Course:CONS370/2019/History and consequences of conferring legal personhood on the Whanganui River in New Zealand

The Whanganui River in New Zealand obtained legal personhood in 2017 under the Te Awa Tupua Act. It is a relatively novel tenure arrangement which showcases collaborative management practices of natural areas between Indigenous and State actors, forming the foundation for further de-colonization efforts around the world. The Te Awa Tupua Act introduces innovative tenure arrangement concepts, as well as complex administrative structures, which together form a case-study which provides ample evidence of successful co-management of natural areas between governments and indigenous populations. Such evidence may be used by other governments in a variety of tenure contexts to move towards a more ethical and inclusive management structure over natural areas and resources that includes Indigenous peoples. Notably, a critical analysis of the power dynamics of this case is included, in order to provide grounds on which future arrangements can be improved. Alongside the comprehensive summary of the case, such critiques exemplify how far governments have come since the dark chapters of colonial history, whilst also offering a reminder as to how such legacies are still very much present today in underlying power dynamics.

Definitions

*Disclaimer*

These are intended to serve as a reference for their application in this paper, and as a way to respect the contextual language used in Aotearoa/New Zealand. We do not claim to be any sort of authority, or intend to misuse or appropriate any of these definitions. We chose to use these Māori words to instigate thought about the pluralistic cultures in our entry. The definitions we use are how we understood them while researching for this paper, and they have been cross-checked using Māori Dictionary.co/nz.

Aotearoa: North Island New Zealand

Iwi: People or a kinship/tribe/nation

Mana: Authority

Pākehā: Settlers, non-Māori, usually english speaking and of European descent.

Te Awa Tupua: The Whanganui River Settlement Act

Te: The
Awa: River
Tupua: Super Natural

History and Context of Te Awa Tupua

Delineation of the Whanganui River

The case study of Te Awa Tupua provides an account of what can happen when the governments of nation states liberalize and expand their notions of other existing ontologies, and cosmologies in terms of managing and viewing natural ‘resources’ and the non-human world. We explore the context of how the Te Awa Tupua (or the Whanganui River) gained legal personhood in Aotearoa (New Zealand) in 2017, and why this is important on a multitude of scales. The acquisition of legal personhood for a non-human entity in a country with colonial histories may offer insights for indigenous/settler relationships for other colonial settler / occupied indigenous nations around the world. Accepting and viewing an element in nature as an entity, rather than an object, has the potential to disrupt dominant views, change extractivist resource management and mend the relationships between indigenous people, settlers, and the natural world (Te Aho, 2018). While the case of the Te Awa Tupua revolves around a river system, this kind of legislation may well be put to use in forests and other ecosystems as well.

Geography:

Lush forest on either side of the the Whanganui river

View from the southern end of the Whanganui River in Whanganui.

The Whanganui River is the longest navigable river in Aotearoa/New Zealand. Located on the North Island, it starts at the slopes of Mount Tongariro and flows 290 km before it drains into the Tasman Sea (Charpleix, 2018; Rodgers, 2017). A quick journey down the River on google earth reveals the diversity of landscapes that the River flows through; from the vast, treeless scenery of its headwaters, through lush forested mountain valleys, vast green agricultural expanses, and through several well-developed urban areas such as Whanganui. What may remain unseen with a Google Earth tour, is the River’s being, the life-force that the Māori - the Whanganui Iwi have sought to protect from pākehā (settlers), western legislation and economies for over 150 years (Hsiao, 2012; O’Bryan, 2017).

Legal Context:

The Te Awa Tapau Bill was finally passed in 2017 which granted legal personhood to the Whanganui River. This Act serves to affirm that pluralistic systems of law in a nation state can exist; how these dual system laws will evolve can only be told with the passage of time (Charpleix, 2018). The legal battle that resolved in the 2017 Te Awa Tupua Act was a struggle that began with the 1840 Waitangi Treaty, which was created when the British Crown entered negotiation with the North Island Māori chiefs with the alleged concept of ‘peaceful’ colonization (Charpleix, 2018). By 1975 the discontent among the Māori and the pākehā with the 1840 Waitangi treaty led to the formation of a tribunal meant to resolve treaty disagreements, as well as monitor government legislation to ensure that it conformed with all of the Treaty principles (Charpleix, 2018; Rodgers, 2017; Smith, 2012). In 1999 the tribunal released an assessment of the claim under the Wai Act, which recognized that the Whanganui River Iwi had ownership of the River and recognized the state's abuse of power through systematic oppression, and recommended that the government begin negotiations with the Māori to settle the rights dispute permanently to avoid further conflict (Charpleix, 2018; Hsiao, 2012). Following the tribunal's recommendations in 1999, negotiations first started in 2002, and ended with no resolution in 2004, only to reopen again in 2009 where negotiations, discussions and proposals were established and re-established. Ultimately these negotiations resulted in what is now the Te Awa Tupua Act, which recognizes the Whanganui Iwi relationship with the River and grants legal personhood to the River (Charpleix, 2018; Rodgers, 2017; Hsiao, 2012).

What follows is a more in-depth look at the contrasting ontologies that created and fuelled the disagreements for so long, why this case is unique, why it isn’t, what benefits have been gained by both the Māori and the pākehā, what can be learned from this shift towards legal pluralism, how can it be applied to other natural elements, and what the critiques are of this legal innovation.

The Unconventional Tenure of Te Awa Tupua

One immediate question that can be derived from giving legal personhood to a natural system or entity may be - what is the socio-political ecology of the land? Can a non-human entity have tenure? In the instance of the Whanganui River, the answers to these fundamental questions become uncertain and complex. We will explore these questions based on the four basic forms of tenure as laid out and defined by Janette Bulkan in her Cons 370 class; defined as ‘freehold, common property, state property and leasehold tenures (2019), we will only focus on the first three as they are most relevant to the Whanganui River case.

History:

Historically, in common law legal systems the Crown is the source of all title land and can limit or expand the scopes of the tenures it holds (Strack, 2017). It was commonly understood that in the case of rivers that the water itself was held in common and therefore cannot be owned by anyone but access to the land the water flows through can be (Strack, 2017; Te Aho, 2018). In the case of common law in New Zealand and elsewhere, waterways were usually managed under two tenures, and are categorized as tidal (crown/state property) and non-tidal (private property) (Strack, 2017). For privately owned non-tidal waterways, whichever property is adjoining to the river owns up to the middle of the channel also known as ad medium filum or the talweg (Charpleix, 2018; Hsiao, 2012; Strack, 2017). In most disciplines rivers and their borders are difficult to define and this holds true in many legal systems as well. In common law, river title can be separated from land title when they are tidal and when they are navigable, which is argued to be for the protection of rights to freedom of access, navigation, and public fisheries (Strack, 2017). In Aotearoa/New Zealand this began to change as discourse and precedent legal cases have shifted perspectives.

In the last 20 years several cases of treaty settlements have occurred that have allowed for the conditions of the Te Awa Tupua Act in 2017. The first was the Ngāi Tahu Claims Settlement Act of 1998 where the Crown gave fee simple titles over several lake beds to the Te Rūnango o Ngā Tahu, and simultaneously allowed for existing public rights to remain unaffected (Charpleix, 2018; Hsiao, 2012; Strack, 2017). The next significant settlement occurred in 2014 with the Te Urewera Act in which 2000 km² of forested land, lakes, mountains and rivers were transferred from a National park with state owned tenure to become its own legal person (Charpleix, 2018; Rodgers, 2017; Hsiao, 2012; Rodgers, 2017). Essentially what this settlement did was it contrasted and challenged conventional western notions of how land preservation should be carried out. Conversely, critics point out the fact the while the government technically relinquished state ownership, they did not grant the Iwi a fee simple title to the land either (Charpleix, 2018; Rodgers, 2017;Hutchison, 2014; Hsiao, 2012; Rodgers, 2017). Which raises questions of whether or not the government actually released any sovereignty in land use decision to the Māori at all (Strack, 2017). The settlement, however, did challenge conventional western law, and ways of understanding tenure, and perhaps introduced/reintroduced the idea of people and their cultures as being part of nature (Strack & Goodwin, 2017).

Recent Settlement:

The Te Awa Tupua Act was finally established in 2017. The declaration of the Whanganui River as its own legal entity creates a categorical headache in terms of conventional tenure understandings. Many courts had previously recognized that the Māori had full possession of the Whanganui River and its surrounding lands long before the settlement (Strack, 2017). But the negotiations resulted in the River essentially owning itself as a legal entity. The guardians or “human face” of the River are represented by a representative of the state and by the Te Pou Tupua, an elected representative of the Māori Iwi (Charpleix, 2018). While the River owns itself there is co-responsibility of both the state and the Māori Iwi to act in the best interest of the River but also on behalf of the people and cultures that depend on the River’s wellbeing. That could be a form of collaborative management agreement except, the River, is its own separate entity. To complicate tenure arrangement further, it’s not really a form of freehold tenure either, as it cannot legally represent itself. For example, the River is unlikely to make decisions for itself and it definitely cannot exercise the bundle of rights associated with freehold tenure, such as alienation or bequeathment. There is some potential to argue that it could be seen as a type of common tenure, but this is not accurate for the conditions either, as there are no real limits to access in terms of using the River. However the guardians do represent a sort of ‘insider’ decision making body that may decide on limitations to access and activities carried out on or around the River. Lastly it cannot be considered state property even though the state still has partial jurisdiction over the River. In the Te Awa Tupua settlement, the government released their rights in the formation of the River as a legal entity but cautiously clarified that the Te Awa Tupua is defined as the riverbed and that they still hold onto mineral rights, and that existing property rights on the river are to remain unaffected (Rodgers, 2017).

What all of this highlights is that the tenure agreements of the Whanganui River, a legal entity, is highly complex and largely unsettled thus far. While there is not yet a clear-cut path to defining the River’s tenure, it is something new in western ways of thinking about land use and ownership, and borrows concepts form both the pākehā and the Māori in a pluralistic fashion.

Administrative Structure of Te Awa Tupua

There is a complex administrative system by which the Wanganui River operates as a legal person. Starting at the top, the guardian of Te Awa Tupua - aka the Wanganui River - is Te Pou Tupua, which translates into “the human face of Te Awa Tupua” (O’Bryan, 2017, p. 55) This role is shared between two people, one of whom is nominated by the Crown and the other by the Whanganui Iwi. Upon their appointments, these two individuals act collectively on behalf of Te Awa Tupua. Notably, they do not act on behalf of their nominators. The individuals are not personally liable for any actions taken whilst in their capacity as Te Pou Tupua, if and only if they have acted in good faith and in accordance with their duties (New Zealand, Te Awa Tupua Act 2017). The key function of Te Pou Tupua is to enter into relationships and agreements with the government concerning topics of mutual interest, especially relating to the granting of consent on behalf of the River (O’Bryan, 2017, p. 55). A central requirement of this position is that they must uphold four intrinsic values of the River, which are known as the Tupua Te Kawa. It is in these principles that one may find the embodiment of Māori world views. Tupua Te Kawa is comprised of the following values:

Ko Te Kawa Tuatahi: Te Awa Tupua is a spiritual and physical being which supports and sustains life and natural resources within the Whanganui River, as well as the health and wellbeing of the Iwi, hapu, and other communities of the River.
Ko Te Kawa Tuarua: Te Awa Tupua is an indivisible and living whole from the mountains to the sea, including the Whanganui River and all of the physical and metaphysical components it is comprised of.
Ko Te Kawa Tuatoru: The Iwi and hapu of the Whanganui River have an undeniable connection to Te Awa Tupua, as well as a distinct responsibility for its health and wellbeing.
Ko Te Kawa Tuawha: Te Awa Tupua is a single whole, made up of many elements and communities which work together towards common purpose for the health and wellbeing of Te Awa Tupua.

(Te Awa Tupua Act, 2017)

Below the Te Pou Tupua, there are 4 participating bodies that aid in the execution of representing Te Awa Tupua. They have distinct roles by which they assist Te Pou Tupua and Te Awa Tupua. The Te Karewao for one, is an advisory group established to provide advice and support to Te Pou Tupua in the performance of their duties. They are obligated, just as Te Pou Tupua, to act in the best interest of Te Awa Tupua, and uphold the values of Tupua te Kawa (Te Awa Tupua Act, 2017). In addition, there is the Te Kōpuka, a strategy group for the Awa Tupua comprised of representatives of persons and organisations with interests in the Whanganui River. This includes the Iwi, local authorities, departments of State, commercial organizations, recreational users, as well as environmental organizations (Te Awa Tupua Act, 2017). The purpose of Te Kōpuka is to act collaboratively to promote the interests and protect the wellbeing of the Whanganui River. Their primary function is to develop and approve the Te Heke Ngahuru. Te Heke Ngahuru is essentially the branch concerned with identifying key issues regarding the health and wellbeing of Te Awa Tupua, for which they ought to provide suggested solution strategies (Te Awa Tupua Act, 2017). Finally, there is the Te Awa Tupua Register, comprised of hearing commissioners whose role it is to hear and determine applications under the Resource Management Act of 1991 that relate to resource consent for the Whanganui River. Te Pou Tupua is responsible for maintaining this register. This register must be consulted about with the Iwi, the Secretary of Environment, the Director-General, and relevant local authorities (Te Awa Tupua Act, 2017).

The Affected Stakeholders

The only stakeholders that can truly be said to qualify as “affected” in the context of the Whanganui River are to Iwi, as well as the River itself. The desire of the Whanganui Iwi to protect the sacred River has endured for over a century, and involved a long history of petitions and protests. The Whanganui River Māori Trust Board lists “recent” events in their timeline as far back as 1849, when Māori groups fought to preserve eel fishing rights in certain streams (Hsiao, 2012, p. 372). It wasn't until 1895 that the Whanganui Iwi brought a claim to the Supreme Court of New Zealand to assert customary rights, in this case for fishing. In response, the government created the Whanganui River Trust Board, thus placing control of the River in the hands of the colonial government, and leaving the Iwi with little to no power (Hsiao, 2012, p. 372). Similarly, in 1998, the Whanganui Iwi brought a claim seeking compensation for the removal of gravel from the River, only to be faced with the ‘1903 Coal Mines Act’ which vested the riverbeds in the possession of the Crown (Hsiao, 2012, p. 372). This manner of delegitimizing Iwi claims has been typical of the Crown, who have continued to pass legislation to assert its position in its own courts until recently, (and is likely ongoing). In response, the Whanganui River Māori Trust Board was established in 1988, in order to represent the Whanganui Iwi and provide strong footing on which to fight for their customary rights (Hsiao, 2012, p. 372).

A Long Fought Battle:

The Whanganui River has been central to the longest standing legal battle in New Zealand’s history. As is exemplified above, the Whanganui Iwi have been asserting and fighting for their customary rights since the Treaty of Waitangi in 1840. In brief, the customary rights of the Whanganui Iwi have been persistently whittled away through colonialist government legislation, which vested key responsibilities and rights over the River in the Crown, whilst using those same laws to delegitimize the Iwi’s claims in government-instituted tribunals (Hsiao, 2012, p. 372). It has only been recently that such systematic forms of oppression have started to change. The Waitangi Tribunal is a key example of how such change has come about. The Waitangi Tribunal was established in 1975, and focused heavily on recovering and representing Māori versions of colonial history. Historically, governments had imposed a series of laws and regulations designed to dispossess Māori from their lands. Such practices continued into the 1960s, and embodied a ‘use it or lose it’ philosophy (Hsiao, 2012, p. 372). Although the Tribunal could not hear claims dating back to 1840 due to legal restrictions, the opportunity for Māori to formally voice their concerns was still regarded as highly positive (Smith, 2012, p. 277-278). In the 1990s a claim was brought forward to the tribunal by a member of the Māori Iwi that wanted to assert their rights over ownership, control and management of the Whanganui River (Charpleix 2018, O’Bryan, 2017). The Waitangi Tribunal noted in their 1999 report on the Whanganui River that “statutory and institutional limitations over the last century prevented the Whanganui Iwi from bringing a claim on the issue of the River as a whole” (Hsiao, 2012, p.372). The Tribunal found that, with regards to the Whanganui River and the Waitangi Treaty, the Iwi have customary rights over the lands, waters, and fisheries of the Whanganui River, as guaranteed to them in the Treaty of Waitangi. Such rights have not been willingly relinquished, and have instead been eroded by Crown laws, policies, and practices. (Hsiao, 2012, p. 373). There has evidently been a long history of colonial power dynamics applied unto the Māori peoples, and their sovereignty and stewardship have, consequently, been diminished over the centuries by the New Zealand government. However , there has been a modern shift towards a more inclusive system of governance by which the cries for justice by the Māori are being validated and embodied in legal frameworks such as the Te Awa Tupua Act 2017.

The Interested Stakeholders

The flag of New Zealand, clearly bearing the marks of colonial histories

The key stakeholder to be considered under the ‘interested’ category in the case of the Whanganui River is unarguably the government of New Zealand, and the British government in historical context. Although there are other interested stakeholders involved in the every-day activities in and around the river - such as fishery companies and recreational users - they will not be included in this section's analysis, given that the creation of the Te Awa Tupua Act predominantly involved the Whanganui Iwi and the Government of New Zealand.

Although the friction between the interested and affected stakeholders - the Colonizers and the Iwi - has been presented previously, additional insight into the interests and conflicts between the two from a Colonizer's perspective can grant greater understanding of how significant the Te Awa Tupua Act 2017 really is. When the British colonised New Zealand, they brought with them their own system of law, embodying a set of fundamental values based on the notion of human dominion over all other things. In addition, their attitude of colonial superiority and sovereignty required the inherently racist view that indigenous people are inferior to the colonists. The law they brought with them was inherently arrogant, which led to the destruction, rather than the acknowledgement of distinct legal systems and cultures they came into contact with (Charpleix, p. 21, 2018). The British deemed that British law applied in New Zealand from 14 January 1840, after the signing of the Waitangi Treaty (Charpleix, p. 21, 2018). They believed the signing of the Treaty was an act of cession by the Māori of their lands and sovereignty to the British Crown. The Māori, conversely, believed that Tikanga - their system of law - would remain as the first law of New Zealand, as they had granted nothing more but delegated authority to the British, which meant the Māori still had self-determination and sovereignty (Charpleix, 2018, p. 21). This conflict of understanding arose from the differences in wording in the two versions of the Treaty - the Māori vs the British. Although never fully confirmed, it has been suggested that Henry Williams and his son, who were assigned to translate the document into Māori, provided deliberate mistranslations to the Māori in order to secure the Crown’s dominion (Charpleix, 2018, p. 21). Besides this misleading Treaty, there are also inherent differences in the understanding of the natural world between British and Māori culture, differences which fundamentally manifest themselves in how laws regarding resource management were implemented. In the minds of the British, the inhabitants as well as the physical environment of the territory in question were viewed as objects and resources available for the British to extract and use as they see fit (Charpleix, 2018, p. 22). Alternatively, in the eyes of the Māori, neither the Whanganui River nor its peoples were conceptualized as objects to be owned. This difference in worldview was one of the first things the Iwi opposed, from the very first time the white people arrived on the River (Charpleix, 2018, p. 22). Evidently, the government of New Zealand does not have a particularly ethical history in terms of its dominion over the land and its Indigenous peoples. The power they assert has the potential to wipe out Māori stewardship over their ancestral lands, and it is only through their modern awakening in terms of socio-political ethics that a shift away from this dominance towards more progressive and inclusive administrative structures is possible.

Discussion/Assessment of Relative Success

The establishment and creation of the Te Awa Tupua Act was intended to recognize, reclaim, and facilitate resurgence of Māori culture and ontologies as well as strengthen the relationship between the Māori and the Crown. According to Rodgers both the 2014 Te Urewera Act and the 2017 Te Awa Tupua act were intended to recognize and preserve intrinsic value, protect social, cultural and environmental aspects of each region and to prevent ownership of these lands in any absolute sense (2017). He also suggests that 2017 act was founded on the basis of promoting the wellbeing and encouraging the protection of the River and to provide mana (authority) and strengthen the relationship between the Wanganui Iwi and the River (2017). While these founding principles are recognized by others (Hutchinson, 2014; Hsiao, 2012; O’Bryan, 2017; Sanders, 2017), it is important to recognize that intentions and conceptualizations often don’t match what occurs in the reality of both law and practice. There are many more that recognize and point out the hollowness of the settlement (Charpleix, 2018; Hutchinson, 2014; Strack, 2017; Strack & Goodwin, 2017). We will put these two-contrasting views in conversation with each other, exploring what this settlement has done for positive change, and highlight its shortcomings.

Relative Success:

While the grant of legal personhood to a natural space/element is not unprecedented in common law, it is very uncommon and remains largely a ‘gray area’ in western legal and conceptual frameworks. What Te Awa Tupua has provided is the reaffirmation of Māori world views, rights, cultural significance and importance as recognised by the state. To exemplify this, Hsiao explains that by legally viewing the River as an entity it frees the space from the limited views of property and as he claims “[i]t is a story of the emancipation of nature through a continuous process of decolonisation” (2012, p.374 ). As hopeful as this sounds it may be overpraised, given the reality of what the settlement actually entails. Critics point out that the settlement has pushed boundaries and western conceptions of property into the negotiations and settlement and that some aspects of the River were dominated in western practice, and conceptions (Charpleix, 2018; Hutchinson, 2014). Charpliex explains that the settlement is largely a way for the dominant legal system to incorporate Māori understandings, rather than the inverse, but also some cooperation has occurred (2018). To emphasize this further, while most of the River is liberated from ownership, areas that were privately owned will continue to be legally recognized as property (Hutchinson, 2014). What is conceded here however, is that even though the settlement may not have been radical enough, it has facilitated some cooperation between the Crown and the Māori which is at least material evidence of potential future change. The final framework of the settlement, giving the River personhood, also facilitated a way to break the “deadlock” between the battle over ownership of the Whanganui River between the government and the Iwi (Sanders, 2017). What it has allowed for are two conflicting ways of viewing the land and governance to work together for a common interest, and ultimately the wellbeing of cultural understandings and the River (Charpleix, 2018). Charpleix argues that this sort of agreement creates the potential for the creation of “the third space,” a term/phrase which she borrows from Homi k. Bhabha (a well-known critical theorist especially in decolonization) which is the theoretical space created when culturally distinct decision makers “displace” historical frameworks for the creation of new structures that function to form mutual agreements and understandings (usually between the colonizer and the afflicted) (2017). Still others, like Strack and Goodwin feel that the settlement and the Crown’s refusal to give back any sovereignty makes the settlement merely a symbolic, hollow act, that just perpetuates modern colonial dynamics (2017).

It is challenging to say which argument has more merit; perhaps there doesn’t need to be ‘winner’, the settlement has pushed back against colonial legacies, and while it arguably wasn’t far-reaching enough, it does provide a useful framework for other countries and future land claim disputes to look to for guidance and precedence.

Assessment of Governance and Relative Power

The relative power of Te Awa Tupua, or the Whanganui River, is definitely shifting towards a more inclusive model which encompasses and values Māori worldviews and stewardship. However, it is ultimately still reflective of a system in which it is only through the conversion of the oppressor to a more ethical mindset by which the oppressed are able to obtain legitimization and incorporation of their rights. Under the system of Te Pou Tupua, the Māori indeed possess a somewhat balanced share in the administrative oversight of Te Awa Tupua. It is however the process by which this system was achieved which is still very dominated by the government. Tribunals are the co-equal third arm of the State, and it is only by the good graces of a given state that systems like the one in this particular case can be achieved. Although it is certainly a step towards decolonization, the fact that such steps can only be institutionalized in modern society by the colonial governments in question is of key importance with regards to the context of cases such as the Whanganui River. Looking at it from a practical sense, what is the true tangible power of the Iwi and Te Awa Tupua? Although by no means intended as a pessimistic account of the settlement, it is a worthwhile pursuit to investigate where the true power lies.

The Treaty of Waitangi has provided a strong foundation for negotiations between Māori and the Crown in New Zealand, embodying principles such as partnership and good faith in negotiation. It remains blatantly clear however, that the relationship is nonetheless asymmetrical, and that any such negotiations, let alone settlements, come at the pleasure of the state (Strack, 2017, p. 13). The Crown arguably views the Waitangi Tribunal recommendations as a starting point from which they can backpedal on concessions (Strack, 2017, p. 13). In addition, Māori pursuits of self-determination have long been reduced by pragmatic acceptance of Crown apologies, minimal compensation, and some cultural acknowledgements (Strack, 2017, p. 13). Although this may be somewhat pessimistic, the Māori emphasis on honouring the Treaty of Waitangi essentially embodies a quest for recognition by the settler state, marking their identities and limiting the possibilities they have for freedom from said state (Strack, 2017, p. 13). With regards to respecting Māori rights, it is of key importance to recognize that settlements negotiated by the Crown are structured from a position of overriding power on the part of the State. It could be argued that Māori accepted the settlements they are offered simply because it is better than no settlements at all. Although the case of the Whanganui River has unarguably required considerable concessions on the part of the Crown in providing innovative solutions to the dilemma of land ownership, it is not to be forgotten that the Crown persistently exercises its control over the land and water, ensuring that Māori law will not threaten the dominance of English and western legal structures (Strack, 2017, p. 13). In addition, the moral and legal obligation to remedy past illegal actions, as well as a dose of political expediency, are driving the Crown to take a proactive stance on innovative settlements not simply out of the kindness of their hearts, but because it serves to eliminate social disruption, as well as discontent (Strack, 2017, p. 13). To reiterate, it is on the Crown’s terms that the administrative structure of Te Awa Tupua is controlled, and given that it is implemented by ordinary legislation, the Crown can choose to abandon the system at any time. The Māori have no such power (Strack, 2017, p. 13).

What rights have they truly been granted, one might ask? Rights that are commonly accepted as being essential in the ‘property bundle of rights’ include the right to exclude, to possess, to use, and to transfer. In the case of the Whanganui River, although it established the River as a legal entity with its own rights, there is no recognition of such a bundle of rights. There is no right to exclude public access, no right to alienate or transfer interests, and a limited right to use (Strack, 2017, p. 14). The extent of possession is similar to customary rights in a sense, and the arrangement consequently can be said to have carefully arranged things so that Māori interests will not have a vessel by which to seriously undermine public or state interests (Strack, 2017, p. 14). Such accounts of relative power and governance dynamics are fundamental to a realistic understanding of the complex nature of cases such as the Whanganui River Act.

Recommendations

A Framework for the Future?

The Te Awa Tupua settlement Act was passed in 2017, and while it marked the end of the longest legal battle in Aotearoa/New Zealand history, it also marks the beginning of many new struggles and questions about how to manage a natural system that is seen as a legal entity. It will be interesting in the coming years to see what management questions arise, and whose interests will be favoured, will it be the Māori’s? Will it be the Pākehā’s? Will the interests be settled evenly? It is plausible that there will be future amendments and new precedents that will be established following on this Act, in order to sort out future management decisions associated with the River and further land claim disputes. The significance of this case is that it reinforces the precedent case of the Te Urewera Act, the first example of natural space being given legal personhood. It is on the leading edge of what some are calling “Wild Law” which is a novel and rare concept in western law and policy that recognizes the importance, and values of interconnectedness among species and natural systems that are often already understood in many Indigenous forms of governance (Charpleix, 2018). In Aotearoa/New Zealand the Māori have always understood that living and nonliving aspects of the world are inherently interconnected and are recognised as one (Charpleix, 2018). It is only recently that western ontologies have begun to accept and acknowledge this perspective. However we can complicate this “acceptance” a little further in the case of the Whanganui by questioning the extent that these new perspectives are actually being valued in the Western system by comparing how much they are being extracted or appropriated enough to bend common law enough to fit Māori Customary perspectives into English Law property structures (Strack, 2017). While the law is intended to set aside the idea of ownership or property, as alluded to earlier, the power structures that exist in Aotearoa/New Zealand between the Crown and Māori Iwi means that the crown lost very little if any sovereignty in the settlement and may not have done enough to allow Māori governance to operate in a meaningful way. In future cases and legislation like this we feel that more effort and focus on supporting and creating a framework that provides the local Indigenous people with more tangible control may prove to be more meaningful than the compromises made in the Whanganui River settlement.

Ecocentric Policy

Ganges River, in India also granted legal personhood

In highlighting the success of this settlement however, we may be able to see how this concept could be applied to future disputes and could be used as a framework in an international context. The legal personhood of the Whanganui is an example of how human centrality can be challenged in dominant legal systems and offers an example of how we can push understandings and policies towards a more eco-centric focus (Hutchinson, 2014). It provides a sort of foundation for how western policy can shift paradigms and begin to work on -and evolve- the ethic of protecting the environment for its own sake for current and succeeding generations to use and enjoy (Rodgers, 2017). The Māori call this “Kaitiakitanga” which stems from the root word “taiki” which means to nourish, foster and care for, a concept often disconnected from policy in the western framework (Te Aho, 2018). This concept of fostering ecological care however, is not exclusive to Māori ethics, but is something that reoccurs in many cultures. Even in western academy the idea of giving nature legal personhood and representation has been questioned since at least 1972 when Christopher Stone suggests that natural legal entities be formed to provide better protection to the environment and to better protect ecosystems from destructions and degradation. Other countries such as Ecuador have made constitutional changes to dethrone humans from the top of the hierarchical ladder (Rodgers, 2017). In Bolvia legislation was passed in 2010 that granted basic rights to environmental systems with passing of the “Law of the Rights of Mother Earth” (Charpleix, 2018; Hsaio, 2012; Rodgers, 2017). India passed legislation that granted the Ganges and Yumuna legal status as persons, just days after the Te Awa Tupua Act (O’Donnell & Talbot-Jones, 2018).

Although no system is perfect, and the colonial legacy lives on throughout much of the world the case study of Te Awa Tupua and the Whanganui River provides us with insight on what the future may look like in decolonizing landscapes, recognizing and facilitating Indigenous ontologies into nation state legislation and how environmental law can be reframed toward a more ecocentric structure. While it is not explicitly about forests and forestry practices, it IS explicitly concerned with de-colonizing resource management, as well as legitimizing ontological viewpoints from an Indigenous origin instead of a mere Western focus. Rogers suggests that “[The Act] imposes on the trustees of Te Awa Tupua a duty of stewardship, which reflects both human interconnectedness with the environment in the widest sense and our responsibility to nurture and protect both the natural environment and its cultural values for future generations” (2017, p. 275).

References

Bulkan, J. (2019). Revision – Forms of Tenure. Presentation, The University of British Columbia.

Charpleix, L. (2018). The Whanganui River as Te Awa Tupua: Place-based law in a legally pluralistic society. Geographical Journal, 184(1), 19–30. https://doi.org/10.1111/geoj.12238

Hsiao, E. C. (2012). New Zealand Whanganui River Agreement. Environmental Policy and Law, 42(6), 371–377. Retrieved from http://heinonline.org/HOL/PrintRequest?collection=journals&handle=hein.journals/envpola42&div=59&id=371&print=section&format=PDFsearchable&submit=Print%2FDownload%5Cnpapers3://publication/uuid/8A5A9293-9FDE-44BC-9DE0-783E6257CF92

Hutchison, A. (2014). The Whanganui river as a legal person. Alternative Law Journal, 39(3), 179–182. https://doi.org/10.1177/1037969X1403900309

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O’Donnell, E. L., & Talbot-Jones, J. (2018). Creating legal rights for rivers: Lessons from Australia, New Zealand, and India. Ecology and Society, 23(1). https://doi.org/10.5751/ES-09854-230107

Rodgers, C. (2017). A new approach to protecting ecosystems: The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Environmental Law Review, 19(4), 266–279. https://doi.org/10.1177/1461452917744909

Sanders, K. (2018). “Beyond human ownership”? Property, power and legal personality for nature in aotearoa New Zealand. Journal of Environmental Law, 30(2), 207–234. https://doi.org/10.1093/jel/eqx029

Smith, L. T. (2012). Decolonizing Methodologies : Research and Indigenous Peoples. London: Zed Books.

Strack, M. (2017). Land and rivers can own themselves. International Journal of Law in the Built Environment. https://doi.org/10.1108/IJLBE-10-2016-0016

Strack, M., & Goodwin, D. (2017). More than a mere shadow?: The colonial agenda of recent treaty settlements. Waikato Law Review, 25(2017(Annual)), 41–58.

New Zealand. (2017). Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Ministry of Justice. Retrieved from the New Zealand Legislation website: http://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html

Te Aho, L. (2018). Te Mana o te Wai: An indigenous perspective on rivers and river management. River Research and Applications, (April), 1–7. https://doi.org/10.1002/rra.3365