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Perspectives de droit interne

Nature as an Ancestor: Two Examples of Legal Personality for Nature in New Zealand

Catherine J. Iorns Magallanes

Résumés

La Nouvelle-Zélande a confirmé le point de vue cosmologique Maori de la nature comme un ancêtre et mis au point un cadre juridique pour mieux protéger ses intérêts. Une rivière et ce qui a été un parc national se sont vus accorder la personnalité juridique, avec comme gardiens des êtres humains chargés de protéger leurs intérêts. D’abord, la présente contribution expose brièvement le concept indigène Maori de la nature conçue comme un ancêtre et les responsabilités humaines corrélatives de garde de la nature. Elle décrit ensuite les deux exemples où la nature est dotée de la personnalité juridique en droit néo-zélandais, à savoir celui de la rivière Whanganui et celui qui était auparavant le parc national Te Urewera, maintenant appelé simplement Te Urewera. La contribution conclut avec quelques observations et commentaires.

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Texte intégral

Introduction

Kei raro i nga tarutaru,

ko nga tuhinga a nga tupuna

Beneath the herbs and plants,

  • 1 policy affecting Māori culture and identity - Te taumata tuarua, WAI 262 (Vol 1) (Legislation Direc (...)

are the writings of the ancestors1

  • 2 For example, Huston Smith, in his now-classic discussion of the world's religions, calls indigenous (...)

1Indigenous views of the environment continue the most ancient hunter-gather traditions of considering humans as being part of nature and of acknowledging and reflecting humankind’s interdependence with nature. 2 Indigenous cosmologies take a very different view of this relationship from the liberal, Enlightenment view that humans are separate from – and even above and dominant over – nature. The indigenous cosmology is so different from the liberal, Enlightenment perspective on nature that the indigenous view has frequently been thought of as unable to coexist with and within a liberal society.

  • 3 For a description of the various different ways that New Zealand law has recognised Maori cosmology (...)

2Yet, despite such difficulties, New Zealand has in fact recognised Maori cosmology in law, recognising the rights of Maori to hold such views of their relationship with the environment and to have those relationships protected.3 Most recently, New Zealand has upheld the Maori cosmological view of nature as an ancestor and devised a legal framework for better protecting its interests. Unusually, a river and what was a National Park have been accorded legal personality, with human guardians appointed to protect their interests.

  • 4 See, for example, the famous essay by Christopher Stone which argued for such legal mechanisms in o (...)

3Perhaps unsurprisingly, these examples have been praised by environmentalists as ways of according rights to nature, as has been argued at least since the 1970s.4 The adoption of the indigenous view of nature as kin, rather than simply as a resource, reflects the many calls for nature to be conceived of as more than property and as more than a slave to human needs and desires. It reflects both the more spiritual approach to better respect for nature as well as a practical approach utilising current legal conceptions of rights and interests in order to achieve such better protection.

4Interestingly, these recent examples were not designed in order to give more rights to nature or in order to uphold the environmentalists’ claims of according legal personality to nature. Instead, they were devised as a way to better uphold the human rights of the indigenous Maori of New Zealand. These mechanisms were used as part of the settlement of Maori grievances stemming from the colonisation of New Zealand and the subsequent loss of Maori control over their lands, waters and their treasured natural resources. The legal recognition of Maori tribal cosmology – including the personality of nature as their ancestors – was thus one way of acknowledging and returning traditional control over these aspects to Maori.

5Despite not stemming from the environmentalist rights of nature approach, these examples were designed to better protect the natural environment and to better recognise an alternative relationship between humans and nature. While humans are still given legal control over nature, it is done so within a framework of humans as guardians of nature's interests. It is therefore possible that recognition of such frameworks may provide valuable examples for the operation of other rights of nature frameworks elsewhere. It may even be that this method, devised in order to better protect indigenous rights to land, resources, culture and religion, could be used in other situations to better protect a healthy environment for everyone.

6In this paper I first briefly outline the indigenous Maori concept of nature as an ancestor, with the correlative human responsibilities of guardianship for nature. I then describe the two examples where nature is being given legal personality in New Zealand law: that of the Whanganui River and of what was previously Te Urewera National Park, now simply called Te Urewera. I then offer some concluding observations and comments.

Nature as an Ancestor

  • 5 Turama Hawira of the Maori tribe Ngati Rangi, providing evidence in the case Ngati Rangi Trust v Ma (...)

[W]e are defined by our ancestral mountain, our ancestral rivers and our ancestral land. They are the source of our wellbeing - spiritually, intellectually and physically. We do not separate our wellbeing from [their] wellbeing... Nor can we possess them. They do not belong to us - we belong to them. 5

  • 6 Department of Conservation “Report and Recommendations of the Board of Inquiry into the New Zealand (...)

7Indigenous traditional stories typically tell of how people today descended from, are part of and are genealogically related to the natural world. For example, the traditional Maori view is :6

All the elements of the natural world, the sky father and earth mother and their offspring ; the seas, sky, forests and birds, food crops, winds, rain and storms, volcanic activity, as well as people and wars are descended from a common ancestor, the supreme god.… In Maori cultural terms, all natural, and physical elements of the world are related to each other, and each is controlled and directed by the numerous spiritual assistants of the gods.

  • 7 Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n.1, at p.237 (italics added); available at ww (...)

8The indigenous gods and spirits represent and inhabit the natural world, from the mountains, rivers and other landscape features, to the animal and plant world, while these spirits also inhabit the people and look after them. Thus the people in return treat the animal, plant or other natural feature as kin, and look after them respectfully:7

Often translated as ‘kinship’, whanaungatanga does not refer only to family ties between living people, but rather to a much broader web of relationships between people (living and dead), land, water, flora and fauna, and the spiritual world of atua (gods) – all bound together through whakapapa [genealogy]. In this system of thought, a person’s mauri or inner life force is intimately linked to the mauri of all others (human and non-human) to whom he or she is related. This explains why iwi [tribes] refer to mountains, rivers, and lakes in the same way as they refer to other humans, and why elders feel comfortable speaking directly to them….

Any kinship bond implies a set of reciprocal obligations, and these are encompassed in the concept of kaitiakitanga – the obligation to nurture and provide care. Kaitiakitanga is often translated as ‘stewardship’, but this term does not encapsulate its spiritual dimension, which is expressed as a responsibility to nurture the mauri [spirit] of people, flora and fauna, landforms and waterways, that collectively form one’s whakapapa [genealogy]…. kaitiakitanga is a community-based concept. It is not the obligation of an individual but of an entire tribal community. While the community exists, the obligation exists.

  • 8 Waitangi Tribunal, Ko Aotearoa tēnei: a report into claims concerning New Zealand law and policy af (...)
  • 9 Waitangi Tribunal, Muriwhenua Land Report 1997 (Wai 45) at p.23 (italics added).

9This construction of the relationship between people and their environment is one which enables humans to continue to live as peoples in and as part of the natural world. It has been summarised as “Kinship was the revolving door between the human, physical, and spiritual realms.”8 This interconnectivity is illustrated and even highlighted by the Maori word “whenua” :9

Whenua” means both “land” and “placenta” or “afterbirth”. Similar to a placenta, the land nourishes the people who live on the land. Human beings are children of the land who have obligations of care and responsibility for Mother Earth and all its natural assets. The tribe itself identifies with the land, as their ancestral land is seen as the “living body of the tribe”.

  • 10 Waitangi Tribunal, Te Kahui Maunga: The National Park District Inquiry Report 2013 (Wai 1130) at p. (...)

10Thus the rivers flowing off the mountains are likened “to an umbilical cord connecting the tribe to the spiritual essence of their ancestors’ existence.10

  • 11 Kaitiakitanga, or guardianship or stewardship, is one of the fundamental principles underlying Maor (...)
  • 12 Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n.1, at pp. 269 (italics added).

11In terms of a hierarchy, the indigenous construction of nature effectively reverses the Western hierarchy : humans are not seen as having any right or even ability to completely dominate or own nature and are instead seen as its guardians.11 For Maori:12

The kaitiaki relationship with the environment is not the transactional or proprietary kind of the Western market, and does not rest on ‘ownership’. Rather, like a family relationship, it is permanent and mandatory, binding both individuals and communities over generations and enduring as long as the community endures.

Giving Nature Legal Personality

Whanganui River Settlement Agreement

  • 13 Whanganui Iwi and the Crown, Ruruku Whakatupua - Te Mana o Te Iwi o Whanganui (5 August 2014) at cl (...)
  • 14 See, eg, Te Mana o Te Iwi o Whanganui, ibid, cls.2.1-2.25 for the Whanganui iwi account of the orig (...)
  • 15 Te Mana o Te Iwi o Whanganui, ibid, cl.3.2 (italics added).

12The Whanganui River flows from the centre of the North Island of New Zealand to its West coast, through the traditional territory of the Whanganui Maori. It is the longest navigable river in Aotearoa New Zealand. The Whanganui River is said to be “central to the existence of Whanganui Iwi and their health and wellbeing,” providing “both physical and spiritual sustenance to Whanganui Iwi from time immemorial.”13 The river is seen as the ancestor of the Whanganui tribes,14 and the concept that the people are inseparable from the river “underpins the responsibilities of the iwi [tribes] and hapū [subtribes] of Whanganui in relation to the care, protection, management and use of the Whanganui River in accordance with the kawa and tikanga [protocols]” of the tribes.15 It is this that has given rise to the Whanganui saying “Ko au te awa, ko te awa ko au” (I am the river and the river is me).

  • 16 New Zealand was settled by the British and the basis for that settlement was the Treaty of Waitangi (...)
  • 17 Note that breaches of the Treaty were widespread throughout New Zealand. By 1900 Maori had lost mos (...)

13In 1840 fourteen Maori chiefs from along the Whanganui River signed the Treaty of Waitangi, guaranteeing to Maori the possession and control of their lands, estates, forests and fisheries.16 However, the government breached the Treaty guarantees such that the Whanganui tribes lost the legal and actual control over their river, including its navigation and use of river-based resources.17 Activities were undertaken to which the Whanganui Maori objected strenuously for many years, including river bed works to improve navigability, gravel extraction, and the diversion of waters for a hydro-electric power scheme.

14These activities would be considered breaches of normal property undertakings within Western, liberal democracies ; for the Whanganui Maori it also went against their cosmology by violating the various spirits of the river as well as of the tribes’ duties as guardians. Because water has its own spirit and life force, it needs to be carefully maintained so as not to diminish or lose that spirit. Thus, for example, Maori have strict rules on not mixing human waste with water which might be a source of food or drinking water. The mixing of the two spirits – the unclean with the clean – diminishes the life force of the clean, life-giving water, even if it might be in quantities which modern science says will be diluted and dispersed and thus rendered clean when measured scientifically. Thus even a town’s treated sewage can never be discharged into an ancestral river without breaching a tribe’s cultural relationship with their river.

  • 18 Waitangi Tribunal, Te Ika Whenua Rivers Report (1998); available at www.waitangi-tribunal.govt.nz.
  • 19 The NZ Environment Court in Ngati Rangi Trust, above n.5, at [318] (italics added).

15Notably, the spirit of a river can be adversely affected by forcing it to mix with the spirit of another river, even where a scientifically-recognised pollutant is not involved. Therefore, the proposal to divert waters from one river through a hydro-electric power station and discharge it into another river extinguished the life force of both rivers (quite apart from any physical destruction such as of eel habitat, shellfish beds and the like).18 The New Zealand courts have agreed that such violations of Maori cosmology violated the Whanganui tribes themselves:19

The most damaging effect of both diversions on Maori has been on the wairua or spirituality of the people. Several of the witnesses talked about the people “grieving” for the rivers. One needs to understand the culture of the Whanganui River iwi [tribe] to realise how deeply engrained the saying ko au te awa, ko te awa, ko au [I am the river, the river is me] is to those who have connections to the river. Their spirituality is their ‘connectedness’ to the river. To take away part of the river (like the water or the river shingle) is to take away part of the iwi [tribe]. To desecrate the water is to desecrate the iwi. To pollute the water is to pollute the people.

  • 20 The Waitangi Tribunal was established in 1975 to determine whether NZ government action breached th (...)
  • 21 For a detailed history of their claim, see Waitangi Tribunal, The Whanganui River Report (WAI 167, (...)

16The Whanganui tribes’ grievances over their river have been the subject of petitions to parliament, of reports by a Royal Commission and by the Waitangi Tribunal,20 as well as of numerous court cases from 1938 until 2010. Indeed, their legal proceedings objecting to the uses of the river – most notably diversion of the waters of the river for power generation – is often described as one of New Zealand’s longest running legal actions.21 The Whanganui tribes claimed that they were still the rightful guardians of the river and of its life force, and that the right to control its management should be returned to them.

  • 22 Successive New Zealand governments have made modern settlement agreements in reparations for these (...)
  • 23 The 2012 agreement, entitled Tutohu Whakatupua, was signed on August 30 between the Whangaui Iwi an (...)
  • 24 The 2014 agreement, entitled Ruruku Whakatupua - the Whanganui Iwi Deed of Settlement, has more det (...)
  • 25 The frontspiece description of the document, Te Mana o Te Awa Tupua, provides (at p.2):

17An agreement in resolution of these grievances22 – between the tribes and the government over future joint management of the river – was reached in 201223 and then finalised in 2014.24 Significantly, this agreement incorporates the personification of the river held by the indigenous tribes and upholds their spiritual relationship with it.25 What is does differently from any other settlement agreements that came before it was that it created a new legal entity for the river itself, Te Awa Tupua.

  • 26 Clause 2.1. This is the same as “the indicative wording” in para. 2.4 of the 2012 agreement, Tutohu (...)

18The Whanganui River agreement recognises the indivisible unity of the river and its metaphysical status as a living being. For example:26

Te Awa Tupua comprises the Whanganui River as an indivisible and living whole, from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.”

  • 27 Tutohu Whakatupua, above n.23, cl.1.8.

19The agreement also adopts the genealogical approach to describing the river. The famous saying “Ko au te awa, ko te awa ko au” (I am the river and the river is me) provided one of the “fundamental principles” which underpinned the negotiations and the resulting agreement itself : that “the health and wellbeing of the Whanganui River is intrinsically connected with the health and the wellbeing of the people.” 27

  • 28 Clause 2.6, Te Mana o Te Awa Tupua, above n.24.
  • 29 Te Mana o Te Awa Tupua, above n.24, at p.6, the Introduction to clause 2.
  • 30 Clause 2.7, Te Mana o Te Awa Tupua, above n.24.

20These various aspects are reflected in the final agreement, in a set of overarching “intrinsic values,”28 called the Tupua te Kawa, described also as “the natural law and value system… which binds the people to the River and the River to the people”29: 30

1… Ko te Awa te mātāpuna o te ora (The River is the source of spiritual and physical sustenance)

Te Awa Tupua is a spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and wellbeing of the iwi, hapū and other communities of the River.

2… E rere kau mai te Awa nui mai te Kahui Maunga ki Tangaroa (The great River flows from the mountains to the sea)

Te Awa Tupua is an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements.

3… Ko au te Awa, ko te Awa ko au (I am the River and the River is me)

The iwi and hapū of the Whanganui River have an inalienable interconnection with, and responsibility to, Te Awa Tupua and its health and wellbeing.

4… Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua (The small and large streams that flow into one another and form one River)

Te Awa Tupua is a singular entity comprised of many elements and communities, working collaboratively to the common purpose of the health and wellbeing of Te Awa Tupua.

  • 31 Tutohu Whakatupua, above n.23, cl. 2.1.2. It is specifically an agreement to recognise because the (...)
  • 32 Tutohu Whakatupua, above n.23, cl 2.7.
  • 33 Clause 2.2, Te Mana o Te Awa Tupua, above n.24.
  • 34 Clause 2.3, Te Mana o Te Awa Tupua, above n.24.

21There are a few significant measures used to implement this indigenous perspective of the river’s status. The first and possibly most significant is the agreement to statutorily recognize the river “Te Awa Tupua as a legal entity with standing in its own right.”31 This is expressly intended to “reflect the Whanganui Iwi [tribes’] view that the River is a living entity in its own right and is incapable of being ‘owned’ in an absolute sense” and to “enable the River to have legal standing in its own right.”32 Thus, the agreement states that “The Awa Tupua is a legal person,”33 and that it “has the rights, powers, duties and liabilities of a legal person.”34

  • 35 Clause 2.9, Te Mana o Te Awa Tupua, above n.24. Clause 2.10 lists these statutes. Clause 2.14 speci (...)

22Legislation has not yet been drafted to implement the agreement, so precise details of implementation are not yet known. However, it has been agreed that legal effect will be given to this status as a legal person and to the four intrinsic values of Tupua te Kawa through requirements in other legislation. For example, "any person exercising functions, duties or powers under” a list of 25 statutes related to the management of the environment must “recognise and provide for” both the status and the values of Te Awa Tupua, where it is relevant to the Whanganui River.35

  • 36 Te Mana o Te Awa Tupua, above n.24, cl.3.8; Tutohu Whakatupua (2012), above n.23, cl 2.20.4. The hi (...)
  • 37 Te Mana o Te Awa Tupua, above n.24, cl.3.9; Tutohu Whakatupua (2012), above n.23, cl 2.19. For more (...)
  • 38 Te Mana o Te Awa Tupua, above n.24, cl 3.3. See also the 2012 agreement, Tutohu Whakatupua, above n (...)

23In order to act in the name of Te Awa Tupua and to uphold and protect the “interests” of the river, an official Guardian will be established by legislation, comprising two persons “of high standing,”36 one appointed by the Crown and one appointed collectively by all tribes with interests in the river.37 This Guardian – called Te Pou Tupua – will “promote and protect the health and wellbeing of Te Awa Tupua,” “act and speak on behalf of Te Awa Tupua,” and uphold its status as well as the values contained in Tupua te Kawa.38 It will participate in relevant statutory processes and hold property or funds in the name of Te Awa Tupua. While the body embodies a co-governance arrangement, with both Maori and non-Maori members, this power is expected to enable stronger legal respect for the environment, more in line with Maori cosmology.

  • 39 Tutohu Whakatupua (2012), above n.23, cl 2.23.
  • 40 Te Mana o Te Awa Tupua, above n.24, cl.4.1; see also Tutohu Whakatupua (2012), above n.23, cl. 2.24 (...)
  • 41 Te Mana o Te Awa Tupua, above n.24, cl. 4.2.
  • 42 Te Mana o Te Awa Tupua, ibid, cl.5.3.
  • 43 Te Mana o Te Awa Tupua, ibid, cl.5.4. See Part 5, clauses 5.1-5.47, for functions, membership matte (...)
  • 44 “Whanganui River deed of settlement initialled” Press Release: NZ Government, 26 March 2014; availa (...)

24A key interest of the river is its health and wellbeing. This is specifically addressed through the development of a “Whole of River Strategy,”39 which will be designed “to address and advance the environmental, social, cultural and economic health and wellbeing of the Whanganui River.”40 To this end, the agreement defines the goals, status and parameters of a strategy to identify and address such issues of health and wellbeing, including recommending actions to address the identified issues.41 It establishes a Strategy Group to “act collaboratively” to develop the strategy42 and monitor its implementation.43 Local government and other decision-makers will be required to consider and take into account the strategy in relevant decisions. It has been noted that the Group and the strategy are intended to provide “strategic direction and the lens through which the River is viewed, not day to day management.”44

  • 45 Te Mana o Te Awa Tupua, above n.24, cl. 7.5.

25In order to “support the health and wellbeing” of the river, a fund will be established with a Crown grant of NZD 30 million. This is not limited to implementation of the strategy but may be allocated “on a contestable basis” upon application (although the criteria have yet to be determined).45 At earlier stages of the negotiation, this money was described as a clean-up fund for the river.

  • 46 Clause 2.8.1, Tutohu Whakatupua above n.23
  • 47 Waitangi Tribunal, The Whanganui River Report: Wai 167 (Government Print Publications, Wellington, (...)
  • 48 The Whanganui River Report, ibid, at p.48 (italics added).

26A key feature of the river’s legal personhood is that the current ownership of the bed of the river will be transferred from Crown ownership and will be vested in the name of the river itself, Te Awa Tupua.46 The vesting of fee simple title does not reflect traditional Maori concepts of responsibility and control within their overall relationship with the river, because Whanganui tribes did not view the river as property in a Western sense. As the Waitangi Tribunal noted in respect of the Whanganui tribes, “A European might enquire of their territorial rights. Maori would enquire of the relationship between the [relevant] people.” 47 Thus:48

though they had possession and control in fact, they did not see it in those terms ; rather, they saw themselves as users of something controlled and possessed by gods and forebears. It was a taonga made more valuable because it was beyond possession. … On this view of things, the river was not a commodity, not something to be traded. It was inconceivable that such a thing could be done.

  • 49 The Whanganui River Report, ibid, at p.195.
  • 50 The Whanganui River Report, ibid, at p.332.

27However, legal title is the tool that is available within the property laws and current legal system. In this light, the Waitangi Tribunal also noted that, “as a matter of [English-derived, New Zealand] law, Maori had owned the riverbed”.49 Further, when it came to regaining Maori control over the river, the appropriate claim to make in order to achieve that was for ownership. Thus ownership of the river was “the heart, the core, and the pith of this [Whanganui iwi] claim.”50 In this light, ownership, while seemingly incongruous, is as close a fit as can be obtained within the current legal system.

  • 51 This has been argued as being due to the fact that, in NZ law, water is not owned by anyone. Howeve (...)

28Another incongruity appears in relation to the vesting of title to only the bed of the river, not title to the water itself : the indigenous concept of the river being an indivisible whole is not being fully legally recognised.51 However, it is the interests of the whole river – not just its bed – which Te Pou Tupua has a duty to uphold, and the strategy will also address the whole of the river. I therefore suggest that, while the Maori cosmology is reflected in the overall agreement, which sees the river – from source to sea, including water bed and banks – as one indivisible entity, the methods of legal implementation illustrate the perceived limits within this legal system.

  • 52 I note that the use of Maori terms in legislation is now quite common in Aotearoa New Zealand, with (...)

29One feature worth commenting on is the use of Maori words in the English-language statute, which is not commonly seen in legislation worldwide (and possibly not seen at all). For example, in countries with two official languages and which publish legislation in both languages, the legislation is usually all in one language or the other, and not a mix of the two, as it is in the New Zealand statutes. I suggest that it is significant that the Maori words are used because only they can best represent the full Maori concepts entailed in their relationship with the river. English translations of indigenous philosophical and spiritual concepts tend not to entail the full meaning, so using the Maori terms is likely to make them more effective as well as to not subject them to legal misinterpretation.52

Te Urewera

  • 53 Section 8(10), Tuhoe Claims Settlement Act (2014, no.50, 27 July 2014). Available at http://www.leg (...)
  • 54 Te Urewera Act (no.51, 27 July 2014), s.3(5). Available at http://www.legislation.govt.nz.

30Te Urewera National Park was the largest national park in the North Island. It is all virgin, original forest or bush, but was created from most of the traditional lands of the Tūhoe people.53 As Tūhoe ancestral land, Tūhoe trace their connection to it back to their first arrival in Aotearoa New Zealand – it is described as “their place of origin and return, their homeland.”54 Tūhoe accordingly still have a deep spiritual attachment to the place, despite the fact that it has been a national park since 1954.

  • 55 See Tuhoe Claims Settlement Act 2014, s.8(10).
  • 56 Tuhoe Claims Settlement Act 2014, s.8(11).

31Unlike the Whanganui tribes, Tūhoe refused to sign the Treaty of Waitangi, on the basis that they wished to retain their own sovereignty and control over their lands. Despite not signing, they forcibly became subject to New Zealand government and laws and most of their lands were confiscated and their authority to control or manage their own affairs removed. When Te Urewera National Park was created and later expanded, Tūhoe were not consulted nor were they recognised as having any special interest in the park or its governance. Accordingly, Tūhoe’s customary use of Te Urewera – as well as of their own adjoining land – was restricted.55 As the government has recognised :56

Today, around 85 % of Tūhoe live outside Te Urewera. Those who remain struggle to make a living and face various restrictions placed on the land and resources in the area. Many suffer from socio-economic deprivation of a severe nature.”

32Tūhoe’s grievance over their traditional lands has stressed the need to regain ownership and control of Te Urewera National Park through the negotiated settlement process, and they refused to settle until that was agreed to by the Crown. Tūhoe argue that it is only through the exercise of their traditional relationship with the land and its natural environment would they be able to exercise their spiritual authority through guardianship. The Crown was unable to agree to transferring ownership of a national park to a Maori tribe, but instead offered Tūhoe the solution of legal personality for the park, whereby no one owned the park but that it owned itself. The lands would remain protected, with public use, akin to a national park, but it would maintain its own separate identity and be governed very differently, with significant Tūhoe input and in a way which better respects Tūhoe cosmology and relationship with the lands.

  • 57 Note that the Bill introduced in 2013 covered all aspects of the settlement (First reading, Hansard (...)
  • 58 Section 3, ‘Background to this Act’, Te Urewera Act 2014, above n.54 (italics added).

33This agreement was finalised in March 2013 and legislation to implement it passed in July 2014.57 Te Urewera itself is described very poetically, and its importance to Tūhoe and to New Zealand is expressed well:58

Te Urewera

(1) Te Urewera is ancient and enduring, a fortress of nature, alive with history ; its scenery is abundant with mystery, adventure, and remote beauty.

(2) Te Urewera is a place of spiritual value, with its own mana [authority, prestige] and mauri [spirit].

(3) Te Urewera has an identity in and of itself, inspiring people to commit to its care.

Te Urewera and Tūhoe

(4) For Tūhoe, Te Urewera is Te Manawa o te Ika a Māui ; it is the heart of the great fish of Maui, its name being derived from Murakareke, the son of the ancestor Tūhoe.

(5) For Tūhoe, Te Urewera is their ewe whenua, their place of origin and return, their homeland.

(6) Te Urewera expresses and gives meaning to Tūhoe culture, language, customs, and identity. There Tūhoe hold mana [authority as guardians of Te Urewera] by ahikāroa [keeping the home fires burning] ; they are tangata whenua [the people of that land] and kaitiaki [guardians] of Te Urewera.

Te Urewera and all New Zealanders

(7) Te Urewera is prized by other iwi and hapū [tribes and sub-tribes] who have acknowledged special associations with, and customary interests in, parts of Te Urewera.

(8) Te Urewera is also prized by all New Zealanders as a place of outstanding national value and intrinsic worth ; it is treasured by all for the distinctive natural values of its vast and rugged primeval forest, and for the integrity of those values ; for its indigenous ecological systems and biodiversity, its historical and cultural heritage, its scientific importance, and as a place for outdoor recreation and spiritual reflection.

Tūhoe and the Crown : shared views and intentions

(9) Tūhoe and the Crown share the view that Te Urewera should have legal recognition in its own right, with the responsibilities for its care and conservation set out in the law of New Zealand. To this end, Tūhoe and the Crown have together taken a unique approach, as set out in this Act, to protecting Te Urewera in a way that reflects New Zealand’s culture and values.

(10) The Crown and Tūhoe intend this Act to contribute to resolving the grief of Tūhoe and to strengthening and maintaining the connection between Tūhoe and Te Urewera.

  • 59 Section 4, ‘Purpose of this Act’, Te Urewera Act 2014.

34The purpose of the Act reflects these various aspects:59

The purpose of this Act is to establish and preserve in perpetuity a legal identity and protected status for Te Urewera for its intrinsic worth, its distinctive natural and cultural values, the integrity of those values, and for its national importance, and in particular to—

(a) strengthen and maintain the connection between Tūhoe and Te Urewera ; and

(b) preserve as far as possible the natural features and beauty of Te Urewera, the integrity of its indigenous ecological systems and biodiversity, and its historical and cultural heritage ; and

(c) provide for Te Urewera as a place for public use and enjoyment, for recreation, learning, and spiritual reflection, and as an inspiration for all

  • 60 Section 5 provides (italics added):

35The principles governing the implementation of the Act focus primarily on different aspects of environmental protection, but are also protective of indigenous relationships with the park, and of public access for the benefit of all New Zealanders.60

  • 61 Section 11 Te Urewera Act 2014.
  • 62 Section 12(3) Te Urewera Act 2014: “The fee simple estate in the establishment land vests in Te Ure (...)
  • 63 Section 13 Te Urewera Act 2014: “Te Urewera land must not be alienated, mortgaged, charged, or othe (...)
  • 64 Section 12(1) -(2) Te Urewera Act 2014:

36As with the Whanganui River, the key means of upholding the Tūhoe view of Te Urewera as an ancestor is to declare it to be its own legal entity, with “all the rights, powers, duties, and liabilities of a legal person.”61 It will accordingly hold title to its own land (ie, title to itself),62 where that land is inalienable.63 Its status is unique and any previous status – as Crown, conservation, or reserve lands, or as a national park – is removed.64

  • 65 The Board is established under s.16 of the Act and s.17 defines its purpose. Te Urewera Act 2014.
  • 66 Section 18(2) Te Urewera Act 2014 (italics added).

37The Te Urewera Board is established “to act on behalf of, and in the name of, Te Urewera” and “to provide governance for Te Urewera”.65 Tūhoe spirituality is directly provided for in Board decision-making, whereby:66

In performing its functions, the Board may consider and give expression to—

(a) Tūhoetanga [Tūhoe identity and culture] :

(b) Tūhoe concepts of management such as—

  • 67 Defined in s.18(3) as: “rāhui conveys the sense of the prohibition or limitation of a use for an ap (...)

(i) rāhui :67

  • 68 Defined in s.18(3) as (italics added):

(ii) tapu me noa :68

  • 69 Defined in s.18(3) as: “mana me mauri conveys a sense of the sensitive perception of a living and s (...)

(iii) mana me mauri :69

  • 70 Defined in s.18(3) as: “tohu connotes the metaphysical or symbolic depiction of things” (italics ad (...)

(iv) tohu70

  • 71 Section 20(1) Te Urewera Act 2014 (italics added).
  • 72 Section 20(2) Te Urewera Act 2014.

38The Board, “when making decisions”, must also “consider and provide appropriately for the relationship of iwi and hapū and their culture and traditions with Te Urewera.”71 This is expressly stated as being “to recognise and reflect” “Tūhoetanga” (Tūhoe identity and culture) and “the Crown's responsibility under the Treaty of Waitangi”.72 As with the other settlement legislation, as well as other legislation recognising and protecting Maori culture, it is significant that these concepts are expressed in Maori and, in some cases, without translation, so that the Maori concept – rather than an English translation of a cultural concept – can be upheld.

  • 73 Section 21(1). The Crown appointees will be made jointly by the Minister of Conservation and the Mi (...)
  • 74 Section 21(2). For more details on membership and Board decision-making, see ss.21-37, plus Schedul (...)

39The membership provisions are worth noting as being novel: for the first three years there will be eight members, four of which will be appointed by Tūhoe trustees and four of which will be appointed by the Crown.73 After three years they increase to nine members, six of which will be appointed by Tūhoe trustees and three of which will be appointed by the Minister of Conservation.74 This is designed to accommodate the development of Tūhoe governance capacity post-settlement.

  • 75 Section 1(1) of Schedule 3, ‘Further provisions relating to authorisations and administrative matte (...)
  • 76 Section 1(2) of Schedule 3, ibid.
  • 77 Section 1(3) of Schedule 3, ibid (italics added). The other matters which must be taken in to accou (...)

40The Act contains an extensive list of powers and obligations of the Board, including the ability to make by-laws and to grant activity permits with Te Urewera. One function that is completely new to the park lands is the ability to grant permits for “taking, cutting, or destroying indigenous plants within Te Urewera” and for “disturbing, trapping, taking, hunting, or killing indigenous animals within Te Urewera”.75 This may only be undertaken where “the preservation of the species concerned is not adversely affected”, “the effects on Te Urewera are no more than minor”, and “the grant of a permit is consistent with the management plan.”76 Further, it must be considered whether “iwi [tribes] and hapū [sub-tribes] support the application” and whether “the proposed activity is important for the restoration or maintenance of customary practices that are relevant to the relationship of iwi and hapū to Te Urewera”.77 Yet this is still significant because under other New Zealand law, indigenous wildlife is absolutely protected and neither plants nor animals (including birds) may be taken from a national park. These laws reflect the traditional wilderness conservation approach whereby nature is wholly protected from human activity within protected areas (such as national parks). The new Te Urewera law upholds the indigenous concept that nature can be protected in conjunction with human use, if managed properly, and thus that fauna may be able to be sustainably harvested, for example, while still being protected.

Conclusion

  • 78 See, eg, Iorns Magallanes, above n.3.

41New Zealand law has been recognising and taking account of Maori cosmology and cultural interests mainly since the 1980s.78 The most significant aspect of this that has been recognised in law has been Maori relationships with the natural world and the concomitant responsibilities to care for it as kin. The Whanganui and Te Urewera agreements’ recognition in law of the Maori view of nature as a person may be seen as an extension of the existing trend toward greater recognition of Maori cosmology in New Zealand law ; yet this status is noticeably different from the usual treatment of nature in New Zealand law.

  • 79 Stone Christopher, ‘Should Trees Have Standing’, above n. 4.

42It is unsurprising that environmentalists are heralding these two agreements. The establishment of legal personality for the Whanganui River and Te Urewera certainly appear to be according rights to nature, as Christopher Stone argued for in 1972.79 These two examples appear to fulfil Stone’s vision, especially with the appointment of a body to advocate for and act in accordance with the interests of the river and the forest, respectively, as Stone argued was missing from US environmental law.

  • 80 See, eg, the analysis of countries’ laws from this perspective in Filgueira Begonia and Mason Ian, (...)
  • 81 Clause 2.16, Tutohu Whakatupua (2012), above n.23. As mentioned above, the 2014 agreement describes (...)
  • 82 See, eg, above notes 36-38 and accompanying text.
  • 83 Te Urewera Act 2014, s.3(8), s.4.
  • 84 See, eg, s.18(1)(g) Te Urewera Act 2014.

43Further, these two examples also both focus heavily on the protection of nature itself. A fundamental – though perhaps less obvious – aspect underlying these examples is the importance placed on the intrinsic value of nature itself. There are not many protections in environmental laws worldwide recognizing the intrinsic value of the environment.80 In contrast, in the Whanganui River agreement, for example, the “innate values” of the river will be recognized and provided for in legislation,81 and the “interests” and “status” of the river itself can be upheld and represented.82 This language of protection is for the benefit of the river itself as well as for the people. Similarly for Te Urewera : its “intrinsic worth” is explicitly identified,83 as well as protection of its own interests.84 This combination of formally legislating for a natural feature as a legal person and upholding its interests for its own sake suggests to all – not just to its Maori descendants – that it is more than just a resource to be exploited.

44Yet, at the same time, these examples do not fit squarely within the standard, Western environmental protection paradigm, where by nature is protected apart from people. The Te Urewera legislation shows that people are considered part of forest management. Thus, while a forest may have intrinsic value, worthy of respect, it is also a place that people inhabit ; its plants and animals are not off-limits as a resource, if used truly sustainably. This truly reflects the indigenous cosmological view of people as part of nature, not separate nor above it. Indeed, the legal recognition of personality in these examples also recognises the Maori cosmology of ancestral nature and the indivisibility of the physical and metaphysical elements of the natural world. The appointment of a body to be an official guardian recognises “the inseparability” of the people and the river or forest, respectively, as well as the responsibilities inherent in that relationship for taking care of them as kin. In this sense, these examples emphasise the responsibilities to nature more than nature’s rights. But it is certainly possible to place this within a framework that emphasises nature's rights, viewing the responsibilities as the flip side of the human duties within a legal system that recognises these rights.

  • 85 I note that there is no guarantee that any indigenous people or person will manage a particular env (...)

45It is relevant that these changes have been agreed to for human rights reasons, not for environmental protection reasons. All of the measures mentioned in this paper that have recognised and provided for Maori cosmology have done so in order to better respect their human interests : justice for past wrongs done to Maori and present or continuing protection of Maori culture. Yet it was only because of the recognised special relationship of Maori with the natural world, and because of their traditional exercise of guardianship over it, that these precise methods were chosen.85

46It is too soon to tell how the two guardianship regimes will operate in practice, including how the interests of Te Awa Tupua and Te Urewera will be defined, and how well they will be protected. Yet these New Zealand examples show that respect for the rights of indigenous peoples – including redress for wrongs suffered and maintenance of their culture – can result in laws that treat the environment in a way that environmentalists have been arguing for, even if only indirectly.

  • 86 Tribe Laurence H, “Ways Not to Think About Plastic Trees: New Foundations for Environmental Law” (1 (...)

47I suggest that such laws, with their emphasis on human responsibilities for or toward the natural world, could help overcome the widespread concern that human rights claims, couched in terms of self-interest, “may be helping to legitimate a system of discourse which so structures human thought and feeling as to erode, over the long run, the very sense of obligation which provided the initial impetus for” the environmental protection in the first place.86

  • 87 Margaret Orbell quoted in Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n1, at p.239 (italic (...)

48In contrast, recognition of human rights has enabled the protection of the Māori87 view of the world which recognised the tapu, the sacredness, of other life forms and the landscape itself. By seeing themselves in the natural world and thus personifying all aspects of the environment, they acquired a fellow-feeling for the life forms and other entities that surrounded them, and they saw a kinship between all things.

  • 88 Indeed, originally we were all hunter-gatherers and held animistic and/or pagan spiritual or religi (...)

49Perhaps the reverse might also work. This enactment in national legislation makes the indigenous cosmology more visible nationally, with the potential of eventual normalcy in the eyes of the mainstream. Therefore perhaps personifying the environment might re-engender in others the fellow-feeling for other life forms and the feeling that they are connected to the natural world. This connectedness might in turn revive the beliefs in kinship bonds and sacredness which is so sorely needed in this world where nature has very few rights or other protections.88

  • 89 Stone, above n.4, at 489.
  • 90 Ko Aotearoa Tenei – tuarua, above n1, p.248.

50Thus perhaps indigenous rights can offer us that “socio-psychic” element of an alternative paradigm that Christopher Stone argued was needed – a new “myth” and “consciousness”, “felt as well as intellectualized” that is not so obviously contained within a Western, liberal human right to a healthy environment.89 As Maori recognise, “these relationships are so crucial to Māori culture and identity that their survival cannot be separated from the survival of the culture itself.”90 Perhaps such recognition in law will help encourage us all to realise, as our hunter-gatherer forbears did, that these relationships with the natural world are crucial to every person’s and people’s identity and survival.

  • 91 Evidence from Whakataumatatanga Mareikura in Ngati Rangi Trust, above n.5 at [107].

51And so we go back to the river, and the river is the beginning, the beginning for our people from the mountain to the sea. It ties us together like the umbilical cord of the unborn child. Without that, it dies. Without that strand of life it has no meaning…. It is our life cord, not just because its water - but because it's sacred water to us.91

Ko au te awa, ko te awa ko au

I am the river and the river is me

Haut de page

Notes

1 policy affecting Māori culture and identity - Te taumata tuarua, WAI 262 (Vol 1) (Legislation Direct, Wellington, New Zealand, 2011), at p.237; available at www.waitangitribunal.govt.nz (last accessed 4 September 2014). The paragraph in which it appears further elaborates on its meaning (italics added):

The environment, therefore, cannot be viewed in isolation. There is an old saying: ‘Kei raro i ngā tarutaru, ko ngā tuhinga o ngā tūpuna’ (beneath the herbs and plants are the writings of the ancestors). Mātauranga Māori [Maori traditional knowledge] is present in the environment: in the names imprinted on it; and in the ancestors and events those names invoke. The mauri [spirit or life-force] in land, water, and other resources, and the whakapapa [genealogy] of species, are the building blocks of an entire world view and of Māori identity itself. The protection of the environment, the exercise of kaitiakitanga [guardianship], and the preservation of mātauranga [knowledge] in relation to the environment are all inseparable from the protection of Māori culture itself.

2 For example, Huston Smith, in his now-classic discussion of the world's religions, calls indigenous religions “primal.” They are characterised by all humans, animals, plants, the land itself, all possessing the same spirit of the Creator. Huston Smith, The World’s Religions (Harper Collins, rev & updated ed, 2009), Chap IX: “The Primal Religions” (Kindle edition).

3 For a description of the various different ways that New Zealand law has recognised Maori cosmology in law, see Iorns Magallanes Catherine, Maori Cultural Rights in Aotearoa New Zealand: Protecting the Cosmology that Protects the Environment” 21:2 Widener Law Review (forthcoming, May 2015)”

4 See, for example, the famous essay by Christopher Stone which argued for such legal mechanisms in order to better protect nature within our legal systems: Stone Christopher, ‘Should Trees Have Standing?” (1972) 45 Southern California Law Review 450.

5 Turama Hawira of the Maori tribe Ngati Rangi, providing evidence in the case Ngati Rangi Trust v Manawatu Wanganui Regional Council NZEnvC Auckland A 67/04, 18 May 2004 at [106] (italics added).

6 Department of Conservation “Report and Recommendations of the Board of Inquiry into the New Zealand Coastal Policy Statement” 14 February 1994, as cited in Derek Nolan (ed), Environmental and Resource Management Law, 4ed (Wellington, LexisNexis NZ, 2011), at para 14.2 (italics added).

7 Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n.1, at p.237 (italics added); available at www.waitangitribunal.govt.nz (last accessed 4 September 2014).

8 Waitangi Tribunal, Ko Aotearoa tēnei: a report into claims concerning New Zealand law and policy affecting Māori culture and identity - Te taumata tuatahi, WAI 262 ( Legislation Direct, Wellington, New Zealand, 2011), at p.5; available at www.waitangitribunal.govt.nz (last accessed 4 September 2014).

9 Waitangi Tribunal, Muriwhenua Land Report 1997 (Wai 45) at p.23 (italics added).

10 Waitangi Tribunal, Te Kahui Maunga: The National Park District Inquiry Report 2013 (Wai 1130) at p.93. Other examples of this view include: “For Maori, rivers are considered Papatuanuku’s [the Earth Mother’s] arteries, each with their own mauri (spirit or life-force), which may be lessened if humans interfere with that flow.” Idem. Mountains too are locations of great spiritual significance. See, eg, the evidence in the Ngati Ruahine case about Mount Maunganui, or Mauao. Ngati Ruahine v Bay of Plenty Regional Council [2012] NZHC 2407 at [174]. The ocean too is revered, being the domain of the god of the sea, Tangaroa.

11 Kaitiakitanga, or guardianship or stewardship, is one of the fundamental principles underlying Maori society, beliefs and practices, as noted above, in the quote accompanying note 7. Waitangi Tribunal reports abound with claimant evidence of their status and traditional practices as kaitiaki (guardians) in the past and continuing today. For a summary of ‘Kaitiakitanga today’ see Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n.1, at pp. 244-48.

12 Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n.1, at pp. 269 (italics added).

13 Whanganui Iwi and the Crown, Ruruku Whakatupua - Te Mana o Te Iwi o Whanganui (5 August 2014) at cl.1.4 (hereafter referred to as ‘Te Mana o Te Iwi o Whanganui’); available via the website of the Office of Treaty Settlements, http://www.ots.govt.nz, or directly at http://nz01.terabyte.co.nz/ots/DocumentLibrary/140805RurukuWhakatupua-TeManaOTeIwiOWhanganui.pdf (last accessed 20 Sept 2014).

14 See, eg, Te Mana o Te Iwi o Whanganui, ibid, cls.2.1-2.25 for the Whanganui iwi account of the origins and the significance of the river to them. This account includes tribal lore about the river’s supernatural guardians and their relationship to the people (cls. 2.19-2.20).

15 Te Mana o Te Iwi o Whanganui, ibid, cl.3.2 (italics added).

16 New Zealand was settled by the British and the basis for that settlement was the Treaty of Waitangi, signed between them and Maori in 1840. For a summary of the Treaty of Waitangi and of the New Zealand grievance resolution mechanisms, see Iorns Magallanes Catherine, “Reparations for Maori Grievances in Aotearoa New Zealand” contained in Lenzerini Federico (ed), Reparations for Indigenous Peoples (Oxford: Oxford University Press, 2008), pp523-564. A helpful online, government resource on the Treaty of Waitangi is provided at http://www.nzhistory.net.nz/politics/treaty-of-waitangi (last accessed 30 Sept 2014). Copies of the Treaty may be viewed online at the NZ Archives site: http://archives.govt.nz/exhibitions/treaty (last accessed 30 Sept 2014), with more information on its history provided there as well. For further historical information on the Treaty, before and after its signing, see Claudia Orange, The Treaty of Waitangi (Bridget Williams Books, Wellington, 1987).

17 Note that breaches of the Treaty were widespread throughout New Zealand. By 1900 Maori had lost most of their land, and their natural resource uses were restricted, as was their autonomy.

18 Waitangi Tribunal, Te Ika Whenua Rivers Report (1998); available at www.waitangi-tribunal.govt.nz.

19 The NZ Environment Court in Ngati Rangi Trust, above n.5, at [318] (italics added).

20 The Waitangi Tribunal was established in 1975 to determine whether NZ government action breached the Treaty of Waitangi and to make recommendations for redress for any breaches. Treaty of Waitangi Act 1975 (No.114, 10 October 1975); available at www.legislation.govt.nz. The Tribunal issues comprehensive reports on the interpretation of the relevant Treaty duties, on the surrounding facts, on determinations of any breaches, and recommendations to the Crown for redress or reparations for those breaches. For more detailed information on the Tribunal see: the various resources at www.waitangi-tribunal.govt.nz; Hayward Janine & Wheen Nicola (eds), The Waitangi Tribunal (Wellington, 2004, Bridget Williams Books); Ward Alan, An Unsettled History: Treaty Claims in New Zealand Today (Wellington, 1999, Bridget Williams Books); Byrnes Giselle, The Waitangi Tribunal and New Zealand History (Melbourne, Oxford University Press, 2004).

21 For a detailed history of their claim, see Waitangi Tribunal, The Whanganui River Report (WAI 167, 1999); available at www.waitangi-tribunal.govt.nz.

22 Successive New Zealand governments have made modern settlement agreements in reparations for these breaches. While the settlement measures vary between different tribes, they always include three types of measures: an apology, the transfer of cash and assets, and non-financial cultural measures. For a summary of these modern reparations settlements, see Iorns Magallanes, above n.16. For more information see the Office of Treaty Settlements website http://www.ots.govt.nz/. See also Treaty of Waitangi Settlements, Nicola R Wheen and Janine Hayward (eds) (Bridget Williams Books, Wellington, 2012).

23 The 2012 agreement, entitled Tutohu Whakatupua, was signed on August 30 between the Whangaui Iwi and the Crown. An interim agreement was reached in 2011 [Record of Understanding in relation to the Whanganui River Settlement, 13 October 2011] and finalised in the August 30 Agreement. Available via the website of the Office of Treaty Settlements, http://www.ots.govt.nz, or directly at http://nz01.terabyte.co.nz/ots/DocumentLibrary/WhanganuiRiverAgreement.pdf (last accessed 30 Sept 2014).

24 The 2014 agreement, entitled Ruruku Whakatupua - the Whanganui Iwi Deed of Settlement, has more detail than the 2012 agreement. The Crown and Whanganui Iwi negotiators initialled Ruruku Whakatupua on 26 March 2014, to signal the end to the substantive negotiations. The agreement was then discussed and ratified by the tribe, and the formal Deed of Settlement was signed by the Crown and the Whanganui iwi on 5 August 2014. The 2014 Deed of Settlement comprises two documents: Te Mana o Te Iwi o Whanganui (above n.13), which includes the main elements of the settlement: apology, recitation of the history of the grievances and claims, and all the elements of the settlement; and Ruruku Whakatupua - Te Mana o Te Awa Tupua, which includes the agreed Te Awa Tupua framework for the status and management of the Whanganui River (hereinafter referred to as ‘Te Mana o Te Awa Tupua’). See http://www.ots.govt.nz for more information and the relevant documents, including a summary of the Whanganui River Deed of Settlement. Te Mana o Te Awa Tupua, is available via the website of the Office of Treaty Settlements, http://www.ots.govt.nz, or directly at http://nz01.terabyte.co.nz/ots/DocumentLibrary/RurukuWhakatupua-TeManaoTeAwaTupua.pdf (last accessed 4 Sept 2014).

25 The frontspiece description of the document, Te Mana o Te Awa Tupua, provides (at p.2):

This document, Ruruku Whakatupua - Te Mana o Te Awa, contains the agreed terms of a new legal framework for Te Awa Tupua which upholds the mana of the Whanganui River and recognises the intrinsic ties which bind the Whanganui River to the people and the people to the Whanganui River.

26 Clause 2.1. This is the same as “the indicative wording” in para. 2.4 of the 2012 agreement, Tutohu Whakatupua, above n.23. It reflects one of the fundamental principles underpinning the negotiations:

Te Awa Tupua mai i te Kahui Maunga ki Tangaroa – an integrated, indivisible view of Te Awa Tupua in both biophysical and metaphysical terms from the mountains to the sea.

Tutohu Whakatupua, above n.23, cl.1.8.

27 Tutohu Whakatupua, above n.23, cl.1.8.

28 Clause 2.6, Te Mana o Te Awa Tupua, above n.24.

29 Te Mana o Te Awa Tupua, above n.24, at p.6, the Introduction to clause 2.

30 Clause 2.7, Te Mana o Te Awa Tupua, above n.24.

31 Tutohu Whakatupua, above n.23, cl. 2.1.2. It is specifically an agreement to recognise because the Agreement itself has not yet been enacted as legislation.

32 Tutohu Whakatupua, above n.23, cl 2.7.

33 Clause 2.2, Te Mana o Te Awa Tupua, above n.24.

34 Clause 2.3, Te Mana o Te Awa Tupua, above n.24.

35 Clause 2.9, Te Mana o Te Awa Tupua, above n.24. Clause 2.10 lists these statutes. Clause 2.14 specifies when the requirement will apply:

The obligations under clauses 2.9 to 2.13 apply:

2.14.1 where the exercise of those functions, duties or powers relate to the Whanganui River, or relate to activities within the Whanganui River catchment that affect the Whanganui River;

2.14.2 to the extent that the Te Awa Tupua status or Tupua te Kawa relate to the function, duty or power being exercised; and

2.14.3 in a manner that is consistent with the purpose of the legislation under which the function, duty or power is being exercised.

36 Te Mana o Te Awa Tupua, above n.24, cl.3.8; Tutohu Whakatupua (2012), above n.23, cl 2.20.4. The high standing is so as to recognize “both the importance of the role and the need to interact with Ministers and other interested parties at a leadership level” (2012).

37 Te Mana o Te Awa Tupua, above n.24, cl.3.9; Tutohu Whakatupua (2012), above n.23, cl 2.19. For more details of the appointment process, term, and conditions, see 2014 Te Mana o Te Awa Tupua, above n.24, cl.3.9-3.19. See cl. 3.20-3.40 for the administrative and advisory support for Te Pou Tupua in carrying out its role.

38 Te Mana o Te Awa Tupua, above n.24, cl 3.3. See also the 2012 agreement, Tutohu Whakatupua, above n.23, cl. 2.21.

39 Tutohu Whakatupua (2012), above n.23, cl 2.23.

40 Te Mana o Te Awa Tupua, above n.24, cl.4.1; see also Tutohu Whakatupua (2012), above n.23, cl. 2.24. In the 2014 agreement this Strategy is called Te Heke Ngahuru. See Part 4, cls.4.1-4.23.

41 Te Mana o Te Awa Tupua, above n.24, cl. 4.2.

42 Te Mana o Te Awa Tupua, ibid, cl.5.3.

43 Te Mana o Te Awa Tupua, ibid, cl.5.4. See Part 5, clauses 5.1-5.47, for functions, membership matters, procedures meetings, decision-making, and support. The Crown will support it financially (cl.5.45).

44 “Whanganui River deed of settlement initialled” Press Release: NZ Government, 26 March 2014; available at http://www.ots.govt.nz (last accessed 5 Sept 2014).

45 Te Mana o Te Awa Tupua, above n.24, cl. 7.5.

46 Clause 2.8.1, Tutohu Whakatupua above n.23

47 Waitangi Tribunal, The Whanganui River Report: Wai 167 (Government Print Publications, Wellington, 1999), at p.35.

48 The Whanganui River Report, ibid, at p.48 (italics added).

49 The Whanganui River Report, ibid, at p.195.

50 The Whanganui River Report, ibid, at p.332.

51 This has been argued as being due to the fact that, in NZ law, water is not owned by anyone. However, this ignores the commercial value of water usage or allocation rights. It is thus more a political choice than one determined by law.

52 I note that the use of Maori terms in legislation is now quite common in Aotearoa New Zealand, with the modern use largely beginning in the 1990s. It has not been without pitfalls, but the issues involved in their interpretation are now better understood. See, eg, Catherine Iorns Magallanes, “The Use of ‘Tangata Whenua’ and ‘Mana Whenua’ in New Zealand Legislation: Attempts at Cultural Recognition” (2011) 42 Victoria University of Wellington Law Review 259.

53 Section 8(10), Tuhoe Claims Settlement Act (2014, no.50, 27 July 2014). Available at http://www.legislation.govt.nz. Section 8 contains a summary of the historical grievance against the Crown. The detailed Crown acknowledgements of its actions in s.9 and the apology in s.10 provide excellent background to this settlement.

54 Te Urewera Act (no.51, 27 July 2014), s.3(5). Available at http://www.legislation.govt.nz.

55 See Tuhoe Claims Settlement Act 2014, s.8(10).

56 Tuhoe Claims Settlement Act 2014, s.8(11).

57 Note that the Bill introduced in 2013 covered all aspects of the settlement (First reading, Hansard-Record of New Zealand Parliamentary Debates 694, pp14129, 22 October 2013). During its passage through Parliament it was divided into two Acts, one concerning the overall grievance settlement – including history, apology, and most elements of the financial and cultural redress (above, n.53) – and the other concerning the new arrangements for Te Urewera (above n.54).

58 Section 3, ‘Background to this Act’, Te Urewera Act 2014, above n.54 (italics added).

59 Section 4, ‘Purpose of this Act’, Te Urewera Act 2014.

60 Section 5 provides (italics added):

(1) In achieving the purpose of this Act, all persons performing functions and exercising powers under this Act must act so that, as far as possible,—

(a) Te Urewera is preserved in its natural state:

(b) the indigenous ecological systems and biodiversity of Te Urewera are preserved, and introduced plants and animals are exterminated:

(c) Tūhoetanga, which gives expression to Te Urewera, is valued and respected:

(d) the relationship of other iwi and hapū with parts of Te Urewera is recognised, valued, and respected:

(e) the historical and cultural heritage of Te Urewera is preserved:

(f) the value of Te Urewera for soil, water, and forest conservation is maintained:

(g) the contribution that Te Urewera can make to conservation nationally is recognised.

(2) In achieving the purpose of this Act, all persons performing functions and exercising powers under this Act must act so that the public has freedom of entry and access to Te Urewera, subject to any conditions and restrictions that may be necessary to achieve the purpose of this Act or for public safety.

61 Section 11 Te Urewera Act 2014.

62 Section 12(3) Te Urewera Act 2014: “The fee simple estate in the establishment land vests in Te Urewera and is held under, and in accordance with, Parts 5 to 7” of the Act.

63 Section 13 Te Urewera Act 2014: “Te Urewera land must not be alienated, mortgaged, charged, or otherwise disposed of, except” under 2 other sections in the Act.

64 Section 12(1) -(2) Te Urewera Act 2014:

(1) Te Urewera establishment land ceases to be vested in the Crown.

(2) Any part of the establishment land that is—

(a) a conservation area under the Conservation Act 1987 ceases to be a conservation area:

(b) Crown land under the Land Act 1948 ceases to be Crown land:

(c) a national park under the National Parks Act 1980 ceases to be a national park:

(d) a reserve under the Reserves Act 1977 has the reserve status revoked.

65 The Board is established under s.16 of the Act and s.17 defines its purpose. Te Urewera Act 2014.

66 Section 18(2) Te Urewera Act 2014 (italics added).

67 Defined in s.18(3) as: “rāhui conveys the sense of the prohibition or limitation of a use for an appropriate reason”.

68 Defined in s.18(3) as (italics added):

tapu means a state or condition that requires certain respectful human conduct, including raising awareness or knowledge of the spiritual qualities requiring respect

tapu me noa conveys, in tapu, the concept of sanctity, a state that requires respectful human behaviour in a place; and in noa, the sense that when the tapu is lifted from the place, the place returns to a normal state

69 Defined in s.18(3) as: “mana me mauri conveys a sense of the sensitive perception of a living and spiritual force in a place” (italics added).

70 Defined in s.18(3) as: “tohu connotes the metaphysical or symbolic depiction of things” (italics added).

71 Section 20(1) Te Urewera Act 2014 (italics added).

72 Section 20(2) Te Urewera Act 2014.

73 Section 21(1). The Crown appointees will be made jointly by the Minister of Conservation and the Minister of Treaty of Waitangi Negotiations.

74 Section 21(2). For more details on membership and Board decision-making, see ss.21-37, plus Schedule 2, “Further provisions relating to Board”.

75 Section 1(1) of Schedule 3, ‘Further provisions relating to authorisations and administrative matters,” Te Urewera Act 2014.

76 Section 1(2) of Schedule 3, ibid.

77 Section 1(3) of Schedule 3, ibid (italics added). The other matters which must be taken in to account in this section are whether “the proposed activity is essential for management, research, interpretation, or educational purposes”, whether “the quantity of indigenous plants or animals that will be affected is minor in relation to the abundance of the material”, and whether “the proposed activity could occur outside Te Urewera or elsewhere within Te Urewera where the potential adverse effects would be significantly less.”

78 See, eg, Iorns Magallanes, above n.3.

79 Stone Christopher, ‘Should Trees Have Standing’, above n. 4.

80 See, eg, the analysis of countries’ laws from this perspective in Filgueira Begonia and Mason Ian, Wild Law: Is there any evidence of principles of Earth Jurisprudence in existing law and practice? (London: UK Environmental Law Association & The Gaia Foundation, 2009).

81 Clause 2.16, Tutohu Whakatupua (2012), above n.23. As mentioned above, the 2014 agreement describes the Tupua Te Kawa as ‘intrinsic values’ and natural law. See notes 28-30 and accompanying text.

82 See, eg, above notes 36-38 and accompanying text.

83 Te Urewera Act 2014, s.3(8), s.4.

84 See, eg, s.18(1)(g) Te Urewera Act 2014.

85 I note that there is no guarantee that any indigenous people or person will manage a particular environment sustainably. This is especially the case for indigenous people operating within a mainstream culture that holds a very different cosmology. As noted by Maori academic Jacinta Ruru and her student James Morris, “just because Maori have a personified worldview, it is incorrect to assume that they will always favour non-development.” Morris James DK & Ruru Jacinta, “Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water?” (2010) 14 Aboriginal and Indigenous Law Reporter 49, at p.58. As an illustration, in New Zealand, Maori development corporations have maintained capitalist, commercial enterprises which have harmed the environment and still propose to. Some large iwi have separated off their tribal business arms from their culture arms. While they use the money earned from the business arm for culture revitalization, their cultural arm is not seen as infusing or altering the capitalist imperative to maximise profit from the utilization of natural resources.

86 Tribe Laurence H, “Ways Not to Think About Plastic Trees: New Foundations for Environmental Law” (1974) 83 Yale Law Journal 1315 at p.1331.

87 Margaret Orbell quoted in Waitangi Tribunal, Ko Aotearoa tēnei - tuarua, above n1, at p.239 (italics added); available at www.waitangitribunal.govt.nz (last accessed 4 September 2014).

88 Indeed, originally we were all hunter-gatherers and held animistic and/or pagan spiritual or religious beliefs venerating nature. These hunter-gather societies were most likely the only social form which existed for an estimated 160,000 years, until the development of agriculture approximately 11,000 years ago. The change has been termed the Neolithic Revolution (also the Agricultural Revolution), the term coined by Childe V. Gordon, Man Makes Himself (Watts, London, 1936). For an accessible summary of the impact on population growth, see Bocquet-Appel Jean-Pierre, "When the World's Population Took Off: The Springboard of the Neolithic Demographic Transition" Science 333 (6042): 560–561 (July 29, 2011). Last accessed 31 October 2014.

89 Stone, above n.4, at 489.

90 Ko Aotearoa Tenei – tuarua, above n1, p.248.

91 Evidence from Whakataumatatanga Mareikura in Ngati Rangi Trust, above n.5 at [107].

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Catherine J. Iorns Magallanes, « Nature as an Ancestor: Two Examples of Legal Personality for Nature in New Zealand », VertigO - la revue électronique en sciences de l'environnement [En ligne], Hors-série 22 | septembre 2015, mis en ligne le 10 septembre 2015, consulté le 25 février 2017. URL : http://vertigo.revues.org/16199 ; DOI : 10.4000/vertigo.16199

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Catherine J. Iorns Magallanes

Senior Lecturer in law, School of Law, Victoria University of Wellington, BA, LLB (Hons) Well, LLM Yale, PO Box 600, Wellington, New Zealand, email: Catherine.Iorns@vuw.ac.nz

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