Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-25T16:40:17.815Z Has data issue: false hasContentIssue false
  • English
  • Français

Rights of Nature, Legal Personality, and Indigenous Philosophies

Published online by Cambridge University Press:  20 August 2020

Mihnea Tănăsescu
Mihnea Tănăsescu*
Affiliation:
Vrije Universiteit Brussels (Belgium). Email: mihnea.tanasescu@vub.be.
Get access Rights & Permissions [Opens in a new window]

Abstract

This article investigates the relationship between legal personality for nature and Indigenous philosophies by comparing two cases: the Ecuadorian Constitution of 2008 and the 2014 Te Urewera Act of Aotearoa, New Zealand. Through these case studies the article considers the nature of Indigenous relations with the concept of rights of nature, arguing that this relation is primarily strategic, not genealogical. The article engages with the concept of legal personality and shows that it is not a direct translation of Indigenous conceptions, but rather a potential straitjacket for Indigenous emancipatory politics. The radical character of Indigenous ontologies is not fully reflected in the concept of legal personality. Furthermore, the way in which rights are granted to the natural environment is an important part of the effect that such rights might have on Indigenous communities. Despite some affinities between rights of the environment and Indigenous philosophies, overstating the connection might constrain the radical political and legal implications of Indigenous thought.

Keywords

Rights of natureTe UreweraLegal personalityAotearoa New ZealandCritical jurisprudenceIndigenous law
Type
Symposium Article
Information
Transnational Environmental Law , Volume 9 , Issue 3 , November 2020 , pp. 429 - 453
Copyright
Copyright © The Author(s) 2020. Published by Cambridge University Press

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

†

This contribution is part of a collection of articles growing out of a Research Workshop on ‘Indigenous Water Rights in Comparative Law’, held at the University of Canterbury School of Law, Christchurch (New Zealand), on 7 Dec. 2018, funded by the New Zealand Law Foundation.

I would like to thank the University of Auckland's Law School for hosting a visiting fellowship that made parts of this work possible. I am grateful to Katherine Sanders for her generosity, and to Elizabeth Macpherson for inviting me to contribute to the Research Workshop on ‘Indigenous Water Rights in Comparative Law’. This work was supported by funding from the Research Foundation Flanders (FWO) (Belgium). My sincere gratitude to the two excellent referees for their comments on earlier drafts.

References

1 Constitución de la Republica de Ecuador [Constitution of the Republic of Ecuador], Official Registry No. 449, 20 Oct. 2008 (Ecuador).

2 The Constitution of Mexico City is the only other constitutional case that has arguably made steps towards recognizing the rights of nature. Art. 13.3 provides for a secondary law of nature's rights, but it relates to rights to nature. Furthermore, since constitutional importance arguably does not attach only to constitutions, other instruments enshrining rights of nature may also have constitutional importance in the sense that they change the context in which law and politics operate: see further n. 12 below.

3 Margil, M., ‘Building an International Movement for Rights of Nature’, in Maloney, M. & Burdon, P. (eds), Wild Law: In Practice (Routledge, 2014), pp. 149–60CrossRefGoogle Scholar.

4 Ley de Derechos de la Madre Tierra [Law of the Rights of Mother Earth], Plurinational Legislative Assembly, Law 071 of the Plurinational State, 21 Dec. 2010 (Bolivia).

5 Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien [Framework Law of Mother Earth], Plurinational Legislative Assembly, Law 300 of the Plurinational State, 15 Oct. 2012 (Bolivia).

6 Te Urewera Act, No. 51, 2014 (New Zealand).

7 Te Awa Tupua Act (Whanganui River Claims Settlement), No. 7, 2017 (New Zealand).

8 Ngāti Maru are the latest iwi (out of eight) to sign an Agreement in Principle with the Crown: see A. Little, ‘Ngāti Maru and the Crown Sign Agreement in Principle’, beehive.govt.nz (official website of the New Zealand Government), 20 Dec. 2017, available at: https://www.beehive.govt.nz/release/ng%C4%81ti-maru-and-crown-sign-agreement-principle#:~:text=The%20Crown%20and%20Ng%C4%81ti%20Maru%20have%20signed%20an,from%20Mount%20Taranaki%20to%20the%20upper%20Whanganui%20River.pdf.

9 Centro de Estudios para la Justicia Social ‘Tierra Digna’ v. President of the Republic, NoT-5.016.242, Corte Constitucional, Sala Sexta de Revision [Constitutional Court, Sixth Chamber], 10 Nov. 2016, (Colombia). See also O'Donnell, E. & Talbot-Jones, J., ‘Legal Rights for Rivers: What Does This Actually Mean?’ (2017) 32(6) Australian Environment Review, pp. 159–62Google Scholar.

10 Mohd Salim v. State of Uttarakhand & Ors, WPPIL 126/2014 (High Court of Uttarakhand, 2017) (India). See also O'Donnell, E., ‘At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India’ (2017) 30(1) Journal of Environmental Law, pp. 135–44CrossRefGoogle Scholar.

11 For environmental constitutionalism and the rights paradigm, see Boyd, D., The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (University of British Columbia Press, 2011)Google Scholar. For the rights of nature interpreted as mechanisms of political representation, see Tănăsescu, M., Environment, Political Representation, and the Challenge of Rights (Palgrave Macmillan, 2016)CrossRefGoogle Scholar. For environmental constitutionalism writ large, see Kotzé, L., ‘A Global Environmental Constitution for the Anthropocene?’ (2019) 8(1) Transnational Environmental Law, pp. 11–33CrossRefGoogle Scholar.

12 In particular, Bolivia's Framework Law (n. 5 above) and New Zealand's Deeds of Settlement, n. 68 above. For the constitutional significance of the Bolivian law, see Calzadilla, P. Villavicencio & Kotzé, L.J., ‘Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia’ (2018) 7(3) Transnational Environmental Law, pp. 397–424CrossRefGoogle Scholar. For the constitutional significance of the New Zealand cases, see Sanders, K., ‘“Beyond Human Ownership”? Property, Power and Legal Personality for Nature in Aotearoa New Zealand’ (2017) 30(2) Journal of Environmental Law, pp. 207–34Google Scholar. For the constitutional importance of the Ecuadorian case see Acosta, A., ‘El Buen (con)Vivir, una utopía por (re)construir: alcances de la Constitución de Montecristi’ [Good Living (Together), a Utopia for Rebuilding: Scope of the Constitution of Montecristi] (2011) 4(6) Otra Economía, pp. 8–31Google Scholar.

13 In Ecuador it is Pachamama that has rights (though the constitutional text uses the term interchangeably with ‘nature’: see Section 5.2 below); in Bolivia it is Mother Earth. In New Zealand the name of the legal entity created for the Whanganui River is intrinsically connected with Māori tradition: ‘Te Awa Tupua’ means ‘river with ancestral power’: see Sanders, n. 12 above, p. 207.

14 See de la Cadena, M., ‘Indigenous Cosmopolitics in the Andes: Conceptual Reflections beyond “Politics”’ (2010) 25(2) Cultural Anthropology, pp. 334–70CrossRefGoogle Scholar; E. Fitz-Henry, ‘Decolonizing Personhood’, in Maloney & Burdon, n. 3 above, pp. 133–48.

15 Although there are claims to this effect as well. For a history of the Indigenous origin of buen vivir (see n. 25 below) and the relationship between this and rights of nature, see Altmann, P., ‘El Sumak Kawsay en el discurso del movimiento indígena ecuatoriano’ [Sumak Kawsay in the Discourse of the Ecuadorian Indigenous Movement] (2013) 30 Indiana, pp. 283–99Google Scholar. For why the rights of nature specifically are not of Indigenous origin, see Tănăsescu, n. 11 above, pp. 132–6.

16 For a systematic overview of the differences between rights of nature cases, see M. Kauffman & Martin, P.L., ‘Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand’ (2018) 18(4) Global Environmental Politics, pp. 43–62Google Scholar.

17 Villavicencio Calzadilla & Kotzé, n. 12 above, and Kotzé, L.J. & Calzadilla, P. Villavicencio, ‘Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador’ (2017) 6(3) Transnational Environmental Law, pp. 401–33CrossRefGoogle Scholar.

18 Supernatural from the point of view of western ontology. As is argued in Section 5 below, many Indigenous philosophies recognize beings according to their actions, and not their materiality. In this sense, place spirits and ancestors are themselves important actors, in no way inferior to landscapes but rather fundamental to them.

19 For the ecocentrism of nature's rights, see also Acosta, A., El Buen Vivir en el camino del post-desarrollo. Una lectura desde la Constitución de Montecristi [Good Living in the Path of Post-Development. A Reading from the Constitution of Montecristi] (Friedrich-Ebert-Stiftung-ILDIS, 2010)Google Scholar.

20 This claim is ubiquitous in rights of nature advocacy: see, e.g., Margil, n. 3 above; see also Borràs, S., ‘New Transitions from Human Rights to the Environment to the Rights of Nature’ (2016) 5(1) Transnational Environmental Law, pp. 113–43CrossRefGoogle Scholar.

21 Kotzé & Villavicencio Calzadilla, n. 17 above, p. 408.

22 Knauß, S., ‘Conceptualizing Human Stewardship in the Anthropocene: The Rights of Nature in Ecuador, New Zealand and India’ (2018) 31(6) Journal of Agricultural and Environmental Ethics, pp. 703–22CrossRefGoogle Scholar. This transcendence would be achieved precisely because of the ecocentric credentials of nature's rights.

23 Demos, T.J., Decolonizing Nature: Contemporary Art and the Politics of Ecology (Sternberg Press, 2016), p. 8Google Scholar.

24 See Acosta, n. 12 above, and Gudynas, E., ‘La dimensión ecológica del Buen Vivir: entre el fantasma de la modernidad y el desafío biocéntrico’ [The Ecological Dimension of Good Living: Between the Ghost of Modernity and the Biocentric Challenge] (2009) 4 OBETS: Revista de Ciencias Sociales, pp. 49–54CrossRefGoogle Scholar. See also Acosta, E. Gudynas & A., ‘La renovación de la crítica al desarrollo y el Buen Vivir como alternativa’ [Renewing Criticism of Development with Good Living as an Alternative] (2011) 16(53) Utopía y praxis latinoamericana, pp. 71–83Google Scholar.

25 Buen vivir, or sumak kawsay in Kichwa, is a vision of development in harmony with nature, such that people are not placed above the natural environment but are situated within it. See authors in n. 24 above, as well as Section 2 below for more on this notion. See also Gudynas, E., ‘Buen Vivir: germinando alternativas al desarrollo’ [Good Living: Germinating Alternatives to Development] (2011) 462 América Latina en movimiento, pp. 1–20Google Scholar; Acosta, A., El Buen Vivir: Sumak Kawsay, una oportunidad para imaginar otros mundos [Good Living: Sumak Kawsay, an Opportunity to Imagine Other Worlds] (Icaria, 2013)Google Scholar.

26 For further examples of the treatment of rights for nature as ecocentric, especially in the case of Ecuador, see Kauffman & Martin, n. 16 above, and Martin, M. Kauffman & P.L., ‘Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail’ (2017) 92 World Development, pp. 130–42Google Scholar.

27 This is, especially, the case for Ecuador and Bolivia. For the case of Ecuador, see Kauffman & Martin, n. 16 above, p. 48.

28 Indeed, this is also evidenced in the fact that almost all scholarly consideration of the rights of nature is in the context of environmental (legal) scholarship.

29 This claim is also substantiated by the strategic use of the rights of nature by Indigenous activists in the run-up to the writing of the Ecuadorian Constitution. For details of this process, see Tănăsescu, M., ‘The Rights of Nature in Ecuador: The Making of an Idea’ (2013) 70(6) International Journal of Environmental Studies, pp. 846–61CrossRefGoogle Scholar. For the idea that it is the Indigenous who act as the ‘natural’ guardians of nature's rights, see Tănăsescu, M., ‘Nature Advocacy and the Indigenous Symbol’ (2015) 24(1) Environmental Values, pp. 105–22CrossRefGoogle Scholar. See also discussion in Section 4 below.

30 Kauffman & Martin, n. 16 above, p. 55.

31 See Tănăsescu, nn. 11 and 29 above, on which much of this account draws.

32 A movement that came to power in 2006 with the election of Rafael Correa as President.

33 The largest organization of Indigenous nationalities in Ecuador.

34 The Assembly started its deliberations in the latter half of 2007, in the town of Montecristi (Ecuador).

35 Kingdon, J.W., Agendas, Alternatives, and Public Policies, 2nd edn (Longman Classics in Political Science, 2003), pp. 165–95Google Scholar.

36 Tănăsescu, n. 11 above.

37 Another key contextual element is the influence of the oil industry in the recent history of Ecuador: see Tănăsescu, n. 11 above.

38 E.g., Art. 12 provides rights to water, while Art. 74 provides human rights to benefit from the environment.

39 For the hegemony of rights generally, see Campbell, T., Rights: A Critical Introduction (Routledge, 2005)Google Scholar. For the hegemonic expansion of rights into environmental protection in particular, see Boyd, n. 11 above.

40 See, in particular, Stone, C., ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review, pp. 450–501Google Scholar; Stone, C., Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press, 2010)Google Scholar.

41 Berry, T., ‘The Origin, Differentiation and Role of Rights’ (2001) Earth Jurisprudence Conference, pp. 21–4Google Scholar.

42 Cullinan, C., Wild Law (Siber Ink, 2011). See also P. Burdon (ed.), Exploring Wild Law: The Philosophy of Earth Jurisprudence (Wakefield Press, 2011)Google Scholar.

43 CELDF was established in 1995 as a public interest law firm. It is now one of the main advocates for including rights of nature in community bills of rights, and is behind every such case in the US: see https://www.celdf.org. Through its relationship with the non-governmental organization (NGO) Fundación Pachamama, it also advised the Ecuadorian Constitutional Assembly on drafting its rights of nature provisions. See also Mansfield, A. Rawson & B., ‘Producing Juridical Knowledge: “Rights of Nature” or the Naturalization of Rights?’ (2018) 1(2) Environment and Planning E: Nature and Space, pp. 99–119Google Scholar.

44 Rawson & Mansfield, ibid.

45 Namely, ‘the right to be, the right to habitat, and the right to fulfil [one's] role in the ever-renewing process of the Earth Community’: Cullinan, n. 42 above, p. 101.

46 See Tănăsescu, n. 29 above.

47 Ibid.

48 Continental Ecuador is divided into three different regions: the coastal, the Sierra (the mountain range traversing it north to south), and the Oriente, namely the eastern part of the country which comprises its Amazonian rain forest.

49 The Kichwa are the most numerous Indigenous nationalities in Ecuador, out of a total of 14: see ‘Cuántas nacionalidades y pueblos indígenas hay en Ecuador’ [How Many Indigenous Nationalities and Peoples There Are in Ecuador], El Universo, 25 Oct. 2019, available at: https://www.eluniverso.com/noticias/2019/10/25/nota/7575452/cuantas-nacionalidades-pueblos-indigenas-hay-ecuador (in Spanish).

50 Translated as ‘good living’ in English and ‘buen vivir’ in Spanish: see n. 25 above.

51 Kotzé & Villavicencio Calzadilla, n. 17 above.

52 E.g., Art. 261(11) places ‘energy resources; mineral, oil and gas, and water resources, biodiversity and forest resources’ under the jurisdiction of the state. Art. 408 further reinforces the vesting of mineral resources in the state. In contrast, Art. 56(12) gives Indigenous nationalities the ‘right to restore, promote, and protect ritual and holy places, as well as plants, animals, minerals and ecosystems in their territories’.

53 Defined by Descola as the ‘tendency to detect human personhood in nonhumans’. Anthropocentrism, on the other hand, is the idea that ‘humankind [is] the highest form of being and the template for judging all others’: Descola, P., ‘The Grid and the Tree: Reply to Marshall Sahlins’ Comment’ (2014) 295(300) HAU: Journal of Ethnographic Theory, pp. 295–6CrossRefGoogle Scholar; see also Descola, P., Beyond Nature and Culture (University of Chicago Press, 2013)CrossRefGoogle Scholar; de Castro, E. Viveiros, ‘Exchanging Perspectives: The Transformation of Objects into Subjects in Amerindian Ontologies’ (2004) 10(3) Common Knowledge, pp. 463–84CrossRefGoogle Scholar. However, as Sections 5 and 6 will argue, the ‘human personhood’ that Descola uses to characterize anthropomorphism is not the equivalent of ‘legal personhood’.

54 See Tănăsescu, n. 11 above.

55 For this idea in human rights law specifically, see Douzinas, C., The End of Human Rights (Hart Publishing, 2000)Google Scholar. For the idea that a very similar logic is at play in nature's rights, see Tănăsescu, n. 11 above.

56 The constitutional text encourages this interpretation through the synonymous use of nature and Pachamama, and therefore also places the recognition of the moral intrinsic worth of nature firmly within Indigenous philosophy.

57 Grear, A., ‘Law's Entities: Complexity, Plasticity, and Justice’ (2013) 4(1) Jurisprudence, pp. 76–101CrossRefGoogle Scholar. The terms ‘legal entity’/‘person’/‘subject’/‘personality’/‘personhood’ are routinely used interchangeably in both legal texts and scholarship. Instead of perpetuating this confusion, this article distinguishes between the use of ‘legal person’ and ‘legal entity’/‘personality’/‘subjectivity’. These last three terms are used as equivalents. For more on the important distinction between ‘legal person’ and ‘legal entity’, see Naffine, N., ‘Who Are Law's Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66(3), The Modern Law Review, pp. 346–67CrossRefGoogle Scholar.

58 See Tănăsescu, n. 11 above. This further strengthens the interpretation of Ecuador's rights of nature as modelled on universal human rights, something further seen in the instrumental role that Ecuadorian activists are having in pushing for a Universal Declaration of the Rights of Mother Earth. For the assumptions baked into the notion of a legal person and its confusion with the moral person, see Naffine, n. 57 above, pp. 357–61.

59 See De la Cadena, n. 14 above, p. 336.

60 República del Ecuador Asamblea Nacional, Comisión de la Biodiversidad y Recursos Naturales, Acta de Sesión No. 66 (15 June 2011). In this case the Interior Ministry of the Republic ‘sought an injunction against illegal gold mining operations in two remote districts in the north of the country’: Daly, E., ‘The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature’ (2012) 21(1) Review of European Community and International Environmental Law, pp. 63–6CrossRefGoogle Scholar, at 65. The government won and, with the help of the national armed forces, quickly enforced the verdict in favour of nature's rights, destroying the property of the artisanal miners in the process. See also Tănăsescu, n. 11 above, p. 248; Kauffman & Martin, n. 26 above.

61 For an analysis of all extant cases to date see Kauffman & Martin, n. 26 above.

62 See Daly, n. 60 above, p. 64, and Kotzé & Villavicencio Calzadilla, n. 17 above, p. 429.

63 See also Tănăsescu, n. 11 above, pp. 129–32.

64 Aotearoa is the original Māori name for the North Island, now widely used for the entire country: see Salmond, A., Tears of Rangi: Experiments Across Worlds (Auckland University Press, 2017)Google Scholar. Tūhoe are a Māori group that inhabit the lands of Te Urewera, currently having around 10,000 registered members: see Binney, J., Encircled Lands: Te Urewera, 1820–1921 (Bridget Williams Books, 2009)CrossRefGoogle Scholar.

65 Sanders, n. 12 above, p. 213.

66 Technically the first known contact with Europeans was on 13 Dec. 1642, when Abel Tasman sailed past New Zealand. However, this encounter did not lead to landing or settlement. This would not occur until Cook's arrival.

67 See Jones, C., New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, 2016)Google Scholar.

68 Ngai Tūhoe Deed of Settlement Summary, 4 June 2013; see also Binney, n. 64 above.

69 Jackson, M., ‘The Treaty and the Word: The Colonization of Māori Philosophy’, in Graham, O. & Roy, W.P. (eds), Justice Ethics, and New Zealand Society (Oxford University Press, 1992), pp. 1–10Google Scholar, at 2.

70 Meaning law, way, or custom. In legal discussions the term is used to denote Māori law, that is to say, legal custom of Māori origins and application. Much in the discussion of legal personality for nature centres around the idea that this construct represents a hybridization of tikanga Māori and Crown law.

71 Deed of Settlement Summary, n. 68 above.

72 V. O'Malley, ‘Tūhoe-Crown Settlement: Historical Background’, Māori Law Review online articles, Oct. 2014, available at: https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-historical-background. See also C. Finlayson, ‘Address to Tūhoe-Crown Settlement Day in Taneatua’, beehive.govt.nz (official website of the New Zealand government), 23 Aug. 2014, available at: https://www.beehive.govt.nz/speech/address-tuhoe-crown-settlement-day-taneatua.

73 Jones, n. 67 above, p. 54.

74 Ibid., p. 56.

75 Sanders, n. 12 above; Jackson, n. 69 above.

76 The standard translation used is that of Professor Sir Hugh Kawharu, available at: https://www.waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-maori-text.

77 Erueti, A., ‘Conceptualizing Indigenous Rights in Aotearoa New Zealand’ (2017) 27(3) New Zealand Universities Law Review, pp. 715–43Google Scholar, at 717.

78 Higgins, R., ‘Ko te mana tuatoru, ko te mana motuhake’, in Hickford, M. & Jones, C. (eds), Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi (Routledge, 2018), pp. 129–39CrossRefGoogle Scholar, at 130.

79 Binney, n. 64 above.

80 Higgins, n. 78 above, p. 130.

81 Finlayson, n. 72 above.

82 C. Jones, ‘Tūhoe-Crown Settlement: Tūhoe Claims Settlement Act 2014; Te Urewera Report of the Waitangi Tribunal’ (2014) Oct. Māori Law Review online articles, available at: http://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-tuhoe-claims-settlement-act-2014-te-urewera-report-of-the-waitangi-tribunal.

83 O'Malley, n. 72 above.

84 Sanders, n. 12 above, p. 208.

85 Belgrave, M., Historical Frictions: Māori Claims and Reinvented Histories (Auckland University Press, 2013), pp. 6–7Google Scholar.

86 Ibid., p. 7.

87 Names for Indigenous Māori descent groups. Iwi denotes a larger group than hapū.

88 It still has no legal status akin to that of a constitution. Its only force comes through the Waitangi Tribunal, itself having powers only to recommend, but is nevertheless extremely influential.

89 Belgrave, n. 85 above, p. 34.

90 This point is further reinforced by the fact that the first study to take seriously the differences in translation of the Treaty was undertaken by Ross in 1972: Ross, R., ‘Te Tiriti o Waitangi: Texts and Translations’ (1972) 6(2) New Zealand Journal of History, pp. 129–57Google Scholar.

91 Belgrave, n. 85 above, pp. 36–7.

92 Higgins, n. 78 above, p. 132.

93 Ibid.

94 Echoing Higgins’ point about the tensions that might be created by the requirement of a unified iwi, Binney recalls the internal struggles between hapū regarding who was the rightful representative of Te Urewera in negotiations with the Crown: Binney, J., Stories Without End: Essays 1975–2010 (Bridget Williams Books, 2010), pp. 364–5CrossRefGoogle Scholar.

95 Higgins, n. 78 above, p. 135.

96 Ibid.

97 See Grear, n. 57 above.

98 Ruru, J.D.K. Morris & J., ‘Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water?’ (2010) 14(2) Australian Indigenous Law Review, pp. 49–62Google Scholar, at 53.

99 Te Urewera Act 2014, ss. 18.2 and 18.3.

100 The seven trustees are listed in ‘Governance: Your Trustees’, available at: https://www.ngaituhoe.iwi.nz/governance.

101 At the time of writing the second Board had commenced its term. In addition to Board members, the Te Urewera Act 2014 appoints a Tūhoe chairman in perpetuity.

102 Hereafter Te Kawa, English translation available at: https://www.ngaituhoe.iwi.nz/te-kawa-o-te-urewera.

103 Ibid.

104 Ibid.

105 Jones, n. 67 above, p. 104.

106 This is particularly striking in view of the history of Te Urewera as a former national park, and therefore under the former management of the Department of Conservation.

107 And in both cases the discussion has shown that rights and legal personality are not themselves enough to vest authority entirely in Indigenous groups. In fact, legal personality in New Zealand was quite explicitly a way around vesting full authority in Māori descent groups.

108 Kauffman & Martin, n. 16 above, p. 45.

109 Kauffman & Martin, n. 26 above.

110 Kawharu, M., ‘Environment as a Marae Locale’, in Selby, R., Moore, P. & Mulholland, M., Māori and the Environment (Huia Press, 2010), pp. 221–37Google Scholar, at 227.

111 This applies also to Te Awa Tupua, the Act granting the Whanganui River legal rights. There, the legal entity created to represent the river is conceptualized as the human face of the river: see n. 7 above. See also Salmond, A., Brierley, G. & Hikuroa, D., ‘Let the Rivers Speak: Thinking about Waterways in Aotearoa New Zealand’ (2019) 15(3) Policy Quarterly, pp. 45–54CrossRefGoogle Scholar.

112 For the link between legal standing and political representation, see Tănăsescu, M., ‘The Rights of Nature: Theory and Practice’, in Schlosberg, D. & Wissenburg, M. (eds), Political Animals and Animal Politics (Palgrave Macmillan, 2014), pp. 150–63Google Scholar; Tănăsescu, n. 11 above. This link between legal personality, circumscribed standing and representation, more broadly understood, is also present in Te Kawa, which explicitly states that the ‘Te Urewera Board is the voice and servant of Te Urewera’, over and beyond its legal protector.

113 There is nothing in the Ecuadorian Constitution that would prohibit PetroEcuador, the state oil company, from speaking on behalf of nature.

114 As a legal entity, Te Urewera has, besides legal standing, the right to enter into contracts and own property. Further, on the interpretation given by Macpherson on the status of the Whanganui River post-settlement, legal entities ‘may be entitled to human rights protections under the New Zealand Bill of Rights Act 1990, which under section 29 bestows certain human rights protections on legal as well as natural persons’: Macpherson, E., Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (Cambridge University Press, 2019), p. 117CrossRefGoogle Scholar.

115 Including Te Awa Tupua, which has a very similar arrangement of legal personality for the river: see Talbot-Jones, E. O'Donnell & J., ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India’ (2018) 23(1) Ecology and SocietyGoogle Scholar online articles, Art. 7, available at: https://www.ecologyandsociety.org/vol23/iss1/art7.

116 Kauffman & Martin, n. 16 above, p. 48.

117 Part of the difference between the Ecuadorian and New Zealand provisions can be accounted for by different intellectual histories. In genealogical terms, in New Zealand the most influential scholars in developing Stone's early work have been Frame (Frame, A., ‘Property and the Treaty of Waitangi: A Tragedy of the Commodities?’, in McLean, J. (ed.), Property and the Constitution (Hart Publishing, 1999), pp. 224–34Google Scholar), and Ruru (Morris & Ruru, n. 98 above). In Ecuador it has been the work of CELDF and Acosta which has been the most influential: see Martínez, A. Acosta & E., ‘La naturaleza con derechos: de la filosofía a la política’ [Nature with Rights: From Philosophy to Politics] (2011) 10(29) Polis, Revista de la Universidad Bolivariana, pp. 479–85Google Scholar. From Stone spring two very different trees.

118 Te Kawa, n. 102 above.

119 Tāmati Kruger often speaks of the need for self-reflection and further development of Māori philosophy and tikanga: T. Kruger, ‘We Are Not Who We Should Be as Tūhoe People’, E-Tangata, 18 Nov. 2017, available at: https://e-tangata.co.nz/identity/tamati-kruger-we-are-not-who-we-should-be-as-tuhoe-people.

120 Te Kawa, n. 102 above.

121 Jones, n. 67 above, p. 99.

122 The term refers to ways of seeing the world that posit the primacy of relations over material embodiments.

123 Viveiros de Castro, n. 53 above.

124 In Māori mythology, e.g., taniwha are spirits that live in rivers, caves or the sea, and are tasked with guarding particular places: see Salmond, n. 64 above. Similarly, mountains, rivers and landscapes are beings because they act. Existence in relational ontologies is not about materiality, but rather about activity: whatever acts, exists.

125 Viveiros de Castro, n. 53 above, p. 465.

126 Ibid.

127 De la Cadena, n. 14 above, p. 341.

128 ‘Other-than-humans include animals, plants and the landscape’: ibid.

129 Ibid.

130 See Naffine, n. 57 above.

131 Latour, B., Facing Gaia: Eight Lectures on the New Climatic Regime (John Wiley & Sons, 2017)Google Scholar.

132 Rawson & Mansfield, n. 43 above.

133 This is also why presenting Māori as guardians of nature is deeply problematic, first and foremost to Māori themselves.

134 In Māori philosophy the concept of utu, roughly translated as ‘reciprocity’, is instrumental. Also, the idea of whakapapa, or ‘genealogy’, which always includes landscapes as members of an extended family: see Morris & Ruru, n. 98 above. For utu, see Patterson, J., ‘Utu, Revenge and Mana’ (1989) 2 British Review of New Zealand Studies, pp. 51–61Google Scholar.

135 Quoted in Grear, n. 57 above, p. 88.

136 Ibid, p. 80.

137 Kotzé & Villavicencio Calzadilla, n. 17 above.

138 Rawson & Mansfield, n. 43 above.

139 As noted in n. 114 above, Te Urewera comes under the jurisdiction of the Bill of Rights; therefore, its formulation within the Te Urewera Act as a legal entity might be pulled towards the concept of a legal person which has been fundamental to such bills.