This document outlines a presentation on giving legal rights to nature as a new approach to overcoming social dilemmas. It discusses using the Whanganui River in New Zealand as a case study. The river was granted the legal status of a person and given legal rights through the Te Awa Tupua Act. This established a new governance framework where the river is represented by guardians from both the Crown and local iwi, advised by representatives from local iwi and authorities. The aim is to improve river health and wellbeing by addressing issues from both ecological and indigenous perspectives through this new rights-based institutional arrangement.
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•To provide some general elements to understand water nature as a human right and how it can be relevant to water in international law and its relevance for indigenous communities
•In the last part of the presentation, we will turn our attention to recent developments relating to the human right to water
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•To provide some general elements to understand water nature as a human right and how it can be relevant to water in international law and its relevance for indigenous communities
•In the last part of the presentation, we will turn our attention to recent developments relating to the human right to water
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Introduction
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Giving rights to nature: A new institutional approach for overcoming social dilemmas?
1. Giving
rights
to
nature
A
new
institutional
approach
for
overcoming
social
dilemmas?
Julia
Talbot-‐Jones
PhD
Candidate
The
Australian
National
University
-‐-‐-‐-‐-‐
julia.talbot-‐jones@anu.edu.au
8. Outline
of
presentation
Background:
Social
dilemma
institutions
– Introduce
common
institutional
arrangements
for
transcending
social
dilemmas
– A
new
approach?
9. Outline
of
presentation
Background:
Social
dilemma
institutions
Legalising
nature
Case
study:
Whanganui
River,
NZ
– Introduce
common
institutional
arrangements
for
transcending
social
dilemmas
– A
new
approach?
– Background
– Legal
Framework
– Analysis
of
old
and
new
governance
arrangement
using
IAD
Framewor
10. Outline
of
presentation
Background:
Social
dilemma
institutions
Legalising
nature
Case
study:
Whanganui
River,
NZ
Conclusion:
Outcomes
– Introduce
common
institutional
arrangements
for
transcending
social
dilemmas
– A
new
approach?
– Background
– Legal
Framework
– Analysis
of
old
and
new
governance
arrangement
using
IAD
Framewor
– Identify
changes
resulting
from
the
new
arrangement
11. Social
dilemma
institutions
• Centralised
governance;
privatisation;
community
governance;
co-‐management
– Differentiate
through
ownership
of
property
rights
(property
rights
are
considered
a
bundle
of
rights)
• Use
Schlager
and
Ostrom’s
(1992)
five
characteristics
of
property
rights-‐in-‐use:
1) Entry
–
the
right
to
enter
a
resource;
2) Withdrawl
–
the
right
to
harvest
and
take
some
resource
units
out
of
the
resource
system;
3) Management
–
the
right
to
change
the
physical
structures
in
a
resource
system
or
develop
a
variety
of
physical
infrastructures
for
any
particular
resource;
4) Exclusion
–
the
right
to
determine
who
else
could
use
the
resource
and
what
their
specific
rights
would
be;
and
5) Alienation
–
the
right
to
sell
one
or
more
of
the
first
four
rights
permanently
or
for
a
given
time
period
12. Comparison
Entry Withdrawl Management Exclusion Alienation
Centralised
governance
Government Government Government Government Government
Privatisation Individual Individual Government
(Individual)
Individual Individual
Community
governance
Community Community Community Community Community
Co-management
Government Government Community Government Government
!
13. Comparison
Entry Withdrawl Management Exclusion Alienation
Centralised
governance
Entry Withdrawl Management Exclusion Alienation
Government Government Government Government Government
Privatisation Individual Individual Government
(Individual)
Individual Individual
Community
governance
Community Community Community Community Community
Co-management
Government Government Community Government Government
!
Definitions
Government:
the
collection
of
elected
public
officials
designated
to
make
decisions
at
the
executive
and
legislative
levels
of
a
Government
system
Community:
a
group
of
people
who
interact
directly,
frequently,
and
in
multi-‐faceted
ways
Individual:
just
one
person
or
organisation
Centralised
governance
Government Government Government Government Government
Privatisation Individual Individual Government
(Individual)
Individual Individual
Community
governance
Community Community Community Community Community
Co-management
Government Government Community Government Government
!
14. Comparison
Entry Withdrawl Management Exclusion Alienation
Centralised
governance
Entry Withdrawl Management Exclusion Alienation
Government Government Government Government Government
Privatisation Individual Individual Government
(Individual)
Individual Individual
Community
governance
Community Community Community Community Community
Co-management
Government Government Community Government Government
!
Definitions
Government:
the
collection
of
elected
public
officials
designated
to
make
decisions
at
the
executive
and
legislative
levels
of
a
Government
system
Community:
a
group
of
people
who
interact
directly,
frequently,
and
in
multi-‐faceted
ways
Individual:
just
one
person
or
organisation
Centralised
governance
Government Government Government Government Government
Privatisation Individual Individual Government
(Individual)
Individual Individual
Community
governance
Community Community Community Community Community
Co-management
Government Government Community Government Government
!
Also,
can’t
forget
the
importance
of
social
capital,
transaction
costs,
and
leadership
influencing
the
success
(or
failure)
of
institutional
arrangements
15. A
new
approach?
“I
am
quite
seriously
proposing
that
we
give
legal
rights
to
forests,
oceans,
rivers,
and
other
so-‐called
“natural
objects”
in
the
environment
–
indeed
to
the
natural
environment
as
a
whole.”
-‐ Stone
C.
1972.
Should
trees
have
standing?
Toward
legal
rights
for
natural
objects.
45
S.
Cal.
L.
Rev.
450.
18. Case
Study:
The
Whanganui
River,
NZ
Ecological
perspective:
The
river
is
ecologically
unhealthy
(Sunde,
2003)
Tikanga
perspective:
“Physical
pollution
of
the
Whanganui
River
affects
its
soul,
its
wairua;
its
supernatural
and
divine
power,
its
mana;
and,
through
the
sacred
affinity
of
this
sacred
place
to
our
people,
affects
us,
mentally,
physically,
and
spiritually.
No
chemical
combatants
will
reduce
or
eliminate
this
effect,
nor
will
it
alter
the
breach
of
tapu.”
(Hikaia
Amohia,
1988)
19. Case
Study:
The
Whanganui
River,
NZ
Ecological
perspective:
The
river
is
ecologically
unhealthy
(Sunde,
2003)
Tikanga
perspective:
“Physical
pollution
of
the
Whanganui
River
affects
its
soul,
its
wairua;
its
supernatural
and
divine
power,
its
mana;
and,
through
the
sacred
affinity
of
this
sacred
place
to
our
people,
affects
us,
mentally,
physically,
and
spiritually.
No
chemical
combatants
will
reduce
or
eliminate
this
effect,
nor
will
it
alter
the
breach
of
tapu.”
(Hikaia
Amohia,
1988)
à Social
dilemma
–
“river
health
and
wellbeing”
is
not
being
provided
for
-‐
how
can
we
address
these
issues?
22. Let ’s
make
the
river
own
itself!
But
how?!
1. “Te
Awa
Tupua
is
an
indivisible
and
living
whole
comprising
the
Whanganui
River
from
the
mountains
to
the
sea,
incorporating
its
tributaries
and
all
its
physical
and
metaphysical
elements.”
[s2.1]
23. Let ’s
make
the
river
own
itself!
But
how?!
1. “Te
Awa
Tupua
is
an
indivisible
and
living
whole
comprising
the
Whanganui
River
from
the
mountains
to
the
sea,
incorporating
its
tributaries
and
all
its
physical
and
metaphysical
elements.”
[s2.1]
2. “Te
Awa
Tupua
is
a
legal
person”
[s2.2]
with
“…the
same
rights,
powers,
duties,
and
liabilities
of
a
legal
person.”
[s2.3]
24. Let ’s
make
the
river
own
itself!
But
how?!
1. “Te
Awa
Tupua
is
an
indivisible
and
living
whole
comprising
the
Whanganui
River
from
the
mountains
to
the
sea,
incorporating
its
tributaries
and
all
its
physical
and
metaphysical
elements.”
[s2.1]
2. “Te
Awa
Tupua
is
a
legal
person”
[s2.2]
with
“…the
same
rights,
powers,
duties,
and
liabilities
of
a
legal
person.”
[s2.3]
3. Title
of
the
river
bed
will
be
vested
away
from
the
Crown
and
placed
in
the
name
of
Te
Awa
Tupua
itself.
[s6.1]
26. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
27. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Ruruku Whakatupua – Legal Framework
28. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Te Ruruku Whakatupua – Legal Framework
29. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Te Ruruku Whakatupua – Legal Framework
30. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Advised by: Te Karawao
One person each from:
- Nga Tangata Tiaki o Whanganui
- iwi with other interests in the River
- local authories
Te Ruruku Whakatupua – Legal Framework
31. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Advised by: Te Karawao
One person each from:
- Nga Tangata Tiaki o Whanganui
- iwi with other interests in the River
- local authories
Te Ruruku Whakatupua – Legal Framework
Strategy group: Te Kopuka na Te
Awa Tupua
17 representatives of local
community groups
32. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Advised by: Te Karawao
One person each from:
- Nga Tangata Tiaki o Whanganui
- iwi with other interests in the River
- local authories
Te Ruruku Whakatupua – Legal Framework
Strategy document: Te Heke
Ngahuru ki Te Awa Tupua
Strategy group: Te Kopuka na Te
Awa Tupua
17 representatives of local
community groups
33. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Advised by: Te Karawao
One person each from:
- Nga Tangata Tiaki o Whanganui
- iwi with other interests in the River
- local authories
Te Ruruku Whakatupua – Legal Framework
Strategy document: Te Heke
Ngahuru ki Te Awa Tupua
Strategy group: Te Kopuka na Te
Awa Tupua
17 representatives of local
community groups
34. New
legal
framework
Ruruku Whakatupua Te Mana o te Iwi o Whanganui - The Deed of Settlement
Te Ruruku Whakatupua – Legal Framework
Strategy document: Te Heke
Ngahuru ki Te Awa Tupua
Guided by Tupua te Kawa (four intrinsic values):
1. Ko te Awa te mātāpuna o te ora - the River is the source of spiritual and physical sustenance
2. E rere kau mai te Awa nui mai te Kahui Maunga ki Tangaroa – the great River flows from the mountains to the sea
3. Ko au te Awa ko te Awa ko au – I am the River and the River is me
4. Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua – the small and the large streams that flow
into one another and form one River
Te Awa Tupua
Represented by: Te Pou Tupua
Two guardians acting as one
- one nominated by the Crown
- one nominated by Iwi
Advised by: Te Karawao
One person each from:
- Nga Tangata Tiaki o Whanganui
- iwi with other interests in the River
- local authories
Strategy group: Te Kopuka na Te
Awa Tupua
17 representatives of local
community groups
35. How
might
this
new
institutional
arrangement
affect
the
governance
structure
of
the
Whanganui
River/Te
Awa
Tupua?
Meta-‐constitutional
choice
The
nested
nature
of
rules
and
incentives
using
the
Institutional
Analysis
and
Development
Framework
Source:
Adapted
from
McGinnis,
1999
36. The
Whanganui
River/Te
Awa
Tupua
Governance
of
the
WR
+
Actors
governance
structure
Anthropocentric
worldview Tikanga
worldview
National
statutes
Monitoring
+
Sanctioning
Management
of
the
WR
+
Actors
District
and
Regional
Plans
Working
rules-‐
in-‐use
Monitoring
+
Sanctioning
Bio-‐physical
conditions
Community
attributes
Rules-‐in-‐use
Use
of
the
WR
+
Actors
‘Mana’
of
Iwi
damaged;
poor
river
health
Constitutional
choice
level
Collective
choice
level
Operational
choice
level
The
nested
nature
of
rules
and
incentives
influencing
governance
of
the
the
Whanganui
River/Te
Awa
Tupua
analysed
using
the
Institutional
Analysis
and
Development
Framework
Source:
Adapted
from
McGinnis,
1999
Meta-‐
constitutional
choice
level
37. The
Whanganui
River/Te
Awa
Tupua
Governance
of
the
WR
+
Actors
governance
structure
Anthropocentric
worldview Tikanga
worldview
National
statutes
Monitoring
+
Sanctioning
Management
of
the
WR
+
Actors
District
and
Regional
Plans
Working
rules-‐
in-‐use
Monitoring
+
Sanctioning
Bio-‐physical
conditions
Community
attributes
Rules-‐in-‐use
Use
of
the
WR
+
Actors
‘Mana’
of
Iwi
damaged;
poor
river
health
Constitutional
choice
level
Collective
choice
level
Operational
choice
level
The
nested
nature
of
rules
and
incentives
influencing
governance
of
the
the
Whanganui
River/Te
Awa
Tupua
analysed
using
the
Institutional
Analysis
and
Development
Framework
Source:
Adapted
from
McGinnis,
1999
Te
Ruruku
Whakatupua
Meta-‐
constitutional
choice
level
39. Outcome:
Three
major
changes
1. Introduces
a
new
actor
–
“Te
Awa
Tupua”
represented
by
“Te
Pou
Tupua”
40. Outcome:
Three
major
changes
1. Introduces
a
new
actor
–
“Te
Awa
Tupua”
represented
by
“Te
Pou
Tupua”
2. Changes
the
property
rights
structure
Entry Withdrawal Management Exclusion Alienation
Legalising
nature Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Community)
Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
41. Outcome:
Three
major
changes
1. Introduces
a
new
actor
–
“Te
Awa
Tupua”
represented
by
“Te
Pou
Tupua”
2. Changes
the
property
rights
structure
Entry Withdrawal Management Exclusion Alienation
Legalising
nature Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
3. Formalises
“informal”
Maori
worldview
Te
Awa
Tupua
(Community)
Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
Anthropocentric
worldview Tikanga
worldview
Constitutional
choice
Collective choice
Operational choice
42. Outcome:
Three
major
changes
1. Introduces
a
new
actor
–
“Te
Awa
Tupua”
represented
by
“Te
Pou
Tupua”
2. Changes
the
property
rights
structure
Entry Withdrawal Management Exclusion Alienation
Legalising
nature Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
3. Formalises
“informal”
Maori
worldview
Te
Awa
Tupua
(Community)
Te
Awa
Tupua
(Judiciary)
Te
Awa
Tupua
(Judiciary)
Anthropocentric
worldview Tikanga
worldview
Constitutional
choice
Collective choice
Operational choice
43. Conclusion
• New
property
rights
arrangement
only
worthwhile
if
benefits
>
costs
• Will
take
several
years
to
determine
the
effectiveness
of
this
change
• Already
being
replicated
for
the
governance
of
Te
Urewera
National
Park,
New
Zealand
44. Conclusion
• New
property
rights
arrangement
only
worthwhile
if
benefits
>
costs
• Will
take
several
years
to
determine
the
effectiveness
of
this
change
• Already
being
replicated
for
the
governance
of
Te
Urewera
National
Park,
New
Zealand
Thank
you.
Questions
and
comments
welcome.
45. Conclusion
• New
property
rights
arrangement
only
worthwhile
if
benefits
>
costs
• Will
take
several
years
to
determine
the
effectiveness
of
this
change
• Already
being
replicated
for
the
governance
of
Te
Urewera
National
Park,
New
Zealand
Thank
you.
Questions
and
comments
welcome.
julia.talbot-‐jones@anu.edu.au
