A following sea?
Legal personhood and the Whanganui River
Parliament recently passed the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which declares the Whanganui River to be a legal person with all the rights, powers, duties and liabilities that attach to such status.
In this article we provide a brief overview of the background to the Act, we consider what the Act means in practice, and identify some areas where greater guidance could be helpful.
Whanganui Iwi have long fought for legal recognition of their relationship to the river and the rights of the river itself. The nature of that relationship is, perhaps, best described by the saying “ko te awa te au, ko te au te awa – I am the river and the river is me”. The river is regarded as a tupuna (ancestor) which illustrates the depth of connection, and is the foundation from which the rights, responsibilities and kaitiakitanga obligations stem.
In the Waitangi Tribunal Report on the claim to the river, it was explained how the removal of control and stewardship of the Whanganui River denigrated Māori values and beliefs, and affected Māori self-esteem in significant ways.
The Report also set out a number of proposals regarding the ownership, management, and rights associated with the river as well as some specific recommendations around compensation. The Record of Understanding in relation to the Whanganui River Settlement between iwi and the Crown states that “The purpose of the Te Awa Tupua Status is to recognise the mana of the Whanganui River in a manner consistent with Whanganui Iwi’s view of the River as a single indivisible and living entity”.
These proposals and recommendations formed the backdrop for settlement discussions, which led to the Whanganui Iwi Deed of Settlement being signed in 2014 and the Act being passed this year.
What the Act says
The Whanganui River is defined as:
“Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.”
The Act clarifies that existing public use and access to the river, existing private property, state-owned enterprises and mixed ownership model company rights, existing resource consents and existing ownership of lawful structures, and the statutory functions, powers and duties of the relevant local authorities are maintained. (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017)
What does it actually mean?
What the Act will mean in practice is not yet completely clear. Legal personhood has not been routinely granted to natural resources in New Zealand (or indeed overseas). However, there is a precedent for it – at least in New Zealand. In 2014 Te Urewera Mountain Range was granted legal personhood.
The Act appears to endow the river with the ability to take legal action on its own behalf. In our view such action could include both positive initiatives designed to remediate or enhance the river – for example, fencing the river off from stock – as well as enforcement actions against those who pollute or degrade the river without authorisation.
The Act currently does not expressly address the issue of potential liabilities. For example:
- Is Te Awa Tupua likely to be liable for damages arising from flooding? In June 2015 the estimated cost arising from the Whanganui River flooding was $120 million. Could Te Awa Tupua have obligations under the Health and Safety at Work Act 2015 to ensure the safety of people working on the river (whether in the capacity of flood protection measures, or tourism or other commercial ventures)?
- Does Te Awa Tupua have the power to initiate legal proceedings in its own right and if so, is there any limit to the types of actions (whether civil or criminal) it can take?
- Could criminal charges be brought against Te Awa Tupua if its actions – such as flooding – resulted in loss of life or damage to property?
Uncertainties to be worked through
The Act embodies the integration of Māori views, knowledge system and values with the more Western inclusion of scientific-based values, and in doing so creates legislation which (like the Te Urewera Act 2014) is world leading.
The Act is a positive step forward in recognising the importance of natural features and the relationship that iwi, the Crown and the wider community have with these features. However, there are still some uncertainties to be worked through before the full impact of the Act can be determined.
With claims over other natural features currently being considered in a number of legislative contexts -including the recent Maori Council claim for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011) – assigning legal personhood to nature, is a mechanism we may see used more widely.
Vicki Morrison-Shaw email@example.com is a senior associate with environmental and public law firm Atkins Holm Majurey Ltd and a member of the NZLS Environmental Law committee. Nicole Buxeda firstname.lastname@example.org is a solicitor with Atkins Holm Majurey Ltd.
Last updated on the 2nd June 2017