The Whanganui River is our tupuna, our ancestor. It was our first highway, our first larder, our first playground, our bathroom, our holy water font. Our identity comes from the River. We are named after the River. We are born of the water. Our view of the world is shaped by the River. Our songs and dances were about the River and everything around it - the mountains, the hills, the valleys and the people. The River gives us identity and mana. We are River people.

It has been seven years since the Te Awa Tupua (Whanganui River Claims Settlement) Act was passed into law. Our whakatauki "ko au te Awa, ko te Awa ko au - I am the River and the River is Me" - is a profound declaration of intimacy and identity, that no legal interpretation can capture. The law said that Te Awa Tupua Whanganui River is an indivisible and living whole, comprising the River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.

This kind of thinking may seem quaint and whimsical to the rationally minded from the Western world. Yet this relationship implies much more than extrinsic factors. It is an awareness that we not only belong to the River but that we and the River are together. This is part of the "wisdom of the River" which is more than a human wisdom about the River.

Should Trees Have Standing?

The idea of legal standing for natural objects can be traced back to Professor Christopher Stone of the University of Southern California. In 1972, he wrote a book called "Should Trees Have Standing?" He proposed that natural entities like rivers and forests should be granted legal rights, shifting the perspective away from a people-centred worldview to a Nature-centred worldview.

Professor Stone used poetic and metaphorical language, arguing that metaphors such as "Mother Earth" or "Nature's Guardians", should be taken more seriously because they often expressed a deep relational bond between humans and natural features, similar to a loving family. It is this relational bond that forms the basis of legal personhood for Nature.

The legislation framework for the Te Awa Tupua Act recognised the status of the River as Te Awa Tupua, acknowledging that it has the same rights as a person, giving it legal personhood, though Māori understanding is mostly been geared toward balance and harmony. Legal personhood is mostly a compromise, an attempt to bridge the gap between Iwi and the European concept of ownership.

This ensured that the River would never be "owned" but would be cared for by guardians from across the community. Given that the Parliamentary system is closely linked to the dominant groups whose ideology has become the dominant ideology for explaining the way things are, there is so much hypocrisy within treaty negotiations, masquerading as legal and official.

The Settlement Process

For those who have acted as advocates or negotiators for Iwi claims, know that the Office of Treaty Settlements sets out a process which everyone is expected to follow. It is a lengthy and testing process, with at least 10-12 steps, depending how quickly groups can get their act together. Every stage has to be endorsed, mandated and recognised by the Crown.

Terms of references have to be negotiated, agreed in principle, deed of settlement initialled, ratified by the Iwi, deed of settlement signed off and finally the legislation stage. Just how long this takes, is anybody's guess. So often, too, the settlement process is contrary to customary lore and can create unnecessary tensions within groups who have never worked together in the way that the treaty process demands. The whole process calls for herculean stamina, dedication and commitment.

Te Urewera

Christopher Finlayson, who was Minister for Treaty Negotiations in the National government from 2008-2017, explored some of the ideas around legal personhood in the Ngai Tuhoe Te Urewera and Te Awa Tupua o Whanganui River settlement cases. Ngai Tuhoe suffered great loss. In 1865 the Crown confiscated much of their productive land, waged war in Te Urewera, used scorched earth tactics, executed unarmed prisoners, and forced them out of Te Urewera where they suffered widespread starvation and extensive loss of life.

In the Whanganui case, a steamer service was introduced in 1848 that destroyed eel weirs; forests were cleared from river banks, willow trees from Europe were planted, sand and gravel were extracted from the river, and the headwaters were diverted into the Tongariro power scheme which has many years to run before expiry.

In Aotearoa/New Zealand, the concept of legal standing for Nature had largely been a matter of academic discussion up to that point. In essence, a legal person does not have to be a human being as legal rights are not the same as human rights. A legal person may be defined as an entity which has the capacity to enter into contracts, incur debts, sue and be sued in its own right, and to be accountable for illegal activities.

Putting these ideas into practice in a settlement case would be breaking new ground, but Christopher Finlayson viewed the legal standing for Te Urewera as workable for several reasons. Firstly, because it allowed the Crown to avoid difficult discussions about ownership, and secondly, it would allow Tuhoe to avoid dealing with a Western concept that did not particularly fit with their view of Te Urewera as a living ancestor, nor with their views of the environment and its relationship with its people.

The current Te Urewera management plan, Te Kawa o Te Urewera, expands this view: "The use of property rights by the Western legal system has hidden from view the concept of nature... The use of property rights to regulate human disputes arising from human society is no longer permissible in and of Te Urewera. Te Urewera will never again be owned by people".

By using legal standing of Te Urewera, vesting in itself, the issue of ownership dissipated to a certain extent. Te Urewera's human expression would be a body, comprising a number of "statutory friendships" which would administer the area formerly known as Te Urewera National Park, one of the most pristine areas in Aotearoa/New Zealand. While Te Urewera always had its own authoritative voice, it was given a legal voice - a concession to Cabinet.

Te Awa Tupua o Whanganui

While Ngai Tuhoe's negotiations were drawing to a close in 2014, the Government was in negotiations over the Whanganui River claim as well. The Te Urewera settlement case seemed to provide a useful precedent for the Whanganui River settlement, which was considered more straightforward. The basis of the Whanganui River settlement consists of four kawa or relationship bonds.

Te Kawa Tuatahi, the first value, says that the River is the source of spiritual and physical sustenance. Te Kawa Tuarua, the second value, says that the great River flows "from the mountains to the sea". Te Kawa Tuatoru, the third value, says that the River and the people are one. Te Kawa Tuawha, the fourth value, says that the small and large streams flow into one another to form one big River.

The concept of legal standing for Nature was to find a ready answer that would be acceptable to all parties. Recognising the River in legislation as an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, with its physical and metaphysical elements, was more than the Iwi would have expected. Many in the legal fraternity were surprised by the language, a refreshing change from the usual dry legalise normally used in statutes.

The Whanganui settlement provided for the recognition of Te Awa Tupua Whanganui River as a legal entity, a living entity that is capable of being owned in an absolute sense and that the River has standing in its own right. The River was declared a legal person with all the rights, powers, duties and liabilities of a legal person that would be represented by Te Pou Tupua, who would become the human face of Te Awa Tupua and would act in its name, promoting the status and intrinsic values of the River. It is the Māori spiritual worldview that makes this Act unique.

Te Reo Māori A Taonga With Legal Standing

In 1996 Professor Tony Angelo QC, of Victoria University advocated for granting legal standing to Te Reo Māori, recognising Te Reo Māori as a legal entity to ensure its protection and sustainability. He said that granting legal standing would provide Te Reo Māori with rights and protections under the law, emphasising the deep cultural and historical importance of the language to Māori identity and culture.

Professor Angelo could see "that Common Law would have much greater flexibility for dealing with taonga if some taonga had legal standing. This characteristic would give the subject rights and duties under the Common Law and that this legal perception would not be incompatible with the nature of taonga in the Māori legal system. Having legal standing would mean that a taonga would itself be involved in any decisions made about it". He observed that there was an overarching benefit in legal standing within the context of Treaty relationships as a "bridge" between two incompatible world views.

Different Legal Systems

NZ jurist Sir John Salmond in his book, "Salmond On Jurisprudence" said: "Legal persons, being the arbitrary creations of the law, may be as many kinds as the law pleases. If, however, we take account of other systems than our own, we find that the conception of legal standing is not so limited in its application; that there are several distinct varieties. Rights-of-Nature cases with appointed guardians may be defined as 'environmental legal personhoods'".

In 2017 Mount Taranaki was given legal personhood. The mountain now has the same legal rights as a person and is jointly managed by a board, consisting of both Crown and Iwi representatives. This is a significant step towards protecting and preserving the cultural and environmental heritage of this important natural landmark of the Taranaki region.

This move is part of a broader trend in Aotearoa/New Zealand, as a way of recognising the rights of natural features. In 2008, Ecuador was the first country to enshrine the rights of Nature in its Constitution, after enduring decades of pressure from large mining companies. And, in 2020, the Mar Menor Lagoon in Spain, was declared a legal person due to strong local community advocacy against pollution from agriculture, mining and sewage.

Responses From Indigenous Groups

Indigenous groups all over the world are using legal standing as a way of bridging the gap between two opposing world views. For example, the traditional owners of the Fitzroy River in North Western Australia, said that as a living ancestor the River has the right to life. The concept of legal standing is covering a broad range of possibilities, proving to be adaptable in many different situations. It could help save endangered species.

At its core, legal personhood or the rights-of-Nature movement allows persons to take legal action on behalf of natural ecosystems that are affected by environmental degradation. Ecosystems can now become separate entities with their own agency, in the same way other non-human entities such as charitable trusts and organisations can exist as separate entities in law. Exploitation of ecosystems and sustained economic pressures have given rise to many forms or legal personhood in response to sustained pressure from economic activity, urban, agricultural and industrial.

Restoration Projects

Nga Tangata Tiaki o Whanganui is the post-settlement governance entity, whose responsibilities are to receive and manage the settlement assets under the Whanganui River settlement for, and on behalf of, Whanganui Iwi. Its Annual General Meeting report for 2022/23/24 is busy. According to the Chairperson's report the key focus is on:

• building cohesion, relationships and understanding in its commitment to Te Awa Tupua,
• completion of Trust Deed Review and consider the recommendations from the Independent Review report,
• review all historical records and digitise the records that are unique and not publicly available,
• celebrate Whanganuitanga, building knowledge and understanding of ourselves as River people,
• support hapu iwi events and activities,
• transition to a new Iwi Database to improve connections with whanau wherever they are.

The Kaihautu (healers) Report says that they will

• work alongside our people to give effect to Te Awa Tupua, continuing discussions on the surface water activities,
• bring together a collective of customary fishers through wananga,
• look at pa auroa and mara mataitai,
• ensure the local and regional councils are upholding their responsibilities in relation to the health and wellbeing of the Awa.
• participated in Te Ranga Tupua Covid response,
• build indigenous connections (Expo 2020 in Dubai)
• participate in the Syilx Water Forum.

Ko te Awa te matapuna o te ora (the River is the source of life). The aim is -

• to increase the number of protected habitat restoration areas and reduce soil sediment into the river
• protect our waterways through riparian fencing, planting and maintenance
• 290km fencing
• 450,000 riparian trees planted
• 180,000 non-riparian trees planted
• 100ha pest/weed control
• Encourage freshwater fish through biodiversity habitat restoration
• Encourage locally sourced native tree supply and seed raising.

Mouri Turoa (longstanding) Courses - Year 1

• Establish systems and plan for four-year implementation
• Landowner expressions of interest and engagement opened (42 site visits conducted)
• 34 contractor expressions of interest opened (as of 22/8/24) and engagement commenced
• Contract relationships established with three nurseries
• First two years' focus on preparing the land, fencing and pest/weed control preparation.
• Bring together leading restoration projects across the catchment.

There are complementary projects going on as well. In Hiruharama, project Ngahere Manaaki, funded through the Department of Conservation Jobs for Nature, Mahi mo te Taiao, is doing a great job with the Hough whanau. "The results are looking good for both land and people", Project Manager Ron Hough said. This intergenerational project focusses on restoring forest across hundreds of hectares of land, bordering the Whanganui River. "Where erosion from the land uses threatens the health of the river, Ngahere Manaaki is returning stability to the whenua with pest and weed control, fencing and planting", said Ron.

Conclusion

Finally, to what extent will legal personhood play in revitalising River life? Can a legal instrument of capitalism enact change fairly? It is highly unlikely. Many people see legal personhood as a tool of reconciliation that will help to undo the harm caused by colonial destruction of the natural world. Legal personhood will play a very minor role in the consciousness of people. The real change will come through the deep commitment of all partners who continue to work alongside each other because of their love and respect for Te Awa Tupua.

Watchdog - 167 December 2024