JUSTIFYING LEGAL RIGHTS OF NATURE - DIVA PORTAL
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Justifying Legal Rights of Nature
An ideational analysis of the Te Awa Tupua Bill debate in New Zealand
Nanna Friman
Bachelor’s Thesis in Political Science, 15 hp, Spring 2021
Department of Government, Uppsala University
Supervisor: Mats Lundström
Word Count: 12 596Abstract
In 2017, the Whanganui River in New Zealand gained legal personality, a potentially norm-
breaking legislation that could challenge society to view nature differently. It is thus important
to understand the reasons and justifications behind such a decision. This is an explorative case
study that aims to examine the interplay between different philosophies on legal rights of nature
and minority rights within the context of a political discourse by investigating how the
implementation of the Te Awa Tupua Bill in 2017 in New Zealand was justified. The arguments
were identified in the three parliamentary readings of the bill through argument analysis and
analyzed through ideational critique. The Te Awa Tupua Bill was justified through
anthropocentric, animistic and ecocentric arguments. A majority of the arguments related to
protecting the indigenous Māori culture. Further, the results from the ideational critique
suggests that the argumentation at times was rather weak and that many arguments were not
fully developed. This study shows how the practical political debate on legal rights of nature
relates to the theoretical one. It also provides insights on how big part protecting minority rights
play when implementing legal personality for natural objects. This study contributes to an
emerging field of research with many open doors for future studies.
2Table of Contents
LIST OF TABLES ..................................................................................................................................4
1. INTRODUCTION .........................................................................................................................5
1.2. AIM AND RESEARCH QUESTIONS ...................................................................................................6
1.3. DISPOSITION ..................................................................................................................................7
1.4. PREVIOUS RESEARCH AND RELEVANT DISCOURSE ......................................................................7
1.4.1. Contribution ...........................................................................................................................8
1.5. METHODOLOGY .............................................................................................................................9
1.5.1. Argument Analysis .................................................................................................................9
1.5.2. Ideational Critique.................................................................................................................9
1.5.3. Selection of Case..................................................................................................................10
1.5.4. Scope ....................................................................................................................................11
2. THEORY ......................................................................................................................................12
2.1. THREE DIFFERENT PHILOSOPHIES ON RIGHTS OF NATURE.........................................................12
2.2. RIGHTS OF NATURE IN THEORY ..................................................................................................12
2.3. CASES AGAINST LEGAL RIGHTS OF NATURE ..............................................................................16
3. THE WHANGANUI RIVER CASE ..........................................................................................17
3.1. BACKGROUND .............................................................................................................................17
3.2. THE SELECTED MATERIAL ..........................................................................................................18
3.3. ARGUMENTS IN THE TE AWA TUPUA BILL DEBATE ...................................................................18
3.3.1. Summary of the debate.........................................................................................................22
4. ANALYSIS ...................................................................................................................................23
4.1. ANTHROPOCENTRIC ARGUMENTS ...............................................................................................23
4.2. ANIMISTIC ARGUMENTS ..............................................................................................................27
4.3. ECOCENTRIC ARGUMENTS ..........................................................................................................28
4.4. SUMMARY OF THE ANALYSIS ......................................................................................................29
5. DISCUSSION ...............................................................................................................................31
5.1. CONCLUSIONS..............................................................................................................................33
REFERENCES & SOURCES .............................................................................................................35
REFERENCES .......................................................................................................................................35
SOURCES.............................................................................................................................................37
3List of Tables
TABLE 1: THE IDENTIFIED TENETS USED TO JUSTIFY THE IMPLEMENTATION OF THE TE AWA TUPUA
BILL AND SUMMARY OF THE IDEATIONAL CRITIQUE. ...................................................................29
41. Introduction
What does a river in New Zealand have in common with the world famous pop-star Britney
Spears? As it turns out, more than one would perhaps imagine. While both might be considered
beautiful or a force to be reckoned with in different ways, what’s more interesting is that they
are both currently placed under some type of legal guardianship (a conservatorship in Britney’s
case) (BBC, 2020; Argyrou & Hummels, 2019:752). This is because as of 2017, the Whanganui
River in New Zealand is considered a legal person through the Te Awa Tupua Act (Whanganui
River Claims Settlement Act) (Argyrou & Hummels, 2019:752; Collins & Esterling, 2019:2).
The Whanganui river was the first ever case of a river gaining legal personality but it wasn’t
the first time New Zealand appointed legal rights to natural objects (ibid). Already in 2014, the
country bestowed legal rights upon a national park called Te Urewera on the North Island
(Tănăsescu, 2020:430). Rights of nature have been implemented in other parts of the world too.
In 2006, the US was first with implementing certain rights of nature in Pennsylvania, followed
by Ecuador in 2008 which became the first country to incorporate rights of ‘mother nature’ into
its constitution (Kauffman & Martin, 2018:44). Since then, other countries like Mexico,
Colombia and Bolivia have followed in implementing rights of nature in various ways (ibid).
The cases of implemented rights of nature might still be relatively limited in numbers, but they
indicate that new ways of viewing non-human, inanimate, natural objects in legislature are in
the making (Kauffman & Martin, 2018:43f). Put differently, it appears as though new norms
are being established where citizens – humans – are expected to share their rights with natural
objects such as mountains and rivers.
While the initial comparison that was made between a pop-star and a river might appear silly
at first, it perfectly captures how the implementation of legal personality of non-human objects
challenges the anthropocentric world view that still dominates many societies, particularly
western ones (Collins & Esterling, 2019:8f). Some have even gone as far as claiming the legal
personality of the Whanganui River to be a case of ‘emancipation of nature’ (Hsiao, 2012:374).
But is it really nature that is being emancipated here? At first glance, the issue of giving nature
legal rights might intuitively appear as a means of protecting the environment. While that is
certainly true to some extent, what has become more and more clear is that it has also been used
to protect the rights of minorities – specifically the rights of indigenous people (Collins &
Esterling, 2019:4). It is thus of interest to find out exactly how big part protecting minority
5rights plays in justifying the implementation of legal rights of nature. Put differently, can the
reasoning behind implementing rights of nature be understood better from a minority rights
perspective rather than an environmental one?
When talking about the concept of rights of nature, it is crucial to distinguish what one means
with ‘rights’ since the term takes on different meaning depending on the context in which it is
being discussed. On the one hand there are the legal rights and on the other hand there are moral
rights. Still, the two ways of looking at rights as either legal or moral are closely connected in
the sense that the implementation of rights of nature are often motivated by arguments founded
in morality and ethics.
Though a distinction is often made between a ‘legal person’ (e.g. a corporation or a natural
object) and a ‘natural person’ (i.e. a human), the term person still carries with it strong
associations to human characteristics (Grear, 2013:78f). Hence, giving legal personality to a
river could be interpreted as politicians asking society to change the way they view nature.
Since political ideas influence people’s way of thinking and sympathizing, they are believed to
have a substantial impact on the societal development (Beckman, 2005:9). Consequently, the
political reasoning behind ground breaking legislature that fundamentally challenges norms, in
the way legal rights of nature do, should be subject to scrutiny. Hence, this bachelor’s thesis
sets out to investigate how – and how well – the implementation of rights of nature have been
justified in the case of the Whanganui River.
1.2. Aim and research questions
This is an explorative case study that aims to examine the relationship, or interplay, between
different philosophies on rights of nature and minority rights in the context of a political
discourse. In studying the case of the Te Awa Tupua Bill parliamentary debate in New Zealand,
this study first sets out to identify and categorize the arguments used to justify the
implementation of legal personality for the Whanganui River. Moreover, the aim of this study
is to examine how well those arguments hold up when being analyzed through internal
ideational critique. This includes pinpointing the strengths and weaknesses of the arguments by
looking at their logical validity, empirical soundness and reasonableness in terms of coherence
and conflicting values.
6This thesis is thus written with the aspiration of contributing to the body of research regarding
the interplay between the philosophical reasoning behind the implementation of rights of nature
and minority rights. By identifying, reviewing and, primarily, analyzing arguments that have
been used to further the implementation of legal personality for the Whanganui river, this thesis
sets out to answer the following research questions:
• What types of arguments have been used to justify the implementation of rights of
nature?
• How well do the arguments for implementing rights of nature hold up when analyzed
through internal ideational critique?
1.3. Disposition
Following this section on the disposition of the paper, previous research and the way in which
this thesis contributes to the existing body of research will be presented. Chapter one also
includes the methodology and scope of the study. Chapter two deals with the different
philosophies and theories on rights of nature. Chapter three begins with a brief background to
the Whanganui River case and a short presentation of the selected material. It then moves on to
a presentation of the arguments that were used in the parliamentary debate to justify the
implementation of legal personality for the Whanganui River. Chapter four contains the
analysis – or the ideational critique – of the identified arguments. Finally, the last chapter
contains a summarizing discussion, followed by the conclusions of the study.
1.4. Previous Research and Relevant Discourse
In the words of Roderick Frazier Nash: ‘traditional moral philosophy professed little concern
for the human relationship with nature’ (1989:122). It wasn’t until the beginning of the 70s that
‘environmental ethics’ was brought up as subject for discussion outside of environmentalist
circles (ibid). Christopher D. Stone was first to make a case for giving legal personality to
objects found in nature back in 1972. The – at the time – quite radical idea of granting a river
with legal personality in the way he proposed, sparked a debate that is still ongoing. The debate
was long centered around environmental aspects, but later shifted towards including a minority
rights perspective such as the arguments presented by Morris and Ruru in 2010. This thesis
connects to the discourse within political science that focuses on the connection between legal
rights of nature and minority rights.
7A lot of previous studies within this discourse has had a theoretical approach. Great examples
of that are Darlene Johnston’s article on native rights that touches on the concept of the right to
native lands (1989), or the Māori authors Morris and Ruru’s (2010) proposal on introducing
legal personality for sacred rivers in New Zealand. As more cases of legal rights of nature have
occurred, the discourse has taken a more empirical direction. Through conducting interviews,
Mihnea Tănăsescu (2013) provides a detailed account of how the constitutional rights of nature
in Ecuador came to be. One of the more notable observations presented in her article was that
there was a complete turnaround on the opinion on legal rights of nature in the general assembly
that went from being very skeptic in April 2008 to a unanimous agreement a couple of months
later (ibid:851). Tănăsescu’s study includes an account of the political debate that took place,
much like this study, but it does not show how the arguments relate to the different theories on
rights of nature. Similarly, Tănăsescu focuses on describing the process rather than analyzing
or criticizing the justifications in the way that will be done in this study.
Another study by Tănăsescu (2020) takes on a slightly different angle, focusing on the
connection between legal personality for natural objects and the philosophies of indigenous
people by studying two cases: the Ecuadorian constitution and the Te Urewera Act in New
Zealand in 2014. Tănăsescu finds that indigenous philosophies haven’t fully been represented
or interpreted correctly into the implemented rights of nature. A more in-dept presentation of
the theories and the discourse on rights of nature and minority rights can be found in the Theory
Chapter.
1.4.1. Contribution
This thesis aims to contribute to an emerging field of research within political science that
concerns the connection between legal rights of nature and minority rights. By analyzing and
criticizing the parliamentary debate in New Zealand, this study is able to show how the practical
and the theoretical debate on legal rights of nature and minority rights relates to one another.
Furthermore, by analyzing the identified arguments through ideational critique, this study
provides additional insights to the quality and significance of the arguments used to justify the
implementation of legal personality for natural objects. This approach helps add further depth
and dimension to the ongoing discussion on how to understand the reasons for implementing
legal rights of nature.
81.5. Methodology
In order to answer the research questions, two methods will be applied. First, a method for
identifying the arguments in the selected material, and second, a method for testing how well
the identified arguments hold up. Accordingly, the selected methods for this thesis are argument
analysis and ideational critique.
1.5.1. Argument Analysis
A fundamental step in analyzing and testing political arguments is to first identify them in the
studied material, which in this case consists of the three parliamentary readings of the Te Awa
Tupua Bill (Beckman, 2005:38). Further details on the material can be found later in the
Whanganui River Case Chapter. For the purpose of this study, the argument analysis will be
used as a way of describing and categorizing the arguments used to justify the implementation
of legal personality for the Whanganui River.
Traditional argument analysis often involves finding the pro and counter arguments in a debate
(Beckman, 2005:40f). However, the aim of this study is not to describe the debate on the issue,
but rather the justifications, as well as to see how well they hold up. Accordingly, the process
of matching pro and counter arguments with each other has been deemed unnecessary and thus
won’t be applied. In order to secure structure in the analysis, the arguments will be identified
in the studied material, summarized and, lastly, categorized according to what philosophy they
adhere to.
1.5.2. Ideational Critique
The model for ideational critique used in this thesis is the one Ludvig Beckman describes in his
book on ideational analysis (2005). Ideational critique is used to study and explain on what
grounds an argument, or opinion, should be considered logically valid, empirically sound and
reasonable in terms of the values it claims to represent (ibid:56); which is in accordance with
the aim of this study. A short introduction to what the three points of critique entails can be
found below.
9To test the logical validity, one has to consider two main criteria: to what degree the argument
is free of contradictions and how logically valid the reasoning behind the argument is
(Beckman, 2005:59). When testing the empirical soundness of an argument, Beckman suggests
looking at three different factors (2005:66). Firstly, if there is any evidence provided for the
claims being made, and if so, is the evidence viable? In line with Beckman’s recommendation,
claims made in the arguments will be verified by comparing them to reached conclusions from
existing research (ibid:66f). Finally, one looks at whether or not the claims can be empirically
tested at all to see if they are metaphysical claims.
Testing the reasonableness of an argument centers around the core values connected to the
argument (Beckman, 2005:70). In this study, the ideational critique of the arguments will be
internal i.e. the premise for the critique stems from the analyzed text, not from brought in values
as is done in external ideational critique (ibid:72). Testing the reasonableness of ideas will be
done in two ways: showing whether or not the arguments are incoherent, and whether or not
they are conflicting with the values they presumably represent (ibid:72f).
1.5.3. Selection of Case
There are two questions that need to be addressed here. The first one is: why study a
parliamentary debate on legal rights of nature? This study is primarily theoretical, in that it aims
to examine how legal rights of nature can be motivated through studying the political discourse.
That is why a parliamentary debate on the topic has been chosen for analysis. The second
question that needs to be answered is: why the parliamentary debate on the Whanganui River
Case? The first point that will be made, is that the pool of cases with countries that have
implemented rights of nature to date is still relatively small; consisting of only a handful of
cases (Kauffman & Martin, 2018:44). Moreover, the examples of implemented legal
personality for natural objects are even fewer in number. This is obviously a limiting factor in
the case selection process, but it did not present a problem for the purpose of this study. Since
the aim of this study is to examine how different types of arguments for implementing legal
rights of nature interact and relate to each other, it was important to select a case that likely
would include the minority rights perspective. It was obvious that the Māori was very much
involved in the implementation process of the Whanganui River case which is why the
parliamentary debate on the Te Awa Tupua Bill was chosen to study. Moreover, it is a quite
recent case – the debate took place in 2016 and 2017 – which means that the arguments in the
10debate will be adequately representative of the current way of justifying legal rights of nature
in practice.
While this study is primarily focused on the theoretical aspects of how rights of nature can be
justified, it also contains an empirical element through the first research question that deals with
what types of arguments that have been used to justify the implementation of rights of nature.
Thus, another reason for selecting the case of the Whanganui River, is that it could be seen as
a representative case. Many of the cases in which rights have been given to natural objects, the
objects in question have often been bodies of water (Tănăsescu, 2020:430). The Whanganui
River undoubtedly falls in under that category. Another factor that can be seen in many of the
rights of nature cases around the world is the involvement of indigenous people (ibid:431). As
was mentioned earlier, the Māori played a central part in making the river’s rights come true.
It could thus be reasoned that the Te Awa Tupua Bill is a typical case of legal rights of nature
implementation. Studying a representative case increases the chances of making the results and
thus the conclusions of a study more generalizable (Esaiasson et al., 2017:164f).
1.5.4. Scope
It is imperative to have clear cut lines of where the subject matter ends and begins in order for
a study to reach an appropriate level of focus. The point of this section is to highlight what
aspects this thesis does not include or examine. The aim of this study is to analyze arguments
from the debate on the implementation of rights of nature through internal ideational critique
to see how well they hold up. It can thus be argued that the focus should lie on the arguments
themselves, rather than the actors that present them (Beckman, 2005:17). The same logic
applies to how this study deals with the context in which these arguments were formed. In other
words, it is not of great significance who said what for the purpose of answering the research
questions of this thesis. This thesis will thus not take on which roles the actors of the
parliamentary debate had, in any great detail. This study should thus be categorized as idea-
centered rather than actor-centered (ibid). Furthermore, the focus on this study is limited to the
parliamentary debate since the purpose is to study the political discourse to gain an
understanding on how legal rights of nature can be justified. Consequently, it does not include
arguments made by other parties including: lobbyist organizations, non-governmental
organizations, corporations, the general public or the media. Finally, no stance against or in
favor of implementing legal rights of nature will be taken in this paper.
112. Theory
Since this thesis aims to examine the interplay between different philosophies on rights of
nature and minority rights, it is important to first make clear what the different philosophies on
moral rights of nature and legal rights of nature are. This chapter lays out the different theories
and the different philosophical values they adhere to.
2.1. Three Different Philosophies on Rights of Nature
Observing the discourse on rights of nature, three main systems of values can quite easily be
detected: ecocentrism, anthropocentrism and animism. The ecocentric view puts nature in the
center by recognizing the intrinsic value of nature itself and renounces the idea that humans
innately should be seen as having dominion over nature or as having greater value in relation
to other life-forms (Humphrey, 2018). Consequently, those who adhere to the ecocentric
philosophy would argue that nature should not be protected due to the utility or need fulfilment
it could give humans. This contrasts greatly with the anthropocentric philosophy which centers
around human wants and needs, rendering natural objects without any use to humans worthless
(ibid). In other words, the anthropocentric view does not recognize an intrinsic value in nature
and so nature should only be protected in so far it benefits humanity. Finally, there is animism
which has been referred to as ‘the belief in spiritual beings’ by Sir Edward Burnett Tylor in
1871, a quite minimal definition that could be applied to many different beliefs and religions
(Park, 2020). For example, animism frequently plays an important part in stories of creation
and origin, claiming that parts of nature can be seen as ancestors or immortal beings (Leeming,
2002). In the context of rights of nature, animism can be regarded as the belief that nature
possesses spiritual qualities that need to be protected, thus animating objects such as mountains
or rivers that are not traditionally identified as being alive.
2.2. Rights of Nature in Theory
In his book Ecology, Community and Lifestyle, Arne Naess touches upon the philosophical
reasoning behind viewing nature as something with rights. Among other things, he talks about
the right for plants and animals to live, or rather, the equal right to ‘unfold potentials’
(1976/1989:165). He refutes the idea that different life forms should be ranked according to
12their intrinsic value in relation to other life forms (ibid:167). According to Naess, the
uniqueness of humankind’s cognitive abilities renders us not with a right to dominate, but rather
with a responsibility in how we conduct ourselves towards other living beings (ibid:170). In
most societies today, the conduct is – at least to some degree – regulated by laws which is why
the focus now turns towards the legal aspects of rights of nature.
It’s hard not to stumble upon the name Christopher D. Stone when studying rights of nature.
His article ‘Should Trees Have Standing?’, in which he makes the case of giving natural objects
– as he calls them – legal personality, has been subject for discussion for decades upon decades
(1972). Interestingly, Stone takes on a different approach than Naess – who focused primarily
on the rights of other living beings – when he chooses to make his case by showing how a river,
i.e. a non-living object, could be given legal rights. Many articles in the debate on legal
personality for objects in nature takes its point of departure from Stone’s reasoning in particular,
which is why a brief summary of his main arguments will be provided here.
Stone states that three criteria need to be fulfilled for something to be considered a ‘holder of
legal rights’ (1972:458). First, the thing must be able to institute legal action at its own
command. Second, the court need to take the damage to the thing into consideration when
deciding upon the legal relief. Third, it must benefit from the legal relief directly, i.e. be the
recipient of the compensation. His core argument is thus that without legal standing, natural
objects stand unprotected, and at the mercy of human interests.
Stone presents an example of how a river being subject to pollution without legal standing falls
short of these three criteria (1972:459ff). In the first sense, without legal personality the river
could not take legal action against the polluter, it would be up to the riparian downstream to do
so. The risk is that based on a cost-benefit analysis, the riparian might choose not to, leaving
the polluters free to continue destroying the water. Even in the cases where the riparian does
take legal action, the court won’t take into consideration the actual injury the river has suffered,
but rather to what extent the riparian’s interests have been damaged – thus failing to fulfill the
second of Stone’s criteria. Lastly, Stone points out that in the cases where the polluters are
convicted in court, the monetary compensations are awarded to the riparian and not to the river
itself (which could have been used to re-introduce fish stocks, plants or clean up the river). To
tackle this issue, Stone suggest that the river be given legal personality and that guardians for
the river could help voicing its interest and seeking legal action.
13The main focus of Stone’s article is on the impacts legal personality would have for natural
objects; but it also touches upon the question: why should the rivers be protected to begin with?
Stone’s arguments could be categorized as ecocentric since his thinking suggests that there is
an intrinsic value in nature itself and that it should not only be valued in accordance of what
purpose it might serve humans. He uses the metaphor of viewing the Earth as one big organism
in which everything is connected and fills a purpose, humans included (Sone, 1972:498f). He
proposes that mankind may be viewed differently from nature, but in the way ‘a man’s brain is
different from his lungs’ (ibid:499). In other words, mankind and nature are interdependent,
existing in a symbiotic relationship. Stone argues that a change in how we humans regard nature
as a whole would benefit from a shift away from anthropocentrism:
“… we have to give up some psychic investment in our sense of separateness and specialness
in the universe… …. Changes in this sort of consciousness are already developing for the
betterment of the planet and us.” – (Stone, 1972:496f)
Stone further emphasizes that placing too much hope in the change of the collective
environmental consciousness is a mistake since humans are at the mercy of their institutions
(1972:494). To bring about real change, Stone claims that it is not enough that the human
population’s attitude towards nature changes, but that the institutions need to mirror that change
(ibid:495).
This thesis relates to Stone’s ideas in multiple ways. First, one can’t help but notice the
similarities in the guardianship for a river that he suggests, and the case of the Whanganui River
that this study is centered around. Second, whereas Stone could only speculate in how and why
legal personality for rivers should and could be implemented, this thesis is written in a time
where it has actually taken place. Finally, Stone’s article sparked the debate on legal personality
for natural object which this thesis aims to contribute to.
James Morris and Jacinta Ruru were inspired by Stone’s proposal on legal personality for
natural objects (2010). Being of Māori descent, the two authors went on to examine how legal
personality could be adopted into New Zealand legislation. While Stone took on a more
environmental political approach, Morris and Ruru use his arguments to show how legal
personality for rivers can be used to better minority rights.
14“The beauty of the concept is that it takes a western legal precedent and gives life to a river
that better aligns with a Māori worldview that has always regarded rivers as containing their
own distinct life forces.” – (Morris & Ruru 2010:58)
Morris and Ruru bring an animistic view of natural objects to the debate. This increases the
presence of metaphysical aspects in the debate. Metaphysical claims might not automatically
be problematic, but they do bring with them an uncertainty as the debate becomes more and
more unscientifically founded (Beckman, 2005:66). A biologist might argue that how life is
currently defined shouldn’t be applied to the river itself, but rather to the living organisms
residing within it. However, there is no real way of proving or disproving that a river is a
spiritual being in itself (and thus should have legal standing).
Morris and Ruru’s proposal on giving rivers legal standing could be a way of allowing
indigenous people to realize their cultural membership. According to the philosopher Will
Kymlicka, the cultural community is the gathering ‘within which individuals form and revise
their aims and ambitions’ (Kymlicka, 1989:135, see Tomasi, 1995:581). Kymlicka argues that
the belonging to this group is strongly connected to an individual’s self-respect, and that the
cultural membership consequently should be viewed as a primary good in the Rawlsian sense
(ibid:584). Darlene Johnston makes the case that native people oftentimes see their connection
with their land as something tightly bound to both their ‘collective wellbeing and identity’
(1989:193). Giving natural objects rights and making indigenous people their guardians could
provide a means of giving indigenous people back part of their autonomy. Johnston further
argues that the loss of land for native people has been historically linked to their marginalization
(ibid:194). Allowing indigenous groups self-governance of sacred lands is thus a way of
ensuring their self-preservation.
Building off of Stone’s argument that rights of nature is an excellent way of protecting the
environment, one could also see how a utilitarian would argue in favor of it as a concept. From
a utilitarian’s perspective, the environment should be protected since a failure to do so would
inevitably compromise human interests (Goodin, 1992:6). This is a very anthropocentric
approach to rights of nature in that it stems from valuing nature in terms of its ability to satisfy
human needs.
152.3. Cases Against Legal Rights of Nature
Now that several cases have been made from both an environmental political perspective and
from a minority rights perspective, it is important to highlight that there has also been
opposition towards granting rights to natural objects. Julien Bétaille makes a case that unlike
the legal system in the 70s, modern environmental law is able to recognize the intrinsic value
of nature which would render rights of nature unnecessary (2019:40). Furthermore, Bétaille
argues that rights of nature should not be considered a legal revolution, primarily because it
cannot rid itself of anthropocentric viewpoints any more than the modern environmental law
can (ibid:54). This is because the legal system is a human construct that demands human actors
within it, i.e. even when given rights, nature is dependent on humans acting on its behalf which
risks rights of nature also becoming subject to human interest (ibid:55). Bétaille claims that this
implies that rights of nature can’t on reasonable grounds be viewed separately from more
anthropocentrically phrased laws such as humans’ right to a healthy environment (ibid:54f).
One obvious thing that is lacking in Bétaille’s analysis is that he only takes on the arguments
for rights of nature that stems from the ecocentric approach. Consequently, he fails to consider
the aspect of the debate that centers around rights of indigenous people. That issue has been
addressed by Mihnea Tănăsescu who questioned the supposed connection between rights for
the environment and realizing ‘indigenous visions’ (2020). For one, she points out that
indigenous philosophies aren’t primarily ecocentric as much as they are centered around a
concept of reciprocity between human and nature (ibid:452). Furthermore, she argues that the
animistic view some indigenous people have on nature can’t be appropriately ‘translated into
the western concept of legal person’ (ibid:453). Finally, she claims that there is a tangible risk
of overlooking other more fruitful political arrangements for indigenous philosophies when
putting them in the same category as rights of nature (ibid).
163. The Whanganui River Case
Although the focus of this study does not lie on the actors or context but rather on the arguments
themselves, it is important to note that the Te Awa Tupua Act did not spring out of thin air. To
fully grasp the arguments presented later in this chapter, the reader should be aware of certain
historical aspects of the Whanganui River and what the river means to the Māori tribes
connected to it. Hence, to facilitate the reader’s understanding, a brief presentation of the
context in which the Te Awa Tupua Act was formed – namely the history of the Whanganui
River – can be found below as well as a short introduction of the Te Awa Tupua Act.
3.1. Background
One of the key parts in understanding the history of the Whanganui River, is to be made aware
of the central role it plays in Māori culture. Like other rivers in New Zealand, the Whanganui
River is considered to be tupuna, an ancestor, to the Māori tribe linked to the river, the
Whanganui Iwi (Morris & Ruru, 2010:49). The interconnectedness of humans and water in
Māori culture can be exemplified through the well-known saying: ‘Ko au te awa, Ko te awa ko
au – I am the river and the river is me’ (Hsiao, 2012:372).
The British colonialization of New Zealand that began in 1769 posed a great threat to the safety
of the rivers, and the Māori has fought hard to protect them ever since (Tănăsescu, 2020:439).
This long struggle resulted in the Treaty of Waitangi which was signed in 1840 by both the
Māori and the Crown, recognizing the Māori’s right to their lands (Morris & Ruru, 2010:49).
In spite of this, the Crown showed little regard to the Māori’s claims when it later took control
over the very same lands and property that the treaty had promised them. The Whanganui River
was no exception to this. The Whanganui Iwi spent decades upon decades protesting and
petitioning to protect their aquatic ancestor from hydro-electric dams, gravel removal from the
riverbed, and the release of invasive species into the river (Hsiao, 2012:372).
It was not until quite recently that the parliament of New Zealand began to listen with a more
sympathetic ear to the wishes of the Māori (Morris & Ruru, 2010:49). The process of getting
the Whanganui River recognized as a legal person took place in multiple steps. Following years
of negotiations since 2002, the Tūtohu Whakatupua Agreement was signed by the Crown and
17the Māori in 2012 (Hsiao, 2012:373). The agreement recognized the personality of the
Whanganui River (though not legally), returning the rights of the riverbed to the river itself.
The recognition of legal personality for the Whanganui River was implemented five years later
in 2017 (Argyrou & Hummels, 2019:752).
Looking at the history of the Whanganui River, it’s not hard to understand why the Te Awa
Tupua Act sometimes is referred to as an apology by the Crown to the Whanganui Iwi (Collins
& Esterling, 2019:8). The act recognizes the Whanganui River as a living entity with rights,
making it cross the line from object to subject (Argyrou & Hummels, 2019: 752). In order to
enforce those rights, the river has been given guardians (the Te Pou Tupua office) whose duties
include to ‘act and speak for and on behalf of the river’ (ibid:753). The Te Pou Tupua office
includes two guardians: one state representative which is appointed by the Crown and one
Māori representative. The struggle for the legal recognition of the Whanganui River as its own
entity has proven to be the longest-standing legal battle in New Zealand history, representing
the decolonization of both people and nature (Hsiao, 2012:371).
3.2. The Selected Material
For the purpose of this study, the material that will be subject to analysis consists of the three
parliamentary readings of the Te Awa Tupua Bill. Parliamentary readings are part of the seven
stage process a bill has to pass through in order to become law in New Zealand (New Zealand
Parliament, 2016a). One thing that needs to be addressed is the fact that some of the arguments
were translated from Māori to English by the New Zealand Parliament. Additionally, some
Māori terms that remained in the English versions of the arguments were translated through
using an online dictionary, to help the reader understand the arguments. As is the case with any
translation, it is possible that some things can have been lost or misinterpreted which could
potentially affect the analysis. However, this has not been considered a significant source of
error in this study.
3.3. Arguments in the Te Awa Tupua Bill Debate
Something that became very apparent when reviewing the parliamentary readings for this study,
was that no one outright chose to question the decision of giving legal personality to the
Whanganui River through the Te Awa Tupua Bill. Nonetheless, the people who spoke in the
18three parliamentary readings took the opportunity of highlighting not only why the bill was
historic to the Māori people, but also why it was a crucial piece of legislation for the river itself.
Important to note is that personal anecdotes of relationships or memories involving the
Whanganui River has not been identified as arguments in this study and will consequently not
be presented below.
The vast majority of the arguments concerned the relationship between the Māori and the
Whanganui River. In the first reading, Marama Fox (co-leader of the Māori Party) pointed out
that the river is sacred to the Māori and consequently their ‘life cord’ (New Zealand Parliament,
2016b). It was also argued by Kelvin Davis (Labour Party) that the bill shows all of New
Zealand how special the rivers are to the Māori, and that they are an integral part of them (ibid).
Marama Fox continued to argue in the same way during the second reading when she stated
that ‘the river and the land and its people are inseparable […] if the awa (river) dies, we die as
a people’ (New Zealand Parliament, 2016c). This view was echoed by Kelvin Davis who stated
that ‘if we look after our river, then we are actually looking after ourselves and our people’
(New Zealand Parliament, 2017). Marama Fox further explained that the bill should be seen as
a chance to ‘restore Te Awa Tupua (the supernatural river) to its life-giving essence and, in
doing so, to gift back to the people their rightful obligations and responsibilities to the river that
runs through their veins’ (New Zealand Parliament, 2016c).
Nanaia Mahuta (Labour Party) argued that giving legal personality to the river meant urging
people to think differently regarding both the responsibility and rights people have vis-à-vis the
river. The main point of the bill, according to her, was to secure the health of nature for the
enjoyment of future generations (New Zealand Parliament, 2016c). Finally, Kelvin Davis stated
that it was about time that Māori world view is practically legitimized in legislation (New
Zealand Parliament, 2016b), something that he underlined when he in the third reading said that
the bill would allow iwi (tribes) to say ‘these are the values that we hold for our river’. He also
claimed that the bill would ensure ‘the long-term environmental, social, cultural and economic
health of the river’ (New Zealand Parliament, 2017). The idea of the economy being connected
to the health of the river was also brought up by Chester Borrows (National Party); he stated
that ‘the river is fundamental to the health of the Whanganui, and it is testament to our
environment and the health of us as a nation’ (ibid). Borrows went on to claim that ‘you cannot
have an economy without an environment, particularly in this country…’.
19Another aspect of the debate was how the river and its people had been previously wronged by
the Crown. There were claims from Metiria Turei (co-leader of the Green Party) that upholding
the kaitikatianga (guardianship) relationship with the river has been a massive struggle for the
Māori (New Zealand Parliament, 2016b). The bill represents a victory for the Māori in being
able to protect the river. Some issues that the crown had brought on the river was the extraction
of gravel from the river banks and river bed, the clearing of rapids and threatened fishing
grounds (ibid). Kelvin Davis shared this view by stating that the model of legal personality for
the river is a way of ensuring that the ‘best interests of the awa are looked after’, previous
legislation seem to have failed the river in this aspect as he, like Turei, mentions that there has
been pollution, ruined habitats for both flora and fauna and gravel removal (New Zealand
Parliament, 2017).
The historical aspect of the debate was further emphasized by John Hayes (National Party) who
made the statement that the bill ‘is about righting the history of what has always been’, and that
it should be viewed as an acknowledgement of that ‘the Whanganui iwi were right all along’
(New Zealand Parliament, 2016c). Christopher Finlayson (National Party, minister for Treaty
of Waitangi Negotiations) points out that the Crown’s actions (and inactions) ‘disenfranchised
iwi from their relationship with the river’ and that the granting of legal personality to the river
represents their calls for justice being answered at last (New Zealand Parliament, 2017).
There were also arguments that were grounded on the basis of the Māori beliefs directly and
could thus be categorized as animistic. One example of this was the statement by Chester
Borrows that the river in fact had, and had always had, a personality (New Zealand Parliament,
2017). Another example is when Metiria Turei stated that the environment is an ‘ancestor from
where we come, and, therefore, we owe our environment everything – our life, our existence,
our future’ (New Zealand Parliament, 2016b). She also claimed that it had been Māori ‘tikanga
forever that the environment is entitled to its own integrity’ (ibid). Tikanga, according to Māori
Dictionary, is among other things ‘the customary system of values and practices that have
developed over time and are deeply embedded in the social context’ (n.d.). Apart from stating
that the bill was a type of empowerment of ‘Te Ao Māori (all Māori) and Māori beliefs’, David
Clendon (Green Party) stressed that ‘the point is to approximate at law what the river is to us
in custom and kawa (customs of the marae): a living tupuna (ancestor), not an inanimate, lifeless
resource to be used without regard to its mana (supernatural force)’ (New Zealand Parliament,
2017).
20Ecocentric arguments could also be found in the debate. Metiria Turei stated that giving legal
personality to the Whanganui River was the right thing to do, but that it more importantly is a
way of putting humans in ‘our rightful place in terms of the environment’ (New Zealand
Parliament, 2016c). Turei completely refutes the anthropocentric view on nature when she
refers to humans as the servants – not the masters – of the environment and that there
consequently is no alternative than to protect nature (through implementing the bill). She further
explains that the Te Awa Tupua bill ‘accepts that the environment […] is entitled to its own
integrity for its own sake’.
Turei also suggested that the bill should be viewed as a model for future legislation, in that
giving natural objects legal protection could indeed be a ‘dominant tool’ used to protect the
environment in the future (New Zealand Parliament, 2016c). As an example she suggested
giving legal protection to the atmosphere as a way of managing pollution and human climate
impact. ‘It is actually a tool that we should be using much more broadly to protect our
environment’ (ibid).
During the third reading of the Te Awa Tupua bill, David Clendon put additional focus on the
ecocentric arguments of the debate by bringing up Christopher D. Stone and his article that has
previously been brought up in the Theory Chapter (New Zealand Parliament, 2017). Clendon
pointed out that while many had a hard time accepting the idea of devoting rights to natural
objects at the time the paper was written, those same people had already accepted that
corporations and trusts could have the legal status of a person. Clendon further explains that
this step that was so unthinkable to many was not as hard to grasp or accept for the Māori since
their view on the mountains, rivers and nature in general is quite compatible with that thought.
Metiria Turei also brought up this argument when she challenged those who might oppose to
the idea of granting legal personality to a river by asking them to consider why corporations
already held legal status as a person (New Zealand Parliament, 2016b). Turei went on to claim
that ‘a corporation is not a thing. It does not have a separate identity… ’, and that it is of higher
importance to ‘…give status for its own sake to the very thing that gives us life, and in
Whanganui that is our river’.
One statement in particular stood out from the rest when studying the debate in that it could not
be categorized as either anthropocentric, ecocentric or animistic in nature. It came from Kelvin
21Davis who said that ‘if in our Pākehā (New Zealanders of European descent) culture and in our
Christian culture we believe someone can walk on water, then we can believe that Te Awa o
Whanganui (the Whanganui River) is a person’ (New Zealand Parliament, 2016b). Since this
statement is more of an analogy than an actual argument, it will not be analyzed later on in this
paper.
3.3.1. Summary of the debate
The tone of the readings was certainly set by the historical context in which it took place as
could be seen by the numerous arguments regarding the colonization and ruin of the river by
the Crown’s past actions. The aspect of minority rights was also brought into the debate by
several speakers whose arguments were founded on the experienced interconnectedness of the
Whanganui River and the Whanganui Iwi. Since these arguments circle around the effect
protecting the environment will have primarily for the Māori people, these arguments could be
categorized as anthropocentric. Evidently, aside from the minority rights arguments, ecocentric
and animistic arguments were also brought up, and so one could say that the debate clearly
reflects several of the points made by various authors in the Theory Chapter. That concludes
the results from the argument analysis of the parliamentary readings on the Te Awa Tupua Bill
that took place in 2016 and 2017.
224. Analysis
The arguments that were identified through the arguments analysis in chapter three have been
categorized as anthropocentric, animistic or ecocentric. Still, in this debate, the lines between
the three different types of philosophical arguments were often blurred. At times, one speaker
could use arguments adhering to different philosophies. Similarly, at times arguments may have
started out in e.g. an ecocentric line of thought but then shifted focused half way through; these
arguments have still been categorized as what they started out as. Which arguments this
concerns will become clear when reading the sections below.
4.1. Anthropocentric Arguments
As was presented in the previous chapter, the argument analysis revealed that several
anthropocentric arguments were made in the parliamentary readings. One of those concerned
the sacredness of the Whanganui River to the Māori, i.e. that the river needed to be protected
through granting it legal personality due to its sacredness (New Zealand Parliament, 2016b).
The same argument stated that it’s being sacred makes it a ‘life cord’ to the Māori (ibid). The
first part of this statement is undeniably true since it is carefully worded as being sacred to the
Māori, which few would disagree with. One could thus argue that this is indeed not a
metaphysical claim, but rather something that can quite easily be verified as being true through
empirical observation. Fox uses the experience and history of her people when she makes this
claim and thus provides adequate proof of what she is suggesting (ibid). However, when it
comes to the second part of this argument – i.e. that the river should be regarded as a lifeline
for the Whanganui iwi due to its sacredness in particular – it is harder to evaluate how truthful
this statement actually is. Furthermore, while it’s not a contradictory claim that something being
sacred could imply that it is a necessity for life, without sharing the belief of the Māori, it is
hard to see a logical validity between the premise and conclusion here. That the river is a lifeline
because it helps feed the people or facilitates transportation is perhaps a bit more tangible of an
argument from an outsider’s perspective. Though the use of words such as ‘life cord’ is a
reoccurring phenomenon in the debate, it should perhaps not be interpreted in the literal sense
as it by the context was clear that the term was used as a way of emphasizing just how sacred
the river really is to the Māori.
23The issue with many arguments from this debate is that they are often incomplete in the way
they’ve been presented. For example, while it is made clear that the Whanganui River should
be regarded as sacred, it is not further explained why that inherently means that it needs to be
given legal rights. Consequently, the question that really needs to be asked here is: does the
Whanganui River being sacred to the Māori mean that it should be granted legal rights? The
answer will depend – naturally – on who you ask. The argument goes well along the lines of
Kymlicka and Johnston’s view on how rights of nature could potentially help protect indigenous
groups’ cultural identities, autonomy and ultimately their self-preservation (Johnston,
1989:194, Tomasi, 1995:581). If this argument sets out to justify protecting the river in terms
of protecting the Māori, then the argument is quite reasonable in terms of the values it is said
to represent. However, if the true intent has to do with the protection of the river for the sake of
the river itself, then this argument fails to justify that, since the way it is phrased is
fundamentally anthropocentric. Then again, it is not made perfectly clear how we should
understand the intent behind this particular argument, in other words it leaves a lot open to
interpretation.
Some of the other anthropocentric arguments have features in common with the previously
discussed argument. The idea that the river is inseparable from the people reoccurs in several
statements: e.g. ‘if the awa dies, we die as a people’ or ‘…if we look after our river, then we
are actually looking after ourselves and our people’ (New Zealand Parliament, 2016c;2017).
Moreover, the same arguments include a statement that say ‘the river and the land and its people
are inseparable. And so if one is affected, the other is affected also…’. The concept of the river
being dependent on ‘its’ people can be subject to doubt. After all, in places where nature have
been spared from human interaction, have the rivers suffered because of it? Hardly. The fact is
that the Whanganui River pre-dates the existence of human activity on New Zealand – both
Māori and Western – and so to claim that the river’s well-being is dependent on the Māori
people could be questioned. Still, it is important to remember the context in which this argument
was made. The same speaker who said that the river’s health is reliant on the custody of the
Whanganui Iwi mentions that the Crown’s actions regarding farming policies and regulations
in the past has led to the river being desecrated and ‘sick’ (New Zealand Parliament, 2016b).
That the Māori feels a need to protect the river from these types of practices makes the notion
of the river being dependent on the Māori a lot less irrational. It is mirrored in both Nanaia
Mahuta’s statement that the main purpose of the bill was to protect the river in order to ensure
that future generations also get the opportunity to enjoy it (New Zealand Parliament, 2016c)
24and Kelvin Davis assertion that the river’s environmental, social, cultural and economic health
would be achieved through passing the bill (New Zealand Parliament, 2017). However, what
exactly social and cultural health of a river entails in his mind was not made clear.
Another line of argumentation that has also been categorized as anthropocentric centered
around the symbolic value the Te Awa Tupua bill holds. The idea was that the bill would
challenge Pākehā’s (New Zealanders of European descent) way of perceiving the river and
further that the bill was a way of legitimizing Māori culture in legislature. The bill supposedly
accomplishes this by showing what value the river possesses. That legislature can help shape
norms in society is something that has been theorized over before, for example by Kauffman
and Martin who looked at how norms are constructed in rights of nature law (2018:43f). An
increased respect and recognition of Māori beliefs and culture amongst the Pākehā would be a
possible way of hindering the marginalization process of the Māori as a minority. If the
ambition behind implementing the bill has to do with protecting the Māori, then the symbolism
of this piece of legislature is certainly of some significance at the very least. That kind of
reasoning makes this argument one of the stronger ones of this debate in terms of
reasonableness in relation to the values it is said to represent. The argument does, however,
shift the focus away from the river to the Māori themselves – just like other anthropocentric
arguments – which in a way might be a little contradictory since the whole point of it is that the
river needs to be regarded differently, not the Māori.
There were also traces of utilitarian arguments in the debate when Chester Borrows spoke of
the importance of keeping the river healthy to keep the nation healthy, especially in regards of
the economy (New Zealand Parliament, 2017). The idea he presented was that there is no way
of having an economy without an environment, especially not in New Zealand. While he didn’t
explain how the river, or the environment, contributes to keeping an economy afloat, there are
undeniably ways the river could play a role in accomplishing economic revenue. For example,
three obvious ways are that the river serves as a tourism attraction, that it can be part in creating
electricity and that it supplies food through its flora and fauna. It is thus both a logically valid
argument and empirically provable. That the environment should be protected due to its
economic potential is utilitarian in the sense that it is being protected on the basis of human
wants and needs.
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