June 2013 Māori Law Review

Giving greater effect to Treaty obligations in our constitution would be good for our natural environment

Emma Smith's paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.

12 June 2013

The Whanganui River, Te Awa Tupua

The agreement between the Government and Whanganui iwi Atihaunui-a-Paparangi in 2012, recognising the Whanganui River, Te Awa Tupua, as an indivisible and living whole, marked a major change in Crown attitudes towards the Māori worldview.

The agreement recognises that the river, including its tributaries, is an integrated, living, whole from the mountains to the sea. It gives the river standing as a legal entity and an independent voice, and appoints guardians to act on behalf of Te Awa Tupua to protect its status, health, and wellbeing.

The agreement has not yet been written into legislation, but it almost certainly will, and it may pave the way for more agreements of its kind in the future.

How giving greater effect to Treaty obligations in our constitution would be good for our natural environment

The kōrero I want to have with you today is about how giving greater effect to Treaty obligations in our constitution would be good for our natural environment - another reason, as if we needed one, that key values embodied in Te Tiriti should form the basis of our constitution.

Traditional Māori culture recognises all things in the environment as sharing a common ancestry. All living things are interrelated and thus have responsibilities towards one another. Tikanga treats the environment as an entity in its own right, not as something that is simply there to serve humans. In that sense it is drastically different from the European worldview. Māori see the living environment as a taonga that should be protected and maintained, so that it may be passed on to future generations. Where the traditional European approach is to see the environment as a resource base and subordinate to humans’ needs, the Māori relationship with the environment is defined by notions of kaitiakitanga, and respect for mauri and whakapapa: people have responsibilities as guardians of the natural environment, to protect and promote its interests.

Similarly, Māori have traditionally always had a reciprocal relationship with natural things, taking only what we need, and renewing what was taken. The relationship with nature is one of interdependence.

Giving effect to Māori values

Until very recently, Māori values concerning the environment have not been given genuine effect through the legal system. Inclusion of a Māori perspective has tended to be limited to consultation and co-management.

Legislation such as the Resource Management Act 1991 provides for values of kaitiakitanga and stewardship as second-tier considerations, that decision-makers must have “particular regard to”, but are not bound to recognise.

Even the Waikato-Tainui Settlement, which recognised the Maori viewpoint that the Waikato river has a distinct personality, failed to provide anything more than a glorified co-management regime. There has been legitimate criticism of co-management regimes - can we really incorporate and apply indigenous knowledge or practices in a meaningful way, in a system created by Eurocentric institutions and practices?

On the flipside, we have already seen that an argument about protection of Māori interests is more likely to succeed than a purely environmental claim in many instances - for example when waste was dumped into the Waikato river, the Huakina Development Trust was able to successfully claim under the Resource Management Act.

The Whanganui river settlement is the first act of the Crown to genuinely recognise the Māori worldview. However, there has been significant support for greater recognition of Māori perspectives for much longer than that. A particularly salient example, I think, is in the Wai262, or “flora and fauna report” as it is commonly known. In the report, the Waitangi Tribunal dealt with the issue of indigenous knowledge as a taonga, and made, among others, the recommendation that a register of kaitiaki be set up.

One of the biggest challenges facing those who would see more inclusion of concepts like kaitiakitanga is the European notion of ownership. I remember when I was younger and my dad was teaching me some foreign words - I got frustrated when I asked him what a particular word meant, and he gave me a sentence in reply. He had to explain to me that sometimes there is no one-word English equivalent. Sometimes words represent concepts that we can’t translate directly into English. Of course, to Māori, the Whanganui River and other natural features cannot be “owned” by anyone, because they are entities in their own right. However, Governments and much of the public have struggled to appreciate that when iwi or hapū assert a claim over part of the natural environment they are not asking for a proprietary right in the sense of the English common law. This is probably aggravated by sensationalist media-driven stories - the debate over the foreshore and seabed was distorted by claims that Māori, if their rights over such areas were recognised, would exclude non-Māori or charge admission fees. I don’t pretend to offer a solution to this problem, but I believe that it lies in education and change over generations.

In reality the traditional Māori conception is that all features of the natural environment have distinct personalities, as well as mauri, or life force, which may be lost if not acknowledged and respected. To take the Whanganui river as an example, Māori mythology describes the Whanganui being formed as a grief-stricken god, Taranaki, fled to the coast from his initial position by Tongariro, or alternatively, that the river resulted from a teardrop gifted to Ruapehu by the god Ranginui.

Taking care of natural resources

If we give greater effect to Te Tiriti in our constitutional arrangements, this will necessarily be beneficial for our natural environment. For one thing, Māori would be able to exercise greater tino rangatiratanga over taonga, including natural environmental features. They would have the ability to prevent the Crown from permitting any activity that would result in damage to those features. The values of kaitiakitanga, mauri, and intergenerational responsibility would require Māori to take care of natural resources. Surely having a specifically designated group responsible for keeping a river clean is going to be more effective than delegating it to a mere co-management or consultation regime.

What we need to do now is to better incorporate the Māori worldview. Recognition of Te Awa Tupua is an important step, and it is hopefully not too optimistic to believe that soon many other natural features will also be given increased legal status. Perhaps one of the mountains in the central North Island is next?

Ko au te whenua, te whenua ko au; ko au te awa, te awa ko au

Author: Emma Smith

Emma Smith is studying towards a BA (French major)/LLB (Hons) at Victoria University of Wellington. She is involved in the Wellington Community Justice Project and tutors in public law at Victoria University.