Friday, April 28, 2017

The river as legal person

Whanganui River
H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:
While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.
So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 
As we all know ,this is not the first time that legal personhood has been given to non-human entities, apart from corporations globally. In India, Hindu deities have been legal entities from the mid-nineteenth century. There is also a long list were many forms of lives, including that of slaves (who were considered property), women, children and fetuses were not always endowed with natural legal personhood and the attending rights in the eyes of law. Yet, legal anthropomorphizing of natural entities is both based within this larger trajectory of expanding legal rights and at the same time exceeds this legal teleology. Moreover, the case of New Zealand and India must be located within the current political situations within each country. For instance, in the case of Whanganui, decades of confrontation between the Maori ways of viewing or dwelling with a river came in direct opposition to the standard Baconian worldview of rivers as a site of property. The Maori academic and Member of Parliament Peter Sharples describes this distinction in the following terms: “Holding a title to property, whether Crown or private, establishes a regime of rights – to capture, to exclude, to develop, to keep. Rangatiratanga (Maori sovereignty or absolute chieftainship) is asserted through the collective exercise of responsibilities – to protect, to conserve, to augment, and to enhance over time for the security of future generations.” There is a term that defines this relationship and that became the bedrock for the legal argument for seeing Whanganui as a living entity and therefore bestowing it with legal personhood. This relation is called Te Awa Tupua, where the river and the human is part of an integrated whole, and as the saying goes river is I and I am the are river and each sustains the other.
While rivers in general have rich lives in folk imagination in India, Justices Rajiv Sharma and Alok Singh referred to the “deep spiritual connection that Hindus have for the Ganga and Yamuna” and thus communalizing a natural formation. Moreover, instead of arguing for a changing relation with rivers, they stated that an extraordinary situation (decline of the rivers) required an extraordinary solution (declaration of personhood). What the implication of this recourse to “extraordinary” might be still remains to be fully grasped. Apart from the many other technical legal differences between who becomes the loco parentis of the rivers in New Zealand and India, there are some significant differences. In the Indian case, there is no space within the law to account for how interstate borders will play out in these situations unlike in New Zealand. This is complicated by the fact that this ruling has been extended to cover glaciers, lakes, wetlands and the entire basin itself which India shares with its neighboring countries. In its Indian incarnation, the ruling has the possibility of instantiating itself as a set of prohibitions rather than making room for the river within us and changing how we live on and with the river.

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