Te Awa Tupua - ding an sich selbst

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?