Should nature have a legal standing?
A legal decision about a river in New Zealand raises logistical questions.
Fri, Oct 05, 2012 at 05:20 PM
It may be unable to call a lawyer — or pay attorney fees — but New Zealand’s third-largest river now has legal standing in a court of law.
The Whanganui River will be recognized as a person when it comes to the law — much like a corporation — under a preliminary agreement signed between a group of indigenous peoples known as the Whanganui River iwi and the national government. Under the agreement signed in August, the river is given legal status under the name Te Awa Tupua, and two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river, according to the New Zealand Herald.
Conferring a sort of legal personhood to the river is just one step in settling long-running legal disputes between the native peoples and the government. Such a measure — or similar one adopted several years ago in Ecuador granting legal rights to ecosystems — is impractical in the American legal system, says one environmental attorney.
“What has frustrated environmentalists is that harm to the environment has been defined as harm to the users,” says Andrew S. Levine, a partner with the Philadelphia law firm Stradley Ronon.
Damage to a river, for example, would be defined by losses by trout fishermen or businesses serving anglers. Damage to a forest would be defined by losses to hunters or loggers.
“How do you put a cost on a view-scape? On the clarity of the water? On the diversity of species?” Levine says.
The intent of granting an ecosystem legal status is to expand the vocabulary for expressing value.
“The downside is, where does it end?” says Levine.
Levine notes that in 1972, U.S. Supreme Court Justice William O. Douglas argued that trees should have legal standing.
“Inanimate objects are sometimes parties in litigation,” Douglas wrote in his dissenting opinion in the case Sierra Club v. Morton. “A ship has a legal personality, a fiction found useful for maritime purposes. The corporation — a creature of ecclesiastical law — is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a ‘person’ for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
“So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents and which are threatened with destruction ... The voice of the inanimate object, therefore, should not be stilled.”
There are some practical concerns with Douglas’ argument, Levine says. A corporation, through minutes of board meetings and other documentation, can express intent and desires. It can speak for itself, so to speak.
“Who speaks for the trees,” Levine asks. “In the real world, there would be 20 people who claim to speak for the trees.”
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Photo: Kid Cowboy/Flickr
MNN tease photo of river: Shutterstock