February 2014 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2013 – Turbulent times: speculations about the Whanganui River’s position as a legal entity

Sir Edward Taihakurei Durie student essay competition 2013

Turbulent times: speculations about how the Whanganui River's position as a legal entity will be implemented and how it may erode the New Zealand legal landscape

The Māori Law Review is pleased to publish Laura Hardcastle's prize winning essay on recognising the Whanganui River as a legal entity.

Foreword by Carwyn Jones, Māori Law Review co-editor

In 2013, the Māori Law Review sponsored the second Sir Edward Taihakurei Durie Student Essay Competition. This is an annual competition aimed at supporting and developing emerging scholars.

We are very pleased to publish Laura Hardcastle’s winning entry in this edition.

The competition asked students to write about the most important legal development affecting Māori from the previous year and was judged by a panel of the Māori Law Review’s consulting editors.  The standard of entries received was very high.

Ms Hardcastle, a student at Victoria University of Wellington, chose to write about the ground-breaking Whanganui River settlement that will recognise legal personality of the river itself.  Her essay is entitled ‘Turbulent times: speculations about how the Whanganui River’s position as a legal entity will be implemented and how it may erode the New Zealand legal landscape’. It considers a range of issues that the New Zealand legal system will need to grapple with as a result of this innovative redress. The essay also draws parallels with the recent Tūhoe settlement, which includes an agreement for Te Urewera National Park to become a legal entity.

As Ms Hardcastle’s essay illustrates, these two agreements have potentially wide-ranging ramifications. Beyond the context of the two specific settlements, these agreements arguably represent a shift towards more effective recognition of Māori understandings of relationships between people and the natural environment. Internationally, these agreements have been held up as an important achievement for environmental protection more generally. Perhaps most significantly, Ms Hardcastle points to the ways in which New Zealand law might need to adapt in order to accommodate these new legal entities, which may come to be seen as “the start of a journey towards a new set of fundamental values to underlie our law.”

Turbulent times: speculations about how the Whanganui River's position as a legal entity will be implemented and how it may erode the New Zealand legal landscape

Introduction

In August 2012, sustainably-produced champagne corks popped as environmentalists celebrated a world-first agreement for the Whanganui River to become a legal person. 1 The Huffington Post’s article alone received 2000 ‘likes’ on Facebook, that inescapable gauge of public opinion, with supporters rejoicing in evidence that governments no longer saw nature as an exploitable resource. 2 Whilst the concept had been mooted before, it had always been considered somewhat “radical”. 3 Now, perhaps, rights for non-human entities would enter the mainstream. These celebrations may prove premature.

The agreement forms part of the Treaty of Waitangi settlement process for claims by the Atihaunui-ā-Pāpārangi iwi for the Whanganui River along which they lived for nearly a millennium before the Crown took ownership through a 1903 statute. 4 A favourable Waitangi Tribunal report led the iwi to enter negotiations with the Crown, a Record of Understanding being released in 2011. Perhaps as a compromise to prevent iwi from gaining ownership, the Crown agreed to include in the forthcoming settlement statute recognition of the river as a legal entity called Te Awa Tupua. 5

Taking its cue from the river, this essay first explores the legislation’s anticipated initial (in a river, the ‘upper’) course, principally focusing on what the statutory ‘bed’ may look like and the practical issues it must address. Additional insight has recently been provided by the Te Urewera-Tūhoe Bill, which was introduced to Parliament on 7 August 2013 and seeks to place Te Urewera “beyond human ownership” by recognising it too as a distinct legal entity. 6 The Te Urewera Bill may be considered a tributary, as the experience of its drafting and eventual passage through Parliament will inevitably flow into and affect the final Whanganui River Act. However, the Whanganui will still have to forge its own path through the legal landscape.

In the medium term, the Te Awa Tupua concept will be constrained by the courts as cases arise, in the same way a river’s banks limit it. Beyond this is the question of how the river will alter and erode the surrounding landscape of societal attitudes and underlying principles of the law. At each point, the river must work around existing obstacles, or gradually erode the current legal landscape, creating something entirely new. Regardless, the final product has the potential to be ground-breaking, with 2013 marking the start of a revolution within indigenous and environmental law alike.

Discussion

Te Awa Tupua’s source – the statute

As yet, there exists no publicly available draft Bill for the Whanganui River settlement. However, the Te Urewera-Tūhoe Bill and the Tūtohu Whakatupua (framework agreement) between the Crown and Whanganui iwi give some indication as to what the eventual Bill will look like. For example, the latter defines Te Awa Tupua as comprising “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”, uniting the areas below, above and including the riverbed. 7 As for Te Urewera, the Whanganui River will be declared a legal entity with “all the rights, powers, duties, and liabilities of a legal person.” 8

The Te Urewera-Tūhoe Bill will vest any Te Urewera land currently held as a conservation area, Crown land, a national park or a reserve as a fee simple estate in the newly-created entity at which point, it will become inalienable. 9 Similarly, Crown property, 230km of the river’s 290km length, 10 in the Whanganui riverbed will be vested in Te Awa Tupua. 11 This is conceptually problematic, with the whole that is Te Awa Tupua having property in part of itself. Furthermore, conventional wisdom is that the common law and legislation will not allow water to be owned, only the river’s bed. 12 The Waitangi Tribunal at the time suggested that this should be ignored, and native title applied as the indigenous people would see it, with the river considered a whole which may not be owned. 13 The Tribunal has since concluded that Māori retain residual proprietary rights to water such as comprising the Whanganui. 14 Rather than addressing this complex issue, it is probable that the Whanganui legislation, like the Te Urewera-Tūhoe Bill, will flow around existing law, ignoring the problem of a river owning part of itself, so Te Awa Tupua will own its bed, but have no rights to its waters.

A related difficulty is that just as the river may be considered a whole, so may the rest of nature. It is logically and scientifically incorrect to divide the river from its catchment, the two being intimately interconnected. Admittedly, both the common law and statutes such as the Resource Management Act 1991 are littered with arbitrary divisions of nature into identifiable segments such as that of rivers into the water, which cannot be owned, and the bed and banks which can, as already discussed. 15 Whilst the Whanganui agreement is a step in the right direction by combining the river, bed and banks into one entity, Te Awa Tupua, it arguably does not go far enough and allows nature to continue to be divided into manageable, and potentially exploitable, chunks.

Furthermore, if the river is to be separated from the rest of nature, where will its boundaries be? At what point does the river become the sea and cease to be Te Awa Tupua? Where does the river start? The answer to this last is logically the river’s source, but as all tributaries lie within the definition, the source point of each must be defined, a challenge in New Zealand’s mountainous terrain. Such a fine-grained analysis of boundaries will not always be necessary, but scenarios may arise where such a small matter may decide a case. Any statute will thus have to carefully enunciate where Te Awa Tupua’s boundaries will be.

Given that Te Awa Tupua will obviously be unable to protect its own rights, the legislation will regulate the appointment of river guardians (Te Pou Tupua), one by the Crown, one by iwi, to protect and promote Te Awa Tupua’s status and wellbeing. 16  By contrast, the Te Urewera-Tūhoe Bill establishes a Board, which will be empowered to prepare, approve and advise on a Te Urewera management plan, make bylaws, authorise activities, prepare and commission reports, liaise with other agencies and advocate on Te Urewera’s behalf “in any statutory process or at any public forum.” 17 For the first three years after settlement, the Board will comprise eight members, four each appointed by Tūhoe Te Uru Taumatua’s trustees, and the Ministers for Conservation and Treaty Negotiations. After three years, membership will increase to nine, with six appointed by the trustees and three by the Ministers. 18

The Whanganui statute will also confirm that, once appointed, guardians no longer represent their appointee, just as the Te Urewera Board members will be expected to act only in such a way as to achieve the Board’s purposes. 19 However, environmentalists may be concerned that the Crown and iwi may appoint individuals sympathetic to their respective views. Furthermore, whilst not mentioned in the Tūtohu Whakatupua, consideration of the iwi’s economic development is included in the initial Record of Understanding, suggesting environmental concerns may not always be paramount. 20 Iwi influence may also be reduced once guardians are appointed, as whilst the Crown will remain a major player through local governments and other bodies, iwi will have to vie for attention with the guardians if their positions conflict (although if they coincide, iwi voices will be strengthened).

If the Whanganui River statute is drafted similarly to the Te Urewera-Tūhoe Bill, the guardians’ principal responsibilities and powers are likely to be the drafting of a management plan, authorising particular activities (although the Te Urewera Board cannot prevent mining in the region, which remains controlled by the Crown Minerals Act 1991) and passing bylaws. 21 The Bill allows bylaws to be made for a wide range of reasons such as “the management, safety and preservation of Te Urewera”, “prohibiting and regulating the use of internal combustion engines” and “excluding the public from any specified part of Te Urewera.” 22 However, all bylaws must be approved by the Minister for Conservation, which may prevent particularly radical approaches to protecting Te Urewera’s environment. Furthermore, breaches of bylaws warrant fines up to only $5000, significantly reducing their potential for curbing destructive behaviour. 23

It is also unclear how Te Awa Tupua’s new rights will interact with those of others. The Tūtohu Whakatupua makes clear that Te Awa Tupua’s status will not affect private property rights. 24 It is likely to contain a provision similar to that included in the Te Urewera-Tūhoe Bill which states that the title of any “registered proprietor of land adjacent to Te Urewera land” will not be adversely impacted. 25 However, neighbouring landowners may remain concerned about what rights natural objects will have to sue and be sued for harm done to or by them, a frequent point of contention whenever rights for natural objects are mooted. In terms of the former, the Te Urewera-Tūhoe Bill addresses the issue of recompense for harm done to Te Urewera instead through a number of offences to penalise anyone who, for example “removes or wilfully damages any, or any part of, any plant, stone, mineral, gravel, kauri gum, or protected New Zealand object in Te Urewera.” 26 Individuals committing such offences face fines of up to $100,000 (plus a further $10,000 for every day the activity continues) and either up to 1 or 2 years imprisonment depending on the offence. Body corporates are liable for fines up to $200,000. 27 Should the offence be committed in pursuit of commercial gain (proved beyond reasonable doubt), fines are increased to up to $300,000, whilst individuals face up to five years imprisonment, thus sending a very clear message that this statute aims to prioritise the environment over economic concerns. 28

Since any money recovered by way of fines is to be paid to the Board, and the range of offences and fines available is considerable, it would appear to be unnecessary for the Te Urewera Board, or the Te Pou Tupua, to be able to sue those responsible for environmental harm. 29 However, there may be occasions when criminal proceedings are unsuccessful, particularly given the higher ‘beyond reasonable doubt’ standard of proof needed for a criminal prosecution compared to the civil standard of ‘on the balance of probabilities’, or the amount recoverable in fines may be inadequate to repair the damage done. The ability to launch its own suits would also entrench a natural object’s status as a legal person in its own right, rather than it being forced to rely on the state to prosecute individuals, as Te Urewera will likely have to do. Despite cl 118 giving Te Urewera “all the rights, powers, duties and liabilities of a legal person”, which presumably includes the ability to sue other legal persons, it, or rather the Board, is prevented from doing so as the aforementioned “rights, powers, and duties” may only be exercised “in the manner provided for in Parts 5 to 7” of the Act. Thus, whilst the Attorney General’s comparison of the Whanganui River’s legal standing to that of a company suggests its rights to sue and be sued will be considerable, if the Te Urewera-Tūhoe Bill is anything to go by, the analogy is likely to be inaccurate. 30

Admittedly, if given rights to sue, the river would become one of few non-human entities so endowed (ships, companies and trusts may all sue, but are collections of people). 31 Full rights to sue may also be politically unpopular, with those owning businesses affecting the river fearing increased legal activity. Usual arguments in favour of rights for natural entities include that allowing the river to sue in its own right would mean that more individuals who have previously escaped liability may face court for their destructive behaviour, and provide an obvious plaintiff at least for some cases involving environmental degradation. It would avoid the problem faced by environmentalists in the United States, who must argue that they themselves suffer harm through being unable to see a rare animal to prevent its habitat from being destroyed. 32 However, these issues can be addressed through the system of offences and penalties included in the Te Urewera-Tūhoe Bill, although the standard of proof required for conviction is higher. The problem with this is that it undermines the purpose of the Bill and wider settlement, which is to recognise the mana and individual identity of Te Urewera. Instead of allowing Te Urewera standing in its own right to protect its own integrity, it is once again reliant on the Crown to prosecute those who have defiled it. It remains to be seen how many such prosecutions actually occur.

It is interesting to note that, whilst the “rights, powers, and duties” of Te Urewera are limited to being exercised in accordance with the Act, its liabilities are not so limited. 33 Indeed, cl 202 only excludes liabilities relating to rates, fire authority levies and contamination of land during the Crown’s stewardship. Te Urewera, and the Whanganui (if similar sections are imported into that Act), are thus very limited in what rights they may rely on but virtually unlimited in terms of liability. However, this presupposes that a suit might be successful against Te Awa Tupua, which appears unlikely as most actions for property damage require a particular mental state of the defendant. A river cannot be negligent or trespass as it could never intend the act that amounted to trespass. 34 Nuisance is unavailable as occupiers have no claim for water flowing naturally onto their land, 35 whilst the accumulation of water in a river could not be seen as a non-natural use of land as required by Rylands v Fletcher, 36 The Accident Compensation Act 2001 also prevents any claims for personal injury. 37 All that remains are strict liability offences, of which New Zealand has very few. The Resource Management Act 1991 s 341 attributes strict liability to six sections. Section 14 relating to damming or diverting water courses (perhaps applicable to a river which has flooded due to debris build up) and s 15 relating to discharging contaminants (if the river spreads contamination to surrounding lands) might be interpreted (albeit widely) to include rivers. However, even if such an offence were proven, s 341 offers a defence if events were beyond the defendant’s control, although the river may struggle to demonstrate the necessary adequate mitigation or remedy also required of the defendant 38 Perhaps a river’s action in dispersing flood water and contamination will always be adequate as there is nothing else it can do.

It would thus appear that Parliament has effectively legislated out of the issue of Te Urewera being able to sue and be sued, and will probably include similar provisions in any Act relating to the Whanganui. Whether these natural objects can be considered true legal entities without such rights is debateable.

Testing the waters – in the court

Should issues relating to the eventual Whanganui River statute reach the courts, judges will find themselves interpreting an essentially unique statute, with few countries worldwide having in any way comparable provisions to offer guidance.

Causation may be problematic both in terms of criminal prosecutions and private suits by the board or guardians responsible for a natural entity, as it can be difficult to identify who precisely is responsible for an environmental problem. Whilst it might be reasonably straightforward to ascertain who unlawfully took a particular dog into Te Urewera, demonstrating who “interfere[ed] with or damage[ed] a natural…feature” might be difficult, especially if the harm is caused by pollution originating outside of the park. 39 In the Whanganui context, proving conclusively who is responsible for pollution or farm run-off is not always straightforward. In response to similar problems, an Ecuadorian provincial court at least was willing to adjust procedural rules to fully vindicate the rights gifted Pachamama (Mother Earth) in the country’s constitution. 40 Not only did the court accept largely probabilistic evidence as to guilt but emphasised that in cases involving nature’s rights, the defendant bears the burden of proof given they generally have greater information as to the likelihood of environmental harm resulting from their activities. It remains to be seen whether the New Zealand courts would contemplate a similar shift in burden or whether this would require parliamentary action.

In the absence of a statutory direction, it will be interesting to see how courts will award damages should multiple claimants be able to sue for the same event: private landowners for their stretch of riverbed and banks, and Te Awa Tupua, either through a suit or more likely through a criminal prosecution, for harm to the river itself. Courts are unlikely to make defendants pay twice over, once through fines and once through damages, so landowners may see awards reduced, an unpopular move unless the river guardians compensate them for the difference. Theoretically, it should be irrelevant as hopefully the money would be used to restore the river anyway, but in reality, landowners might forego restoration to use damages for other things. Furthermore, what will be taken as the Whanganui’s natural state for the purposes of restoration, given its centuries of human modification; its unaltered condition (in which case defendants will pay for harm they did not cause) or the river’s current state (perhaps allowing defendants to escape liability for harm done before the present)? 41

Eroding the legal landscape – long term considerations

The Te Awa Tupua legislation is virtually certain to pass as the alternative would be to repeat a long, costly negotiation process. Thus, rather than argue as to whether such legislation is necessary or even particularly helpful, it is pertinent to ask what changes it may precipitate. 42

Te Awa Tupua arguably marks a significant step towards recognising Māori perspectives within New Zealand’s European legal system in comparison with previous agreements, which have resulted only in increased consultation and co-management. 43 The traditional view of Māori conceptions of nature is that rivers have distinct personalities 44 as well as mauri (life force) which may be lost if not respected; 45 but is this reflective of what Māori have believed and now believe? Crown historian Fergus Sinclair has argued that Māori spiritual relationships with the Whanganui have only recently been claimed. Instead, early documents indicated Māori always considered the river property, and indeed, ownership was what iwi initially sought. 46 However, the Waitangi Tribunal suggests Māori may not have wished to argue with the prevailing European world view until recently. 47 In reality, perhaps only a member of the Whanganui iwi can truly say whether the Te Awa Tupua legislation accurately reflects their world view.

It is interesting that the Whanganui River is the first natural feature to be viewed as a living entity in New Zealand (the Tūtohu Whakatupua pre-dating the release of the Te Urewera-Tūhoe agreement and draft bill). Māori mythology describes the Whanganui being formed as a grief-stricken god, Taranaki, fled to the coast from his initial position by Tongariro, 48 or alternatively, that it resulted from a teardrop gifted to Ruapehu by the god Ranginui. 49 Thus, the mountains were viewed as gods with definite personalities, whilst the river was merely a product of those gods, perhaps indicating that the mountains should be next to receive legal rights. Indeed, the Te Urewera Bill appears to be a step in this direction. Regardless, it appears likely more natural features will become legal entities as the Whanganui sets a precedent for future Treaty settlements. This may actually advantage the Crown, providing a middle ground between vesting title in the iwi and refusing claims to anything other than co-management. However, iwi who have already settled claims with the Crown will be unable to add such provisions to their settlements and would have to request a separate statute to provide any entities within their regions with legal status.

In terms of environmental law, the conflation of indigenous and environmental rights has frequently been used to protect otherwise-vulnerable natural entities, as well as to introduce concepts foreign to Western legal systems but vital for environmental protection, such as intergenerational responsibility through Māori ideas of whakapapa. 50 However, indigenous beliefs do not necessarily protect the intrinsic value of nature; arguably, ideas about such value merely arose to prevent overuse of resources and ensure a group’s survival. 51 That environmental and indigenous interests can conflict has been demonstrated by Bolivia’s attempts to introduce rights for nature being resisted by the Confederation of Indigenous Peoples of Bolivia, who believe they have been shut out of the process by environmental groups. 52 In particular, the removal of a clause allowing indigenous groups to accept or reject megaprojects conducted on their lands is unpopular. Thus, the relationship between indigenous rights and environmental rights may be somewhat turbulent.

Regardless of whether Te Awa Tupua is simply a compromise with Māori, it may set a precedent for increasing adoption of rights for nature, ecocentric and indigenous values and Earth Jurisprudence (legal theories centring on the Earth) 53 more generally, showing they are to some extent compatible with Western capitalism. However, deeper change than a few statutes must occur, as property rights remain a ‘bulwark’ against an holistic view of the environment, whilst landowners perceive their rights to be breached by every new environmental regulation. 54 There is also a danger in fitting Te Awa Tupua into the current legal system, with one academic suggesting that its status as a legal entity paves the way for private commercial ownership of the river in future, with iwi levying river users. 55 This is somewhat unlikely given the independent guardian model proposed, but the separation of the river from the rest of the environment is reminiscent of the dividing up of land and disappearance of communal ownership that caused so many problems for Māori in the first place.

Conclusion

Perhaps Te Awa Tupua and its younger companion, Te Urewera, are the start of a journey towards a new set of fundamental values to underlie our law, but the progress it represents should not be overstated. Ultimately, if it is eroding the legal landscape, it is only doing so very slowly, working around difficult issues and reaffirming the current system with its references to vesting the riverbed in the entity, and its comparison of Te Awa Tupua’s rights with those of a company. However, it must be remembered that although one drop of water cannot alter a landscape, put many together and give them sufficient time and they can form caves, waterfalls and cliffs, altering the landscape irrevocably, just as the majestic Whanganui has done.

Reference List

A       Legislation

Accident Compensation Act 2001.

Resource Management Act 1991.

B     Articles

Jeremy Baker “The Waikato-Tainui Settlement Act: A New High-Water Mark For Natural Resources Co-Management” (2013) 24 COJIELP 163.

Polly Botsford “Environmental Law Gets Radical”(2012) 66 No 5 IBAGI 34.

Cormac Cullinan “Do Humans Have Standing to Deny Trees Rights?” (2008) 11 BARRYLR 11.

Erin Daly “The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature” (2012) 21 REICEL 63.

Don Ellinghausen, Jr. “Unnatural Foundations: Legal Education’s Ecologically-Dismissive Subtexts” (2011) 41 ENTL 681.

Susan Emmenegger and Axel Tschentscher “Taking Nature’s Rights Seriously: The Long Way To Biocentrism In Environmental Law” (1994) 6 GEOIELR 545.

Brendan Kennedy “I Am the River and the River is Me: The Implications of a River Receiving Personhood Status” (2012) 36 Cultural Survival Quarterly.

Judith E. Koons “What is Earth Jurisprudence?: Key Principles to Transform Law for the Health of the Planet” (2009) 18 PENNSELR 47.

Judith E. Koons “Earth Jurisprudence and the Story of Oil: Intergenerational Justice for the Post-Petroleum Period” (2011) 46 USFL Rev 93.

Judith E. Koons “At the Tipping Point: Defining An Earth Jurisprudence for Social and Ecological Justice” (2012) 58 LYLR 349.

James L. Huffman “Do Species and Nature Have Rights?” 13 PUBLLR 51 at 65

James R. May and Erin Daly “Vindicating Fundamental Environmental Rights Worldwide” (2009) 11 ORRIL 365.

Joel Schwartz “The Rights of Nature and the Death of God” (1989) 97 Public Interest 3.

Sarah Schwemin “What if we could sue the hurricanes? The necessity of recognizing the rights of natural entities” (2008) 11 BARRYLR 95

Sister Patricia Siemen “Earth Jurisprudence: Toward Law in Nature’s Balance” (2008) 11 BARRYLR 1.

Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – the Waikato River Settlement” (2010) 20 Water Law 285.

Rebecca Tuhus-Dubrow “Sued By The Forest: Should Nature Be Able To Take You To Court?” (2009) 24 MEBJ 232.

C     Books and Chapters of Books

Arthur Bates The Wanganui River Digest (Wanganui Newspapers Ltd, Wanganui, 1983).

Thomas Berry “Rights of the Earth: We Need a New Legal Framework Which Recognises the Rights of All Living Beings” in Peter Burdon (ed) Exploring Wild Law (Wakefield Press, Kent Town, 2011) 227.

Dieter Birnbacher “Legal Rights For Natural Objects A Philosophical Critique” in Edgar Morscher, Otto Neumaier and Peter Simons (eds) Applied Ethics In A Troubled World (Kluwer Academic Publishers, Dordrecht, 1998) 29.

Ross Calman (ed.) Reed Book of Māori Mythology (Reed Publishing, Auckland, 2004).

Christopher D. Stone “Toward Legal Rights for Natural Objects” in Christopher D. Stone Should Trees Have Standing? And other essays on law, morals and the environment Anniversary 25th edition (Oceana Publications, New York, 1996) 1.

D    News Articles

Natasha Burling “Settlement may open up commercial ownership of river” NewstalkZB (Online, 31 August 2012).

Economic & Political Weekly “If Mountains and Rivers Could Speak” (14 January 2012).

Anne-Marie Emerson “Solid waste dump causes stench in Wanganui” The New Zealand Herald (New Zealand, 19 December 2012).

Alison Fairbrother “New Zealand’s Whanganui River Gains A Legal Voice” The Huffington Post (online, 18 September 2012).

Helen Popper “Bolivian farmers urge rethink on Mother Earth law” Reuters Online (La Paz, 31 October 2012).

Kate Shuttleworth “Agreement entitles Whanganui River to legal identity” The New Zealand Herald (New Zealand, 30 August 2012).

E      New Zealand Official Sources

Record of Understanding between Whanganui Iwi and the Crown (2011)

Tūtohu Whakatupua, Whanganui iwi and the Crown (2012).

Waitangi Tribunal The Whanganui River report (Wai 167 1999).

Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012).

F       Internet Sources

Diana Beaglehole “Whanganui places – Whanganui River” (2012) Te Ara – the Encyclopaedia of New Zealand <www.teara.govt.nz>.

Carwil Bjork James “Bolivia’s new Mother Earth Law to sideline indigenous rights” (2012) Climate Connections <www.climate-connectsions.org>.

Laws of New Zealand Nuisance

Laws of New Zealand Tort

Notes:

  1. Kate Shuttleworth “Agreement entitles Whanganui River to legal identity” The New Zealand Herald (New Zealand, 30 August 2012).
  2. Alison Fairbrother “New Zealand’s Whanganui River Gains A Legal Voice” The Huffington Post (online, 18 September 2012).
  3. James D K Morris and Jacinta Ruru “Giving voice to rivers: legal personality as a vehicle for recognising indigenous peoples’ relationships to water?” (2011) 14(2) Australian Indigenous Law Review 49 at 56.
  4. Waitangi Tribunal The Whanganui River report (Wai 167 1999) at xiii.
  5. Tūtohu Whakatupua, Whanganui iwi and the Crown (2012) at 2.4.
  6. Te Urewera-Tūhoe Bill 2013 (146-1) (explanatory note).
  7. Tūtohu Whakatupua, above n 5, at 2.4.
  8. Te Urewera-Tūhoe Bill, cl 118(1).
  9. At cls 119 and 120.
  10. Diana Beaglehole “Whanganui places – Whanganui River” (2012) Te Ara – the Encyclopaedia of New Zealand <www.teara.govt.nz>.
  11. Tūtohu Whakatupua, above n 5, at 2.10.
  12. Waitangi Tribunal, Whanganui River report, above n 4, at 21.
  13. At 24-26.
  14. See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012).
  15. Waitangi Tribunal, Whanganui River report, above n 4, at 21.
  16. Tūtohu Whakatupua, above n 4, at 2.21.
  17. Te Urewera-Tūhoe Bill, cl 125.
  18. At cl 128.
  19. Tūtohu Whakatapu, above n 4, at 2.20.3.; Te Urewera-Tūhoe Bill, cl 138(1)(a).
  20. Record of Understanding between Whanganui Iwi and the Crown (2011) at 1.19.4.
  21. Te Urewera-Tūhoe Bill, cls 125 and 163.
  22. Te Urewera-Tūhoe Bill, cl 176.
  23. At cl 176.
  24. Tūtohu Whakatupua, above n 5, at 2.13.
  25. Te Urewera-Tūhoe Bill, cl 197.
  26. At cl 182(1)(d).
  27. At cls 184 and 185.
  28. At cl 186.
  29. At cl 187.
  30. Kate Shuttleworth, above n 1.
  31. Rebecca Tuhus-Dubrow “Sued By The Forest: Should Nature Be Able To Take You To Court?” (2009) 24 MEBJ 232 at 233.
  32. Lujan v Defenders of Wildlife, 504 U.S. cited in Judith E Koons “What is Earth Jurisprudence?: Key Principles to Transform Law for the Health of the Planet” (2009) 18 PENNSELR 47 at 60.
  33. Te Urewera-Tūhoe Bill, cl 118.
  34. Laws of New Zealand Tort at [207].
  35. Laws of New Zealand Nuisance at [10].
  36. Laws of New Zealand Torts at [114].
  37. Accident Compensation Act 2001, s 317.
  38. Resource Management Act, s 341(2)(b).
  39. Te Urewera-Tūhoe Bill, cl 182.
  40. Erin Daly “The Ecuadorian Exemplar: The First Ever Vindications of Constitutional Rights of Nature” (2012) 21 REICEL 63 at 64. See also Ecuadorian Constitution articles 71-75.
  41. James L Huffman “Do Species and Nature Have Rights?” 13 PUBLLR 51 at 65.
  42. For a detailed discussion of the need for such legislation, see Morris and Ruru, above n 3.
  43. See for example Jeremy Baker “The Waikato-Tainui Settlement Act: A New High-Water Mark For Natural Resources Co-Management” (2013) 24 COJIELP 163.
  44. Ross Calman (ed.) Reed Book of Maori Mythology (Reed Publishing, Auckland, 2004) at 326.
  45. Waitangi Tribunal, Whanganui River report, above n 4, at 39.
  46. At 24.
  47. At 26.
  48. Arthur Bates The Wanganui River Digest (Wanganui Newspapers Ltd, Wanganui, 1983) at 5.
  49. Waitangi Tribunal, Whanganui River report, above n 4, at 76.
  50. Baker, above n 43 at 175.
  51. At 176 and Pita Sharples quoted in Brendan Kennedy “I Am the River and the River is Me: The Implications of a River Receiving Personhood Status” (2012) 36 Cultural Survival Quarterly.
  52. Carwil Bjork James “Bolivia’s new Mother Earth Law to sideline indigenous rights” (2012) Climate Connections <www.climate-connectsions.org>
  53. Judith E Koons “Earth Jurisprudence and the Story of Oil: Intergenerational Justice for the Post-Petroleum Period” (2011) 46 USFL Rev 93 at 94.
  54. Don Ellinghausen, Jr “Unnatural Foundations: Legal Education’s Ecologically-Dismissive Subtexts” (2011) 41 ENTL 681 at 690.
  55. Natasha Burling “Settlement may open up commercial ownership of river” NewstalkZB (Online, 31 August 2012).
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Author: Laura Hardcastle