The Times Australia
The Times World News

.

What if whales took us to court? A move to grant them legal personhood would include the right to sue

  • Written by Rachael Evans, Lecturer, Kaupeka Ture | Faculty of Law, University of Canterbury
What if whales took us to court? A move to grant them legal personhood would include the right to sue

In a groundbreaking declaration earlier this month, Indigenous leaders of New Zealand and the Cook Islands signed a treaty, He Whakaputanga Moana, to recognise whales as legal persons[1].

Aotearoa New Zealand has already granted legal personhood to a river (Te Awa Tupua Whanganui River[2]), land (Te Urewera[3]) and a mountain (Taranaki maunga[4]), but He Whakaputanga Moana differs from these earlier processes. It is based in customary law, or tikanga Māori, rather than Crown law.

The declaration seeks to protect the rights of whales (tohorā) to migrate freely and to use mātauranga Māori[5] alongside science for better protections. It also aims to set up a dedicated fund for whale conservation.

But a core concept of legal personhood is the idea that the “person” (in this case, whales) can sue to protect their rights.

The declaration was signed by King Tuuheitia Pootatau Te Wherowhero VII of the Kiingitanga movement, Lisa Tumahai who chairs the Hinemoana Halo Ocean[6] initiative, and the Cook Islands leader Kaumaiti Nui Travel Tou Ariki.

It recognises traditional Māori and Pasifika ideas about the importance of whales[7] as ancestral beings. King Tuuheitia described it as “a woven cloak of protection for our taonga”, noting the presence of whales “reflects the strength of our own mana”.

While He Whakaputanga Moana is not a pan-Māori declaration, mana is a shared core concept of tikanga Māori, representing authority and power.

Aerial view of two sperm whales off the coat of Kaikoura
The declaration seeks to protect the rights of whales and give them better protection. Getty Images/Francois Gohier[8]

What is legal personhood?

Over the past few hundred years, legal personhood has been developed for companies as a way for individual shareholders to avoid liability. This means a company can go to court, rather than its shareholders.

In the past decade, Aotearoa New Zealand has led the way in developing legal personhood for things in nature into a tool used as part of settlements[9] under Te Tiriti o Waitangi/Treaty of Waitangi. It is important to note that these ideas have been recognised and implemented by the Crown in partnership with Māori[10].

As part of the signing of the Tūhoe settlement in 2014, the former national park Te Urewera was granted legal personhood. In 2017, legal personhood for the Whanganui river was also part of a settlement. And last year, this idea was extended to Mount Taranaki. The Taranaki Maunga Collective Redress Bill[11] passed its first reading in parliament last week.

These natural features are now not owned by people or the Crown, but by themselves.

Legal personhood has been praised in New Zealand[12] and overseas by people interested in using it to protect the environment.

Read more: What if nature, like corporations, had the rights and protections of a person?[13]

Tikanga key to unlocking legal power

There is currently a shift in the legal system to recognise tikanga as a key source of law[14] alongside statute and common law (the kind of customary law New Zealand inherited from England).

In the recent case of Ellis v R[15], the Supreme Court recognised and applied ideas about mana. In deciding to overturn the conviction of Peter Ellis posthumously, the court held that Mr Ellis’ mana was affected by the convictions, even after his death.

He Whakaputanga Moana is based on customary concepts like mana rather than being a Crown-drafted piece of law. It is likely it could be recognised by the courts as part of the growing wave of tikanga jurisprudence.

Marine mammals in New Zealand’s territorial waters are protected absolutely by the Marine Mammals Protection Act 1978[16] (as has recently been highlighted when the Sail GP regatta was held in a marine sanctuary and races were delayed because dolphins were present).

But He Whakaputanga Moana recognises legal personhood above and beyond that legislation.

Read more: Trees, rivers and mountains are gaining legal status – but it's not been a quick fix for environmental problems[17]

Whales in court

So what if whales went to court? What if whales sued for plastic pollution in their habitat, the dumping of waste in the oceans or climate change causing warmer waters and depleting their food stocks?

In this case, He Whakaputanga Moana could potentially give a human interest group, perhaps the Kiingitanga, the legal standing to sue on behalf of whales.

In addition to recognising tikanga as a source of law, the Supreme Court has also opened the door to climate change focused litigation, such as the case of Smith v Fonterra[18].

Here, activist Mike Smith has sued seven major New Zealand polluters for their greenhouse gas emissions. The defendants said the claim could not succeed and applied for a “strike out”, but the Supreme Court has allowed it go to trial.

Among other findings, the court found the litigation should proceed, as it might involve ideas of tikanga and tikanga-based loss that should be tested at trial. This suggests that if the courts were to recognise the validity of He Whakaputanga Moana in customary law, this case might allow those representing whales to run a claim against ocean polluters.

A ruling in favour of whales could have significant ramifications for the health and wellbeing of our oceans, and perhaps the very existence of their species.

References

  1. ^ recognise whales as legal persons (www.rnz.co.nz)
  2. ^ Te Awa Tupua Whanganui River (www.whanganui.govt.nz)
  3. ^ Te Urewera (www.legislation.govt.nz)
  4. ^ Taranaki maunga (www.theguardian.com)
  5. ^ mātauranga Māori (www.takai.nz)
  6. ^ Hinemoana Halo Ocean (thespinoff.co.nz)
  7. ^ importance of whales (www.nytimes.com)
  8. ^ Getty Images/Francois Gohier (www.gettyimages.com.au)
  9. ^ tool used as part of settlements (www.theguardian.com)
  10. ^ partnership with Māori (classic.austlii.edu.au)
  11. ^ Taranaki Maunga Collective Redress Bill (www.beehive.govt.nz)
  12. ^ praised in New Zealand (ir.canterbury.ac.nz)
  13. ^ What if nature, like corporations, had the rights and protections of a person? (theconversation.com)
  14. ^ recognise tikanga as a key source of law (www.lawcom.govt.nz)
  15. ^ Ellis v R (www.courtsofnz.govt.nz)
  16. ^ Marine Mammals Protection Act 1978 (www.legislation.govt.nz)
  17. ^ Trees, rivers and mountains are gaining legal status – but it's not been a quick fix for environmental problems (theconversation.com)
  18. ^ Smith v Fonterra (climatecasechart.com)

Read more https://theconversation.com/what-if-whales-took-us-to-court-a-move-to-grant-them-legal-personhood-would-include-the-right-to-sue-227335

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

Tricia Paoluccio designer to the stars

The Case for Nuturing Creativity in the Classroom, and in our Lives I am an actress and an artist who has had the privilege of sharing my work across many countries, touring my ...

Duke of Dural to Get Rooftop Bar as New Owners Invest in Venue Upgrade

The Duke of Dural, in Sydney’s north-west, is set for a major uplift under new ownership, following its acquisition by hospitality group Good Beer Company this week. Led by resp...

Prefab’s Second Life: Why Australia’s Backyard Boom Needs a Circular Makeover

The humble granny flat is being reimagined not just as a fix for housing shortages, but as a cornerstone of circular, factory-built architecture. But are our systems ready to s...

Melbourne’s Burglary Boom: Break-Ins Surge Nearly 25%

Victorian homeowners are being warned to act now, as rising break-ins and falling arrest rates paint a worrying picture for suburban safety. Melbourne residents are facing an ...

Exploring the Curriculum at a Modern Junior School in Melbourne

Key Highlights The curriculum at junior schools emphasises whole-person development, catering to children’s physical, emotional, and intellectual needs. It ensures early year...

Distressed by all the bad news? Here’s how to stay informed but still look after yourself

If you’re feeling like the news is particularly bad at the moment, you’re not alone. But many of us can’t look away – and don’t want to. Engaging with news can help us make ...