Rachael Evans: In a groundbreaking statement earlier this month, indigenous leaders of New Zealand and the Cook Islands signed a treaty, He Whakaputanga Moana, to recognize whales as legal persons.
Aotearoa New Zealand has already granted legal personality to a river (Te Awa Tupua Whanganui River), land (Te Urewera) and a mountain (Taranaki maunga), but He Whakaputanga Moana differs from these previous processes. It is based on customary law, or tikanga Māori, rather than Crown law.
The declaration aims to protect the rights of whales (tohorā) to migrate freely and to use mātauranga Māori alongside science for better protection. It is also planned to set up a special fund for whale conservation.
Māori and Pacific leaders have signed a declaration seeking to grant legal personality to tohorā, or whales.https://t.co/0q6SjoAdn7
— RNZ Te Ao Māori (@RNZTeAoMaori) April 2, 2024
But a core concept of legal personality is the idea that the “person” (in this case, the whales) can sue to protect their rights.
The statement was signed by King Tuuheitia Pootatau Te Wherowhero VII of the Kiingitanga Movement, Lisa Tumahai, chair of the Hinemoana Halo Ocean initiative, and Cook Islands leader Kaumaiti Nui Travel Tou Ariki.
It recognizes traditional Māori and Pasifika ideas about the importance of whales as ancestral creatures. King Tuuheitia described it as “a woven cloak of protection for our taonga,” noting that the presence of whales “reflects the power of our own mana.”
Although He Whakaputanga Moana is not a pan-Māori statement, mana is a shared core concept of tikanga Māori, representing authority and power.
What is legal personality?
Over the past few hundred years, corporate personality has developed as a way for individual shareholders to avoid liability. This means that a company can go to court instead of its shareholders.
Over the past decade, Aotearoa New Zealand has led the way in developing legal personality for things in nature into an instrument used as part of settlements under Te Tiriti o Waitangi/Treaty of Waitangi. It is important to note that these ideas have been recognized and implemented by the Crown, in partnership with Māori.
As part of the Tūhoe Settlement signing in 2014, the former Te Urewera National Park was given legal personality. In 2017, legal personality for the Whanganui River was also part of a settlement. And last year the idea was extended to Mount Taranaki. The Taranaki Maunga Collective Redress Bill passed its first reading in Parliament last week.
These natural features are now owned not by people or the Crown, but by themselves.
Incorporation is being praised in New Zealand and beyond by people who want to use it to protect the environment.
Tikanga key to unlocking legal power
There is currently a shift in the legal system to recognize tikanga as an important source of law alongside statute and common law (the type of common law New Zealand inherited from England).
In the recent case of Ellis v R, the Supreme Court recognized and applied ideas about mana. In deciding to posthumously overturn Peter Ellis’ conviction, the court found that Mr Ellis’s mana was affected by the convictions even after his death.
He Whakaputanga Moana is based on customary concepts such as mana rather than a piece of law established by the Crown. It is likely that it could be recognized by the courts as part of the growing wave of tikanga jurisprudence.
Marine mammals in New Zealand’s territorial waters are absolutely protected by the Marine Mammals Protection Act 1978 (as highlighted recently when the Sail GP regatta was held in a marine reserve and races were postponed because dolphins were present).
But He Whakaputanga Moana recognizes legal personality above and beyond that legislation.
Whales in the courtroom
So what if whales went to court? What if whales sued over plastic pollution in their habitat, dumping waste in the oceans, or climate change causing warmer waters and depleting their food supplies?
In this case, He Whakaputanga Moana could potentially give an interest group, perhaps the Kiingitanga, the legal authority to file a lawsuit on behalf of the whales.
In addition to recognizing tikanga as a source of law, the Supreme Court has also opened the door to lawsuits focused on climate change, such as the case of Smith v Fonterra.
Here, activist Mike Smith has sued seven major New Zealand polluters over their greenhouse gas emissions. The defendants said the claim could not succeed and asked for a “strike out”, but the Supreme Court allowed the case to go to trial.
Among other findings, the court found that the trial should proceed because there may be ideas about tikanga and tikanga-based loss that needed to be tested at trial. This suggests that if the courts were to recognize the validity of He Whakaputanga Moana at common law, this case could provide those representing whales with an opportunity to bring a claim against ocean polluters.
A ruling in favor of whales could have significant consequences for the health and well-being of our oceans, and perhaps the survival of their species.
Rachael Evans, teacher, Kaupeka Ture | Faculty of Law, University of Canterbury
This article is republished from The conversation under a Creative Commons license. Read the original article.
