New Zealand’s Whanganui River Deed of Settlement
New Zealand is counteracting exploitation of a natural habitat, significantly limiting disruptive and unsustainable activities, such as dredging, by removing proprietary rights over the Whanganui River by declaring parts of it to be a legal entity in a Deed of Settlement. The August 2014 settlement formalises the Māori belief that the River is a person and empowers the local Iwi people to act collaboratively with the government as the River’s guardians.
o Atihaunui – The name of the community who live on the Whanganui River
o lupua te Kawa – The set of innate values that underpin the Deed of Settlement
o Iwi – Local Māori tribe
o Taonga – Treasure, anything prized – applied to anything considered to be of value including socially or culturally valuable objects, resources, phenomenon, ideas and techniques
o Te Ao Māori – Denotes ‘the Māori World’; it refers to three key areas, including Te Reo Māori (Māori language), tikanga Māori (protocols and customs) and Te Tiriti o Waitangi (the Treaty of Waitangi)
o Te Awa Tupua – The Whanganui River, as central spiritual entity
o Te Heke Ngahuru – The collaborative strategy of the policy. Its Maori meaning is transliterated as “Continuity Autumn”, referring to the first autumn migration of eels, signifying well-stocked storehouses for the winter. The name symbolises the potential of Te Awa Tupua to provide if protected
o Te Kõpuka – Advisors, or strategy group, who act collaboratively to advance the environmental, social, cultural and economic health and wellbeing of the River
o Te Pou Tupua – The human face of Te Awa Tupua
o Te Urewera – Te Urewera National Park was established as a national park in New Zealand’s Te Urewera area in 1954
o Tūtohu Whakatupua – Title of a 2012 agreement which agreed the key elements of the Te Awa Tupua framework
o Waikato-Tainui – A group of Māori from the Tainui waka (tribal confederation) who live in the Waikato Region
o Whanganui Iwi – The tribes of Whanganui take their name, their spirit and their strength from the great river which flows from the mountains of the central North Island to the sea
The Whanganui River Deed of Settlement was signed on 5th August 2014. Under the settlement, the Whanganui River, which is the third longest river in New Zealand, is recognised as a legal person, granting the River rights, powers, duties and liabilities. Not only has Māori belief been incorporated into the Deed of Settlement but the River is also further represented by two guardians (with advisors) who act ‘as one’: one is nominated by the Crown and the other one by the Iwi natives.
The Whanganui River Deed of Settlement (5th August 2014) follows numerous petitions to Parliament, commencing in the 1870s.
A Record of Understanding was signed between the Crown and the Whanganui Iwi on 13 October 2011. It contained an agreed framework to form the basis of settlement negotiations between the parties.
On 30 August 2012, an agreement entitled Tūtohu Whakatupua was signed, which agreed on the key elements of the Te Awa Tupua (TAT) framework that are now included in the proposed settlement. TAT operates within the confines of the Resource Management Act 1991. The Act governs the sustainable management of natural and physical resources in NZ and provides operational legality for the Rights of Nature.
Other supporting documents to the Deed of Settlement can be found here.
The Universal Declaration on the Rights of Mother Earth 2010 (World People’s Conference on Climate Change and the Rights of Mother Earth, Bolivia, 22 April 2010).
Ecuadorean constitutional recognition of the Rights of Nature (In 2008, Ecuador became the first nation in the world to recognize the legal Rights of Nature.)
Cormac Cullinan, in his address to the Tenth World Wilderness Conference, listed the Whanganui River – as a right bearing entity – as an example of the Rights of Nature.
He referred to slavery in the example, stating that “when [slaves] were property, there could never be anything other than an exploitative relationship”. In a similar way, nature is not totally protected if it is perceived of as property, valued only for its role in satisfying human wants. The policy’s removal of proprietary rights goes some way to changing local attitudes towards nature, thereby embarking on a potentially more sustainable approach. This is extended upon in the settlement’s overarching objective to protect and promote the Whanganui River’s “health and wellbeing”.
Our “Best Policies” are those which meet the Future-Just Lawmaking Principles and recognise that interrelated challenges require interconnected solutions. The World Future Council’s unique research and analysis ensures that important universal standards of sustainability and equity, human rights and freedoms, and respect for the environment are coherently considered by policy-makers.
Sustainable use of natural resources
- The Deed of Settlement helps to ensure a more sustainable usage of natural resources. This will be achieved, for example, by significantly limiting, inter alia, dredging from the riverbed.
- The Deed respects natural areas and traditional knowledge. S.3.3.3. states that Iwi and Crown guardians, working within a framework of traditional Māori knowledge must “promote and protect the health and wellbeing” of the River.
- The Deed of Settlement, also indirectly addresses the health of the oceans, by limiting the pollution of the Whanganui River, leading to less pollution reaching the ocean.
Equity and poverty eradication
- Poverty and human rights challenges are addressed through the redress of historic exploitation by the Crown and the development of the River that had taken place without Māori consent. In signing the Deed of Settlement, the Crown states that it “recognises its failure to protect the interests of Whanganui Iwi, and the adverse effects and prejudice caused to Whanganui Iwi.”
- The Deed of Settlement further demonstrates intergenerational respect. It includes provisions taking the needs and aspirations of future generations into account. However, only to a limited extent. S.6.10 provides that “the Crown must engage with [the river’s guardians] to explore the potential for [parts of the riverbed which become Crown-owned] to be vested in Te Awa Tupua”.
- The Deed of Settlement, through its engagement process with the local Iwi, respects the rights of Indigenous Peoples and local communities. It incorporates their beliefs and empowers the local Iwi by electing guardians and advisors from the tribe. Furthermore, through the reversion of vestment from the Crown towards the River itself – with oversight from Iwi guardians – the Deed of Settlement promotes social justice and equity. It thereby protects the interests of Whanganui Iwi.
- The Deed of Settlement is not specifically designed to promote prevention and precaution in the face of scientific uncertainty nor to demand proof that activities on the River are safe, or that risks are reasonable.
- ‘Health and wellbeing’ is not clearly defined by the Deed of Settlement. It appears to be entirely determined and overseen by two guardians: the Te Pou Tupua. S.3.2. states that the Te Pou Tupua must act in the interests of the River. However, those interests are determined by the Te Pou Tupua themselves and they are not required by the Deed of Settlement to adopt a precautionary approach to human health, natural resources or ecosystems. Nor does the Deed of Settlement determine a specific scientific understanding of the health of Rivers needed by the guardians. Nevertheless, both aspects can be seen as somewhat implicit within the informal Māori beliefs, such as “I am the River and the River is me”, which the Deed of Settlement formalises to some extent.
Public participation, access to information and justice
- The Deed of Settlement, in particular s.4.1, provides for public consultation and genuine engagement – in its design and implementation. S.3 of the Deed of Settlement provides for the appointment of legal representatives who, pursuant to s.3.4.1, “must … develop appropriate mechanisms for engaging with and reporting to [local Māori] on matters relating to [the river]”; s.3.4.2 further states that the representatives “may, from time to time, report publicly on matters relating to [the river].”
- The Deed of Settlement allows for transparency and access to information for concerned citizens, local communities, and others who may be affected. S.4.4.1 states that public notice must be given for draft strategies (Te Heke Ngahuru) and under s.4.4.2 similar appropriate steps may be undertaken to engage with interested persons in order to promote the awareness of, and feedback on, the draft strategies. S.4.4.3 states that the draft strategies and any other document the advisors (Te Kõpuka) consider relevant must be made available for public inspection.
- The policy itself, despite providing no specific avenues for appeal and redress for citizens, communities and others, does provide for judicial review, since NZ law is based on the English legal system.
Good governance and human security
- S.5.1 of the Deed establishes a strategy group comprised of representatives of persons and organisations with interests in the Whanganui River. This includes the Iwi, local and central government, commercial as well as recreational users and environmental groups. This group, Te Kõpuka “act collaboratively to advance the environmental, social, cultural and economic health and wellbeing” of the River. The promptness of the strategy is provided for by s.4.4 of the Deed, which states that a strategy must be drafted “no later than 18 months after the commencement date” of the Settlement. The fairness of the strategy is bolstered by s.4.9.1. and s.4.10.1. which state that Te Kõpuka “must keep a record of any submissions and feedback received” and “may amend the draft [strategy] to reflect any matters raised through submissions or feedback”. Nevertheless, the effectiveness of any strategy isn’t guaranteed by the Deed.
- There are no provisions included to ensure that the intentions of the Deed of Settlement are not thwarted by corruption, bribery or unethical conduct. The Deed does not provide any prima facie penalties for abuse of rights, or for mis-implementation.
Integration and interrelationship
- The Deed of Settlement integrates social justice and environmental protection into economic development plans and projects. Pursuant to s.5.2 Te Kõpuka “act collaboratively to advance the environmental, social, cultural and economic health and wellbeing” of the River.
- While consultation is encouraged by the Deed of Settlement, local communities may not necessarily engage with the decision making process.
- The Deed of Settlement provides a fund of $30,000,000 “to support the health and wellbeing of Te Awa Tupua”. Despite this proving to be a narrow remit, it may nevertheless support local communities indirectly with local Iwi believing that “I am the River and the River is me”. For example, through improving fishing by virtue of better cleanliness, the sustenance and income for the Iwi population will be indirectly supported.
Common but differentiated responsibilities
- The Deed of Settlement takes historical inequalities between the Crown and the Iwi into account, given that the latter had never benefitted from previous activities and policies of the Crown. By consulting and partnering with local Iwi, the Crown provides an avenue to redress such inequalities, where possible. It further provides $200,000 per year for 20 years for the Te Pou Tupua guardians and $430,000 for the establishment of the Te Heke Ngahuru strategy group.
- The Deed of Settlement is only appropriate and well-adapted to the cultural values and traditions of the Iwi. Local inhabitants of other faiths don’t have their beliefs acknowledged within the Deed of Settlement. This means that the Deed does not have the neutrality of pluralism and secularism, which the New Zealand government displays elsewhere in its policies.
- Inappropriate burden on vulnerable Iwi groups and those least able to bear them are avoided through the provision of funds within the Deed of Settlement. Other communities are only mentioned in the Deed of Settlement insofar as their existing private interests in the River, which remain unaffected by the Deed of Settlement.
The Māori world view, Te Ao Māori, describes human interaction with nature in a similar way to a personal relationship.
The River is sacred to the Whanganui Iwi Māori tribe and their belief system includes the belief that the River has human traits. It has also been the home for a large proportion of Māori villages in pre-European times, as such, it is regarded as a special treasure or taonga.
Prior to 1848 a substantial Māori population, which was dispersed along the Whanganui River and its major tributaries, enjoyed rights and responsibilities over the River. However, this changed when the Crown purchased 86,200 acres of land in 1848, at Whanganui. The Crown, then, proceeded to assert authority over the land and River within the area purchased. This was opposed by the Māori, who asserted control over the rest of the area and continued to make use of the River.
Despite legislation from the late 1850s allowing the erection and the management of structures on the River by local authorities, the Māori weren’t provided with a similar involvement.
35 years later, the ‘improvement’ of the River rapids in form of a steamer service resulted in further conflict between the Māori and the Crown. The Māori proceeded to protest against the service, its scale and impact, from 1887 onwards. Their petition was rooted in the fact that a steamer service would destroy one of their main food sources, namely the fish and eel weirs within the River.
By 1891 most fish and eel weirs had, in fact, been destroyed. The Whanganui River Trust Act was passed which aimed to, amongst other things, protect the navigability of the River. The powers of the Trust were expanded by the Parliament between 1893 and the 1920’s, and began to include the right to extract gravel from the River and sell it. This right was included despite ongoing concerns being voiced by the Whanganui Iwi and their attempts at obstructing River works.
The Coal-mines Act Amendment Act in 1903 expanded the issue further, by declaring the beds of all navigable rivers to be vested in the Crown and that they have always been vested in the Crown. The Whanaganui Iwi were not consulted over the Coal-mines Act Amendment Act and continued to assert their interests in the Whanganui River throughout the twentieth century.
A Royal Commission finding in 1950 concluded that were it not for the legislation, instead of the Crown, the Whanganui Iwi would be the owners of the riverbed. It also went on to recommend compensation for the gravel extraction undertaken. Yet, the claim to ownership of the bed of the Whanganui River proceeded through the courts from 1938 until 1962. Furthermore, no consultation was taken up with the Whanganui Iwi over a proposed Power Scheme in Tongariro. This was authorised in 1958s, by a Crown Order in Council, and allowed the diversion of water from the Whanganui River and other rivers into said scheme. In 1962 the Court of Appeal ruled that the Māori customary ownership of the River had been rendered non-existent by granting the Crown titles.
Finally, the Whanganui River Māori Trust Board was established by statute in 1988. It negotiated outstanding Whanganui Iwi claims for the settlement over the Whanganui River. In signing this Deed of Settlement, the Crown recognised, amongst other things, “its failure to protect the interests of Whanganui Iwi, and the adverse effects and prejudice caused to Whanganui Iwi.”
Several settlements have, prior to the Deed of Settlement, recognised Māori conceptions of the environment, among them are settlements that relate to the Waikato, Waipā and Kaituna Rivers. The Waikato River settlement, for example recognises that the River is an ancestor (tupuna) to the Waikato-Tainui, as such it possesses a life force. Previous settlements have put co-management regimes into place that helped to establish agreements between the local governments and the Māori communities.
S.1.3 of the Deed of Settlement provides that the overarching purpose is to grant:
- 1.3.1: “the legal recognition of the River (granting status to the River as a person)”;
- 1.3.2: “the legal recognition and effect of lupua te Kawa”
- 1.3.3: “the development and effect of Te Heke Ngahuru ki Te Awa Tupua”
- 1.3.4: “the protection and promotion of the health and wellbeing of Te Awa Tupua”
Te Awa Tupua operates within the confines of the Resource Management Act 1991, which governs the sustainable management of natural and physical resources in New Zealand.
Each section has a Māori name and is introduced by reference to a traditional saying.
Under s.2.2, “Te Awa Tupua is a legal person.” The effect of this provision is that if Te Awa Tupua is a person, that therefore cannot be owned, then the resolution of ownership is not required. In that way the title of the riverbed has been vested away from the Crown and placed in the name of Te Awa Tupua itself (s.6.1). However, private interests in Te Awa Tupua are maintained: in s.6.11 a number of matters are preserved and remain unaffected by vesting under the settlement. This includes “existing public access and use” (s.6.11.1), “existing private property rights including customary title and rights”, (s.6.11.2) and “the existing ownership of and consents for legal structures” (s.6.11.6). Any existing legal interests also continue to apply pursuant to s.6.12.
S.2.3 provides that the River “has the rights, powers, duties and liabilities of a legal person”.
S.3. of the Deed of Settlement provides that two people are to be appointed as guardians of the River, guided by Māori values. These guardians are referred to as Te Pou Tupua. The section states that the guardians “promote and protect the health and wellbeing” of the River, “recognising both the importance of the role and the need to interact with Ministers … and communities”. $200,000 per year for 20 years is provided for the River’s representatives, the Te Pou Tupua, $30 million is provided by the Deed of Settlement for the establishment of a River fund, and $430,000 for the establishment of a strategy and strategy group, Te Heke Ngahuru.
S.3. of the Deed of Settlement provides a mechanism for the appointment of legal representatives who, pursuant to s.3.4.1, “must … develop appropriate mechanisms for engaging with and reporting to [local Māori] on matters relating to [the river]”. S.3.4.2 notes that the representatives “may, from time to time, report publicly on matters relating to [the river].”
Julia Talbot-Jones of the Australian National University is of the opinion that it “will take several years to determine the effectiveness of this change”.
The Deed of Settlement is already being replicated for the governance of Te Urewera National Park, New Zealand. However, the model is specific to the region and its indigenous inhabitants – incorporating the Māori belief that the River is a person into the entire premise of the policy.
There are other cases concerning the Rights of Nature around the world. The Ecuadorian Constitution ratified in 2008 provides that an ecosystem itself can be named as a party in legal proceedings. Thus, no longer treating nature primarily as property. That specific model gives ecosystems the right to ‘exist, persist, maintain and regenerate its vital cycles’ whilst still granting individuals a ‘right to benefit’ from the land, which is regulated by the state.
The Whanganui River Māori Trust Board anticipates that legislation giving effect to the Deed of Settlement will be introduced in 2017.
Despite the Whanganui River Deed of Settlement, several private interests in the River are preserved, meaning that parts of the River remain privately owned. This seems incongruous with the aspirational concept referred to in s.2.2 of the Deed of Settlement, namely that Te Awa Tupua is a person, who by definition cannot be owned. This allows for an argument concerning the weakness of the legal personification of the River or any other natural entity to be made: entailing that the legal personification of nature isn’t the ideal standard for environmental protection in the case of New Zealand.
Furthermore, in Māori mythology, tupua translates as a type of object of fear, something supernatural or a strange being. The legal recognition of a Māori demon or goblin and the legal personhood afforded to parts of the River under this name – whilst recognising specific Māori beliefs – does not recognise other religions and beliefs and may offend other communities. To that degree, the provision is atypical of a pluralistic society. The granting of rights to the River for its protection may not only not create a useful legal standard, but, on the other hand, also possibly complicate important decisions concerning substantive political content at different localities along the River. According to ethical pluralism, substantive political decisions could better be made on a case-by-case basis according to the needs of local communities and ecosystems based on scientific evidence ( Barraclough, 2013).
Another criticism arises from the Deed of Settlement being targeted towards recognising the legal rights of the community who live on the Whanganui River, as opposed to reflecting an actual commitment to the Rights of Nature per se. (Barraclough 2013).
Despite the Deed of Settlement recognising the intrinsic value of the River, and thereby encouraging its sustainable use, it could be argued that questioning the legality of human practices and interference on the River could be supported through other means. Christopher Stone, whose ideas are reflected in the policy, stated, “it is an all too common mistake to suppose that all questions of legal considerateness boil down to questions of legal rights.” (Stone, 1985).
Christopher Stone “Should Trees Have Standing?” (1972) 45 Southern California Law Review 450
Christopher Stone “Should Trees Have Standing? Revisited: How Far Will Law and Morals Reach? A Pluralist Perspective” (1985) 59 S Cal L Rev 1)
Barraclough, T, 2013. How Far can the Te Awa Tupua (Whanganui River) Proposal be said to reflect the rights of nature in New Zealand? (University of Otago).
Te Aho L (2012), ‘Ngā Whakatunga Waimāori: Freshwater Settlements’ Chapter 7 in Wheen, N.R and Hayward, J Treaty of Waitangi Settlements (Bridget Williams Books) 102.