February 2017 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2016 – Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 and Lex Aotearoa

Sir Edward Taihakurei Durie student essay competition 2016

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 and Lex Aotearoa

The Māori Law Review is pleased to publish Tyson Hullena's prize winning essay about Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.

Overview

Twenty years ago, Sir Edward Taihakurei Durie posed the question: [1]

Will we recognise the laws of England or the laws of New Zealand and if the latter, will we hone our jurisprudence to one that represents the circumstances of the country and shows that our law comes from two streams?

Sir Edward Durie’s words allude to the disconnect between two systems of law that operate in Aotearoa New Zealand, tikanga Māori (tikanga) and the law as adopted from colonial England.[2]  Tikanga is the Māori law that developed from the legal system brought to Aotearoa with Kupe.[3]   This law evolved from the new environment and circumstances that Kupe’s people experienced in their new home since leaving Hawaiki.[4]  Tikanga essentially originates from its environment.[5]

Tikanga has been described as the first law of New Zealand.[6]  The English-born common law, termed the ‘Second Law’, arrived later and has often clashed with the fluid and adaptive nature of tikanga.[7]  This clash resulted in tikanga being subordinated to the second law. The second law only acknowledged tikanga where convenient, while Māori culture was effectively assimilated into its colonial counterpart.

The increasing recognition of tikanga within the state legal system is described by Justice Williams as a ‘Third Law’.[8] This third law is neither tikanga nor English common law, but rather law that has a jurisprudential foundation that draws on both legal cultures and develops through the distinctive interaction between them. The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017[9] embodies the confluence of the two streams of these two laws.

The Act provides for the Whanganui River (the River) to have the rights of a legal person.[10]  Although the Act is constrained to the state law framework, it allows for the expression of fundamental Whanganui Māori legal traditions.[11]  The Act also helps reinforce the tāngata whenua (specifically Whanganui) perspective of a natural resource, by acknowledging its inherent value rather than defining its value to its use as a resource and revenue stream.  Any law that explicitly enhances the status of tikanga is a major legal development for all New Zealanders and effectively recognises the coexistence of two systems of law.  These changes enable iwi to have more power to manage natural resources in an inherently Māori way.  Through legislative recognition, tikanga can become embedded in the legal management of natural resources.  Thus Te Awa Tupua allows for tikanga to seep further into the current New Zealand legal system.

This essay considers the interaction between tikanga and New Zealand’s common law tradition. There are a number of examples of innovative mechanisms that have been employed in the post-settlement context that enable the state’s legal system to engage with tikanga. Te Awa Tupua is a significant example of that engagement. This essay suggests that the Te Awa Tupua Act (once enacted) could be supported by established principles of tort law, which could drive further engagement between state law and tikanga.

Discussion

The Current State of the Law

Settlement of historical Treaty of Waitangi claims sets the context for the relationship between the Crown and Māori. Although tikanga is engaged at many points in the settlement process, it is in the passing of settlement legislation where the interaction between the two laws can be seen.  Settlement legislation seeks to incorporate tikanga in order to enable Māori to manage their natural resources in a tikanga consistent way.  Granting the River the legal status of a person allows for a unique combination of tikanga and the state law in Aotearoa.

The Te Urewera Act was the precursor to the Te Awa Tupua Act.  The Te Urewera Act transformed the legal status of what was formerly Te Urewera National Park into a legal entity.[12]  The definition of Te Awa Tupua includes the metaphysical elements of the river, with Te Awa Tupua being described as an indivisible and living whole.  The inclusion of metaphysical aspects in Te Awa Tupua acknowledges that the River has more than just tangible values, which speaks to the Māori view of natural resources.

Nga Tikanga Māori me ngā Ture Pākehā

Whanganui iwi have a strong relationship with their awa, reflected in the whakatauki “Ko au te awa, ko te awa ko au”, which translates as “I am the River and the River is me”. This whakatauki reflects the whakapapa link that the iwi have to their awa and thus the River provides a connecting channel to the eponymous ancestors of many Whanganui iwi: [13]

"Whanganui Iwi have common links in two principal ancestors, Paerangi and Ruatipua. Ruatipua draws lifeforce from the headwaters of the Whanganui River on Mount Tongariro and its tributaries which stretch down to the sea. The connection of the tributaries to form the Whanganui River is mirrored by the interconnection through whakapapa of the descendants of Ruatipua and Paerangi."

Te Awa Tupua may take a new form in the eyes of the law, but it will always remain the ancestor of many Whanganui iwi.

Te Awa Tupua[14] and Te Urewera[15] are governed by the tikanga of the specific Iwi that whakapapa to that rohe[16].  Te Urewera Act includes ideals such as Tūhoetanga,[17] and concepts such as rahui,[18] tapu,[19] noa,[20] mana and mauri[21].  Similarly, the Te Awa Tupua Act includes Tupua te Kawa, comprising intrinsic values that represent Te Awa Tupua.[22]  Treating Te Awa Tupua as a person provides a more holistic perception of the river.  This allows for emphasis on sustainability and the health of the river.

The tikanga Māori provided for in the Te Awa Tupua Act, coupled with the purpose of the strategy group for Te Awa Tupua – Te Kōpuka – being to address and advance the health and well-being of Te Awa Tupua, may allow for a stronger form of protection of the River than would be available under the Resource Management Act (RMA). This is because addressing and advancing the health and well-being seems more onerous a duty than that required under the RMA, which only imposes a duty to mitigate adverse effects on the environment.[23] However, a considered look at the Act suggests that in practice the protection of the River will continue to be subordinated to competing interests, such as economic development.

The primary function of Te Kōpuka is to develop and approve Te Heke Ngahuru.[24] Te Heke Ngahuru is essentially a strategy that identifies the issues relevant to the health and well-being of Te Awa Tupua; provides a strategy to deal with those issues; and recommends actions to deal with those issues.[25] The purpose of Te Heke Ngahuru is to provide for the collaboration of persons with interests in the Whanganui River, in order to address and advance the health and well-being of Te Awa Tupua.[26] However, the legal status of Te Heke Ngahuru is relatively weak, with those exercising powers, or duties under any of the environmental management legislation referred to in the Act, are only required to have “particular regard” to Te Heke Ngahuru.[27] Under the RMA this has seen cultural and ecological interests outweighed by economic ones and thus the new approaches within Te Awa Tupua may not result in new outcomes.

The tikanga expressed in Te Awa Tupua will inform the relevant planning documents and decision-making that must comply with these values.[28] Each time Te Heke Ngahuru is amended, each relevant local authority must consider its RMA planning documents in light of the Te Awa Tupua status, Tupua te Kawa, and Te Heke Ngahuru.[29] This includes the ability to initiate a review of an RMA planning document and proposing changes in order to meet its obligations.[30] This is quite a significant change and will have wide ranging impacts for local authorities to which these provisions apply. Although, again, it is unclear whether such a change will have any effect in practice because the language used within the Act mimics that seen in the RMA, which weakens the provisions overall. Further, the courts deal with metaphysical concepts very poorly and thus the comprehensive descriptions seen in Te Awa Tupua, particularly Tupua te Kawa, may be reduced superficially to aid interpretation and their application in the courts.

Notwithstanding the innovation of this Act, Te Awa Tupua Act is clearly not tikanga Māori understood and applied on its own terms and it still functions within a hierarchical framework that subordinates the cultural and ecological to the economic.  Some commentators have suggested that this status does not go far enough to recognise the value of Māori legal traditions,[31] that it still restricts tikanga Māori to the closest equivalent in terms of Western legal tradition.  Tikanga may never be granted the representation it deserves as a system of law alongside the common law.

Tort Law

If the rights, powers, duties and liabilities of Te Awa Tupua are equal to a legal person, then it could sue or be sued, through Te Pou Tupua, in tort.  A duty of care arises where a person does an act and it is reasonably foreseeable that this act may injure the other.[32]  In the case of the Whanganui River, this could mean that a farmer, who controls land near the River may owe a duty of care to the river for any run-off that is a result of the use of that land.  It seems likely that the relationship in this scenario would be sufficiently proximate to satisfy the two step Ann’s test:[33]

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.

The farmer, being the wrongdoer, has sufficient physical proximity to Te Awa Tupua where her property is close to the river (and not necessarily alongside it).  Carelessness to address or eliminate any run-off seeping into the river would lead to a prima facie duty of care on the part of the farmer, as the chemicals are likely to cause damage.

The potential for action in tort law may provide indirect deterrence and protection mechanisms to Te Awa Tupua.  In being a legal person, the River can effectively bring an action in tort.  While the provision of damages by the Court is not necessarily ‘protection’ because the damage has already occurred, the threat of having to pay damages may act as a deterrent, enforcing a duty of care to the River.

Strict liability torts such as nuisance or Rylands v Fletcher, [34] being available to the River because it has legal personhood may also provide a deterrent effect on neighbouring farmers, which may indirectly have a protective effect on the River.

Overall, the end result of the River being granted legal personhood may be unlikely to change the current state of affairs.  While new tortious action may be available to the River, it may be overly hopeful to expect a legal personality to be the initiator of such drastic change to the law.  It is plausible, however, that a different cause of action could provide further protection to the River and that the use of tort law may provide an alternative form of protection.

Conclusion

The legal impact of Te Awa Tupua still remains to be seen; however, the particular approach undertaken by New Zealand is significant. First, it provides an example to future settling iwi in relation to major natural resources.  Second, the treatment of a natural resource as though it has all the rights, power, responsibilities and liabilities of a person is an important legal development for Māori. While it does not comprehensively recognise Māori legal tradition or the mana or mauri of natural resources, it does recognise some aspects of tikanga. This recognition may further cement the place of tikanga Māori in natural resource law in New Zealand and legitimise it as law. Third, natural resource law in New Zealand requires decision-makers to have regard to Māori ideals under the RMA.[35] Due to the brevity of tikanga based concepts in the RMA, legislation such as Te Awa Tupua may provide guidance to decision-makers more broadly by promoting understanding of how Māori view natural resources. Fourth, the legal personality status may provide additional causes of action, such as negligence or nuisance that could provide additional protections to the River.

Overall, the requirement to consider tikanga in the management of Te Awa Tupua will increase the use and understanding of tikanga Māori in New Zealand law. The flow-on effect is that tikanga Māori can become increasingly influential in shaping New Zealand natural resource law more generally. Te Awa Tupua Act exemplifies that New Zealand jurisprudence originates from two legal streams, the waters of which are slowly merging, shaping the third layer of law in Aotearoa.

Notes

[1] ET Durie “Will the Settlers Settle? Cultural Conciliation and Law “ (1996) 8(4) Otago Law Review 449, at 462.

[2] English Laws Act 1858.

[3] Above n 1, at 449.

[4] Justice Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 Waikato Law Review 1 at 2.

[5] Waitangi Tribunal Ko Aotearoa tēnei: a report into claims concerning New Zealand law and policy affecting Māori culture and identity, Te taumata tuatahi (Wai 262, 2011) at 115.

[6] Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland, 2005) 330.

[7] Above n 1, at 455.

[8] Above n 4.

[9] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (Te Awa Tupua Act).

[10] Above n 9, at s 14(1).

[11] Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016) at 98.

[12] Te Urewera Act 2014, s 11(1).

[13] Tutohu Whakatupua, p3 at 1.1.

[14] Te Awa Tupua Act, s 13.

[15] Te Urewera Act 2014, s 18(2).

[16] Land area attributed to an iwi or hapū group.

[17] Te Urewera Act 2014, s 20(2).

[18] Prohibition or limitation on use.

[19] A state or condition that requires certain respectful human conduct.

[20] The sense that when the tapu is lifted from the place, the place returns to a normal state.

[21] A sense of the sensitive perception of a living and spiritual force in a place.

[22] Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017, s 13.

[23] RMA, s 17; Te Awa Tupua, s 29.

[24] Above n 14, at s 30(1).

[25] Above n 14, at s 36(1).

[26] Te Awa Tupua Act, s 35.

[27] Above n 26, at s 37(1).

[28] Te Urewera Act 2014, s 47 and Te Awa Tupua Act, s 38.

[29] Above n 26, at s 38(1).

[30] Above n 26, at s 38(2).

[31] Carwyn Jones New Treaty New Tradition: Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016) at 98.

[32] Donoghue v Stevenston, [1932] UKHL 100, Lord Atkin.

[33] Ann’s v Merton London Borough Council [1978] AC 728.

[34] Rylands v Fletcher (1868) LR 3 HL 330.

[35] The Resource Management Act 1991, ss 6, 7, 8.