New Zealand Legislation: Te Awa Tupua Act 2017 (Whanganui River)

Summary

On March 20, 2017, the New Zealand parliament enacted the Te Awa Tupua (Whanganui River Claims Settlement) Act, which declared the Whanganui River, the third-largest river in New Zealand, a legal person with fundamental rights. This means the Te Awa Tupua has its own legal identity with all the corresponding rights, duties, and liabilities of a legal person.

Background:
The Māori tribe of Whanganui in the North Island has fought for the recognition of their river as an ancestor for 140 years. From the 1880s to the 1920s, the Crown, with little or no iwi consultation, conducted works to establish a steamer service on the river and extract minerals from its bed, eroding its ecological quality. Māori chiefs first submitted claims to the New Zealand Parliament to assert the river as a taonga (treasure) under the Treaty of Waitangi in 1873, making the Te Awa Tupua Act the culmination of one of the longest-running legal and political struggles in New Zealand’s history. In the following decades, iwi sought justice and compensation through several courts and the Waitangi Tribunal. As such, the purpose of the Act is “to record the acknowledgements and apology given by the Crown to Whanganui Iwi in Ruruku Whakatupua — Te Mana o Te Iwi o Whanganui” and to “recognise, respect, and protect the special relationship of the iwi and hapū of Whanganui with the Whanganui River.”

Jurisprudential Framing:
The Te Awa Tupua Act reflects the Māori worldview of ko au te awa, ko te awa ko au (“I am the river, and the river is me”). The Act recognized the river as Te Awa Tupua, a single, indivisible living whole that encompasses “all its physical and metaphysical elements,” and provided a settlement of $80 million NZD to redress the actions of the Crown, which was negotiated over for more than two decades. The Act also established a governance framework known as Te Pūwaha, a representative body of iwi, local government, and Crown officials responsible for upholding the river’s rights and health. The two appointed guardians, one Whanganui iwi representative and one Crown representative, act collectively as Te Pou Tupua, the human face and voice of the river in legal and administrative matters.

Gerrard Albert, the lead negotiator for the Whanganui iwi said that “the reason we have taken this approach is because we consider the river an ancestor and always have” and that they “have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”

Impact Statement

The Te Awa Tupua Act was the culmination of one of the longest-running legal and political struggles in New Zealand’s history. The Act made the Whanganui the second river in the world to gain recognized legal rights, following Colombia’s Constitutional Court Judgment on the Atrato River Case in November 2016. Just five days after the Te Awa Tupua Act was enacted, the Uttarakhand High Court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights; however, the ruling of this court case was later overturned. In the years following its enactment, similar legislation has been passed in New Zealand, including the recognition of Mount Taranaki as a legal person in 2018.

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