May 2014 Māori Law Review

Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River

Linda Te Aho reviews Ruruku Whakatupua Te Mana o te Awa Tupua, the recent document setting out a new legal framework for Te Awa Tupua (the Whanganui River system) as part of the settlement of historical claims by Whanganui iwi about the Whanganui River.

Overview

Ruruku Whakatupua Te Mana o te Awa Tupua is a document containing the terms of a new legal framework for Te Awa Tupua, the Whanganui River system.  The intention of the framework is to uphold the mana of Te Awa Tupua and to recognise the intrinsic ties that bind Te Awa Tupua and its people to each other.  The framework document comes under the umbrella of Ruruku Whakatupua Te Mana o te Iwi o Whanganui,  a Deed of Settlement between Whanganui Iwi and the Crown which will settle the Iwi’s historical Treaty of Waitangi claims in relation to Te Awa Tupua.   Whanganui Iwi will now go through a process whereby eligible members may vote on whether to ratify the Deed.  Despite some reported dissension concerning the Ngāti Uenuku hapū, 1 it is likely that the Deed will be supported.

Background

An Agreement entitled Tūtohu Whakatupua between the Crown and Whanganui Iwi in 2012 stirred interest and excitement when it foreshadowed redress that would extend beyond what had been negotiated in earlier freshwater settlements. 2  Settlements such as those that relate to the Waikato, Waipā and Kaituna Rivers, and the Rotorua Lakes settlement, have recognised to varying degrees Māori conceptions of the environment.  For example, the Waikato River settlement recognises that to Waikato-Tainui the River is a tupuna, an ancestor, which has mana and a lifeforce of its own. 3  The earlier settlements have also vested lakebeds, riverbeds (or parts of the beds), and surrounding lands in claimant groups. They have created co-management regimes that either compel or encourage relationship agreements between claimant groups and central and/or local government.  These regimes provide more freedom for iwi and hapū to carry out customary activities, and will lead to more collaborative planning processes, arguably laying the foundations for the current resource management reforms.

The settlements have provided funding for restoration projects and have highlighted the need  for matauranga Māori indicators when monitoring the health and well-being of waterways.  The Whanganui River Settlement does all of these things. It also involves an interesting legal development – it accords Te Awa Tupua full legal personality.  Ownership of parts of the riverbed are to be vested in the River itself rather than the Iwi.  In 2012, the Waitangi Tribunal, under urgency, considered what rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty of Waitangi and found that Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership.  Those rights were then confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that the Treaty bargain provided for some sharing of the waters with incoming settlers. The nature and extent of the proprietary right was the exclusive right of hapū and iwi to control access to and use of the water while it was in their rohe. 4

Though it is the first river settlement to have been reached after such significant findings, the Whanganui River settlement, like those that have gone before, explicitly avoids issues relating to ownership of water. In doing so, it draws upon wording used by the Tribunal in elaborate statements about the effect of the settlement on what the Iwi view as their proprietary rights, interests, and responsibilities in water.

This review begins by offering some comments about the prominence of mātauranga Māori throughout the documents, then summarises each part of the Deed of Settlement before turning to the River framework document. It ends with some brief observations about this innovative settlement.

Discussion

M­ātauranga Māori

A striking feature of both the Deed of Settlement and the River framework document is the prominence of te reo and mātauranga Māori.  Standard template terminology and structure such as sections devoted to a Historical Account, Cultural Redress, Commercial Redress, and so on, is nowhere to be seen. Instead each part has a Māori name and is introduced by reference to a traditional saying.  All entities and frameworks to be established under the settlement enjoy Māori names.  An excellent example of this is the name ascribed to the Te Awa Tupua Strategy that will be created under the settlement, Te Heke Ngahuru ki te Awa Tupua.  Te Heke Ngahuru is the first autumn migration of eels, signifying well-stocked storehouses for the winter.   The name is said to symbolise the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource.

On a more fundamental level, the following statement appears inside the cover pages of both the Deed of Settlement and the River framework document and forms part of Tupua Te Kawa, the intrinsic values of the settlement:

E rere kau  mai te Awa nui

Mai i te Kahui Maunga ki Tangaroa

Ko au te Awa, ko te Awa ko au

The English interpretation follows:  ‘The Great River flows from the Mountains to the Sea. I am the River, and the River is me.’  This brief statement encompasses many layers of meaning. It recognises that Te Awa Tupua is an indivisible and living whole from the mountains to the sea.  The now famous maxim  ‘Ko au te Awa ko te Awa ko au’ (I am the River and the River is me) proclaims the intrinsic ties that bind Te Awa Tupua and the people of the River to each other.  By doing this, this statement  encapsulates the concept of interconnectedness between humans and the environment which lies at the heart of the way that Whanganui Iwi view the world, and which forms the underlying premise of the settlement.

Deed of Settlement

The Deed is arranged in 13 Parts, each with its own title.

  1. Matua te Pō, Matua te Ao. This part recounts the journey to settlement acknowledging significant ancestors, reiterating the importance of Te Awa Tupua to Whanganui Iwi, and tracing the history of Whanganui River Claims since the first petitions in the 19th Century.  The Deed then refers to some of the key findings of the Waitangi Tribunal in its 1999 report.  The Tribunal found that the River was a single and indivisible entity, inclusive of the water; that Whanganui Iwi possessed and held rangatiratanga over the River and never sold those interests; and that acts of removing possession and control from iwi were and are contrary to Treaty principles.  Not included in the Deed’s references to the Report is the Tribunal’s recommendation, based on these findings, that the Crown negotiate with iwi having regard to two key proposals; firstly, that the river in its entirety be vested in an ancestor or ancestors of the iwi; and secondly, that any resource consent application in respect of the River would require the approval of the iwi governance entity, either solely or jointly with the current consenting authority (emphasis added).  As is seen below, the settlement does not fully adopt these forward-looking recommendations.
  2. He Pūkenga Wai, He Nohoanga Tāngata, He Nohoanga Tāngata, He Putanga Kōrero. Part 2 sets out an historical account upon which the Crown’s acknowledgement and apology in Part 3 are based.
  3. Hei Pounga Wai Hoe Mai Nā Hō Mātua. In Part 3 the Crown makes some important acknowledgements before apologising to the iwi and hapū of Whanganui, their ancestors and their descendants, for its many breaches of the Treaty of Waitangi. The Crown also recognises that redress is long overdue.
  4. Te Pākurukuru. In Part 4 the parties commit to develop a relationship document.
  5. Te Pā Auroa nā Te Awa Tupua. Part 5 summarises the key features of the Te Awa Tupua Framework named Te Pā Auroa, the broad eel weir, built to withstand all seasons.  This naming symbolises the need for a well-constructed and enduring framework.  The details of the framework are set out in a separate document, Ruruku Whakatupua Te Mana o te Awa Tupua, discussed more fully below.
  6. Ko Au te Awa, Ko te Awa ko Au. Part 6 of the Deed sets out provisions that relate to the Post-Settlement Governance Entity (PSGE), Ngā Tāngata Tiaki o Whanganui.  The PSGE will receive the settlement redress and be recognised as an iwi authority and a public authority for the purposes of the Resource Management Act 1991 (RMA), and as an interested person or party for the purposes of other statutory frameworks.  Importantly in terms of the overall balancing exercise that operates when applying the RMA, Ngā Tāngata Tiaki will also be recognised as having an interest in Te Awa Tupua greater than and separate from any interest in common with the public generally.
  7. Rangahau e Tāne, Miro e Tāne. In Part 7 the exercise of customary activities (such as the annual Te Tira Hoe Waka) is acknowledged as integral to the relationship between Whanganui Iwi and Te Awa Tupua. Iwi members are allowed more freedom to carry out these activities.
  8. Te Riu Māeneene. Part 8 contains two interesting and quite different redress features. First, the Crown recognises a statement of significance in respect of 240  or more rapids of Te Awa Tupua, the importance of spiritual guardians in the River, and the importance of hapū in protecting the rapids. Secondly, recognising that the health of the River is intrinsically connected to the health of the people, clauses 8.5 to 8.8  record an agreement to progress a ‘social services project’ which will explore the development of a whole of government programme that facilitates improved service delivery by government agencies in the Whanganui region.
  9. Ngā Rauawa Aukaha Financial redress amounts to $80 million.  An additional $1 million is allocated for transitional and implementation matters relating to the establishment of the River framework. Financial redress is usually paid when settlement legislation is passed.  Here, the Crown agrees to pay $15 million of the quantum, and the $1 million transitional  fund, as on-account payments once the Deed is signed.  A further $64 million  of quantum will be paid when the draft legislation is agreed.  An additional $30 million contestable fund will be established for initiatives relating to Te Awa Tupua under Part 7 of the River framework.
  10. Te Hoeroa New governance arrangements will see existing entities such as the Whanganui River Māori Trust Board, the Pakaitore Trust, and the fisheries entity, Te Whiringa Muka Trust, dissolved and replaced by the PSGE.
  11. Nga Ritenga Whakaū. In Part 11 the Parties agree to work together in preparing for and implementing the settlement.
  12. Te Tatā Whakairoiro. Part 12 contains standard settlement matters. For example, it declares that the historical claims are settled and that the settlement is final.  The parties acknowledge that it is not possible to fully compensate Whanganui Iwi for all loss and prejudice suffered and that Whanganui Iwi intends their foregoing full compensation to contribute to New Zealand’s development, and that the ‘settlement is fair in the circumstances’.  As is typical, the historical claims that are settled are defined. Whanganui Iwi is defined by reference to significant ancestors, and the hapū that are included in the settlement are listed.  This part also confirms that certain rights remain unaffected, such as aboriginal title rights.
  13. Ngā Pānui Whakamārama. Part 13 sets out definitions and general provisions.

Ruruku Whakatupua Te Mana o te Awa Tupua

This is a separate document (the framework document) that contains the agreed terms of the new legal framework for Te Awa Tupua entitled Te Pā Auroa nā Te Awa Tupua (the framework).

  1. Te Pā Auroa nā Te Awa Tupua

The framework comprises the following elements:

  1. Te Awa Tupua and its legal status
  2. Tupua te Kawa (the Awa Tupua values)
  3. Te Pou Tupua (the human face of Te Awa Tupua)
  4. Te Karewao (the advisory group to Te Pou Tupua)
  5. Te Heke Ngahuru ki Te Awa Tupua (the Te Awa Tupua strategy)
  6. Te Kōpuka nā Te Awa Tupua (the Te Awa Tupua Strategy group)
  7. Kia Matara Rawa (the vesting of Crown-owned parts  of the bed of the Whanganui River in Te Awa Tupua); and
  8. Te Korotete o Te Awa Tupua (the Awa Tupua Fund).

Part 1 of the framework document sets out the overarching purpose of the framework; namely, the legal recognition of Te Awa Tupua, the legal recognition and effect of the Awa Tupua values, the development of the Awa Tupua strategy, and the protection and promotion of the health and wellbeing of Te Awa Tupua.  It also states how the framewok will be given effect to in legislation and in the exercise of certain statutory functions.

  1. Te Awa Tupua

Under Part 2 of the framework, Te Awa Tupua will be a legal person who has the rights, powers, duties and liabilities of a legal person.  Those rights, powers and duties will be exercised by Te Pou Tupua, the human face of the River, who is also responsible for the liabilities of Te Awa Tupua.

Four intrinsic values, Tupua te Kawa, are identified:

  1. Ko te Awa te mātāpuna o te ora - the River is the source of spiritual and physical sustenance
  2. E rere kau mai te Awa nui mai te Kahui Maunga ki Tangaroa - the great River flows from the mountains to the sea
  3. Ko au te Awa ko te Awa ko au - I am the River and the River is me
  4. Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua - the small and the large streams that flow into one another and form one River

The Crown confirms its commitment to these values.  Decision-makers exercising functions under 25 relevant statutes including the RMA (in relation to preparing or changing a regional policy statement, regional plan or district plan) are required to ‘recognise and provide for’ the status of Te Awa Tupua as well as the intrinsic values.  Decision-makers exercising functions under the Historic Places Act 1993 and the RMA (to the extent not covered above) must ‘have particular regard to’ the Te Awa Tupua status and the intrinsic values. Where the exercise of any statutory function is the subject of a written report, decision or document, that report, decision, or document must include a statement recording how those clauses have been complied with. Local authorities must consider their RMA planning documents in light of the Te Awa Tupua status, the values, and the strategy, and may initiate a review of their documents in order to comply.

  1. Te Pou Tupua – The human face of Te Awa Tupua

Symbolic of the Treaty partnership, two persons will be appointed to the single position of Te Pou Tupua - one to be appointed by interested iwi and one to be appointed by the Crown. Processes for appointment and removal are set out in Part 3.  Te Pou Tupua has full capacity to exercise its functions. Te Pou Tupua will act and speak on behalf of the River, uphold  the Te Awa Tupua status and the intrinsic values, and promote and protect the health and wellbeing of Te Awa Tupua.  Te Pou Tupua will exercise landowner functions and administer the $30 million dollar contestable fund that will be available for initiatives related to Te Awa Tupua under part 7 of the framework.  Te Pou Tupua has other functions that include developing mechanisms to engage with and report to iwi, and engaging with relevant agencies and decision making bodies.

This part provides  for the establishment of Te Karewao, an advisory group to Te Pou Tupua, made up of 3 persons, 2 appointed by iwi and one by the relevant local authorities.  An inclusive  addition is the power to appoint an additional person from iwi and hapū with interests in areas affected by the exercise of certain functions. Other persons may be invited to assist Te Pou Tupua.  Te Pou Tupua is to contract the services of the PSGE for administrative services.

The Crown will pay $200,000 per year for 20 years to contribute to the costs associated with Te Pou Tupua and Te Karewao. The purposes for the $1 million transitional fund are set out and include the commissioning of a scoping study to identify the current state of health and wellbeing of Te Awa Tupua and issues affecting that state.  Part 3 goes on to outline the relationship agreements to be established with Crown agencies and local authorities.

  1. Te Heke Ngahuru ki te Awa Tupua

Te Heke Ngahuru ki te Awa Tupua is the ‘Whole of River’ Te Awa Tupua strategy which will identify issues relating to the environmental, social, cultural, and economic health and wellbeing of Te Awa Tupua.  It will provide a strategy and recommend actions to address those issues.

A strategy group, Te Kōpuka nā Te Awa Tupua, will prepare the strategy then engage in a publicly notified consultation process before they approve the strategy.

  1. Te Kōpuka nā Te Awa Tupua

Part 5 sets out the purpose and functions of Te Kōpuka, confirms that the group has full capacity to exercise its functions, and outlines the membership of the group as being representative of persons and organisations with interests in the Whanganui River, including iwi, local and central government, commercial and recreational users and environmental groups. Part 5 goes on to declare Te Kōpuka to be the collaborative planning group for the purposes of the current RMA reform process for preparing freshwater policy statements.

Part 5 also sets out processes for appointing members to the group and its meeting procedures.  Horizons Regional Council will provide administrative support and the Crown agrees to contribute $430,000 to the Council towards the costs of establishing Te Kōpuka and the strategy.

  1. Kia Matara Rawa

Crown-owned parts of the riverbed are to be vested in Te Awa Tupua. Future vesting of land is also provided for, including parts of the bed remaining in Crown ownership following Public Works Act disposal processes.

  1. Te Korotete o Te Awa Tupua

Part 7 provides for the establishment and the administration of the $30 million contestable fund.

  1. Ngā Ritenga Whakaū

In this part the name ‘Te Awa Tupua’ is protected.

There is provision for a register of hearing commissioners which must include appointees with skills, knowledge and experience across a range of disciplines, including tikanga Māori, knowledge of the Whanganui River, and an understanding of Te Awa Tupua and Te Pā Auroa nā Te Awa Tupua.

Collaborative processes will be established to manage activities on the surface of the River, and to co-ordinate fisheries and customary food gathering.  The Crown agrees to engage with Iwi in relation to taonga and the Protected Objects Act 1975.  Te Awa Tupua is deemed to be a body corporate for the purpose of making an application to be a heritage protection authority under the RMA.

  1. Ngā Pānui Whakamārama

A notable feature of the definitions and general provisions section is the inclusion of elaborate statements about ownership of water, not seen in other Deeds of Settlement to the same extent.  The Crown confirms its position that no one, including the Crown, owns water.  While Whanganui Iwi confirms that it does not view its relationship with water in terms of ownership in a strict sense, it also asserts that its rights and responsibilities in relation to the Whanganui River (an indivisible and living whole being) are of a proprietary nature.  The parties agree that this settlement is not intended to derogate from the freshwater policy review process nor is it intended to resolve issues of rights and interests in water. To avoid doubt, clause 9.5 confirms that the vesting of the riverbed does not create proprietary interests in water. Te Pou Tupua’s consent is not required for the use of water (the parties acknowledge that this may change in the future following the freshwater review process), but may be required as a landowner in relation to the use of the riverbed.

Other matters include an acknowledgment by the parties that there will be future settlements with Whanganui Iwi groups in relation to lands, and with other iwi with interests in the Whanganui River and that those settlements will include consideration of the matters relating to the Whanganui National Park and the Tongariro National Park in which parts of the Whanganui River are located.

Observations

This settlement recognises the profound relationships that Whanganui Iwi have with their Awa Tupua in a way that is distinctively Māori, with te reo and mātauranga Māori at the forefront of each part of the Deed of Settlement and the River framework document.   Though the settlement does not fully adopt the Waitangi Tribunal’s recommendations set out in its 1999 Report, it does include an interesting legal development.

The according of legal personality and voice to the Whanganui River provides an opportunity for more effective recognition of the rights and interests of the River.  The legal status of the River combined with that of the Post-Settlement Governance Entity, Ngā Tāngata Tiaki, as having an interest in Te Awa Tupua greater than the public generally when applying the RMA, provides the strongest opportunity for more effective participation by Iwi in planning processes of all freshwater settlements to date.

This settlement, like that in relation to the Waikato River, compels local government relationship agreements.  The emphasis in this settlement on a stronger legal voice in RMA processes is not surprising given the feedback from Whanganui Iwi in the 1995 consultation process for the Sustainable Water Programme of Action.  At their hui, a prominent Whanganui Iwi member had this to say:

The Resource Management Act has always provided the opportunity for Māori to participate at planning level, but it never happens because there is no willingness, we have no political weight.  So we are shut out, and we become one voice amongst many other constituencies.

It is clear that Whanganui Iwi negotiators have benefitted from closely analysing earlier freshwater settlements. The settlement contains most of the redress features of other freshwater settlements, particularly those that relate to the Waikato River, and in some cases the settlement streamlines and strengthens redress mechanisms and post-settlement implementation processes.

Though significantly less than the resourcing allocated to the Waikato River settlement, the level of resourcing for Whanganui, much of which will be paid on-account; together with the Whole of River strategy will no doubt produce tangible improvements in the health and wellbeing of Te Awa Tupua. It is hoped that the provision for a social services project will have similar results for whānau, hapū and iwi.  The redress included in relation to protecting the rapids may well assist Iwi and the River in any future proposals to dam the River for water storage, given climate change challenges.

The Agreement that foreshadowed this settlement, Tūtohu Whakatupua, was the topic of the winning essay written by Laura Hardcastle for the Sir Edward Taihakurei Durie Student Essay Competition (see (2014) February Māori LR). Ms Hardcastle describes the agreement as ‘ground-breaking’, but also as a ‘compromise to prevent iwi from gaining ownership.’   I tend to agree.

 

Notes:

  1. ‘Whanganui iwi initial river deed’ Radio New Zealand http://www.radionz.co.nz/news/te-manu-korihi/239845/whanganui-iwi-initial-river-deed accessed 15 April 2014.
  2. L Te Aho, ‘Ngā Whakatunga Waimāori: Freshwater Settlements’ Chapter 7 in Wheen, N.R and Hayward, J Treaty of Waitangi Settlements (Bridget Williams Books Ltd, Wellington NZ, 2012) p102.
  3. Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, Preamble.
  4. Waitangi Tribunal, The Interim Report on the National Freshwater and Geothermal Resources Claim Wai 2358, 2012, 110.
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Author: Linda Te Aho

Linda Te Aho is of Ngāti Korokī Kahukura and Waikato-Tainui descent and is the Associate Dean Māori at Te Piringa Faculty of Law, University of Waikato.