In several publications I have suggested that a fundamental question in awarding 'personhood' - or a variety of personhood - to rivers, forests and other domains is what you do with that personhood. 'Beyond legal personhood for the Whanganui River: collaboration and pluralism in implementing the Te Awa Tupua Act' by Miriama Cribb, Elizabeth Macpherson and Axel Borchgrevink in (2024) International Journal of Human Rights comments
There is now a large body of scholarly literature on the legal and governance arrangements for the Whanganui River in Aotearoa New Zealand, given the rights of a legal person under Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Most of this literature focuses on the innovation of legal personhood and rights of nature rather than situating the Act in its local context or examining its implementation in practice. This article analyzes two cases of implementation – Te Pūwaha (the revitalisation of the Port of Whanganui); and Te Kōpuka nā Te Awa Tupua, the collaborative group charged with developing a strategy for the river. We shift attention away from legal personality to three other elements: The centrality of Māori kawa (value-based, Indigenous law); the establishment of a comprehensive set of new institutions and practices; and the devolution of authority to hapū (subtribes) and communities. These elements represent a paradigm shift towards a relational and reciprocal form of governance. While Te Awa Tupua Act does have some alignment with rights of nature, it should primarily be understood as recognising Indigenous rights and the authority of Indigenous law.
The case of the Whanganui River, recognised by legislation as a ‘legal person’ under the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (the Act) as part of a reparative Tiriti o Waitangi (Treaty of Waitangi) settlement between local Māori iwi (tribes) and the Crown, has become emblematic of legal innovations on the rights of rivers. Most of the scholarly engagement with the Whanganui model comes from outside Whanganui and, indeed, outside Aotearoa New Zealand, and has been overwhelmingly focused on the innovation of legal personhood for the river.Footnote1 Very little research has been conducted from within the place where this innovative legal model emerged, and almost nothing has been written about how the Act is being implemented in practice. This article seeks to fill these gaps. It investigates two cases of emerging forms of river governance at the local level, which are being developed as ways of implementing the Act. The article is written by an interdisciplinary team of researchers, who include a ‘born and bred’ Whanganui iwi descendant (uri) and PhD researcher, a Pākēha (non-Māori New Zealander) legal scholar and former Indigenous rights lawyer, and a senior European anthropologist with long experience of empirical work with Indigenous and local peoples. The results of this collaboration enabled new insights about the potential for legal frameworks to centre river relationality and reciprocity in collaborative river governance.
Our focus on how local governance is being transformed as a consequence of the Act allows a new perspective on what is innovative in this legislation. The legal personhood for the Whanganui River is ground-breaking, and for this reason has caught international attention. Yet, in examining implementation, other elements of the Act are seen to be crucial and equally innovative, even though they have tended to fall below the radar in international publications. Our fieldwork within the Whanganui catchment (and in the case of the first author, her entire life there) has enabled us to draw three, interrelated implementation lessons from the Whanganui River model. The first, is the need for scholarly framing to shift from the Western legal fiction of the ‘person’ towards the broader enabling jurisdiction for kawa (value-based, Indigenous law) in the Whanganui model. The second, is the potential of a new way of decision-making than has historically been the case under the Resource Management Act, shifting away from traditional Western notions of sustainability towards kawa-based notions of relationality and abundance. The third, is the significance of the legal governance architecture that supports place-based authority, devolves decision-making to hapū (subtribes), and brings the whole community in conversation with the river as part of deliberative local democracy.
We find that the Act can be best understood as a recognition of relational legal pluralism in response to Treaty of Waitangi claims raised by Māori. Indigenous law – the kawa – explicitly forms the core of the Act, and what it crucially does, is to devolve power and authority to hapū and local communities. Even though the Act does recognise the river as a person and establishes rights for the river, this is a by-product of legislation designed to (partially) repair the Crown’s past wrongdoings against Māori. In spite of Te Awa Tupua having gained international attention as a way of legislating rights of nature, it is better understood as a recognition of the state’s obligations in terms of Indigenous rights and authority, especially jurisdiction for Indigenous Law.
