February 2024 Māori Law Review
Sir Edward Taihakurei Durie student essay competition 2023 – The Taranaki Maunga settlement has blunted prospects for use of legal personality
Sir Edward Taihakurei Durie student essay competition 2023
The Taranaki Maunga settlement has blunted prospects for use of legal personality
Harry Waddington
Foreword by Carwyn Jones, Māori Law Review co-editor
We are very pleased to publish the winning entry from the 2023 Sir Edward Taihakurei Durie student essay competition. The winning essay, written by Harry Waddington, examines the Taranaki Maunga settlement, particularly in comparison to previous settlements which have deemed landscape features to have legal personality.
Harry Waddington, is an undergraduate law student at Te Whare Wānanga o Waitaha | the University of Canterbury, now in his third year of study.
The Sir Edward Taihakurei Durie student essay competition has been held annually since 2012 and is sponsored by the Māori Law Review. The competition is open to all undergraduate students studying law at a New Zealand law school and aims to recognise excellence in legal writing on significant and current legal issues affecting Māori.
Harry's essay examines the 2023 Taranaki Maunga settlement, the third settlement of historical Treaty of Waitangi claims that has recognised the legal personality of aspects of the natural environment. The application of legal personality in previous settlements in relation to Te Urewera and Te Awa Tupua (the Whanganui River system), and now in relation to Taranaki Maunga, has rightly been recognised as a creative and significant development in New Zealand law. However, the essay argues that the Taranaki Maunga settlement is subject to more constraints than those two previous settlements and, consequently, the recognition of legal personality may not be as transformative in relation to Taranaki Maunga.
Hei tīmatanga – Introduction
The 2023 Taranaki Maunga settlement is a significant step back from previous arrangements, blunting the efficacy of legal personality arrangements in meeting the Crown’s Te Tiriti o Waitangi obligations. Recognition of legal personality for natural resources has previously offered an elegant solution to facilitate successful Te Tiriti partnerships between Māori and Crown, most notably in Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.[1]
Following the successful ratification of the Taranaki Maunga Collective Redress Deed in August 2023, the Crown has introduced a bill to give effect to Aotearoa’s latest legal personality arrangement: Te Pire Whakatupua mō Te Kāhui Tupua.[2]
The new Taranaki Maunga arrangement is subject to far greater limitations than arrangements for Te Urewera and Te Awa Tupua. This heralds a retreat in how much power the Crown is willing to share using the legal personality construct.
These limitations are not addressed by greater compensation in other aspects of the settlement. This demonstrates that legal personality settlements have not been rebalanced, they have been weakened. This settlement is the most significant legal development for Māori in the past year, as it sets a new, more limited benchmark for future negotiations between Iwi and the Crown where legal personhood is a substantially less potent way for the Crown to meet Te Tiriti obligations and redress Tiriti breaches.
Kōrerorero – Discussion
The Crown’s obligations
The Crown has a duty to Ngā Iwi o Taranaki to uphold its obligations under Te Tiriti, making it vital to determine what these obligations are. The Court of Appeal faced this question in New Zealand Māori Council and Attorney-General (the “Lands” case). Cooke P summarised five principles of the Treaty of Waitangi, of which four are obligations that the Crown must uphold.[3] First, an overarching duty that both parties act reasonably and in good faith toward each other.[4] Then, Crown duties to actively protect Māori interests, to make informed decisions regarding Te Tiriti, and to remedy past breaches.[5] The Crown acknowledged these principles in a 2019 Cabinet Office Circular, which provides guidance to Crown agencies on how to comply with the Crown’s duties under Te Tiriti.[6] Te Urewera, Te Awa Tupua and Taranaki Maunga arrangements all create pathways for the Crown to meet Te Tiriti obligations. However, the former two arrangements offer more substantial protections for Māori than the Taranaki Maunga arrangement.
Active protection and informed decision making duties
All three arrangements elegantly fold the Crown’s duties of active protection and informed decision making within co-governance boards, which act on behalf of a natural resource with legal personality. The Te Urewera Board displays a strong framework for maintaining the active protection of Māori interests and informed decision making. In comparison, the Taranaki Maunga arrangement is blunted by the requirement that its co-governance board–Te Tōpuni Kōkōrangi–must still comply with the National Parks Act 1980. This limits Te Tōpuni Kōkōrangi’s discretion to make decisions as they are compelled to abide by the mono-cultural and outdated values of National Parks Legislation in addition to Ngā Pou Whakatupua (the Maunga Values), setting a worrying precedent for the future of legal personality arrangements.
The Te Urewera arrangements between the Crown and Ngāi Tūhoe can most poignantly be summarised by cl 4.20 of the Ngāi Tūhoe deed of settlement: “From [the] settlement date, Te Urewera land will no longer be vested in the Crown; and Te Urewera land will be vested in Te Urewera”.[7] The Te Urewera Act 2014 (the Act) declared Te Urewera to be a legal entity and gave it “all the rights, powers, duties, and liabilities of a legal person… to be exercised and performed [on Te Urewera’s behalf] by the Te Urewera Board”.[8] This board–following the third anniversary of the Act–consists of six Tūhoe appointees and three Crown appointees, who are tasked with acting on behalf of and providing governance for Te Urewera.[9] One of this board’s statutory responsibilities mandates the Crown’s duty to make informed decisions and actively protect Māori interests. Section 20 of the Act requires “[the Board to] consider and provide appropriately for the relationship of iwi and hapū and their culture and traditions with Te Urewera when making decisions”, which s 20(2)(b) confirms is to reflect the Crown’s Te Tiriti obligations.[10] The Te Urewera board effectively helps the Crown to meet its active protection and informed decision making obligations.
Comparatively, the proposed arrangement for the co-governance of Taranaki Maunga does not meet the active protection duty as clearly. This arrangement follows similar lines to Te Urewera: Taranaki Maunga and its surrounds (Te Kāhui Tupua) will have legal personhood recognised, which is to be represented and governed by an eight-person board of equal parts Crown and Iwi appointees (Te Tōpuni Kōkōrangi).[11] Despite the similar governance role between this board and the Te Urewera Board, as noted above Te Tōpuni Kōkōrangi is constrained by a significant restriction: Te Kāhui Tupua will remain subject to the National Parks Act 1980.[12]
An important parallel between the histories of Taranaki and Te Urewera is the creation of national parks to legitimise the confiscation of land. In 1865 the Crown confiscated 1.2 million acres land in Taranaki under the New Zealand Settlements Act 1863, including Taranaki Maunga.[13] After further consolidation, the land around the Maunga became Egmont National Park in 1900.[14] Similarly, in 1865 the Crown began confiscating Tūhoe land in Te Urewera, culminating eventually in the 1921 Urewera consolidation scheme which left Tūhoe in control of only 16% of its land.[15] The Crown then promoted legislation that unilaterally established Te Urewera National Park in 1954.[16]
The key distinction between the Taranaki and Te Urewera arrangements, is that the Te Urewera Act 2014 amended the National Parks Act 1980 to excise Te Urewera from the list of parks.[17] In the letter of transmittal from the Presiding Officer of the panel inquiring into Te Urewera claims, Judge Savage recognised that both the establishment of Te Urewera National Park from 1954-1957, and the national parks legislation was in breach of Te Tiriti for restricting Tūhoe’s ownership rights without cause.[18]
The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (Te Awa Tupua Act) also protects its governance office (Te Pou Tupua) from being subject to the principles of other legislation. Te Pou Tupua has a statutory mandate under s 19(2)(a) of the Te Awa Tupua Act to act “in the interests of Te Awa Tupua and consistently with Tupua te Kawa”, which are the intrinsic values of Te Awa Tupua set out in s 13.[19] The Te Awa Tupua Act reinforces these by stripping existing statuses from the Whanganui River. Under s 40, from the settlement date any Crown owned part of the riverbed will no longer be a conservation area, Crown land, a national park, or a reserve.[20] This recognises that the management of a co-governed natural resource should not be required to comply with national parks legislation as well as the values set out in its own legislation.
It is therefore concerning that the Taranaki Maunga settlement will restrict the co-governance board to act only in accordance with the National Parks Act 1980. This suggests that the Crown is not performing its obligations as a Te Tiriti partner to the extent expected by the Waitangi Tribunal.[21] Jacinta Ruru crystalised part of the issue when discussing Te Urewera’s removal from the legislation in 2014: “The National Parks Act is a mono-cultural statute premising Western values for preserving land.”[22] Making Te Tōpuni Kōkōrangi comply with such a statute, limits the Crown’s discharge of its active protection obligations by making the governing body uphold the principles listed in s 4 of that legislation, such as public access.[23] While the Taranaki Maunga co-governance board arrangement may still satisfy the Crown’s Te Tiriti duty to make informed decisions, the duty of active protection has not been satisfactorily implemented when compared to Te Urewera and Te Awa Tupua.
Duty to remedy past breaches
As with any settlement negotiation, Ngā Iwi o Taranaki may have been willing to accept some unfavourable terms, counter-balanced by greater compensation in other ways, such as financial or commercial redress. Although the groups have settled other historic claims separately, additional compensation to reflect the National Parks Act limitation has not occurred, as the Taranaki Maunga settlement provides no further compensation compared to other legal personality arrangements. Legal personality settlements have not been rebalanced, they have been weakened.
The Te Urewera, Te Awa Tupua, and Taranaki Maunga co-governance arrangements are all implemented in concert with apologies and further restitution, to fully remedy the harms caused by the Crown. These harms were recognised as including the establishment of Te Urewera National Park.[24] Tūhoe’s conditions for settling with the Crown were not solely land based-they also required a combination of cultural, commercial, and financial redress which was provided for in concurrent legislation: The Tūhoe Claims Settlement Act 2014.[25] The Act forms the remainder of the Crown’s duty to remedy past breaches with Tūhoe, as s 15(1) declares “the historical claims are settled.”[26]
The Whanganui Iwi (comprising Iwi descended from Ruatipua, Paerangi, and Haunui-ā-Papārangi) were redress within the Te Awa Tupua Act.[27] Under the Act, Whanganui Iwi received an apology from the Crown and the official restoration of the original Māori names to a number of streams.[28] In addition to this, they received financial redress. The Crown committed to pay $80 million to Whanganui Iwi to settle claims and advance the future of Te Awa Tupua.[29] Again, the settlements are recognised as fulfilling the remainder of the Crown’s duty to remedy past breaches, being declared as “settled” in s 87(1).[30]
Ngā Iwi o Taranaki have significantly less favourable terms. Their settlement required an apology from the Crown and the restoration of geographic names but excluded additional financial or commercial redress to reflect ongoing compliance with national parks legislation.[31] The settlement does commit to pay $35 million to Taranaki Iwi to support “[the] establishment, iwi reconnection, and the health and wellbeing of Te Kāhui Tupua”. However, this financial compensation does not reflect the additional burden of being subject to the National Parks Act.[32] The Taranaki Maunga settlement grants no remedy beyond the redress that other settlements have reached, with those settlements enjoying far more favourable governance arrangements. The Taranaki Maunga settlement not only fails to compensate for the limitation of Te Tōpuni Kōkōrangi, which demonstrates a marked reduction in the overall redress that Iwi can expect to receive in legal personality settlements.
Duty to act reasonably and in good faith
The overall duty underpinning the partnership between Māori and the Crown is the duty to act reasonably and in good faith, which may be hindered by the limitations identified in the Taranaki Maunga settlement.[33] It is difficult to fully extrapolate from the “good faith” clauses in relevant legislation whether the three co-governance arrangements reviewed here satisfactorily meet that requirement. Under s 23(b) of the Te Urewera Act 2014, board members are required to act “in good faith.”[34] Similar requirements are reflected in s 21(1) of the Te Awa Tupua Act and sch 3 of the Taranaki Maunga collective redress deed.[35] On paper, these go towards fulfilling the Crown’s obligation. However, the mandated compliance with the principles of the National Parks Act 1980 has the potential to create conflict between good faith and express statutory requirements. In the arrangements which exclude the National Parks Act 1980, the respective boards have discretion to make decisions guided by the principles set out in their respective Acts, which take Te Ao Māori into consideration.[36] These principles are far more likely to aid good faith engagement between the Crown and Māori, compared to the National Parks Act’s principles in ss 4 and 5, which will force Te Tōpuni Kōkōrangi to balance good faith with the “western values” discussed by Jacinta Ruru.[37] A promise of good faith is only as good as its execution, and the good faith principles that help the Crown to meet its Te Tiriti duty in the Taranaki Maunga settlement should not be subject to the National Parks Act.
The future of legal personality settlements in Aotearoa
The Taranaki Maunga settlement is a clear step back in the efficacy of using recognition of legal personality to meet the Crown’s Te Tiriti obligations. The Te Urewera Board, Te Pou Tupua, and Te Tōpuni Kōkōrangi all give a voice to their respective natural resources. However, only Te Tōpuni Kōkōrangi remains subject to the “western values” of the National Parks Act 1980. All three arrangements are meant to form final settlement of claims; however, the Taranaki Maunga settlement suffered from a stark absence of compensation to reflect the limitations caused by continued compliance with the National Parks Act. This blunting of the power of recognising legal personhood for the maunga, in conjunction with the compensation outcome, demonstrates that the Crown has chosen to deliberately erode the construct that it designed in partnership with groups. The Taranaki Maunga settlement was the most significant legal development for Māori in the last year as it heralds a change to how willing the Crown is to negotiate settlements for recognition of legal personality and that these no longer wield the weight they did previously.
Ngā rārangi pukapuka – Bibliography
Cases
New Zealand
New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641.
Tuna v Te Urewera Board, being board established under s 16 of Te Urewera Act 2014 [2022] NZHC 2924.
Legislation
New Zealand
Mount Egmont Vesting Act 1978.
National Parks Act 1980.
New Zealand Settlements Act 1863.
Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
Te Urewera Act 2014.
Tūhoe Claims Settlement Act 2014.
Treaties and Deeds
Ngā Iwi o Taranaki and the Crown, Record of Understanding (Office for Māori Crown Relations, 20 December 2017).
Ngā Iwi o Taranaki and the Crown, Te Ruruku Pūtakerongo (Office for Māori Crown Relations, 31 March 2023).
Ngā Iwi o Taranaki and the Crown, Terms of Negotiation (Office for Māori Crown Relations, 14 March 2017).
Ngāi Tūhoe and the Crown, Deed of Settlement of Historical Claims (Office for Māori Crown Relations, 4 June 2013).
Office for Māori Crown Relations, Ngāi Tūhoe Deed of Settlement Summary (4 June 2013).
Office for Māori Crown Relations, Taranaki Maunga Collective Redress Deed Summary (31 March 2023).
Office for Māori Crown Relations, Whanganui River Deed of Settlement Summary (5 August 2014).
Te Tiriti o Waitangi.
Tūhoe and the Crown Nā Kōrero Ranataira ā Tūhoe me te Karauna (2 July 2011).
Books, Chapters in Books, Online Commentaries and Encyclopedias
Christopher Finlayson “Address to Tūhoe-Crown Settlement Day in Taneatua” (Taneatua, 23 August 2014).
Christopher Finlayson and James Christmas, He Kupu Taurangi: Treaty settlements and the future of Aotearoa New Zealand (Huia Publishers, Wellington, 2021).
Department of Conservation “Egmont National Park” https://www.doc.govt.nz/parks-and-recreation/places-to-go/taranaki/places/egmont-national-park.
Jacinta Ruru “In New Zealand, this river and park are legal persons” (TEDxChristchurch, 16 November 2017).
Janine Hayward “Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi” (16 Jan 2023) Te Ara https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi/print.
Judith Binney Encircled Lands: Te Urewera, 1820-1921 (Bridget Williams Books, Wellington, 2009).
Leonie Hayden “Rivers are people too!” (1 November 2017) The Spinoff https://www.youtube.com/watch?v=UbS-bOUgotU.
Ngā Iwi o Taranaki “Taranaki Maunga” (August 2023) https://www.taranakimaunga.nz.
Ngā Iwi o Taranaki “Taranaki Maunga: Voting Process” (July 2023) https://www.taranakimaunga.nz/voting-process.
Ngāi Tūhoe “Meet the Te Urewera board” Te Uru Taumatua https://www.ngaituhoe.iwi.nz/meet-the-te-urewera-board.
Taranaki Iwi “Te Ruruku Pūtakerongo Taranaki Maunga Collective Redress Deed” (Press Release and Election Notice, 7 July 2023).
Journal Articles
Carwyn Jones “Tūhoe-Crown settlement – Tūhoe Claims Settlement Act 2014; Te Urewera report of the Waitangi Tribunal” https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-tuhoe-claims-settlement-act-2014-te-urewera-report-of-the-waitangi-tribunal/.
Christopher D. Stone “Should trees have standing?–Towards legal rights for natural objects.” (1972) 45 S.Cal.L.Rev. 450.
Jacinta Ruru “Te Urewera Act 2014” (2014) October Māori LR https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-urewera-act-2014/.
James D K Morris and Jacinta Ruru “Giving voice to rivers: Legal personality as a vehicle for recognising indigenous peoples’ relationships to water? (2010) 14(2) AILR 49.
Rachel Harris “A legal identity for Te Urewera: The changing face of co-governance in the central North Island” (2015) 11 Resource Management Theory and Practise.
Rawina Higgins “Tūhoe-Crown settlement – Te Wharehou o Tūhoe: The house that ‘we’ built” (2014) October Māori LR https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-wharehou-o-tuhoe-the-house-that-we-built/.
Tom Bennion “Editorial: general duties of the Crown under the Treaty of Waitangi” Māori LR Oct 2007.
Reports
Report of Matike Mai Aotearoa–The independent working group on constitutional transformation (25 January 2016).
Te Tiriti o Waitangi/Treaty of Waitangi Guidance (Cabinet Office, CO (19) 5, 22 October 2019).
Te Urewera Board Te Kawa O te Urewera (13 September 2017).
Waitangi Tribunal Te Urewera (Wai 894, 2017).
Ngā kupu āpiti – Notes
[1] Te Urewera Act 2014; Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
[2] Te Pire Whakatupua mō Te Kāhui Tupua/Taranaki Maunga Collective Redress Bill 2023 (293-1).
[3] New Zealand Māori Council and Attorney-General [1987] 1 NZLR 641. The fifth is the Crown’s right to govern, which is better characterised as a right rather than an obligation.
[4] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 at 664.
[5] At 664-665.
[6] Te Tiriti o Waitangi/Treaty of Waitangi Guidance (Cabinet Office, CO (19) 5, 22 October 2019).
[7] Ngāi Tūhoe and the Crown, Deed of Settlement of Historical Claims (Office for Māori Crown Relations, 4 June 2013) at [4.20].
[8] Te Urewera Act 2014, s 11.
[9] Te Urewera Act, ss 21 and 17.
[10] Te Urewera Act, s20(2)(b).
[11] Office for Māori Crown Relations, Taranaki Maunga Collective Redress Deed Summary (31 March 2023) at [5.2], [5.4.1] and [8.6].
[12] At [8.2.2].
[13] At [3.34].
[14] At [3.69].
[15] Christopher Finlayson and James Christmas, He Kupu Taurangi: Treaty settlements and the future of Aotearoa New Zealand (Huia Publishers, Wellington, 2021) at 171.
[16] At 171.
[17] Te Urewera Act 2014, s 14(2).
[18] Waitangi Tribunal Te Urewera (Wai 894, 2017) at xlix.
[19] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss19(2)(a) and 13.
[20] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss40(a)-(d).
[21] Office for Māori Crown Relations, above n 10, at [8.2.2].
[22] Jacinta Ruru “Te Urewera Act 2014” (2014) 10 MLR.
[23] National Parks Act 1980, s 4(2):
- [National Parks] shall be preserved as far as possible in their natural state:
- Except where the Authority otherwise determines, the native plants and animals of the parks shall as far as possible be preserved and the introduced plants and animals shall as far as possible be exterminated:
- Sites and objects of archaeological and historical interest shall as far as possible be preserved:
- Their value as soil, water, and forest conservation areas shall be maintained:
- Subject to the provisions of this Act and to the imposition of such conditions and restrictions as may be necessary for the preservation of the native plants and animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.
[24] Tūhoe Claims Settlement Act 2014, s8(10).
[25] Tūhoe Claims Settlement Act 2014.
[26] Tūhoe Claims Settlement Act, s 15.
[27] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 8(1).
[28] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss 70 and 84.
[29] Office for Māori Crown Relations, Whanganui River Deed of Settlement Summary (5 August 2014).
[30] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s87.
[31] Office for Māori Crown Relations, above n 10, at [1.1.2].
[32] Office for Māori Crown Relations, Taranaki Maunga Collective Redress Deed Summary (31 March 2023).
[33] New Zealand Māori Council v Attorney-General, Above n 1 at 664.
[34] Te Urewera Act, s 23(b).
[35] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 21(1); Office for Māori Crown Relations, above n 10, at [3.6.2].
[36] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 13; Te Urewera Act 2014, s23.
[37] Jacinta Ruru “Te Urewera Act 2014” (2014) 10 MLR.
