Tuesday, 21 March 2017

Whinlayson’s retreat into animism is a river too far


Attorney General Christopher Whinlayson has declared the Whanganui River to be a legal person, and last week your MPs agreed with him, unanimously passing a law declaring that the Whanganui River has all "the rights, duties and liabilities of a legal person,"

But a river is not a legal person, despite what Christopher Whinlayson publicly professes to think. “Legal persons are of two kinds,” points out Jamie Whyte:

we humans, known in law as "natural persons", and persons that are legal fictions, such as companies and countries. These fictional people solve legal problems that can arise when natural people act in groups.

Two kinds, but with one constituent: human beings possessing agency. Natural persons are actuals persons or their guardians acting on their behalf; legal persons are properly “changing collections of natural people or positions filled by successive individuals” – such as companies, trusts or corporations.

Whinlayson acknowledges that "some people will say it's pretty strange to give a natural resource a legal personality, but it's no stranger than family trusts, or companies, or incorporated societies." Yet as Whyte points out, it is surely even stranger that an alleged legal mind thinks this is strange.

And even stranger that he thinks granting legal personality to a river is "no stranger."
    Rivers are not changing collections of natural people or positions filled by successive individuals. Nor can rivers be legal persons, whatever Parliament says. What duties might the Whanganui River have? Does it have a duty of care to ensure no one drowns in it? Can the river be sued?
    The underlying rationale can be seen in Finlayson's claim that Whanganui iwi will "have a representative speaking for the river [and] the Crown has a representative speaking for the river, and they are focused on addressing many of the problems the river has had over the last 140 years."

So, asks Whyte, “What can justify this foray into legislative lunacy?” Whyte identifies it as a retreat to animism:

 Mr Finlayson appeals to traditional Maori thinking. ‘In their worldview, “I am the river and the river is me”,’ he has said. ‘Their geographic region is part and parcel of who they are.’
    “If this worldview were literally true, then the Whanganui River would be a natural person – or, rather, many natural people: namely, all those Maori with whom it is identical. But it isn't literally true. It is simply a way of expressing a feeling towards the river.
    “A river is not a natural person: our legislators have embarrassed themselves.”

And so they have. This is indeed a “river too far.” But the failure is not just Whinlayson’s et al in parliament. As our guest poster Fred Smith pointed out yesterday, there was once a school of law that recognised a rational method whereby, over 140 years ago, a representative may have legal standing to speak for a body of water, so “addressing many of the problems [it may have] had over the last 140 years." That is: a legal system once embodied in the common law, that once recognised (around 140 years ago) that environmental resources be readily available as ownable private property, giving standing thereby to an actual person to protect his or her property.

The failure of Whinlayson et al to recognise this solution is at least twofold. First of all, in refusing to recognise the practical possibility of owning water, this government has committed itself instead to collective ownership, mysticism and a spiral down into increasing and utter absurdity. That the left is demanding a market solution to water allocation while this our centre-right govt says no is only one tine to this absurdist fork. Whinlayson’s retreat into animism is another.

And second of all, they are part of a now 140-year-old tradition that, in denying property rights in what are instead erroneously considered “environmental resources,” they have destroyed the possibility of rational legal and market solutions to what is actually a very simple problem. (Property rights in streams and rivers for example coupled with common law systems of protection would at a stroke solve the ‘dirty dairying’ problem about which so much is said, but so little achieved. Property rights in flora and fauna and land is the best means of ensuring a genuinely sustainable nation.)

The answer is better thinking about the institutions that protect environmental resources; not the creation of legal absurdities like this.



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