MSJ Series: georegional justice from legal personhood to democratic agency

By Dr Christine J Winter, Department of Government and International Relations, University of Sydney

Entanglement

Some scholars note the western idea that human and nonhuman are disjointed is fallacious.¹ Some also note that political theories that fail to account for a thriving environment are unlikely to meet the core thresholds of justice.² Simultaneously, there are Indigenous philosophies that identify the entanglement of human wellbeing and nonhuman wellbeing. The pace of environmental degradation draws us to consider a politics that recognises intrinsic value in nonhuman welfare. How might we move from seeing, hearing and responding to nonhuman as non-agental to viewing the nonhuman as a companion to human and corporate political representation? One means may be through legal personhood, a mechanism already employed to recognise nonhuman identity status.

Corporate Personhood

The mechanism of legal corporate personhood creates from a multitude a singular identity with which others can contract and which has rights and responsibilities.³ These rights and responsibilities can include democratic agency and the right to vote, rights usually associated with individual human persons.^{4 5}

There are clear reasons to challenge corporate influence in democracies, never-the-less, precedents exists. Do the examples of nonhuman personhood from Aotearoa, which blend Māori and Western philosophic and legal ontologies, also suggest that democratic political participation is a privilege which should extend to nonhuman legal persons?

Nonhuman Personhood

In Aotearoa, the idea of legal personhood is harnessed as part of the government’s settlement and reparations for past breaches of the Treaty of Waitangi. Legal personhood blends the framework of corporate personhood with the understanding of human-nonhuman kinship and entanglement of Māori philosophies. Two identities, Te Awa Tupua and Te Urewera, are legally recognised as legal persons, and a third, Taranaki Maunga, will be soon.

Each has been appointed kaitiaki (guardians or trustees) to ‘think like’, and act as their voice so that they have volition in their own ongoing maintenance, development negotiations, and ‘land-use’.

The descriptions of legal personhood in the Acts take Māori frameworks for knowing the world to establish the parameters of the legal person’s identity. These are and have always been identities of entangled beings and being. Identities are human and nonhuman, physical and spiritual, cultural and natural, one and many simultaneously. More importantly, they are agents. These identities are understood not as inanimate spaces, resources, economic units, plots on a map, legally owned by individual or collective humans. The Bill granting personhood to Te Urewera, for instance, ‘recognises the mana and intrinsic values of Te Urewera by putting it beyond human ownership’.⁶

The protocol of kaitiakitanga is ‘not passive custodianship, nor … simply the exercise of traditional property rights, but entails the active exercise of responsibility in a manner beneficial to the resource’^.7 Thinking as other, integral to Māori being and thinking, is necessary to benefit these identities.⁸

Beyond Environmental Management

That georegions have an agential identity is ontologically unremarkable for Māori. The genius of the Treaty claims negotiators has been to meld this complex compound being-ness with the detached and unromantic language of anthropocentric laws of incorporation.

Potentially, this pushes the boundaries of post-colonial governance structures well beyond environmental management.⁹ So while the Acts describe the ways the regions are managed, the identity descriptors suggest something far more than mere management – they identify and legislate agency.

The stated intention of the Te Awa Tupua Bill is to ‘preserve natural and cultural values'.¹⁰ Yet it identitifies ‘“an indivisible and living whole”, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’. It is ‘a legal person with all the rights, powers, duties and liabilities of a legal person’.¹¹ These are not just agreements to hand management back to iwi – these agreements grant nonhuman ‘the rights, powers, duties and liabilities of a legal person’.  Does this suggest political agency?¹²

Political and Democratic Agency

Te Awa Tupua, Te Urewera and Taranaki Maunga are identities, like corporations, with multiple ‘shareholders’ who are animate and inanimate, animal, vegetable and mineral, human and nonhuman. Having the ‘rights, powers, duties and liabilities’ of a person, under normal circumstances, includes the right to vote.

Political will to limit or halt ongoing damage (and injustice) to the nonhuman realm has been limited, in part at least, because nonhuman lack direct political representation. Global statistics on species extinction, environmental degradation and pollution indicate each is increasing.^{13 14} Might these damages be curtailed with nonhuman political representation to counterbalance human and corporations influence?

While Australia and the USA, for instance, use different mechanisms to involve corporate persons directly in politics, they affect similar results – legal persons have the right to participate in the democratic process. Furthermore, corporate influence through lobbying and political donations is standard and accepted globally.

If corporate legal persons have the right to participate in the democratic process, why not Te Awa Tupua, Te Urewera and Taranaki Maunga? In many ways given the visceral, immutable and total entanglement of human and nonhuman, of human in nonhuman and nonhuman in human there is even more justification for that voice/vote. Corporates, once we pierce the veil between the ‘person’ and multitude it represents are only communities of people. Te Awa Tupua, Te Urewera and Taranaki Maunga are so much more: animate, inanimate, and spiritual, spatially diverse and temporally expansive, with interests that encompass all interests, all time, in all space. And here lies their potential power.

My argument is these Te Tiriti agreements are a means of blending incommensurate ontologies. A means of redressing the injustice of the universalising western paradigm and for embracing indigenous approaches to justice, the political and nonhuman relationships within a polity. They are the beginnings of decolonising the politics of Aotearoa. They demonstrate more than that, they offer other countries a way towards hearing all affected voices within the polity – human, corporate and nonhuman – allowing society, economy and environment fair representation.

How exactly might this look? One vote in local body elections per species in the identity’s boundaries? Or in national elections?  A reserved number of seats on every neighbouring council for each identity? Whatever the mechanism the outcome should be to rebalance the triumvirate of national interests to become closer to more equal representation for persons, corporates and nonhuman. It is a means by which to recognise each is equally important to the other and all are inextricably entangled.

This work was presented in part in June 2019 at Thinking and Enacting Justice In A Multispecies World, hosted by The Faculty of Arts and Social Sciences at the University of Sydney. Featuring international academics and experts, the series of symposia and public events explored the question of what justice means in a multispecies context.

Christine Winter is a lecturer in the Department of Government & International Relations at the University of Sydney. Her research focuses at the intersection of intergenerational, indigenous and environmental justice. Drawing on her Anglo-Celtic-Māori cultural heritage she is interested in decolonising political theory by identifying key epistemological and ontological assumptions in theory that are incompatible with indigenous philosophies. In doing so she has two aims: to make justice theory just for Indigenous peoples of the settler states; and to expand the boundaries of theories of intergenerational justice to protect the environment for future generations of Indigenous Peoples and their settler compatriots.

Header image: Whanganui River, North Island, New Zealand, via Shutterstock, ID:160052327.