The Whanganui River and Indigenous Property Rights
Ever since the signing of the Treaty of Waitangi (Tiriti o Waitangi) in 1840, it has been plagued by controversy. From alleged differences in the English and Māori versions, to the land grabbing that followed, and, lastly, the treaty settlement process in the 20th century, the controversy has by no means diminished. The latest? Te Awa Tupua, commonly referred to as the Whanganui River, has been granted legal personality.
The Treaty of Waitangi is considered New Zealand’s founding document, with both an English and a Māori version. The document was an agreement between the British Crown and approximately 540 Māori rangatira (chiefs), establishing British law and government in the country. Ever since the arrival of British settlers in the 1800s, rights to land and resources have been a source of conflict between the Māori, the Indigenous People of Aotearoa New Zealand, and the settlers, a situation that continued after the signing of the Treaty of Waitangi, and, arguably, to this day.
So what does this legal personality entail? A spokesperson for the Minister of Treaty Negotiations, explains it as treating the river as a person, when it comes to legal matters, in “the same way [as] a company”. And although the move might seem odd to some, the Minister of Treaty Negotiations, Chris Finlayson believes that it is “no stranger than family trusts, companies or incorporates societies”.
The agreement, which recognises the Whanganui river as Te Awa Tupua (an integrated, living whole), has been deemed a major step towards “the resolution of the historical grievances of [the] Whanganui iwi”, while also being of national importance, especially regarding future treaty settlement processes. The settlement, which also includes financial redress, is the result of New Zealand’s longest running court case, in which the Whanganui iwi have sought both financial redress and acknowledgement since 1873.
This acknowledgement, although over 200 years in the making, has finally come, and has been receiving worldwide media attention. Indigenous activists believe the legislation is especially significant as it defines a natural resource according to the Māori worldview, something that rarely happens, as “Indigenous worldviews are often in direct conflict with non-Indigenous notions of property ownership”. In line with this, the previously mentioned appointed legal guardians, acting together for the benefit of the river, must promote and secure not only its physical and ecological rights, but also its spiritual and cultural ones.
Similar developments can be observed elsewhere, with Ecuador rewriting its constitution between 2007 and 2008, introducing a chapter on Rights for Nature. The Constitution, ratified by referendum in 2008, acknowledges that nature in all its forms has the right to exist, persist, maintain and regenerate its vital cycles. Although the actual implementation of these rights continues to be widely debated in Ecuador, the wording in itself is historical.
Additionally, the Uttarakhand High Court in India declared the Ganga and Yamuna rivers living entities, giving them legal personality, only days after the Whanganui River legislation passed. Similarly to the situation in Ecuador, the outcome of the Uttarakhand High Court’s ruling is still unsure, but it is indicative of what might be becoming a global trend.
As illustrated above, recent developments are arguably cause for cautious optimism and might present a new way of fighting for and ensuring both Indigenous Peoples’ rights, as well as creating new tools to safeguard essential natural resources. In the case of the Whanganui River, the recognition by New Zealand’s Crown government of the Māori worldview is a welcome development. For even if the treaty settlement process itself has been far from perfect, this recognition, albeit late, might prove the perfect way forward.