This river is legally a person. Here's how it happened

13-12-2020 02:22 PM

Ammon News - As a child in the 1970s, Gerrard Albert played on the mud flats at the mouth of New Zealand's Whanganui River where raw sewage from the nearby town spilled into the estuary and out to the ocean.

At low tide, he and his playmates would see pieces of toilet paper in the water and joke to one another: "That was the one I did yesterday."
After arriving in New Zealand in the 1800s, British colonialists industrialized Whanganui River, long treasured by generations of Indigenous Māori. The river became polluted by discharge and land clearances and the shingle banks Albert's grandmother remembered from her childhood were replaced with mud so wet you would sink up to your knees, due to gravel extraction.

Albert wasn't bothered by the sewage where they fished and played. But the degraded river was emblematic of a bigger issue: a fight that stretched back to the 1870s to preserve the river and its relationship with Māori.

In 2017, that fight finally came to an end.

Whanganui River became the first in the world to be considered a legal person. New Zealand's third-longest river could now be represented in court and had two guardians appointed to speak on its behalf.

It was a move mimicked by other countries and praised by Indigenous rights advocates and environmentalists alike.

But three years on, there's a sense that winning legal personhood isn't the end of the struggle to uphold Māori rights to the river. Albert, and others, are still facing the challenge of what happens after a river is seen as a legal person.

For hundreds of years, Māori lived in settlements along the Whanganui River, which translates to "big harbor" in Māori.

The 290 kilometer (180 mile) waterway was central to their lives. It was where they fished and lived. The water was used to treat the sick. They considered the river an ancestor it was "their source of food, their single highway, their spiritual mentor," according to a 1999 report on Māori rights to the Whanganui River.

Then, in the 1800s, British colonizers began settling all over New Zealand, including Whanganui.

It was a tense and often violent time. Huge swathes of land were bought in what are now seen as unfair deals in 1840, a British businessman bought 40,000 acres (16,200 hectares), an area almost three times the size of Manhattan in exchange for 700 pounds worth of goods, including muskets, umbrellas and musical instruments. Other land was violently confiscated from Māori who challenged the authority of the incoming British colonizers.

As they gained territory, the newcomers imposed new rules over the land and sea. Under English law, the river wasn't seen as one entity. It was seen as a patchwork of legally separate parts water and river beds and air space above the water all controlled by different laws. The parts of the river that were navigable, for instance, were legally separate from the parts that were not.

Right from the start, that was a problem. To Māori, the river was a single and indivisible entity and not something that could be owned. Although the river's resources could be used, only people who contributed to the community had the right to benefit. The local Māori even had a proverb they used to sum it up: "I am the river, and the river is me."

But as the Europeans or Pakeha as they are known in New Zealand took more control of the area, they increasingly destroyed what the river had been. They operated a steamer, took the river's gravel, released trout into the rivers for fishing and destroyed the old fishing weirs where Māori had fished for generations. Māori settlements were pushed back from the river to make way for new developments.

Under Māori belief, all things have mauri a life force and personality. When the river's water quality was degraded, the mauri of the river wasn't respected, in turn affecting the mauri of the local people, who relied on the river to sustain them.

For almost as long as settlers have been in Whanganui, local Māori fought to have their own view of the river recognized.

Back in 1870, Māori began petitioning the colonial government, asking them to uphold their rights. In the decades that followed, a steady stream of petitions were made to the government in New Zealand's capital Wellington. By the 1920s and 1930s, Albert's grandmother and her brothers and sisters contributed anything they could to the legal case.

"Our people weren't rich by any means," Albert said. "It was so fundamental to upholding our rights."

All over New Zealand, Māori tribes or iwi were having similar fights with the New Zealand government. In 1840, many iwi chiefs had signed an agreement called the Treaty of Waitangi with the British Queen, which recognized Māori ownership of their land and gave Māori the protection of British subjects. Many felt that the Crown hadn't upheld her end of the bargain.

In 1975, the government established the Waitangi Tribunal to hear iwi grievances and 10 years later, it allowed grievances that stretched back to 1840, including the violent period when land had been stolen from Māori.

By the time the Waitangi Tribunal came to Whanganui in the 1990s, people there had already been fighting for their rights for more than 100 years. Years of development had left their river even worse off: Fish had been depleted some species had gone altogether and the river was no longer the main source of food. Sewage discharge and run off from riverside farms polluted the water and local Māori continued to live in deprivation.

"Our people are tired, they're fed up, they feel embarrassed to come along continually and to say who they are, what is theirs," Albert's uncle Archie Taiaroa, a key figure in the proceedings, told the Tribunal in 1994.

Still, people of all ages spoke at the tribunal in Whanganui including Albert's grandmother. Not all of what was said was recorded in official records some witnesses didn't speak English, and there were no recording or translation services, Albert said.

Many spoke of the significance of the river. "I had no option about it, I had no right to choose it, it is my way of life to belong to the river," one local Māori Matiu Mareikura told the tribunal, according to the report.

That frustration was on display in 1995, when Māori led a sit-in at a Whanganui Park that ended peacefully after 79 days. During the sit-in, protesters beheaded a statue of Irish-born politician John Ballance, who had settled in Whanganui, to express their anger over unresolved territorial issues. Even today, the statue is missing only a plinth bearing his name remains in the town's Moutoa Gardens.

In 1999, the Tribunal concluded that the river was a treasure or taonga to Whanganui Māori, and urged redress. But negotiations on New Zealand's longest running litigation stalled, and Whanganui Māori still didn't have legal rights over the river.

By 2008, Albert's uncle decided he longer wanted to try to fit into Pakeha laws. Taiaroa and Albert launched a new settlement process, but this time they wanted to their own legal framework something that truly represented what the river meant to Māori.

"No discussing Crown constructs. We'll go with our own (legal) constructs," Albert remembers Taiaroa saying. "It's pointless continuing, reinventing ourselves around their constructs."

The timing was good. In 2008, New Zealand's center-right National Party won an election. Incoming Minister for Treaty Negotiations Chris Finlayson felt things had "languished" under the previous government's nine years in power and was keen to get progress on land settlements underway.

In what Albert described as "flash" law offices overlooking the capital Wellington's harbor, they began talking about treating the river as one, indivisible being that had rights, just like a person. In short, the way Māori had seen it all along.

Giving rights to natural entities wasn't entirely new. In 1972, United States legal scholar Christopher Stone wrote an article titled "Should trees have standing," where he argued that natural entities should have some of the same legal rights as humans. That wasn't so much of a stretch companies and ships can be legal people and guardians can be appointed to speak on behalf of others, such as children or people with disabilities, who can't speak for themselves.

But at the time, Albert didn't know about Stone "I didn't have a clue who he was." He just wanted the river to have the legal recognition his forefathers had been fighting for for decades.

In the halls of Parliament, other politicians weren't paying attention to the groundbreaking legal agreement being negotiated in their midst, Finlayson remembers. But as a lawyer himself, legal personhood made sense. "None of this was particularly radical or groundbreaking," he said. In fact, the European centric way of thinking about land was "weird," he said.

"What's more absurd? To look at a river as a single holistic entity from where it's formed out to the sea, to saying we're going to divide the river up?" he questioned. "That's a pretty potty way of thinking about things in my view."

By the time Whanganui River became the first river in the world to have legal personhood, many of the people who had fought to make it happen were no longer alive.
One key leader, Titi Tihu, died in 1988 aged about 100 years old like many Māori of his generation, he didn't have a birth certificate. At the time of his death, he had been involved in judicial and parliamentary proceedings over the river for 50 years.

Albert's uncle, Archie Taiaroa died in 2010, as Sir Archie, having accepted a knighthood the year before for services to Māori.

The men didn't live to see the outcome. But they had fought for future generations, and they had won.

Under the 2017 law, Te Awa Tupua was recognized as an "indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements." Two guardians were appointed by local Māori to speak on the river's behalf.

To Finlayson, it was an important move, but not groundbreaking. "We don't do revolutions here," Finlayson said, after the law was passed.

Albert believes Finlayson is playing down his role: "He knows what he's done here."

In the three years since Whanganui River gained legal personhood, Albert's inbox has been flooded by emails from around the world. He's now the chair of Nga Tangata Tiaki O Whanganui, the post-settlement governance body for the local Māori.

Other countries have followed Whanganui's lead two rivers in India have been declared legal entities, and last year Bangladesh gave all its rivers legal rights. Environmental rights activists want Albert to speak at conferences. Indigenous groups want to know if that means the river can now sue people who pollute it.

But Albert doesn't want to take polluters or anyone else to court, at least not at the moment. "We've got this legal thing that we could use and wield it like a club, (but) we're not going to do that."

"When you've spent 150 years yourself of being thrown around and abused, why would we seek to be punitive and do the same thing to others?" he questioned. "(Legal personhood) is a paradigm shift, first and foremost."

The problem with paradigm shifts is that they can take a while to work effectively. And in the three years since the legislation has been in place, Albert says there have been some problems.

For example, the river's guardians weren't consulted about plans for a new bicycle bridge over the river, Albert said. They don't support it as they don't see why the additional development is necessary, but they don't want to kick up a fuss.

"We don't want to dictate, we want to be part of our community. But we do not want to be downgraded and ignored and used as the kicking board any longer," he said. He prefers diplomacy to threats of legal action he'd rather foster goodwill with the community.

Hera Smith, who has made a career out of helping iwi put in place their vision following treaty settlements, says there has already been tangible change as a result of the river's legal personhood. People's relationship with the river has improved and others have set up environmental projects along its banks, she said.

But she still says it will take time possibly generations for people to change their mindset about how they relate to the environment, to understand that they are not the masters of the river.

Environmental law experts see the Whanganui River decision as a shift not only for the people who live along the river, but possibly further afield.

Jacinta Ruru, an expert in environmental and Māori law at Otago University who is of Māori descent, says legal personhood represents a fundamental move from a Western to a Māori perspective although new laws aren't always needed to change attitudes.

"The last hundreds of years has been all through this colonization process of dismantling Indigenous cultures and certainly not thinking of them as having anything to add to us in the world order," she said.

"That's really got to change. As we're starting to face really huge critical issues climate change, adaptation, sea level rise, the ramifications of the collapse of the economy after Covid, we've got to look to all of the knowledges, we've got to be more embracing of as many knowledges and cultures as we can."

Erin O'Donnell, a water law expert at the University of Melbourne, thinks legal personhood could help with environmental protection of other natural resources, especially at a time when the effects of climate change are being felt worldwide.

"When we see rivers as living beings that are part of our community then that does actually profoundly change the way we speak about them, they way we make laws about them, the way we make decisions about them," she said. The legal protection was still so new it was "too early to tell" how effective human guardians would be, she said, noting that few cases involving legal personhood had made it to the courts.

Back in Whanganui, Albert doesn't see the river's legal personhood as primarily an environmental issue. It's about acknowledging and respecting Māori something that can have flow-on effects to how Māori are treated more broadly.

Māori in Whanganui continue to earn less on average and are more likely to be unemployed than their European counterparts, statistics show. That's been the case across New Zealand for decades and fits into a bigger cycle of systematic discrimination that sees Māori experience poorer health and education outcomes and higher rates of incarceration than non-Māori.

To Albert, it's all very well for politicians to give Māori kids free lunches to address poverty as Jacinda Ardern's Labour Party has promised to do but that doesn't mean much if their teachers dismiss their cultural heritage.

He feels the Whanganui River's personhood is a start towards valuing Māori and their world view.

"It's as much a social contract, and a political contract, as it is a legal construct," he says. "It's not about what we're taking from the river, it's about what we're giving to it."


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