David R. Boyd: A river becomes a legal entity

This excerpt from a book by Canadian lawyer and activist David R. Boyd The Rights of Nature: A Legal Revolution that Could Save the World (ECW Press, Toronto 2017, pp. 131-143 / translated and edited by Jiří Zemánek) – in which the author describes the emergence of the contemporary nature rights movement – recounts the deep relationship of the Maori people to the Whanganui River and their dispute with the British Crown over its governance. This dispute resulted in the recognition in 2010 of the legal rights of the Whanganui River, which was contractually recognized by the New Zealand government as a legal entity that does not belong to people, but to itself. For the first time in the world, the government created a law that recognizes that a certain area of nature is not subject to legal claims of human ownership.

Aotearoa – New Zealand is a small country that has occasionally demonstrated global leadership on fundamental rights issues. In 1893, it became the first country in the world to grant women the right to vote. In the 20th century, it was the first country to have a female prime minister, chief justice and governor-general at the same time. And, most recently, it pioneered the recognition of the legal rights of ecosystems – first a river and then a national park. These internationally significant precedents were established through negotiations between the national government and the Maori people; these agreements and the laws that implement them embody and reflect Maori cosmology. While the Maori worldview is unique, it shares many commonalities with other indigenous cultures, particularly in terms of human relationships with nature. The perspective of these indigenous cultures is markedly different from the Western system of human exceptionalism, anthropocentrism and separation from nature.

The Treaty of Waitangi and the Maori worldview

The revolutionary recognition of the rights of nature in Aotearoa – New Zealand – has its roots in the 19th century. The Maori, who arrived on the islands in canoes from Polynesia, had been living there for a thousand years before the arrival of European explorers and settlers. In 1840, the Treaty of Waitangi confirmed British sovereignty over New Zealand. The negotiation of the treaty was fraught with the problems that one would expect in an exchange between profoundly different cultures, and was made worse by language barriers. There was also clear evidence of fraud, with deliberately different versions of the text being prepared in English and Maori. For example, in the English version, Maori surrender their sovereignty to the Crown, while the Maori version guarantees Maori true sovereignty (absolute authority). These frauds and these misunderstandings are still being resolved today, almost two centuries later.

The Waitangi Tribunal was established in 1975 as a permanent government commission to investigate Maori complaints about Crown wrongdoing. The Tribunal conducts hearings, reports on its findings, and offers recommendations to guide future action. Although the government is not legally bound by the Tribunal's recommendations, most of the agreements it has reached have been in accordance with its guidance.

For Maori, nature is not just a property or a source of natural resources. At the core of the Maori relationship to nature are two important and interconnected concepts that are fundamentally different from Western philosophy – relationships and guardianship; loosely translated: kinship and stewardship.

Whanaungatanga is actually broader than kinship in the sense that it concerns not only relationships between living people, but also a vast network of relationships between people (living and dead), the land, water, flora and fauna, and the spirit world car (of the gods) – it is all connected whakapapa (genealogy). In other words, the Maori believe that all things in the universe, living and dead, animate and inanimate, are related and that they reach back to Papatuanuku (Earth) and Ranginui (heaven). All natural elements are therefore related to each other. They are all imbued with Mauritian (living essence or spirit) and deserve the same respect as one accords to one's fellow human beings. The people of a place are closely connected to and have a responsibility towards its geographical features – rivers, forests, lakes and other species. Kaitiakitanga is an intergenerational commitment of respect that directly results from whanaungatanga as a result of a network of kinship relationships.

In the Western legal system, the fulfillment of rights and responsibilities is essential to healthy relationships between people. For Maori, the fulfillment of rights and responsibilities is seen as a prerequisite for healthy relationships between people and between people and nature. This notion of binding obligations to the natural world has the potential to turn centuries of human exploitation of “natural resources” on their heads and asks us to place nature, not just people, at the centre of sustainability.

The Maori relationship with the natural environment has gradually gained recognition in legislation, in court decisions, in the everyday decision-making of government and among the non-Maori population of New Zealand. Proposals to dump wastewater into rivers or the ocean, to build television towers or to build roads through natural areas have been rejected by the courts not only because of the potential adverse environmental impacts, but also because of the potential damage to the metaphysical relationship between Maori and place. For example, in 2004, the New Zealand Environment Court ruled, after a long dispute over the discharge of wastewater into the Whanganui River, that “there is a need to understand the culture iwi (people) of the Whanganui River, to make one realize how deeply rooted the saying is I am the river., the river is me (I am the river and the river is me) for those who are connected to the river. Their spirituality is their "connectedness" to the river. To take away part of the river from them is to take away part of them iwi. To desecrate water is to desecrate iwi. To pollute the water is to pollute the people.”

New Zealand’s acceptance of the Maori worldview reached a new peak in 2011, when the rights of the Whanganui River were recognised as a legal entity in a treaty. This groundbreaking agreement on the legal rights of nature was formalised in legislation in early 2017. In 2014, legislation was passed that transformed Te Urewera National Park from a state-owned area into a legal entity that has the rights of a person who owns it and must be managed in a way that respects its rights.

Māori reverence for the Wanganui River and their dispute with the Crown over recognition of stewardship over it

The groundwork for the landmark agreements on the Whanganui River and Te Urewera National Park was laid in earlier treaty negotiations on the Te Arawa Lakes and Waikato River. The Waikato-Tainui Raupatu (Waikato River) Claims Settlement Act 2010, passed four years later, expresses a very non-Western understanding of the river, based on Maori cosmology. For the Waikato-Tainui people, the Waikato River is tupuna (ancestor) who has mana (power) and then represents mana and Mauritian (life force) of the tribe. Respect for the power of the river (the spiritual authority, protective power and prestige of the Waikato River) is the basis of the relationship between iwi (tribe) and the river of their ancestors. The preamble to the Act states: “The overarching purpose of the settlement is to restore and protect the health and well-being of the Waikato River for future generations.” The Act recognises the personhood of the river in the eyes of iwi (tribe) and honors a close spiritual relationship iwi to the river. However, this law, promulgated in 2010, did not take the next step to recognize the legal rights of the river.

The Whanganui River is the third longest river in Aotearoa – New Zealand, stretching from its sources on the slopes of Mount Tongariro to its mouth in the Tasman Sea in the ancestral territory of the Whanganui Maori. For iwi (people) Whanganui is the river Te Awa Tupua, a living being that is toanga (treasure). It is central to their identity and is truly inseparable from it, inseparable from their culture, health and well-being. Whanganui hap (sub-tribes) are entrusted guardianship (guardianship) of this taongoto protect moll and Mauritian (life force) of the river for future generations. Protecting the river therefore means protecting people and vice versa.

The Whanganui Māori have been in constant conflict with the British colonial government over their customary rights and relationship to the river since the Treaty of Waitangi in 1840. At that time, the Māori collected tolls for the use of the Whanganui River for transport and shipping, thereby asserting their authority. In the 1870s and 1880s, as gold, coal and other mineral miners moved into the area, the Māori petitioned the New Zealand Parliament to express their opposition to industrial activity on the river. They fought against the destruction of their eel weirs by colonists to make navigation easier. In 1895 and 1898, they brought cases in the High Court of New Zealand to assert their customary fishing rights and to claim compensation for gravel extracted from the river. In 1903 iwi The Whanganui sought an injunction to prevent the Crown from asserting ownership rights to coastal or riverside lands. Another petition to Parliament in 1927 sought damages for infringement of the tribe's native rights. However, neither of these actions was successful.

In 1938 they filed iwi Whanganui brought another lawsuit against the Crown, which became one of the longest-running legal disputes in the country. The lawsuit alleged that the Crown had repeatedly breached the Treaty of Waitangi and sought to resolve the issue of stewardship of the Whanganui River. Over the decades, Native Land Court, Court of Appeal and Supreme Court judges have concluded in various decisions that the riverbed has belonged to the Maori since 1840. However, legislation passed in 1993 awarded – without consultation and without compensation – ownership of all navigable rivers to the Crown.

In 1977, iwi Whanganui petitioned Queen Elizabeth II regarding their treaty rights over the river, but the petition was ignored. Concerns about excessive water withdrawal from the river for hydroelectric power led to iwi Whanganui in the 1980s to file a lawsuit seeking to ensure minimum flows at all times of the year. Finally, in the early 1990s, the Whanganui River Maori Board filed a lawsuit with the Waitangi Tribunal, concerning their customary and treaty rights, which was intended to resolve the Maori issue once and for all. mana and rangatiratangy (authority or sovereignty) on the Whanganui River.

In 1999, the Waitangi Tribunal published a comprehensive report recognising Maori interests and authority over the entire river. The Tribunal concluded that “unless Maori rights to the river are resolved, properly recognised and secured, they will always be at a disadvantage and under-resourced to respond to complex planning proposals that take control of the river by others.” As Christopher Finlayson, Attorney-General and Minister for the Waitangi Treaty Negotiations, admitted in the New Zealand Parliament: “It has been our consistent position iwi "The Whanganui for over 150 years has never voluntarily relinquished ownership or control of the river and all that gives the Whanganui River its essential life. For generations they have sought justice for the river."

Whanganui River Act

Following the tribunal report, negotiations to settle Maori claims over the Whanganui River gained momentum. In 2011, media reports emerged of a radical agreement that recognised that the Whanganui River had the same legal rights as humans. The agreement, finalised in 2004, recognises the holistic Maori concept of Te Awa Tupua, which refers to the indivisible whole of the Whanganui River, including all its physical and metaphysical elements, extending from the mountains to the sea.

Legislation to implement the agreement was introduced in 2016 and passed in early 2017. (…) The new law goes far beyond the Te Arawa Lakes and Waikato River Acts. The Whanganui Agreement and its associated legislation contain notable provisions designed to protect the river and to apply the Māori view of it as a holistic system in which Māori are physically and spiritually embedded. The most significant change is that the Whanganui River is recognised as a legal entity with “the rights, powers, duties and responsibilities of a legal entity”. The riverbed is no longer Crown property. Ownership is transferred to a new legal entity, represented by the river itself. In the words of Elaine Hsia, a fellow at the Centre for Environmental Legal Studies at Pace Law School, “the Whanganui River has undergone, like women and slaves, a transformation from an object of property interests to a legal entity with its own rights”.

The new law also recognises the deeply held values that underpin Te Awa Tupua, including:

(and) Ko te Awa te matapuna a te ora: the river is a source of spiritual and physical sustenance for iwi, hap and other communities on the river.
(b) E rere kau mai i te Awa nui mai i te Kahui Maunga ki Tangaroa: Te Awa Tupua is an indivisible and living whole from the mountains to the sea, encompassing the Whanganui River and all its physical and metaphysical elements.
(C) I am the River, the River is me.: I am the river and the river is me: iwi and hap the Whanganui Rivers are inextricably linked to and responsible for Te Awa Tupua (the indivisible whole of the river) and its health and well-being.
(d) Nga manga iti, nga manga nui e hohono kau ana, ka tupu hei Awa Tupua: Te Awa Tupua is a unified whole made up of many elements and communities that work together towards a common goal, which is the health and well-being of Te Awa Tupua.

In short, the Whanganui River no longer belongs to the people, but to itself, Te Awa Tupua. The river and the surrounding ecosystem and associated metaphysical elements have legal rights, legal standing and an independent voice. The river’s own values, interests and status need to be explicitly considered, respected and supported. This is consistent with the Maori view that rivers and other natural features have intrinsic value and that by their very nature they cannot be owned in the Western sense. Lawyer Catherine Iorns Magallanes in her book Nature as an ancestor states that ""this combination of formally enshrining a natural element as a legal entity and promoting its interests for its own good suggests not only to Maori descendants, but to everyone, that the Whanganui River is more than just a resource to be exploited."

Many people are wondering how exactly the interests of the Whanganui River will be protected in practice. The Act establishes a new entity called Te Pou Tupua for this purpose. Two people will be appointed as official guardians, one of whom will be selected by iwi Whanganui and the Second Government. They will be the human face of Te Awa Tupua and will symbolise the new partnership between Maori and the Crown. The Wardens are to “act and speak on behalf of Te Awa Tupua” and ensure that the above values are consistently applied to protect the health and well-being of the river and its people for present and future generations. It is conceivable that Te Awa Tupua could, on its own behalf and through its Wardens, object to any proposed activity that could have an adverse impact on the river. For example, Te Awa Tupua could appeal against the granting of a development permit that is not in the long-term interests of the river. Through its Wardens, Te Awa Tupua could also bring actions seeking injunctions to stop harmful activities or compensation for damage caused by the negligent actions of companies or individuals.

The Whanganui River Bill clearly contains ideas that challenge some of society's most deeply held beliefs. Surprisingly, there has been no opposition to it. When the bill was "debated" in the New Zealand parliament, Marama Fox of the Maori Party praised it and thanked everyone involved. Metiria Turei, one of the two leaders of the New Zealand Green Party, pointed out 

the importance of the legal status accorded to the Awa (river) in legislation. … it is absolutely time for the law to catch up with our tikanga (our customary legal system). We have always believed that our environment has a right to its own integrity, that it has the right to be protected and restored from damage and injury. because of himself (emphasis added) that our environment, however we want to describe it, is our ancestor, the place where we come from, and therefore we owe everything to our environment – our life, our existence, our future. The law is slowly finding ways – clumsy and by no means perfect – to understand this fundamental idea.

Turei concluded her speech by urging New Zealanders struggling with the idea of recognizing that a river has rights to consider that our legal system has long granted large corporations many of the same rights as people. In contrast, she noted, “It is much more important, much more important, that we give legal status to what gives us life, and in Whanganui, that is our river.”

So perhaps it is not surprising that the Maori Party and the Green Party are in the same boat. However, the bill was proposed by the governing National Party, which describes itself as centre-right. It was also supported by the opposition Labour Party. Labour MP Kelvin Davis said: “It is high time this House started to recognise and legitimise the Maori worldview. … I can imagine the country exploding behind these walls: ‘Oh my God! These Maori – what are they talking about again?’ Well, if in our Pakeha (non-Maori) culture and our Christian culture we believe that someone can walk on water, then we can believe that Te Awa o Whanganui is a person. So that is a beautiful thing.” Even the right-wing New Zealand First Party has spoken positively about the bill. Pita Paraone of the NZ First Party said: "I think it's a real honour to be part of this process today and to see Maori values being brought into legislation. It also sets the framework for future legislation that recognises the rights of nature." Paraone concluded simply by saying: "I commend this bill to the House."

Given that the legal system recognises the special relationship of Māori to the natural world, and given the traditional Māori approach to stewardship, it is more than likely that the Whanganui River will be managed in a sustainable manner.