`Personhood' could help Stanley Park: professor

Stanley Park might be better protected if it were given the same legal status as a person, according to a UBC law professor.

The idea of granting a park, forest or ecosystem “personhood” adds protection by shifting away from the idea that it is property, governed as such in the British common law tradition.

In 2017, New Zealand legislation granted personhood to Te Urewera, which had been a national park. That created a new legal framework for protection of its 2,100 square kilometres of pristine lakes and forests in the interest of the Indigenous Tūhoe people.

“That's where the Maori and New Zealand government landed as a way to kind of address outstanding land claims,” said Alexandra Flynn, a professor in the Peter A. Allard School of Law. “So, it can, I guess, work in the sense that it's a joint process to come to.”

Whether that could happen in Vancouver with Stanley Park would require relationship building and an Indigenous-led consideration of how First Nations law might apply, Flynn said.

In the B.C. context, Flynn said it would be difficult for Stanley Park to be simply be given to the Squamish, Tsleil-Waututh and Musqueam First Nations.

Flynn thought exploring the options, including legal personhood, was worthwhile. Her findings have just been published in the Fordham Urban Law Journal, under the title Parks as Persons: Legal Innovation or Colonial Appropriation?

“This displacement (of Indigenous communities) happened in this park that is so beautiful and so important to Vancouver and B.C. and the world,” Flynn said. “What are the ways that property law that could address this issue, aside from giving it back or co-management?”

In New Zealand, personhood meant giving Te Urewera “all the rights, powers, duties and liabilities of a legal person,” according to the act establishing the measure.

Flynn said the legislation created a management plan with a board that must “act on behalf of, and in the name of Te Urewera,” and may “consider and give expression to `Tūhoe knowledge.'”

In Colombia, Flynn wrote, a 2015 lawsuit was launched by Indigenous and Afro-Colombian communities over environmental damage from mining to Rio Alrato.

Their argument was that the damage constituted a failure to protect the “social rule of law” under Colombia's constitution. The Constitutional Court ruled that “rivers, mountains, forests and the atmosphere must be protected, not because of their utility to humans but because of their own rights to exist.”

Closer to home, Flynn said the ?Esdilagh First Nation and Tsilhqot'in Council of Chiefs in 2020 wrote their own law that declared the Fraser River to be a person with “rights in the decisions about their care and use that must be considered and respected.”

That law hasn't been tested in court, but Flynn said there are increasing examples where courts have recognized Indigenous law as a mechanism to resolve issues.

“I don't see this as a road map for the nations or for the city to say, this is what you should do,” Flynn said about Stanley Park.

Rather, she intended it to be “more cautionary than that, to say don't jump on these ideas as though they're going to just solve everything.”

For instance, with Stanley Park, “there are significant limitations on granting a form of personhood that goes beyond symbolism to shift real power to Indigenous people,” Flynn writes.

I don't see this as a road map for (First Nations) or for the city to say, this is what you should do.

And without an Indigenous-led process, there is a risk that granting personhood could result in a symbolic gesture “to replace dialogue with a rush to conclude the difficult task of confronting colonialism within cities,” Flynn said.

In Vancouver, the park board has been conducting a colonial audit of the city's parks, with a focus on Stanley Park as “ground zero” for the impacts on First Nations, to identify ways of improving the board's policies and practices with respect to reconciliation.