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On March 15th, 2017, a law was approved in New Zealand recognising the Whanganui River as a legal person. In accompanying media articles it wasn't clear whether this meant a living entity, a person or a human; the article author says "human", the Whanganui representative is quoted as saying "living entity" and Finlayson is quoted as saying "person". I recognise that these are three different (although overlapping) legal definitions carrying different liabilities. And while I would agree that the net ecosystem services of a river clearly outweight its costs even before you consider the social and religious significance, as far as I am aware the law on corporate personhood does not recognise this. If/when you cause harm, you can be sued.

Assuming that a direct quote from the minister responsible for the law (Chris Finlayson) can be taken at face value:

Te Awa Tupua will have its own legal identity with all the corresponding rights, duties and liabilities of a legal person

... I assume (and it would be sensible if) we're actually talking about legal personhood here. In which case, if the river floods, it is personally (and criminally) liable for the damage? If someone drowns, the river will be prosecuted for murder? What happens if a river goes bankrupt?

The Economist article mentions that some NZers have been 'joking' about whether the river can be prosecuted if someone drowns, but doesn't attempt to answer that. I assume it's implying that it's ludicrous, but that's not obvious to me from the information provided.

I am interested to know whether this decision potentially creates significant legal liabilities for the river which may not be obvious to those who think this is a straightforward environmental 'win' for the Whanganui.

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In context, the answer is clearly not. The precise reason that this is the case, requires a somewhat more sophisticated theory of what is going on than the Economist article cited seems to provide.

The most useful analogy to apply to a situation when a river or forest or some other non-sentient being is given legal personality would be the relationship of a guardian and ward. A guardian for a ward can be appointed by a court or other person with a special relationship to the ward (e.g. a parent or deceased parent for a child, or a spouse for an older person, or an indigenous tribe for a river), to look out for the best interests of a ward (sometimes at public expense). A ward could be a minor, or a person with advanced dementia, or otherwise unable to personally take legal action on their own behalf. In this case, the ward is a river.

You couldn't prosecute a river criminally or for most civil obligations (e.g., breach of contract and torts) for its own actions for the same sorts of reasons that you couldn't prosecute a six months old, or an individual in a coma, on that basis. A person such as that could neither have capacity to contract nor form the intent necessary to commit a tort and be legally responsible for that tort.

In the same way, the river doesn't actually walk into court, or sign affidavits, or sign contracts, or anything like that. Instead, it acts through a fiduciary appointed to act on its behalf in its best interests (in the environmental law context (also here), such a guardian is often called a "Lorax" after the character in the Dr. Seuss book, "The Lorax" who says "I am the Lorax. I speak for the trees. I speak for the trees for the trees have no tongues."). It merely has the capacity to sue, much like a corporation or a trust or a probate estate or a guardianship estate, through a fiduciary appointed on its behalf, and is granted legal standing in cases related to it.

If the river enters into contracts through its guardian, however, for example, to provide irrigation water to a company in exchange for the company ceasing to pollute it, that contract would probably be enforceable by specific performance, at least (the river is probably judgment proof, so a suit for money damages would be futile anyway), in a suit to which the guardian would be made a party and have standing to raise defenses.

  • Perfect, thanks. What exactly does 'judgement proof' mean in this context? – tardigrade Oct 9 '17 at 22:24
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    @tardigrade "Judgment proof" means they don't have any money (or at least any significant amount of money), so even if you sue then and win they're not going to be able to pay you. – cpast Oct 9 '17 at 22:41
  • @cpast Just so. – ohwilleke Oct 9 '17 at 23:46
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Judicial persons of a previously undefined class do not have defined rights and responsibilities until either legislation or litigation creates them; as Kevin Underhill notes on the excellent Lowering the Bar, "when the scope of “rights, duties, and liabilities” aren’t clear, it tends to create litigation. But I guess that means rivers need lawyers, so I shouldn’t complain."

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