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Guardian mindset could save our flora and fauna
27 June 2017

If we have a responsibility to care for and nurture nature, perhaps each species could be given personhood and guardians to exercise it on behalf of the members of that species, suggests Victoria University's Catherine Iorns Magallanes

Parliament recently made a river a legal person and gave it a name, Te Awa Tupua: “Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.” This is the second time Parliament has made a legal person out of nature, having done so for Te Urewera in 2014, which had been a listed National Park for the previous 60 years: “Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person.”

What is particularly notable about these examples is the creation of statutory guardians to uphold the interests of Te Awa Tupua and Te Urewera. For example, the Te Awa Tupua legislation appoints a guardian to uphold the status and intrinsic values of Te Awa Tupua, including to “promote and protect the health and well-being” of the river and act in its interests. The Te Urewera legislation does similarly, explicitly identifying the “intrinsic worth” of Te Urewera.

Such guardianship ensures all activities affecting Te Awa Tupua and Te Urewera are monitored, and at all stages the interests of Te Awa Tupua and Te Urewera are upheld by a body appointed to do solely that. It doesn’t leave the protection of these interests to the chance a person might want to take a role as guardian on behalf of the river, such as asserting standing in court. It requires the exercise of this role at all times and allows it to be exercised in other fora, not solely courts.

In this sense, these examples differ from other examples overseas where nature may have been given rights but where responsibility has not been legislatively mandated. Even where people have been enabled to sue in court for the protection of the interests of nature, there may not be any legal duty on any particular person to take up that protection.

Awarding personality to Te Awa Tupua seems to have hit a collective nerve, and it has been lauded the world over as a victory for the environment. It was very quickly cited by an Indian court in its decision to award legal personality to the Ganga and Yamuna rivers. This Indian court similarly emphasised the duty of care to these rivers and fittingly appointed guardians to ensure the rivers are protected, with the court having oversight of this role.

Only a week later, the court declared the Himalayan mountain glaciers and “rivers, streams, rivulets lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls” were all legal entities or persons, “with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/legal rights”. Guardians were similarly appointed to the role of upholding the status of these legal persons and to promote their health and well-being. The court even went further, explicitly noting “the rights of these legal entities shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harms/injury caused to the human beings”.

Perhaps what is most significant about these two Indian decisions is these new bodies were not created by an Act of Parliament; the court simply invoked its parens patriae jurisdiction. Parens patriae is a rule developed through common law, referring to the inherent jurisdiction of the court to enable the state to act as the parent of any child who needs protection. Thus it can be used to require state intervention to intervene against an abusive or negligent parent, for example. While it has been extended beyond children to enable state intervention on behalf of other individuals who need it, it is a bigger extension of the existing rules to apply it in respect of environmental legal persons.

    "If we have a responsibility to care for our flora and fauna, perhaps each species could be given personhood and guardians to exercise it."

One of the more interesting claims about the legal personhood for nature is it is also an example of the protection of—and a victory for—rights of nature. The movement to accord rights to nature and uphold them in law is an important one worldwide. And as my co-author Linda Sheehan and I note in our chapter in the new book Law and Policy for a New Economy: Sustainable, Just, and Democratic, it is certainly true that, in rights-based legal systems, respect and responsibility are acknowledged through human rights. Therefore, one method for reordering the priority between humans and the environment is to recognise in law inherent rights of nature to exist and function.

Yet, while rights may be accorded, rights are not the primary focus. The creation of these legal persons were designed to better implement our responsibilities to protect and care for them. For example, the New Zealand legal persons were constructed in order to better recognise and reflect the Māori worldview or cosmology that nature is an ancestor, and that we are duty-bound to care for nature as we would our grandparents. It is a duty bound with identity and community, enduring as long as the community endures, and vice versa. We don’t talk about grandparents having rights to be cared for by their offspring as much as we talk about our familial responsibilities toward grandparents to care for them.

The Indian court similarly emphasised the religious and cultural importance of the sacred rivers and the responsibility of the state to protect them. Parens patriae is the doctrine of responsibility of the state more than it is the right of the child.

I suggest these embodiments in law of responsibility and care reflect an approach that could usefully be expanded throughout our law.

If we want to encourage the emergence of an economy that better recognises the real importance of nature and humans’ place within it, then the legal framework that supports it will need to change. While such a reprioritising will entail a paradigm shift, adoption of individual elements of law can help shift both mindsets and practice. Using legal personhood and state guardianship to uphold responsibilities is one such tool.

For example, if we are to arrest the decline in biodiversity worldwide, I suggest we need a collective understanding of responsibility for its survival. If we have a responsibility to care for and nurture our flora and fauna, perhaps each species could be given personhood and guardians to exercise it on behalf of the members of that species.

Rights are also a powerful tool, to be exercised within a system that understands the language and power of rights. But we need to ensure the rights are accorded appropriate weight and are upheld in fact not just on paper. And for that, I suggest we need the mindset that comes with guardianship and responsibility.

The New Zealand examples show responsibility can be articulated in legislation and guardians can be established to uphold duties of care for nature. The Indian examples show courts can do it as part of the inherent common-law jurisdiction of parens patriae. As insertions into mainstream legal frameworks, these examples don’t yet constitute a revolution in their own right. However, they provide a helpful beginning for adopting a structure of responsibility that can be adopted elsewhere.

The revolutionary aspect is that they arise from a completely different worldview, one that reflects the paradigm needed for an economy that respects our relationship with the earth and its natural systems. These examples illustrate how we can implement responsibility and push past the boundaries of our existing cultural limitations and legal systems.

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