February 2019 Māori Law Review

Sir Edward Taihakurei Durie student essay competition 2018 – Incorporating indigenous worldviews on the environment into non-indigenous legal systems: has the Te Awa Tupua Act led to reconciliation and self-determination?

Sir Edward Taihakurei Durie student essay competition 2018

Incorporating indigenous worldviews on the environment into non-indigenous legal systems: has the Te Awa Tupua Act led to reconciliation and self-determination?

Nopera Dennis-McCarthy

Foreword by Carwyn Jones, Māori Law Review co-editor

The Māori Law Review is proud to publish in this issue the winning essay from the 2018 Sir Edward Taihakurei Durie Student Essay Competition.

The essay competition is held annually and sponsored by the Māori Law Review. The competition seeks entries from undergraduate law students which address a significant legal development affecting Māori from the preceding year. The 2018 competition was won by Nopera Dennis-McCarthy. Nopera’s essay is titled ‘Incorporating indigenous worldviews on the environment into non-indigenous legal systems: has the Te Awa Tupua Act led to reconciliation and self-determination?’ This is the third time since 2013 that the winning student essay in this competition has addressed an aspect of this ground-breaking settlement and legislation, reflecting its significance and that the settlement is producing ongoing legal developments that continue to be explored.

Nopera (Ngāti Tūwharetoa) is in his fifth year at Victoria University of Wellington, completing an LLB (Hons) and a BA in International Relations and Political Science. His essay was based on work undertaken for his honours dissertation, for which he also received the Australian Academy of Law award for best presentation of an honours dissertation at the Australia and New Zealand Law Honours Student Conference in December 2018. He is a former student editor of the Māori Law Review and, in 2018, was Tumuaki Tane of Ngā Rangahautira (the Māori Law Students Society at Victoria University).

Introduction

There is an inherent tension between Western and Indigenous legal traditions. This tension arises from the divergent worldviews propounded by either normative system, which are often difficult to reconcile.[1] Conceptualisations of natural resources exemplify this tension.

Locke’s theory of property encapsulates the traditional Western worldview.  According to Locke, natural resources are considered to be property which an individual can own, consume or benefit from.[2] They are characterised as insentient and subject to the “sole and despotic dominion of humankind”.[3]

Although Indigenous peoples also take advantage of, and use, natural resources, the Indigenous perspective of nature differs significantly.[4]  The Indigenous perspective recognises nature as a living entity, which gives rise to obligations that are centred around nature, rather than humans.  This difference means fusion or incorporation of the two perspectives could be considered paradoxical or futile. However, a recent embodiment of Indigenous worldviews on nature into non-Indigenous law (Te Awa Tupua) shows that these two worldviews can be reconciled.

The ability for these two worldviews to come together does have limitations and Te Awa Tupua demonstrates that although effective incorporation may allow for reconciliation, it does not necessarily provide Indigenous peoples with the legal self-determination to fully realise and enforce their worldview.

The Te Awa Tupua process

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 has been a cynosure in environmental and Indigenous law since its enactment. The discourse regarding the Act has predominantly focused on its unique proposal to provide the Whanganui River with legal personality.[5] However, a less heralded, but arguably more important aspect of the Act, is its adoption of a Māori worldview on the environment. This adoption of the Māori worldview is reflected in the recognition of the River as a living, indivisible being.[6]

The adoption of this Māori worldview was influenced by the fact that the perspective of the Whanganui Iwi held significant weight throughout the Settlement Process. This influence can be measured at two distinct points - the period before negotiations and settlement (and in particular the Waitangi Tribunal's Whanganui River Report), and period of settlement and enactment of the legislation.

The claim by Whanganui Iwi for recognition of their rights and relationship to the River is not recent. The Waitangi Tribunal Report and, to an extent, Te Awa Tupua as a whole, is a culmination of decades of litigation and disputes between Whanganui Iwi and the Crown.[7] As a result, the Tribunal’s Report and recommendations are heavily influenced by the traditional Whanganui Iwi worldview and disputes regarding the River.

The influence of the Whanganui Iwi can be seen in the settlement stage and within the legislation itself.  For example, a tikanga Māori perspective is enshrined in several parts of the settlement and overall legislation. These include ss 12, 13 and 14 of the Act, as well as:

Te Pā Auroa Nā Te Awa Tupua: The overall Te Awa Tupua framework, based on Te Pā Auroa, a broad eel weir designed to withstand the autumn, winter and spring floods and symbolising a framework that is enduring and well-constructed.[8]

Te Kōpuka Nā Te Awa Tupua: The Te Awa Tupua Strategy Group. Te Kōpuka represents the White Manuka, a raw material used to build the Pā Auroa. This symbolises the connection, co-operation and strength within Te Awa Tupua.[9]

Finally, s 82 and Schedule 8 set out a special acknowledgement of over 240 identified ripo (rapids) on the Whanganui River.[10] Each rapid is recognised as a guardian by Whanganui hapū, providing insight and premonition in relation to matters affecting the River and life in general.[11]

Defining reconciliation

A critical facet of reconciliation is the relationship between both parties.[12] This was reiterated in the Waitangi Tribunal's Te Whanau o Waipareira Report. In that report, the Tribunal discussed the notion of a relationship of reconciliation being based on mutual respect, equality and good faith, as a critical aspect of the “partnership” principle.[13]

Tully identifies five principles necessary for effective Indigenous-state reconciliation from an Indigenous perspective.[14]  These are mutual recognition, intercultural dialogue, mutual respect, the principle of sharing, and mutual responsibility.

Mutual recognition requires two steps: acceptance of Indigenous peoples having equal legitimacy with the state, and public affirmation of the recognition in the basic institutions and symbols of the state.[15]

Intercultural dialogue requires a continuing conversation designed to maintain relationships, rather than dialogue that is based on a “once and for all agreement”.

Mutual respect acknowledges that respect from an Indigenous perspective has a broader meaning because it relates to respect for natural resources and the environment.[16] Jones argues that this view is similarly endorsed in tikanga Māori through values such as manaakitanga, sharing and mutual responsibility.[17]

The principle of sharing is defined as the giving and receiving of benefits. Tully suggests that from a legal and economic sense, a post-colonial Indigenous-state relationship of reconciliation would include factors such as the sharing of land.[18]

Mutual responsibility recognises that Western and Indigenous approaches to legal responsibility are markedly different. The traditional Western approach to responsibility places high value on individual responsibility, while the traditional Indigenous approach places greater emphasis on the responsibilities of the collective. This emphasis on the collective means that responsibility extends beyond the rights of humankind, to the environment. This principle is therefore critical to this paper because mutual responsibility must acknowledge the legal responsibility to the environment inherent to tikanga Māori.

Defining self-determination

Self-determination is often equated with the Māori concept of tino rangatiratanga.[19] The Waitangi Tribunal has expressed that this term is difficult to fully encapsulate in English.[20] However, Durie suggests that at a minimum, tino rangatiratanga includes a level of political autonomy and authority within both Māori society and between Māori and the state.[21]

Self-determination may also contain an element of sustainability. Corntassel argues that governments frame self-determination rights in a manner which deliberately undermines critical relationships that Indigenous peoples have within their community.[22] In order to truly give effect to Indigenous self-determination, a more holistic and sustainable benchmark should be created.[23]

Coulthard also criticises state-driven, rights-based recognition as entrenching the colonial status quo rather than using an approach based on Indigenous and community values.[24] Corntassel instead suggests that sustainable self-determination should be based on the provision of holistic Indigenous responsibilities over critical tenets of the Indigenous culture.[25] In particular, Indigenous peoples should be able to apply their own natural laws and solutions over natural resources.[26]

Nagan and Hammer support this sustainable view in their legal analysis of the property rights of the Indigenous Shuar people of Ecuador.[27] They place particular emphasis on the Indigenous worldview towards the environment as “not just an aspect of the Indigenous community, but the basis of the community itself”.[28] Therefore the framework of self-determination must be dynamic enough to reflect this worldview, as well as provide Indigenous peoples the responsibilities to practically realise it.

Te Awa Tupua and reconciliation

The Te Awa Tupua process demonstrates Tully's principles of mutual respect and recognition. As Jones and Tully discuss, reconciliation requires the dominant, colonial relationship to be rejected and instead replaced by a ‘treaty relationship’ where Indigenous peoples engage with the state on an equal basis.[29]

The Treaty Settlement Process, such as what occurred with Te Awa Tupua, provides a medium for the transition from a colonial relationship to a Treaty relationship; this also indicates effective intercultural dialogue. This is indicated by the principles of partnership underlying the settlements as well as tikanga Māori values of whanaungatanga and manaakitanga.[30]

The Tribunal process lends further legitimacy to Indigenous institutions by providing them with a clear mandate to address their grievances with the Crown. The Treaty settlement process has been subject to significant political criticism and interference,[31] and for Whanganui Iwi, a Treaty Settlement only arose after decades of litigation and cultural and socio-economic harm by the Crown.[32] However, the Tribunal report did eventually provide a strong mandate to the Whanganui Iwi, and the Te Awa Tupua Act is an explicit public affirmation of this legitimacy by the Government. As a result, while the process still has some flaws, the two factors of mutual recognition and respect appear to be present.

The Te Awa Tupua Act's recent enactment and current process of implementation make it difficult to measure reconciliation under the factor of good faith. However, mutual responsibility and sharing can still be assessed under this process.

Joint responsibility over the Whanganui River being shared between the government and the Whanganui Iwi through Te Pou Tupua can indicate mutual responsibility and sharing of power. However, the framework regarding the governance of the River does not necessarily reflect the Tribunal’s recommendations. The framework provides for equal ownership by the Crown and the Whanganui Iwi over the Riverbed in the form of a joint body.  However, the Tribunal recommended that either the:

  1. Entire River be vested in an ancestor representative of the Whanganui Iwi; or
  2. Whanganui River Māori Trust Board be added as a ‘consent authority’ to the River under the Resource Management Act 1991.[33]

Given the previously discussed Crown dominance over the Treaty Settlement Process, this potentially indicates an unwillingness to provide Whanganui Iwi with the ability to own the River themselves. Ownership would signal the Crown’s preparedness to sustain a relationship with the Whanganui Iwi based on real mutual responsibility whereby Iwi are equal to the government through the ownership of water.

This lack of real autonomy weakens the overall conclusion that reconciliation was present. While ultimately the substantial recognition, respect and intercultural dialogue throughout the settlement process (and reflected in the Te Awa Tupua Act) strongly suggest reconciliation, the Crown’s option to implement a joint governance body, avoiding ownership, raises a question as to how much more effective reconciliation could have been if the Crown was prepared to allow for full ownership as recommended by the Tribunal.

Te Awa Tupua and self-determination

The Te Awa Tupua Treaty Settlement moves further toward self-determination than previous settlements by implementing legal personality and mātauranga Māori throughout its framework.

Ruru argues that the Te Awa Tupua builds on a trend of recognising waterways and natural resources as living entities in Treaty Settlements (such as the Te Urewera Act 2014).[34] This recognition demonstrates the flexibility of New Zealand’s legal system to “embrace Māori notions of law, custom and values”.[35] In particular, Ruru notes the use of Te Pou Tupua as a human representative of the River as a living ancestor.[36] The use of Te Pou Tupua is arguably more consistent with the notion of kaitiakitanga and the Whanganui Iwi worldview than complete ownership, particularly as the traditional Western notion of ownership is not easily compatible with tikanga Māori.[37]

Furthermore, Te Pou Tupua does allow for joint governance between the Crown and Māori through an individual representative from each party, which still gives Whanganui Iwi significant influence. Joint governance combined with the provision of legal agency for the River and explicit acknowledgement of tikanga Māori through the Act, arguably accords with Corntassel’s notion of sustainable self-determination.[38]

Conversely, while the Te Awa Tupua Framework can reflect self-determination, it arguably does not reach this standard. In their National Freshwater and Geothermal Resources Inquiry, the Tribunal noted a “fundamental gulf” in the position of the Māori claimants and the Crown.[39] The Crown argued that natural water could not be owned and that the most appropriate mechanism for recognising Māori rights in water was through an interpretation of kaitiakitanga, amounting to kaitiaki control, partnership or consultation.[40] While the Māori claimants argued that given the significant customary rights of Māori in rivers, the closest cultural equivalent to these rights was “English-style ownership”.[41]

The claimants also argued that the provision of ownership would allow them to practically realise the principles of kaitiakitanga and tino rangatiratanga.[42] The Tribunal noted the validity of both arguments, but stressed that upon assessment of past Tribunal reports, Māori had rights of a proprietary nature in specific freshwater bodies; the extent of which warranted “serious inquiry”.[43] Furthermore, in the Whanganui River Report, the Tribunal consistently elaborated the close physical and spiritual association of the Iwi to the River and the history of their assertion of ownership rights.[44]

These rulings by the Tribunal indicate that if true sustainable self-determination is to be achieved, the Crown ought to accord ownership rights over the River to the Whanganui Iwi. This corresponds to Corntassel’s sustainable self-determination requirement of a process perpetuating Indigenous livelihoods by regenerating roles and responsibilities to their homelands; in this case by providing Whanganui Iwi autonomous control or tino rangatiratanga over the River.

In the Whanganui River Report the Tribunal also reiterated the conceptual understanding of the River as a tupuna or ancestor representing the River as a single undivided entity, without distinction between its bed, banks, water, fisheries or aquatic plants.[45] Section 12 recognises this conceptual understanding by describing Te Awa Tupua as an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.[46]

This recognition as indivisible seems incompatible with the vesting of the River in Te Pou Tupua. Section 41 of the Act only vests Crown-owned parts of the Riverbed in Te Pou Tupua. It does not include legal roads, railway infrastructure, any part of the bed held under the Public Works Act 1981 or located in the marine and coastal area.[47] Furthermore, certain rights from other groups including fishing rights,[48] State-Owned Enterprises[49] or private property rights are still protected.[50] Section 46(1) also explicitly states that the vesting does not create or transfer proprietary interests in the River water or its wildlife, fish, aquatic life, seaweed or plants.[51]

Given the importance of the River as a whole to the Whanganui Iwi and its expression as an indivisible entity, vesting only Crown-owned parts of the riverbed infers that sustainable self-determination has not yet been achieved.

Conclusion

Ultimately, while Te Awa Tupua may have achieved reconciliation, the issue of ownership and the autonomous control that it would entail has not yet been settled, which suggests self-determination has not yet been fully realised. An underlying theme throughout this analysis has been the potential for self-determination inherent in the New Zealand context. This potential is an important factor as although it has yet to be achieved, the Te Awa Tupua process may provide a useful illustration for future frameworks between Indigenous peoples and the state which will hopefully go further and achieve both reconciliation and self-determination.

Bibliography

Legislation

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

Treaties

United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/RES/61/295 (2007).

Books and Chapters in Books

Richard Cox (ed) Second Treatise of Government: An Essay Concerning the True Original Extent and End of Civil Government by John Locke (John Willey & Sons, New Jersey, 1982).

Glen Coulthard “Place Against Empire: The Dene Nation, Land Claims and Politics of Recognition in the North” in Avigail Eisenberg, Jeremy Webber, Glen Coulthard, and Andree Boisselle (eds) Recognition versus Self-Determination: Dilemmas of Emancipatory Politics (UBC Press, Vancouver, 2014) 147.

Mason Durie “Tino Rangatiratanga” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005).

Maureen Hickey “Apologies in Settlements” in Nicole Wheen and Janine Hayward (eds) Treaty of Waitangi Settlements (Bridget Williams Books, Wellington, 2012) 79

Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016).

William Carey Jones (ed) Commentaries on the Laws of England by Sir William Blackstone (Bancroft-Whitney, San Francisco, 1915).

Benjamin Richardson, Shin Imai and Kent McNeil (eds) Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford, Portland, 2009).

James Tully Public Philosophy in a New Key Vol. 1. – Democracy and Civic Freedom (Cambridge University Press, Cambridge, 2008).

Journal Articles

Jeff Corntassel “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous-Rights Discourse” (2008) 33 Alternatives 105.

Winston Nagan and Craig Hammer “The Conceptual and Jurisprudential Aspects of Property in the Context of the Fundamental Rights of Indigenous People: The Case of the Shuar of Ecuador” (2013) 58 N.Y. L. Sch. L. Rev 875.

Notes

[1] Benjamin Richardson, Shin Imai and Kent McNeil (eds) Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford, Portland, 2009).

[2] Richard Cox (ed) Second Treatise of Government: An Essay Concerning the True Original Extent and End of Civil Government by John Locke (John Willey & Sons, New Jersey, 1982) at 18.

[3] William Carey Jones (ed) Commentaries on the Laws of England by Sir William Blackstone (Bancroft-Whitney, San Francisco, 1915) at 707.

[4] United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/RES/61/295 (2007) at 8; and Human Rights Council The Situation of Human Rights and Fundamental Freedoms of Indigenous People, Report by Rodolfo Stavenhagen, Special Rapporteur for the Rights of Indigenous Peoples A/59/258 (2004) at 6.

[5] Eleanor Ainge Roy “New Zealand River Granted Same Rights as a Human Being” The Guardian (United Kingdom, 16 March 2017); and Bryant Rousseau “In New Zealand, Lands and Rivers Can Be People (Legally Speaking)” New York Times (New York, July 13 2016).

[6] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 12.

[7] Office of Treaty Settlements “Agreement re. Whanganui River Claims (Tūtohu Whakatupua)” (30 August 2012) New Zealand Government Treaty Settlement Documents https://www.govt.nz/dmsdocument/3706.pdf at 2.1.2.

[8] Office of Treaty Settlements “Whanganui River Treaty Settlement Ruruku Whakatupua – Te Mana o te Awa Tupua” (5 August 2014) New Zealand Government Treaty Settlement Documents https://www.govt.nz/dmsdocument/5947.pdf at 1.1-1.7.

[9] At 5.1-5.6.

[10] Section 82.

[11] Schedule 8.

[12] Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver, 2016) at 58-59. See also: Paul Nadasdy “The antithesis of restitution? A note on the dynamics of land negotiations in the Yukon, Canada” in Derick Fay and Deborah James (ed) The Rights and Wrongs of Land Restitution: Restoring What was Ours (Routledge-Cavendish, Kentucky, 2009) 85 at 87.

[13] Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at xxvi.

[14] James Tully Public Philosophy in a New Key Vol. 1. – Democracy and Civic Freedom (Cambridge University Press, Cambridge, 2008) at 229.

[15] At 230.

[16] At 243.

[17] Jones, above n 12, at 62.

[18] Tully, above n 14, at 247.

[19] Mason Durie “Tino Rangatiratanga” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (Oxford University Press, Auckland, 2005) at 4.

[20] Waitangi Tribunal Maori Electoral Option Report (Wai 413, 1994) at 4.

[21] Durie, above n 19, at 4.

[22] Jeff Corntassel “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous-Rights Discourse” (2008) 33 Alternatives 105 at 107.

[23] At 124.

[24] Glen Coulthard “Place Against Empire: The Dene Nation, Land Claims and Politics of Recognition in the North” in Avigail Eisenberg, Jeremy Webber, Glen Coulthard, and Andree Boisselle (eds) Recognition versus Self-Determination: Dilemmas of Emancipatory Politics (UBC Press, Vancouver, 2014) 147 at 169.

[25] Corntassel, above n 22, at 118.

[26] At 118.

[27] Winston Nagan and Craig Hammer “The Conceptual and Jurisprudential Aspects of Property in the Context of the Fundamental Rights of Indigenous People: The Case of the Shuar of Ecuador” (2013) 58 N.Y. L. Sch. L. Rev 875.

[28] At 876.

[29] Jones, above n 12, at 59.

[30] At 62.

[31] Maureen Hickey “Apologies in Settlements” in Nicole Wheen and Janine Hayward (eds) Treaty of Waitangi Settlements (Bridget Williams Books, Wellington, 2012) 79 at 14.

[32] Office of Treaty Settlements, above n 7, at 1.7-1.8.

[33] Waitangi Tribunal Whanganui River Report (Wai 167, 1999) at 343.

[34] Te Urewera Act 2014, s 3.

[35] Jacinta Ruru, “Listening to Papatūānuku: a call to reform water law” (2018) 48 Journal of the Royal Society of New Zealand” 215 at 220.

[36] At 220.

[37] Whanganui River Report, above n 33, at 48.

[38] Corntassel, above n 22, at 119.

[39] Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012) at 62.

[40] At 37.

[41] At 62.

[42] At 62.

[43] At 229.

[44] At 294.

[45] Freshwater Report, above n 39, at 226.

[46] Section 12.

[47] Section 41(2).

[48] Section 46(2)(e).

[49] Section 46(2)(c).

[50] Section 46(2)(b).

[51] Section 46(1).

Author: Nopera Dennis-McCarthy