Whale Personhood in Polynesia
“We are the sea, we are the ocean, we must wake up to this ancient truth.”
— Epeli Hau’ofa, A New Oceania: Rediscovering our Sea of Islands
By Ella Flav
In March 2024, Indigenous leaders from across Polynesia including Aotearoa (New Zealand), Tonga, Tahiti, Hawai’i, and the Cook Islands signed He Whakaputanga Moana (Declaration for the Ocean), recognizing whales as legal persons with inherent rights.
Whale populations have suffered significant decline globally due to human activities. Whilst not a binding international treaty, the Polynesian call to grant personhood to whales is sparking conversations around utilizing Indigenous knowledge to protect whales and combat anthropogenic climate change.
How Did the Declaration of Whale Personhood Come About?
A long and tragic history cloaks the relationship between Ngāi Tūhoe, a Māori iwi (tribe) based in Te Urewera, Aotearoa, and the New Zealand government. Tūhoe never ceded sovereignty to the British Crown and was subject to brutal invasions, land confiscation, and famine. In 2014, following a long settlement process, the New Zealand Parliament unanimously passed the Te Uruwera Act, granting Te Uruwera, the historical homeland of Tūhoe, “all the rights, powers, duties, and liabilities of a legal person” (Te Uruwera Act 2014, s 11[1]). The granting of legal personhood means, amongst other things, that lawsuits can be brought on behalf of the land itself, with no need to show harm to a particular human.
This development served as inspiration for the Hinemoana Halo Ocean Initiative (Hinemoana Halo), which is spearheading the calls for whale personhood. Named after the Māori goddess of the ocean, Hinemoana, Hinemoana Halo is an Indigenous-led movement with a vision to provide “a woven cloak of protection for our taonga, our treasures—the magnificent whales.”
What Legal Protections Already Exist for Whales?
Threats to whales from human activity include whaling, entanglement in fishing gear, collisions with ships, and pollution. The United Nations Convention on the Law of the Sea (UNCLOS) is the principal regime of law for the world’s oceans and seas. There are 169 State Parties to UNCLOS. In accordance with Article 65 of UNCLOS, State Parties are required to work through the International Whaling Commission (IWC) for the conservation of whale species. The IWC is thus the international body responsible for the conservation of whales and management of whaling.
In 1986 a commercial whaling moratorium came into force for signatories to the Convention, with reservations from Norway, Iceland, and the USSR. The Commission makes allowances for Indigenous subsistence whaling and scientific whaling. (For example, the Makah Tribe was recently granted a waiver to hunt a limited number of Eastern North Pacific grey whales by NOAA Fisheries.) Individual governments are responsible for setting and regulating scientific whaling catches. The IWC has designated two sanctuaries for whales, which prohibit commercial whaling in their areas: one in the Indian Ocean, and another in the waters around Antarctica. In the Pacific, New Zealand and Australia, with the support of Pacific Island nations, proposed the establishment of a South Pacific Whale Sanctuary in 2001, but this proposal failed to meet the IWC agreement threshold of a three-quarter majority.
The allowance of scientific whaling has become an area of contention. Key to this matter is the International Court of Justice (ICJ) case of Whaling in the Antarctic between Japan and Australia with New Zealand intervening. The Court found that special permits granted by Japan for a whaling program did not fall within the provisions set out by the 1946 Whaling Convention. Additionally, it was found that Japan violated its obligations regarding commercial whaling and the prohibition of whaling in the Southern Ocean Sanctuary.
Japan withdrew from the IWC in 2019 to resume commercial whaling. In addition, Norway and Iceland continue to hunt whales commercially, undermining the effectiveness of the moratorium on commercial whaling.
In the South Pacific, domestic legislation has already been used to afford protection to whales. Numerous state exclusive economic zones have been declared sanctuaries for whales, resulting in over 12 million square kilometers of protection. Ongoing commitments to the protection of whales in the South Pacific have included a memorandum of understanding for the conservation of cetaceans and their habitats in the Pacific islands region, as well as an action-plan to achieve conservation goals. Practical enforcement of these protections remains an issue, as Pacific states often lack the ability to extensively survey their exclusive economic zones.
Despite efforts to protect whales from whaling, research suggests that between 60,000 and 300,000 whales (including dolphins and porpoises) are caught as bycatch by global fisheries each year. Ship strikes, climate change, and pollution also serve as threats to whales. If we want to encourage the rejuvenation of whale populations, more must be done to protect them from human activities and consequences thereof.
How May Granting Legal Personhood Differ from these Existing Protections?
Legal persons are most often understood as beings that hold rights and/or duties, or at least have the capacity to hold rights, under some legal system.
Fundamentally, the granting of legal personhood to whales represents a paradigm shift away from the assumption of human supremacy over Nature, giving effect to ecocentric worldviews, perhaps especially those of Indigenous Nations and peoples. Indigenous peoples across Te Moana nui a Kiwa (the Pacific Ocean) have lived in harmony with the moana (the ocean) since time immemorial. Whales are considered ancestors to Māori and guided them across the Pacific. Whilst not a binding international treaty, the Polynesian call to grant personhood to whales is sparking conversations around utilizing Indigenous knowledge to protect whales and combat anthropogenic climate change. It’s conceivable that the new Declaration for the Ocean may, without being enshrined in domestic legislation, hold weight as customary law. In New Zealand, tikanga Māori (Māori customary law) has been recognized by the courts (for example, 2022 New Zealand Supreme Court judgment Ellis v R).
The Declaration allows the Hinemoana Halo team to start talks with governments in New Zealand, Tahiti, Tonga, and other Polynesian countries to develop legal frameworks to enforce further protections for whales.
Sperm whale. Bernard Spragg from Christchurch, New Zealand, CC0, via Wikimedia Commons
Existing protection of whales in domestic legislation could be said to afford whales simple rights; for example, under New Zealand legislation it is an offense to take a marine mammal (including whales) without a permit, and, as another example, no person may make any loud or disturbing noise around whales (see New Zealand Marine Mammals Protection Act 1978, s 9[1] and New Zealand Marine Mammals Protection Regulations 1992, regulation 19[h]). The granting of legal personhood could recognize stronger, broader, and properly enforceable rights as fundamental for whales. Using the example of New Zealand’s domestic law relating to the taking of whales without a permit, the granting of legal personhood could shift thinking of whales as property to considering them as having fundamental rights, making it difficult for those rights to be alienated by humans. Recognition of legal personhood may also serve as a mechanism to enshrine full rights to freedom of movement, a healthy environment, and restoration of whale populations.
Similar calls for the recognition of fundamental rights are being made in North America. Earth Law Center is calling for recognition of the inherent rights of Southern Resident Orcas and the ecosystems on which they depend. Existing legal protections for Southern Resident Orcas outlaw intentional harm but have not prevented a decline in their population. Recognition of inherent rights such as the right to an adequate food supply from naturally occurring resources could help to restore Southern Resident Orca populations.
On the international level, Indigenous leaders from the Pacific called for recognition of whale legal personhood at COP28, and there are calls for whales to be Ocean Ambassadors to the United Nations. Additionally, a 2010 conference in Helsinki resulted in a Declaration calling for the attribution of moral and legal rights to cetaceans.
Different models of recognizing the rights of Nature have been followed around the world. A particularly important example is Section 7 of Ecuador’s constitution, which includes this definition of Nature’s rights: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”
Another indirect option is creating a legal “person” or entity to protect whales and bring legal action on their behalf instead of, or alongside granting personhood to whales themselves. Under the Te Uruwera Act, in addition to granting Te Uruwera “the rights, powers, duties, and liabilities of a legal person,” a Board was established to act on behalf of Te Uruwera. This demonstrates both direct and indirect ways to give effect to legal personhood (Te Uruwera Act 2014, s 17).
Whales and Climate Change
In collaboration with Hinemoana Halo, Ralph Chami, who is Assistant Director at the International Monetary Fund’s Institute for Capacity Development, as well as a co-founder of Blue Green Future, estimates that a great whale, over the course of their lifetime, sequesters approximately 33 tons of CO2, roughly equivalent to 30,000 trees. When a whale dies, it sinks to the seabed and transfers the carbon it has sequestered to the creatures that feed on its carcass. In addition, whales stimulate phytoplankton growth, contributing to the approximately 40 billion tons of CO2 these creatures draw from the atmosphere each year.
Hinemoana Halo sees the opportunity to leverage the international carbon market to revitalize marine biodiversity in the Pacific and empower Indigenous communities to protect, manage, and monitor the marine environment. The ecosystem services of one whale are estimated to be worth at least $2 million from sequestered carbon, support to the ecosystem and phytoplankton, and whale watching tourism. Offset credits bought under the initiative will go towards empowering Indigenous communities to protect the marine environment off New Zealand and the migratory corridors of whales and other treasured species from the Pacific to Antarctica.
While there are a diversity of opinions on whether societies should place any type of monetary value on Nature, with a growing global movement to recognize Nature's intrinsic value beyond human interests, the benefits of protecting whales to humans and all life is evident.
