New Zealand led the world with the recognition of the legal personhood of the Whanganui River and Te Urewera ranges. Otago University professor of law, Jacinta Ruru, says this needs to be the start of a Māori worldview contribution to our legal system and the way we look after our environment.
Professor Jacinta Ruru doesn’t usually encourage reading legislation for pleasure. As one of Professor Ruru’s former students I can testify that most legislation doesn’t make joyous content. But she says there is one exception – Section 3 of Te Urewera Act 2014:
Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.
Te Urewera is a place of spiritual value, with its own mana and mauri.
Te Urewera has an identity in and of itself, inspiring people to commit to its care.
“It is just so emotional. It is so beautiful the language of the act. The legislation is using that really confidently. There is no translation of mana or mauri,” she says.
The legislation was the first legal recognition of the environment’s essential place in te ao Māori as an entity unto itself. Section 11 declares, “Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person.”
This granting of legal personhood to a part of the environment was a world first and part of Tūhoe’s innovative Treaty settlement.
For Tūhoe, Te Urewera is Te Manawa o te Ika a Māui, the heart of the great fish of Maui, pulled from the sea in defiance of his brothers to become the North Island. The forest’s rugged hills rise from the mist of the North Island. It’s a source of shelter, protection and food for Tūhoe. Essentially it is a deep source of identity for the iwi; Te Urewera is Tūhoe’s ancestor.
Three years later parliament did it again when in March this year the Whanganui River became a legal person. Te Awa Tupua Act acknowledged the decades of protest of Whanganui iwi against the exploitation and degradation of their river, and advocacy for its recognition as their ancestor. So goes the Whanganui saying: “Ko au te awa, ko te awa ko au (I am the river and the river is me).”
Ruru celebrates Tūhoe and the Whanganui iwi for really pushing the boundaries of the Crown negotiators to create a legal recognition of the environment that is a world first. It is a disruptive union of a very Western concept – the idea of legal personality has been used for companies to separate their legal obligations from their shareholders and directors – and a Māori view of the world that sees our environment as a living entity with its own stories and history. It is also recognition of Ruru’s pioneering research into the role Māori understanding of the environment could have within the law, and the way that environment is managed.
Ruru grew up deep in the South Island away from her dad’s Raukawa, Ngāti Ranginui and Ngāti Maniapoto home. Living in Glenorchy surrounded by places of huge significance to Ngāi Tahu she was aware those tribal stories existed but they were hidden behind names like Mt Earnslaw, Dart River, Humboldt Ranges, and Mt Aspiring National Park. She never learned the story of how the burning body of Matau the taniwha scored Lake Wakatipu’s trench. She never learned about the hundreds of years of history of that area being at the centre of a whole Māori economy in terms of the pounamu that is found there in those rivers and mountains. Law school was the same.
“That was really absent from my schooling and that was absent from my university study including within the discipline of law. And I really struggled with law in a lot of ways. It is a really hostile discipline for indigenous people, including Māori. It silences our stories and our relationships with the land. It does more than just silence. The law has been a major tool used by the colonialists to take our land, and take away our knowledge,” she says.
“As part of that growing up I became really aware of the absences around me. It just didn’t feel right at all.”
So after she started teaching at the University of Otago she looked at ways te ao Māori should be recognised by the law. She researched her Masters on how New Zealand’s National Parks could be understood within the framework of Te Tiriti o Waitangi. She came into that study in 1999 a year after the Ngāi Tahu Claims Settlement Act, which included the explicit recognition of the iwi’s engagement with their environment and their storytelling, created a new platform for rights and responsibilities between Ngāi Tahu and the Department of Conservation. It allowed Ruru to have a conversation with her supervisors and point to the legislation and say: “Look, there is a new way. New Zealand is now about reconciliation and we must be thinking about our Treaty in a new way.”
“For my work I really looked into how the Treaty ought to be understood in terms of managing and governing our National Parks. My supervisors and those around me were really willing to see that there is a new change on the horizon for us as a country,” she says.
Ruru points to research done in the US by law professor Christopher Stone as a reference, who argued the environment deserved and needed legal standing in the 1970s. He wrote the book Should Trees Have Standing, which argued our forests, our oceans, our environment, should have the ability to stand before the courts and have someone speak for and on behalf of nature.
In 2010 Ruru supervised Master’s research by Jamie Morris which explored the potential for legal personality of water in New Zealand. The thesis advocated for legal personality as a tool for governments to use to acknowledge the reciprocal relationships of Māori with the rivers that embody their ancestors. During the research they knew Whanganui iwi were advancing the rights of their river as part of their Treaty settlements, but for a long time Tūhoe held on to the idea of taking back ownership of the National Park. As the National Government became cautious about returning a National Park to Māori ownership, the idea for legal personality was almost an overnight development.
“I think that is incredibly exciting what the legislation has done because it sees a joining of a Western perspective of law – legal personality – but really seeing it from a Māori perspective. Our lands around us have always had personality. And this is probably for the first time our legislation, our laws have really moved beyond the usual as to what we have had, to be disrupted in many ways, and be transformed to embrace a Māori understanding of the worldview around us.”
But despite the groundbreaking legal recognition of the Whanganui River and Te Urewera, the National Government moved to limit the expansion of legal personhood. Then Attorney General Christopher Finlayson was quite clear the legal personality concept ought not to travel around the country, and should not be replicated across other environmental areas in New Zealand.
Ruru saw this as a disappointing restriction on iwi ability to seek legal recognition of their significant environmental tūpuna, but also another failure to engage with a Māori worldview in our approach to the environmental management of New Zealand.
“If we want the best environmental outcomes and solutions for our country going forward, and we have some big issues confronting us, we need to be looking to Māori communities to help the solutions that we are going to devise,” says Ruru.
With the European arrival in Aotearoa two conflicting perspectives of the role of land in society came together, and like the vast majority of colonial experiences, the indigenous one was usurped. In the colonial writing about New Zealand’s environment the European relationship with the land was one of fear of our mountains, and condemnation of the place as a wasteland, as land not being utilised. The Pākehā view was to see the land as having a utilitarian use and in New Zealand that meant farming. Even today in our appreciation for New Zealand’s beauty it’s one measured by its tourism value.
“The experience we have here is similar across the world, especially those that have a similar colonisation experience, there was a real marginalisation of indigenous knowledge. And that stems back to the first encounters and the establishment of nation states. There was a real disregard and belittling of indigenous knowledge, and as a country today we haven’t moved on significantly to appreciate and understand the depth of knowledge indigenous communities have,” says Ruru.
And this is a huge mistake. We can’t ignore the deep understanding that indigenous people have of the land, and the knowledge Māori have for caring for the environment.
“If we take a moment and look at some of the vision that iwi around the country are doing it is incredibly powerful. This is often under the realm of iwi management plans. We are coming into the third generation of these plans. Māori have always been doing this, but in recent decades Māori have been writing up future vision for the environment. Māori have been doing a lot of work for a long time,” says Ruru.
It’s an approach Ruru believes needs to be much more broadly recognised by the law and its practitioners. In 2007 when I was one of Ruru’s small class for LAWS461 “Law and Indigenous Peoples,” where we learned about the how the legal system had been used to suppress indigenous people in Australia, Canada, the US and New Zealand. We also learned how it could become a powerful tool for indigenous people. But most of my classmates in law school believed the role of Māori and the legal system didn’t extend beyond a cursory glance of the Treaty of Waitangi. Now Ruru is trying to emphasise to her students they can’t think of law in a monocultural way anymore – you shouldn’t graduate with a law degree in New Zealand without an appreciation for New Zealand history and for Māori contemporary law.
And she believes legal personhood is the vehicle that will allow New Zealand to embrace a Māori world view, and Māori expertise, in the way we approach the environmental challenges facing our country, and our planet.
“The notion of legal personhood jolts us from complacency as a country and reminds us that Māori have cared for and know well these lands for hundreds of years,” she says.
Te Urewera Act was written while listening closely to Tūhoe’s stories about the land. Its Pākehā authors were in constant communications with the iwi to make sure its language and concepts were right. It recognised the existential significance of Te Urewera to Tūhoe, it recognises a partnership in the environmental management of the land, and it sees a Māori worldview as one with a valuable contribution to make to New Zealand’s legal system.
“What is so powerful to legal personhood is it starts from a position that really honours the Māori worldview, but it hasn’t cut off Western science, or Western knowledge of how to care for a place,” says Ruru.
Legal personhood is also the beginning of a true recognition of Te Tiriti o Waitangi’s role as the blueprint for New Zealand as a country. A guide for finding solutions to hard problems together as a country.
“I don’t think it is right for us as a country to say one value system is better, but being respectful to both knowledge systems to really see what it means to be Aotearoa New Zealand, to see what it means to be of this place here.”
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