When an agreement recently
signed in Aotearoa (New Zealand) proposed the acknowledgement of the
Whanganui River as a legal person, many saw it as an innovative resource
management solution. Indigenous Peoples around the world often struggle
with governments that do not recognize their view of the natural
environment; when natural resources are involved, Indigenous worldviews
are often in direct conflict with non-Indigenous notions of property
ownership. Viewed in this light, the agreement is even more
compelling—because it is an agreement to define a natural resource according to the worldview of Maori, the Indigenous people of Aotearoa.
A Resource for Profit or Te Awa Tupua?
The
natural resources in Aotearoa are often viewed through two different
lenses: Maori and non-Maori. Honorable Peter Sharples, noted Maori
academic and cabinet minister, describes these competing views best:
“Holding a title to property, whether Crown or private, establishes a
regime of rights—to capture, to exclude, to develop, to keep. Rangatiratanga
(Maori sovereignty or absolute chieftainship) is asserted through the
collective exercise of responsibilities— to protect, to conserve, to
augment, and to enhance over time for the security of future
generations. Both seek to increase value, but the question is, how do
you value the resource? [By] the profit you can make? Or the taonga (treasure’s) contribution to the survival of the group?”
The
answer, in this case, is the latter: the Whanganui River will be
defined and governed by the Maori view of the river. Whanganui Iwi, the
Indigenous people that possess rangatiratanga over the Whanganui River, and the river itself will be considered a living, integrated whole, or Te Awa Tupua.
This view encompasses more than chieftainship, however. As explained by
the late Niko Tangaroa, a Maori elder, Whanganui Iwi have an
interdependent relationship with the river: “The river and the land and
its people are inseparable. And so if one is affected the other is
affected also. The river is the heartbeat, the pulse of our people. . . .
[If the river] dies, we die as a people. Ka mate te Awa, ka mate tatou
te Iwi.” This unique relationship is not a concept that can be easily
understood by non-Maori because its value exists outside of the
profitgenerating notions of property.
According to Honorable
Tariana Turia, a member of parliament who is affiliated with Ngati
Apa/Wairiki, Nga Rauru, Tuwharetoa, and Whanganui Iwi, the Whanganui
River has always been a protected tribal resource—so the Whanganui Iwi
do not accept the argument that everyone and no one owns it. In fact,
prior to signing the agreement with the Crown, Whanganui Iwi argued that
assigning non-Maori ownership rights to the river were the only way
that their unique relationship, identity, and rangatiratanga could be
protected. So if Whanganui Iwi view the river differently from
non-Maori, how did Iwi get the Crown to agree to define it as they
always have, as Te Awa Tapua? Also, why did Whanganui Iwi agree to have
their rangatiratanga protected through a
non-Maori guardianship model where the river is considered a legal entity? The answers, not surprisingly, are complex.
Defining the River According to the Worldview of Maori
Ma-ori
chiefs and agents of the British monarchy began their official
partnership when they signed the Treaty of Waitangi in 1840. The
partnership continues between the Maori and the Crown today, though it
is the Treaty’s principles that govern the duties and obligations of
this partnership rather than its explicit text. Although these
principles will inevitably change to reflect the transforming needs of
the country, the courts have found that the Treaty’s principle of
partnership imposes a duty of good faith and reasonable conduct between
Maori and the Crown.
Additionally, the Crown has a duty to make
informed decisions and to protect Maori property rights. The spirit of
the Treaty also imposes the principle of redress, where the Crown is
required to provide active and positive redress for past breaches of the
Treaty. In such a case, the settlement process usually begins by the
Maori filing a claim with the Waitangi Tribunal; then Maori negotiate
with the Crown directly so that Maori can get compensation for proven
breaches of Treaty principles. Whanganui Iwi have been engaged in this
process for decades. As both parties continue to negotiate a final settlement, the agreement recognizing the river as Te Awa Tapua is an important step forward.
Tu-tohu Whakatupua: A Cause for Cautious Optimism
The
agreement that defines the Whanganui River as a legal entity, to be
protected by appointed guardians, is titled Tu-tohu Whakatupua. It
states that Ma-ori values of the Whanganui River be central to a final
settlement in which the Crown will appoint one guardian, Whanganui Iwi
will appoint one guardian, and both guardians will act together for the
benefit of the river. If the guardians have to protect the Indigenous
property value associated with the river, then they must promote and
secure the river as more than just a natural resource. In other words,
the guardians must also promote and secure the spiritual and cultural
rights of the river— not simply the physical and ecological rights.
Although
Tu-tohu Whakatupua is neither a settlement nor a decision with any
independent binding authority, if the terms are followed then the final
settlement will be governed according Whanganui Iwi values—values that
define the river as a treasure contributing to the survival of the
group, rather than a profit-generating resource. However, Whanganui Iwi
rights to the river may also end up being restricted by the recognition
of the river as a legal entity because once the guardians have been
appointed, Whanganui Iwi, like the Crown, will have no power to
influence them.
While the guardianship model ensures that the
Whanganui River will not be owned by anyone, thereby promoting the
Crown’s view of natural resources, the Whanganui Iwi maintain that the
welfare of the Whanganui River is the most important part of any
settlement. As Che Wilson, affiliated with Whanganui Iwi, notes, “the
recognition of [the river] as its own legal entity goes a long way to us
as descendants of the river [in] ensuring that the protection of the
river is upheld and its sanctity is maintained.” It is difficult to
speculate on the full implications of the agreement because its details
have yet to be fully fleshed out. But Tu-tohu Whakatupua is arguably
cause for cautious optimism as Indigenous Peoples continue to fight for
the recognition of their views of the natural environment.
—Brendan
Kennedy was born and raised in Aotearoa, and is currently a third year
law student at Suffolk University Law School in Boston, Massachusetts.
