The Concept of Legal Personality

To say that someone or something is a legal personality is the same as to say that they are a separate legal entity, that they have a separate legal existence or that they are a separate legal person. A legal personality could be a person, however it can also be an organisation or company. Indeed it follows that a company can be a legal person. In business law a company might be recognised as a legal personality separate from those people who created it, run it or own shares in it. It is an important concept in this regard as it allows certain liabilities to rest with the company rather than those people involved with its running. Other legal concepts follow from legal personality such as the capability to form a binding contract. Characteristics of a legal personality are also the ability to sue (or be sued) and to own and sell property.
The concept of legal personality was an idea found only at the fringes of environmental law until recently when examples of its use to protect the natural world have been realised. Most notable among these examples is the protection of the Whanganui River in New Zealand. In March 2017, New Zealand Parliament passed the Te Awa Tupua (Whanganui River Claims Settlement) Bill which granted the Whanganui River legal personality. In 2014 the Whanganui River Deed Settlement had been signed between the government and local Maori and this required the recognition of the river as ‘an indivisible living whole’ with ‘all the corresponding rights, duties and liabilities of a legal person’. The settlement had followed decades of petitioning by the Whanganui iwi who lived alongside the river, sharing an ancestral relationship with it and who had seen the riverbed degraded by the Crown – its minerals extracted and fisheries destroyed.
Around the same time as the Te Awa Tupua Bill was passed the High Court in Uttarakhand, India also declared the rivers Ganges and Yamuna to have legal personality. In a case concerning the pollution of the rivers the Justices of the High Court had said: ‘All the Hindus have deep Astha in rivers Ganga and Yamuna and they collectively connect with these rivers. Rivers Ganga and Yamuna are central to the existence of half of Indian population and their health and wellbeing. The rivers have provided both physical and spiritual sustenance to all of us from time immemorial. They support and assist both life and natural resources and health and wellbeing of the entire community. Rivers Ganga and Yamuna are breathing, living and sustaining the communities from mountains to sea’. The Supreme Court then stayed (put on hold) this decision three months later. As the rivers flow from ‘mountains to sea’ they also pass through more than one jurisdiction. The Director of NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarkhand who had been placed to act as guardians of the rivers (in loco parentis – the rivers were given the rights of a minor) would be unable to oversee all issues relating to the rivers as pollution was also occurring in other territories further upstream. Logistically, the Supreme Court ruled, the decision of the High Court was unenforceable.
The answer to Christopher Stone’s question in his influential article in the early 1970s, ‘Should Trees Have Standing?’ continues to be answered in the negative on the whole, for example the Nonhuman Rights Project were unsuccessful in their attempts to convince a New York judge that a chimpanzee has a legal personality in Nonhuman Rights v Stanley [49 Misc.3d 746]. Yet there are now some indications in environmental law that the answer to Stone’s question will not always be ‘no’. The utility in granting the Whanganui River legal personality will not be known until it plays out in the years to come but as the river does now have legal standing (or locus standi) it will be interesting if and when it finds itself in court. It shows that the concept may be particularly useful in bridging the gap between confrontational conceptualisations of nature where more than one culture meets. In contrast to the case in India it also shows that successful inception of this type of law appears to be through statute rather than through a judicial precedent. The Te Awa Tupua Bill provides a settlement for $80 million to redress ‘actions and omissions’ by the Crown with additional funding to aid the establishment of a legal framework to protect the river. In addition to this two people have been appointed to act on behalf of the river; one representative from the government and one from Whanganui iwi. It is apparent that in order for this innovative form of protection to be successful, both money and the impartiality of those acting in loco parentis are essential.