of the river ecosystem generally why is it wrong to package those existing concepts together in a rather elegant way that provides a particularly nice cultural fit in this case?

by Simon Connell on March 23, 2017
Simon Connell

Finally, to act in the interests of a company must mean to act in the interests of its owners: that is, in the interests of things that have interests. If you do not think th interests of a company are derived from the interests of its owners, please explain what you think they are derived from?

From time to time, the law needs to determine the mental states of legal persons. For example, a criminal offence might require "knowledge" or a contract dispute might turn on the "intentions" of the parties. Of course, legal persons don't really have mental states in the way that natural persons do. But that doesn't stop the law determining the mental states of legal persons. Exactly how you determine the mental state of a legal person depends on the reason for which you're doing it - there's no one-size-fits-all rule. Sometimes, you might say that a company only "knows" something if the CEO knows it. Other times, you might say that, as long as any employee of a company knows something, the company "knows it".

The same can be said for any purpose for which you might determine the "interests" of a legal person. The search for the interests of the Whanganui River, for example, is not the search for a thing that exists in the word (at least, not to a Western worldview). It's an exercise in construction, a legal fiction if you like, just like the "intentions" or "knowledge" of a company. The "intentions" of a company exists in law (but not in the real world) because the law says it does.

So, as an answer to the question above, I'd say that the interests of the river are derived from a body of law that says that the river has interests. That tells you where the interests are derived from, but it doesn't tell you what they are. As per the general approach to the qualities of legal persons described above, the process for determining the "interests" of the Whanganui river depends on the context, both the general reasons for giving the river legal personhood and the specific legal reason for which you are concerned with the river's interests.

So, what might the interests of the river be, if a court had to determine them? I can't give an especially confident prediction for reasons including (i) I'm not an expert in the background to the statute; and (ii) courts determine matters with reference to specific disputes, so it's unlikely that a court would ever have to exhaustively define the River's interests.

That said, taking into account the purpose for giving the Whanganui River personhood, I'd say that you just have to exercise a little imagination and you can probably get a sense of the kinds of interests the river might have. I have no problem saying that this is an exercise that requires some imagination, because I'd say the same about the idea that companies have "interests" or "intentions". I'd imagine that the River has an interest in survival. I'd imagine that the River has an interest in resisting any proposed developments that funamentally alter its structure or flow. I'd imagine that the River has an interest in maintaining its relationship with local iwi, distinct from any interests they might have in the river. I'd imagine that the River has an interest in being free from pollution. I'd imagine that the River has an interest in the things that live in it. And so on.

Now, you might say that this is all a bit weird. But I don't think it's more weird than other stuff the law does with legal persons. In law, things exist because the law says they do, even if there is no real-word (again, from a Western worldview) reference point for those things. The law is both the source of authority for the existence of legal fictions like the "interests" of a company, and the source of the process for determining the content of those things.

by Simon Connell on March 23, 2017
Simon Connell

My favouite legal humour blogged said this, from the perspective of a lawyer from the USA:

If corporations can have legal rights (and they do, especially the ones I represent), there’s no reason a society can’t give rights to any other non-human thing. It might or might not be a good idea, and people can and certainly do argue about which rights a thing should have, if any. But the basic theory is fine, and not especially new.

 

by Andrew Geddis on March 23, 2017
Andrew Geddis

So, what might the interests of the river be, if a court had to determine them?

These would be derived from clause 13, which sets out "the intrinsic values that represent the essence of Te Awa Tupua".

by Katharine Moody on March 23, 2017
Katharine Moody

Have really enjoyed the comments - learned a great deal - so thanks all.  As an aside, mosty of us are familiar with whenua in te reo Maori meaning land in English. But additionally whenua is also the word for placenta in te reo Maori. This dual meaning for the same word was explained by Manuka Henare in one of my favourite chapters in a book on the philosophies of a number of different indigenous cultures thus:

"The land as the system of ecological interactions is a placenta that nurtures and sustains humanity. Humans reciprocate in special obligatory roles, both to the source of their life and to the “placenta” or ecology that nourishes them."

That chapter was for me, the best introduction to Maori philosophy, one that helped the most in trying to situate myself within that worldview from a (largely) instrumentally rational, Baconian upbringing :-).

Henare, M. (2001) ‘Tapu, Mana, Mauri, Hau, Wairua:A Maori Philosophy of Vitalism and Cosmos’, in  Indigenous Traditions and Ecology, edited by John A Grim. Cambridge, Massachusetts: Harvard University Press, pp. 197-221

by Baden Vertongen on March 23, 2017
Baden Vertongen

Just as one final (particularly awesome) example of how comfortable the courts are with legal personality and the ability to consider the rights and interests of inanimate things there is the case of Mullick v Mullick.  

This related to a Hindu idol, and the court was clear that the idol itself had a legal personality and its own interest in the proceedings and should not be treated as a mere chattel.  There was a direction that counsel be appointed to represent the separate interests of the idol as distinct from the parties claiming a right to possess it.  
And before we all cry "PC gone mad!!!" it is worth keeping in mind that this is a decision of English Law Lords in the Privy Council in 1925.  If this wasn't a stretch for them then, it's hard to see why legal personality for a river should be such a stretch for NZ in 2017. 
by Jamie Whyte on March 23, 2017
Jamie Whyte

@ Simon

Thank you for your thoughtful reply to my question. But I still think you have not dealt adequately with my central complaint. Yes, a company's interests are not (always) identical with any one natural person's interests, nor with any collection of natural persons' interests (if only because interests cannot be aggregated or averaged). Nevertheless, whatever sense can be made of a company's having interests is derived from the fact that its owners are natural persons with real interests. Andrew's example of corporate charity that loses shareholders money (in the short term) being in the company's interests only makes my first point -- that a company's interests are not identical with a particular interest of a particular natural person. It does not refute my claim that talk of the interests of a merely legal person makes sense only when it is related to natural persons in the way that companies are related to their owners. Why is "making the company look good" in the interests of the company if not for the benefits that might accrue to its owners from that fact? If the interests of the company were wholly independent of the interests of its owners, why would lookng good be of any more value to the company than looking bad?

It is because of the relationship between companies and their owners that judges can make sensible decisions about the interests of companies without recourse to a law that specifies what is in the company's interests. By contrast, Andrew tells us, the legislation that makes the Whanganui river a legal person will guide decisions about the interests of the river. It will do this through clause 13, which specifies "the intrinsic values that represent the essence of Te Awa Tupua". (BTW, you could hardly have a better illustration of my claim that when natural people are taken out of the equation, talk of interests becomes senseless. What makes a value "intrinsic"? How do values represent essences? What are essenses? It's gibberish).

Of course, parliament can pass a law that declares a river a person and lists intrinsic values that represent its essense. And then these things (might) become legal facts. (I say "might" because legislation can fail to create law.) But the question, as your legal humour blogger points out, is whether they should pass such laws. Ultimately, this will have to be judged by the effects of the legislation, and we may all be dead by the time they are known. But it is silly to claim, as Finlayson did and Andrew Geddis also seems to, that there is no serious difference between bestowing legal personality on things related to natural persons in the way that companies are, and bestowing it on objects, such as rivers, with no such relationship to natural persons.

 

by MJ on March 23, 2017
MJ

It seems like an elegant, innovative and interesting, and more than that, a potentially just, solution. 

It doesn't surprise that Mr Whyte doesn't like that. 

Is it possible to think of this outside the paradigm of companies? Those horrid people that can commit all manner of sins, be wound up or pass from this world to avoid responsibility and cease to exist and be forgiven and start over again as something else somewhere else? A river is much less likely to be so devious. I like the river person much more than your company person already. 

by Simon Connell on March 24, 2017
Simon Connell

@Jamie

Nevertheless, whatever sense can be made of a company's having interests is derived from the fact that its owners are natural persons with real interests.

I think this is probably the crux of where we disagree. I do not accept that natural persons' interests are the only source from which the "interests" of a legal person could be derived in a way which would deserve being described as "making sense". Perhaps the disagreement is really over what it means to "make sense". In this context, I would say that a process for deriving interests makes sense if I could imagine a court actually doing it in a way that is comprehensible to me - that is, I can understand the thought-process, and it does not somehow offend logic or some other core principles of law. 

Regarding instrinsic values and essence being gibberish, I don't think this is altogether different from corporate charters, or core values, codes of conduct, or statements of values, that attempt to articulate core principles to guide a company's decision-making. You might respond that such documents are often also gibberish, but that just identifies a point of similarity with the Whanganui River and other legal persons, not a point of difference. 

Google's Corporate Code of Conduct famously adopted the motto "Don't be evil", for example. At one point, Google explicitly identified itself as a "dog company" (like being a "dog person"). Perhaps Google is a bit of a tech hipster outlier regarding the specifics, but it's fairly common for companies to have something along these lines - here's Fulton Hogan's priorities, for example. Making decisions with respect to "principles" is a fairly familair concept within legal decision-making, too.

 

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