Capstone Proposal 1
Background:
Land rights are predominantly thought of in terms of people’s right to claim ownership over the land that they rely on for their livelihood. These rights are promoted as a rural development intervention to increase tenure security for smallholders, meaning property rights for small rural land workers is often a target. This intervention is with the hope that secure rights will spur economic progress, environmental stewardship, and gender empowerment (Otto and Hoekema 2011). Indigenous peoples are often targeted by both exploitative land grabbing and consequently land rights interventions at their request or imposed by outsiders. Globally, indigenous people have been the victims of historical injustice regarding the control of their land and also involved in the fight to rectify that through domestic and international legal and political channels, from the Saami in Norway to the Maori in New Zealand (Follesdal 2001).
However, giving legal rights to land or a resource, beyond the people that are associated with it, may be seen as a radical phenomenon, but it is not unprecedented. Citizens United was a very public case of the United States recognizing the legal rights of the corporation with the rights and responsibilities beyond the individuals that compose it. This was met with much controversy after decades of corporate personhood debate (Ellis 2011; Johnson 2010). Globally, legal personhood has been granted globally to units of government, corporations, and foundations (Economist 2017). Legal personhood, therefore, has a history of contentious debate despite its apparent narrowness. Leading to the question: In what ways is a legal framework able to connect perspectives on resource management ranging from radical deep ecology to dominant Western conceptions of nature and in what ways is it restricted?
Earth Jurisprudence is an emerging field connecting legal studies with the deep ecology’s conception of Earth’s equity (Murray 2014). A rights-based approach to conservation is not new, it has been used as a way to frame environmentalism as both a duty to protect the biophysical environment and as a human right to enjoy a healthy environment (Brei 2013). However legal personhood moves beyond this and calls into question anthropocentrism and Western notions of “nature” that define conservation. By recognizing nature as a “canvas on which one projects one’s sensibilities, cultural attributes, economic conditions, and social necessities,” (Wapner 2002), Earth Jurisprudence and other radical legal land management strategies disrupt dominant anthropocentrism of the law, economics, and ecological decision-making (Hutchinson 2014).
Situated Context:
These perspectives and approaches were all employed in 2014, as the Whanganui Iwi and the New Zealand government signed the Tu-tohu Whakatupua ‘Deed of Settlement’, bestowing the Whanganui River the rights, responsibilities, and power of a legal person (Kennedy 2012). This comes after a long standing relationship- informal and legitimized- between the Maori group with the river and the belief in the river as an “indivisible whole” with intrinsic value, separate from a profit-generating resource (Hutchinson 2014).
The Whanganui Iwi have a history of defending this belief through the legal system. The Waitangi Tribunal has heard legal cases against the New Zealand government for breaches of the Treaty of Waitangi, which governs the Maori and Crown partnership. In these cases the Tribunal defended this customary rights to the river and resources, and to the right protect it from exploitation (Brookfield 2000; Hutchinson 2014). Building off of this history, the agreement signed in 2014 and ratified in 2017, grants personhood status bestowing its right to enforce its rights and a system of regulation in which the Crown and the Maori will each appoint one guardian to secure these spiritual, cultural, and ecological rights. Through formal legal recognition, the Whanganui Iwi and New Zealand government have had to come to terms with their different notions of rights and resource value.
Research question: How do Maori populations and the government reconcile differential philosophies and practices to agree on and legitimize this radical resource management model, and what are the successes and limitations of this legal approach?
Methods:
- Timeline of the formal political and indigenous cultural decisions made to shape the legal decision made
- I will gather these events through a thorough literature search and through personal interviews with actors involved (Indigenous leaders, land/park managers, historians, outdoor recreationists)
- Examining Maori stories situated on the river and how these have shaped their historical interactions and current relationship with the river
- This will be done by gathering Maori stories, oral and written, and examining what ideologies they perpetuate or disrupt, how they represent the river, how that is reflected or missing in the legal extension of their beliefs.
- I would also like to incorporate a photo-journalism aspect to envision and document these relationships to the river and how stories and cultural history inform this. I will be going to New Zealand Spring of 2018 and will conduct this project then.
- Legal and rhetorical analysis of the “Tupua te Kawa” which is the list of values that will guide Te Pou Tupua as the guardians of the river- through the framework of a resource management model. Through this I will engage with the ways in which indigenous philosophy is understood and incorporated into scientific and legal decisions.
- I will look at the extent Maori values, science values, and different “nature” philosophies are reflected in these legal frameworks by analyzing the text and cross-referencing articles, stories, and advertising to compare the values.
Resources:
- Brei, Andrew. “Rights & Nature: Approaching Environmental Issues by Way of Human Rights.” Journal of Agricultural & Environmental Ethics. (2013)
- Brookfield, F. M. “The Waitangi Tribunal and the Whanganui River-Bed.” 2000.1 N.Z. L. Rev. 1, 16 (2000)
- The Economist. “Try me a river; Hydrological jurisprudence.” March 25, 2017, 34(US).
- Ellis, Atiba. “The Impact of Citizens United: Corporate Speech in the 2010 Elections: Citizens United and Tiered Personhood.” John Marshall Law Review (2011).
- Føllesdal, Andreas. 2001. “On Saami Claims to Land and Water.” International Journal On Minority & Group Rights 8, no. 2/3: 103-106. Academic Search Premier.
- Hutchinson, Abigail, “The Whanganui River as a Legal Person”, 39 Alternative L.J. 179, 182 (2014).
- Johnson, Amanda. “Originalism and Citizens United: The Struggle of Corporate Personhood.” 7 Rutgers Bus. L.J. 187, 210 (2010)
- Kennedy, Brendan. “I am the River and the River is Me: The Implications of a River Receiving Personhood Status.” Cultural Survival Quarterly. (December 2012).
- Murray, Jamie. “Earth Jurisprudence, Wild Law, Emergent Law: The Emerging Field of Ecology and Law-Part 1.” Liverpool Law Review 35, no. 3 (December 2014): 215-231. Legal Source
- Otto, J.M., and A.J. Hoekema. Fair Land Governance, edited by J.M. Otto, and A.J. Hoekema, Leiden University Press, 2011.
- Wapner, P. “The Sovereignty of Nature? Environmental Protection in a Postmodern Age.” International Studies Quarterly, (2002) 46: 167–187. doi:10.1111/1468-2478.00228
A Study of Intersections 