What if you had to contract with a cultural site? The concept of companies having a separate legal personality is long settled. Is the Fitzroy River or Uluru next?
This legal development could ultimately require companies intending to engage in activities (be it commercial or mining activities) near cultural sites, to engage in further negotiations with representatives of the cultural sites to obtain further approvals (and potentially pay more compensation).
India and New Zealand
The first natural feature to be recognised as having a separate legal personality was the Te Urewera National Park by the New Zealand Parliament. In February 2017, Parliament granted legal personality to a second natural feature, Te Awa Tupua, also called the Whanganui river, which is widely regarded as the metaphysical ancestor of the indigenous Whanganui Maori tribe.
Through this process, Te Urewera ceased to be a government run national park and is now administered by the Te Urewera Board which comprises of government officials and traditional owners of the Tuhoe tribe. The enabling legislation for Te Awa Tupua requires the New Zealand government and the Whanganui tribe to speak collaboratively to represent the river’s rights to be kept in a healthy and pristine condition and to defend its right not to be drained or exploited without authority.
In order to represent ‘the human face’ of Te Awa Tupua, an office has been established called Te Pou Tupua, which operates like a company except that, for tax and other statutory purposes, the two entities (the river and the office) are deemed to be the same person. A key feature of the river’s legal personality is that the current ownership of the riverbed will transfer from Crown ownership to be vested in the river itself. However, while a generally unique piece of legislation, there is a familiar carve-out for minerals, most of which are still reserved for the Crown.
Meanwhile, the High Court in the Indian State of Uttarakhand held in March 2017 that the rivers Yamunan and Ganga have similar personal rights. The move was seen as a measure to increase protection for the rivers and counteract the heavy pollution. However, the decision was overturned by the Indian Supreme Court in July 2017 as being legally unsustainable.
The debate is also live in Canada, with environmental organisations arguing that the Supreme Court of Canada’s own interpretation in various cases requires certain customary laws of aboriginal people to be integrated into Canadian law.
What is Happening in Australia?
Whilst Australia has not progressed as far as its Trans-Tasman neighbour, there has been some development in native title law and the recognition of traditional ownership of culturally significant natural resources.
In late 2016, the Fitzroy River Declaration was made by the traditional owners of the Mardoowarra (Fitzroy) Catchment. This Declaration is intended as a vehicle for relevant customary legal principles. Its aims are to support the protection of the tradition and environmental features of the Fitzroy river and to bolster its National Heritage Listing. The estamlishment of a joint buffer zone for development, an agreed position on fracking, a Fitzroy River management plan complemented by an Indigenous Protected Area, and a management body ‘founded on cultural governance’ will promote these goals.
The Declaration does not have legal force, but is a strong statement of intent by the traditional owners in the Western Kimberley region, establishing indigenous governance over the river. The owners consider themselves to have binding customary responsibilities, as guardians of the river in its metaphysical state as a living ancestral being (the Rainbow Serpent), and customary law determines their obligations in some detail. These obligations are grounded in a reciprocal relationship between people and the river. As the river is considered to give life, it also has the right to life itself.
While Australia has not yet taken a path similar to New Zealand, the Fitzroy Declaration reflects ongoing developments in the field of native title law, as well as an ongoing evolution in the ownership and management of cultural sites.
What is the Commercial Position?
While the NZ legislation protects the river by preventing its physical resources from being alienated, the recognition of legal personality raises challenging and complex questions when it comes to other legitimate uses of the river that stakeholders will need to resolve. For instance, the fact that the power generated by the river can relatively easily be harnessed for hydro-electric plants or similar, creates an interesting question. Is the river effectively capable of undertaking ‘physical labour’? If so, can it charge its clients? What will it use the money for?
Looking to Australia, if natural resources such as rivers and parks are declared natural persons, other heritage sites of cultural significance could be next. In cases where such sites generate revenue (through tourism) or are in areas of development where access is required (such as a mining project), the counterparty to an agreement concerning the site could be the cultural site itself. This embeds another layer of approvals or agreements necessary to facilitate mining and development or in some cases exploration. Given the social realities of Australia in 2017, it is probable that such a development is some way off.