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Is it time to protect Stanley Park by making it a legal person?

Stanley Park a legal person?

Stanley Park is full of living things, from meandering tourists to nipping coyotes, nesting herons to soaring conifers. But could the 400-hectare park — the “crown jewel” of the city — itself be a person? 

That’s the question Alexandra Flynn, assistant professor at University of British Columbia Peter A. Allard School of Law, put forward in a recent article in the Fordham Urban Law Journal. 

“If you identified nature as a legal person and there was some development proposed, being a person could protect it,” said Flynn. “I think it’s always better to have stronger legal teeth.” 

The idea of legal personhood is well-established for corporations, trusts and even municipalities, which can enter into contracts, and have their own identity, power and obligations separate from the people working there. 

Likewise, it’s not uncommon to have caretakers oversee the well-being of legal persons who can’t make decisions for themselves. Children or people incapacitated by a coma or injury all fall into this category and offer a practical precedent for designating land as a legal person. 

“In law, it’s not a completely crazy concept to have a legally empowered identity,” Flynn said. “There are decision-makers that stand in for those persons and they act in the interest of that person.” 

The rise of the non-human person

In recent years, there’s been a growing movement to extend the legal rights of a person to non-humans, including Happy, a 51-year-old Asian elephant living in the Bronx Zoo who in June was denied personhood in a 5-2 ruling in a New York court of appeal. 

But where Happy failed, many local governments across the world have had success in transforming inanimate objects into legal persons. In the United States, at least three dozen municipalities have passed ordinances granting rights to nature. Most cases have applied to bodies of water or strips of land threatened by industrial pollution, says Flynn. 

The thinking goes something like this: by legally re-configuring land ownership as a person, it gains certain inalienable rights that effectively protect it from development or resource extraction. Any government, company or individual trying to infringe on the land would leave themselves open to legal action.

Declaring land a person offers benefits beyond protecting its ability to capture carbon or maintain the wildlife that lives there. In the case of Stanley Park, transforming the land into a person could go one step further: offering a neutral path toward reconciliation with Indigenous peoples.

The land Stanley Park sits on was once home to one of the largest settlements of Coast Salish people in the region, says Flynn. In the 1920s, the federal government and municipalities used trespassing claims to evict Indigenous people from places like Stanley Park. Today, under Canadian law, the federal government owns the land, leasing it out to the City of Vancouver. 

That relationship is currently being reviewed as the Vancouver Parks Board conducts a colonial audit to map the history and potential future of Stanley Park.  

Could turning land into a person advance reconciliation?

Turning a piece of land or water into a person has been done before.

In New Zealand, Te Urewera National Park became a legal person in 2014, governed by a strict management plan adhering to Maori law and overseen by a board that is two-thirds Indigenous.

Flynn describes Te Urewera's move to personhood as a “political compromise.” It only came after the government rejected a call to return the land to the T?hoe Indigenous people, and some critics, Flynn notes, have called the agreement a “potential straitjacket” for Indigenous rights.

In other jurisdictions, such as Colombia, the country’s Supreme Court declared the Atrato River as a legal person in 2016 after it was damaged by mercury and cyanide pollution.

A joint guardians program — involving one government representative and one Indigenous member from each community — is in place to oversee the river’s health. 

The Atrato, which runs south of the Panamanian border, has had company since 2020, when Colombia’s Supreme Court granted the Amazon River, the world’s largest, legal rights

In Canada, meanwhile, Flynn points to the Magpie River in Quebec, which is well-known among white water rafters for its rapids. In February 2021, a joint declaration between a regional municipality and the Innu Council of Ekuanitshit stated the river had nine rights, including the right to flow, maintain biodiversity and to sue, say, in self-defence.

Within weeks, Toronto-based environmental lawyer Paul Manning told the Canadian Law Magazine the Magpie River declaration could be subject to legal dispute and that much will depend on whether the government, which legally owns the Crown land, decides to acknowledge the personhood of the river. 

It’s also not clear how Canadian courts will interpret a 2020 law passed by the ?Esdilagh First Nations and Tsilhqot’in Council of Chiefs, which declared B.C.’s Fraser River a legal person threatened by pollution and low fish stocks.

A 'revolutionary precedent'?

Granting land the legal status of a person represents a deep challenge to Western ideas that humans carry rights superior to all living things.

By opening a path for Indigenous legal traditions into Canadian law — it could put the rights of humans on a more even playing field with the lives of trees, plants and animals, says Flynn.

But Flynn underscores that no First Nation has endorsed the idea of turning Stanley Park into a legal person. And even if they did, she says past experiences show such a desire would just be the start. The harder task, says Flynn, would be negotiating a new system of governance that would establish who gets to make decisions on behalf of the 400 hectares of forested land and what limits they must abide by.

“In law, it’s not a completely crazy concept to have a legally empowered identity,” Flynn said. “But it’s not really up to people like me to decide if it’s a fit for specific Indigenous laws of the nation.”

Flynn, who says she wrote the article as a “thought experiment,” says making the park a person will be up to the City of Vancouver, the federal government as well as the Tsleil-Waututh, Squamish and Musqueam nations whose land the park sits on.

“Even though I wrote about it, it doesn’t mean it’s going to be done,” she said.

Still, Flynn is not the first to raise the idea. Some prominent people in B.C. have argued the move to turn land into a legal person could offer a boon to both the rights of nature and protecting Indigenous values.

UBC law professor and UN Special Rapporteur on human rights and environment David Boyd has said personhood could bolster legal protection for nature that “generations of environmental laws have failed to provide.”

Or as Julian Brave NoiseCat, a Secwépemc writer and oral historian, has argued: bestowing land with the rights of a person offers a potentially “revolutionary precedent.” 

It could “redefine relationships between governments, Indigenous peoples and the land in the 21st century.”



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