Of Forests and Rivers Owning Themselves: Looking for a Place for Te Urewera and Te Awa Tupua in Constitutional Property Law and Theory

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The legislature of New Zealand has declared the former national park Te
Urewera and the river Te Awa Tupua legal persons (environmental persons).
It has also vested landownership in these environmental persons. Natural
entities owning themselves question fundamental pillars of constitutional
property law and theory, specifically the protection of property for human
benefit rather than the benefit of the nonhuman objects of ownership and
compensation as the standard remedy for expropriations and excessive
limitations of property. This Article examines whether the ownership of Te
Urewera and Te Awa Tupua can be reconciled with these pillars of
constitutional property law and theory. It shows that the legislation on Te
Urewera and Te Awa Tupua limits the ownership largely in accordance with
the needs of Māori living on the land of the environmental person or in its
vicinity. The Article demonstrates that existing property theories, specifically
green property theories and the theory of human flourishing, can still explain
the balance between the ownership held by these environmental persons and the
interests of the human public. By contrast, as the legislation on Te Urewera and
Te Awa Tupua confirms, compensation in money will generally not be an
adequate or appropriate remedy for expropriations or excessive limitations of
the ownership of environmental persons because money cannot equalize the
harm done to the environmental person. The invalidity of the state action or
suitable replacement land should be the standard remedy in such cases.
Originele taal-2English
Pagina's (van-tot)126-159
Aantal pagina's34
TijdschriftJournal of Law, Property and Society
StatusPublished - dec.-2022

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