…according to a lawyer.
Before I went to law school, I thought I had a pretty good handle on what it took to create a person – the birds and the bees and all that. Boy, was I mistaken! One of our very first study assignments upon entering the hallowed precincts of Osgoode Hall was the venerable case of Salomon v Salomon and Co Ltd (1897) AC 22, wherein the English House of Lords instructed us that creating a legal person involved absolutely no heavy breathing or groping around under the sheets, but rather, could be achieved by Parliament, with the stroke of a pen – as in Salomon’s case, the Companies Act of 1862.
That case, which established the concept that the law can create an artificial person, a person with the capacity to own property, enter into contracts, and sue and be sued, with a separate existence from the humans which created it, is the very foundation of modern company law. It is hard to over-state its importance to the development of our industrialized society. (Although, like so many other things in first year law, it was, at first, a legal fiction that was hard to get one’s mind fully around.)
Once comfortable with the fact that a person, in law, can be artificially created, can enjoy perpetual existence (yes, that’s right, a limited company can live forever) and, in some jurisdictions can even vote, lawyers everywhere had a new tool to add to their toolkit, and it wasn’t long before the House of Lords (this time wearing their colonial hat as the Judicial Committee of the Privy Council) was again called upon to consider what it means to be a “person”.
Section 24 of the British North America Act refers to the appointment of “qualified persons” to the senate, a section which the Supreme Court of Canada was asked to interpret. When the Supreme Court decided that only natural persons of the male persuasion could sit as senators, a group of activists later known as the Valiant Five, petitioned the Privy Council in a case known as Edwards v Canada (Attorney General) (1930) AC 124.
A woman is a person, too
Their Lordships wisely concluded that “the word ‘person’ in section 24 includes members of both the male and female sex and that therefore, women are eligible to be summoned and become members of the Senate of Canada”.
Now it looks like lawyers in New Zealand have opened the universal lawyers’ toolkit once more, and have taken out the handy-dandy “let’s create and define a person” tool, in order to settle a long-simmering dispute concerning aboriginal rights.
Section 14 of The Te Awa Tupua (Whanganui River Claims Settlement) bill declares:
Te Awa Tupua (the Whanganui River) is a legal person and has all the rights, powers, duties, and liabilities of a legal person.
And so, apparently, is a river
The preamble to the section declaring the river to a be a person is one of the most extraordinary pieces of legislative drafting I have ever seen, and reads more like poetry than law:
“Te Awa Tupua is a spiritual and physical entity that supports and sustains both the life and natural resources — and the health and well-being of the iwi, hapu, and other communities of the River. The Great River flows from the mountains to the sea and is an indivisible and living whole from the mountains to the sea, —in all of its physical and metaphysical elements.
I am the River and the River is me: the iwi and hapti have an inalienable connection with, and responsibility to Te Awa Tupua and its health and well-being.
The small and large streams that flow into one another form one River – a singular entity comprised of many elements and communities, working collaboratively for the common purpose of the health and well-being of Te Awa Tupua.”
As a kayak enthusiast, I do have a passion for all waterways, but declaring a river to be a person, and throwing some poetry into the mix as well…see what you get when you ask a lawyer about the meaning of life?
Not New Zealand, but Hakai BC!
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