‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand

‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New... ABSTRACT In 2014, Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In 2017, the Whanganui River was declared a legal person. This article analyses the grant of legal personality as part of a process that seeks to acknowledge colonial wrongs to hapū and iwi, indigenous descent groups. It argues that a primary purpose of the grant is to regulate human relationships. Legal personality recognises the competing claims of the Crown and hapū and iwi to political authority and allows for the establishment of new legal frameworks, which address who is entitled to act on behalf of the land and river. The article concludes that the settlements should be regarded as constitutional in nature—the grant of legal personality provides a forum for disagreement and compromise, and the opportunity for relationships between peoples, land and authority to be reframed. In 2014, Te Urewera Act declared the land that had comprised Te Urewera National Park a legal entity with ‘an identity in and of itself, inspiring people to commit to its care’.1 The Act creates a board to govern Te Urewera, and to represent its interests. Membership of the board comprises representatives of the Crown2 and of Tūhoe, the tribal group exercising mana whenua (traditional status, rights and responsibilities) over most of the National Park land. The Act gives effect to part of a deed which settles the historic grievances of Tūhoe. In 2017, Te Awa Tupua3 (Whanganui River Claims Settlement) Act was passed to give effect to a deed to settle the historical claims of Whanganui iwi as they relate to the river. The Act establishes a legal framework centred on the recognition of Te Awa Tupua as ‘an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’.4 The Act declares Te Awa Tupua a legal person and establishes the office of Te Pou Tupua.5 This office comprises two persons with interests in the Whanganui River, one to be nominated on behalf of the Crown the other to be nominated by iwi, indigenous descent groups. Te Pou Tupua ‘is to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua’.6 These settlements were borne of many years of struggle on the part of Tūhoe and Whanganui iwi for recognition of serious breaches by the Crown of its obligations under the Treaty of Waitangi. The Treaty, signed in 1840 by representatives of the British Crown and of some indigenous kin groups, is widely regarded as New Zealand’s founding document. By this Treaty, the Crown guaranteed Māori te tino rangatiratanga, the unqualified exercise of their chieftainship, over their lands, villages, and all their treasures.7 Grievances have been addressed through the processes of the Waitangi Tribunal, a standing commission of inquiry established to inquire into Māori claims that laws, policies, acts or omissions of the Crown are or were inconsistent with the principles of the Treaty of Waitangi.8 The Tribunal has the power to recommend redress, which is then the subject of negotiations between the New Zealand government and hapū and iwi.9 At times, however, it seemed settlement for Tūhoe would await another generation. In 2010, Prime Minister John Key ruled out returning ownership of Te Urewera National Park to Tūhoe. Tāmati Kruger, chief negotiator for Tūhoe, was reported as having being instructed by his people ‘not to come back without the return of the land and a path to self-governance’.10 Of Te Urewera’s return, Kruger said, ‘There would have been no settlement without it. With that view I was not then afraid of saying no. I came to understand that saying no was one of my most powerful tools’.11 Settlement of Whanganui iwi’s claims to the river also faced obstacles, particularly given continued legal uncertainty about Māori rights to freshwater and the beds of rivers. Against this background, this article analyses the grant of legal personality to Te Urewera land and the Whanganui river as part of a process which seeks to acknowledge colonial wrongs. This process takes place inside a unitary state governed by a system of Parliamentary sovereignty and is constrained by the unwillingness of the majority to acknowledge or address Māori claims to political authority. In this case, it was constrained also by the Government’s refusal to transfer ownership of Te Urewera and the Whanganui River to hapū and iwi. This article argues that the grant of legal personality is an example of a compromise between the state and an indigenous descent group, each of which claim political authority in that space. In these settlements, the grant of legal personality and the use of non-ownership facilitate relationships between the Crown and iwi by permitting the recognition of their competing claims to exercise authority over the resource. Yet, though the legal personality model is symbolically significant, it determines little about the practical shape of the settlements. While ownership appears absent, the legislation unbundles the incidents associated with ownership and reapportions them within co-management and co-governance frameworks. The article concludes that grant of legal personality acknowledges conflict about the exercise of power over land and rivers, and seeks to reframe the terms under which this conflict continues. This article begins by arguing that a primary purpose of the grant of legal personality is to regulate human relationships relating to the land and river. This focus does not however de-nature Te Urewera or the Whanganui river because the legislation, which sets out how the land and river will be governed, has at its heart tikanga Māori, indigenous customary systems of values and law, discussed in Section 2. In Section 3, the prompt for the use of the legal personality model is explored—legal personality was recognised because the government would not transfer ownership to Māori. I argue that ownership was not transferred because, in part, of the strength of the association of these properties with the identity of the colonial state—while these settlements focus on property, they are negotiated in the shadow of questions of political authority. In Section 4, I analyse the detail of the settlements and conclude that, while ownership may appear to be absent; practically, it persists. Each settlement establishes a kind of sui generis property regime overlaid by processes of co-management and co-governance. Finally, in Section 5, I make a case for the importance of these settlements. The use of the legal personality model is constitutionally significant as it provides opportunity for the reframing of relationships of authority and obligation in relation to land. This article proceeds on the basis that the grant of legal personality to Te Urewera and the Whanganui River is deeply embedded in Aotearoa New Zealand’s12 legal culture, including in tikanga Māori, indigenous customary systems of values and law. The grant of legal personality in New Zealand responds to a distinct legal problem, in its own way. I argue also that the reasons for the innovation are complex: at one level, these settlements seek to focus decision-making about the land and the river around a new set of agreed principles and purposes; at another, there is a symbolic reframing of relationships between people and the environment; further, the settlements can also be regarded as new frameworks for relationships between people. This article argues that these settlements should be understood in the context of New Zealand’s history and legal culture. 1. THE PURPOSE OF LEGAL PERSONALITY The idea that aspects of nature might be conceived as legal persons is associated with Christopher D Stone who published, in 1972, ‘Should Trees Have Standing?—Toward Legal Rights for Natural Objects’.13 This piece may now be considered part of a wider movement advocating legal rights for nature.14 But the grant of legal personality to aspects of nature engages debates in analytical jurisprudence as well as those in environmental philosophy. Questions about whether nature should be recognised as a legal subject return to controversies of the early 20th century about the justifications for the grant of legal personality, and the practical and philosophical puzzles which arise from such a grant.15 Theorists interested in the use of legal personality have long been fascinated by the origins of the word: the English ‘person’ comes from the latin persona, which in turn derives from the Greek, where it signified a mask worn by an actor on the stage.16 Without seeking to explore all the possibilities of this metaphor, I suggest that legal personality brings with it ideas of representation and performance. We should not then be surprised when the use of legal personality for nature permits the expression of competing perspectives. Indeed, the plastic quality of the ‘voice’ of nature might well be essential to the grant of legal personality and its utility—legal personality may be granted to nature to manage and facilitate human relationships. Bryant Smith argues: The broad purpose of legal personality, whether of a ship, an idol, a molecule, or a man, and upon whomever or whatever conferred, is to facilitate the regulation, by organized society, of human conduct and intercourse.17 In the case of Te Urewera and the Whanganui River, the grant of legal personality aims to facilitate the acknowledgement of wrongs done to iwi, and in particular to break a deadlock created by the government’s refusal to transfer ownership of the land and river. By the use of legal personality, the land and river become a forum for relationships between indigenous and settler peoples. This is not an unintended consequence of the use of legal personality, but an important reason for the adoption of the model. Yet where legal personality functions as an instrument to manage human relationships, it risks affecting a kind of de-naturing18—use of the land or river as a site of political negotiation might eclipse the land or river itself. This article argues that while legal personality for Te Urewera and the Whanganui river provides a forum for political relationships between the state and iwi, this forum remains connected with the natural world. In Aotearoa New Zealand, the idea of legal personality for nature has, from the outset, been recognised as having affinity with tikanga Māori, indigenous customary systems of values and law.19 And, as will be discussed in Section 2, tikanga Māori ensures that responsibility to place and to the natural world remains philosophically at the heart of these settlements. 2. THE ROLE OF TIKANGA MĀORI In this section, I set out some principles of tikanga Māori, which, I argue, are central to the development of the legal personality model in Aotearoa New Zealand. I draw on the work of Nin Tomas to describe the Māori conceptual framework for relationships with the natural world. As a starting point, Tomas refers to philosopher Māori Marsden’s description of a Māori world: The conceptual framework Marsden describes is built around a Māori view of ultimate reality that rests on three foundational ideas: (1) that humans are part of an ongoing process that originates from a world of nonphysical existence or ‘wairua’, that is beyond consciousness, time or space; (2) that natural connections exist between ‘te ao wairua’ (the realm of nonphysical or spiritual being) and ‘te ao marama’ (the material world of physical being); and (3) that ‘whakapapa’ (genealogy) informs and links all things into a natural order.20 Tomas then discusses three fundamental aspects of Māori perceptions of the environment. First: Māori law is based on the idea that Papatuanuku (Earth mother) possesses an inherent, powerful personality that is logically prior to, and completely independent of, human existence.21 Second, humans are subjects of the environment, rather than its masters; we are part of an interrelated living whole. Tomas notes therefore that Māori perceive themselves as kaitiaki (caretakers) of the environment.22 Finally, whakapapa (the maintenance of genealogical links to the land) anchors kaitiaki obligations to future generations.23 Within this framework, recognition of aspects of nature as legal entities holds promise as a means of recognising the mana (authority) and mauri (life force) of the land or water.24 As aspects of nature are regarded as tūpuna (ancestors), such recognition also has the potential to better acknowledge the relationship of people and the natural world. In the negotiation of the Whanganui River Deed of Settlement, the pepeha (tribal saying) ‘Ko au te Awa, ko te Awa ko au: I am the River and the River is me’ was often referred to.25 Of the relationship between Tūhoe and Te Urewera Henare Nikora has said: If Tūhoe talks to Tūhoe, then you are talking to Te Urewera. You cannot separate the two. We are all around and within it. We have relations here, there and there. And we are all intertwined. Tūhoe and Te Urewera are one. It is incomprehensible to see them as separate.26Tikanga does not prevent Māori making use of natural resources—the relationship between development and preservation is debated by hapū and iwi, as it is in other communities.27 However, that debate is shaped by the understanding that managing the use of natural resources in a way which preserves their mauri, and their use for future generations, affirms the mana of hapū and iwi also. The group with rights and responsibilities in respect of land, including obligations of kaitiakitanga (caretaking) may be described as holding mana whenua (traditional status, rights and responsibilities). Appropriate exercise of these rights and responsibilities affirms the mana whenua relationship, maintains the legitimacy of the exercise of authority in relation to land, and strengthens leadership. 28 Merata Kawharu has argued: Kaitiakitanga is not simply an ‘environmental ethic’ then, but rather a socio-environmental ethic. It is about relationship between humans and the environment, humans and their gods and between each other.29 Like other foundational concepts, the principles of tikanga Māori are the subject of debate; a debate to which deploying tikanga concepts outside Māori communities, and in legislation in particular, adds complexity. For example, Anne Salmond has noted that in the first draft agreement between Whanganui iwi and the Crown the two people appointed to speak for the river were described as guardians, a common translation of kaitiaki. Salmond argues the legal association of guardianship with children or incapacitated adults marked ‘a radical shift from ancestral conceptions in which … rivers are powerful beings upon whom people depend’.30 Neither Act now speaks of people as guardians of land or river.31 Instead, Te Kawa o te Urewera—the draft management plan for Te Urewera notes at the outset, ‘Te Kawa is about the management of people for the benefit of the land—it is not about land management’.32 Thus, in the Māori conceptual framework, rivers and land are not objects of human control but part of an interrelated whole. However, Māori must negotiate within a different framework, one where, as Marama Muru-Lanning notes, ‘the ownership of property is the primary way that status is recognised’.33 This tension contributes to a range of views within and among Māori groups about the purpose and desirability of claims to ownership. 3. WHY NON-OWNERSHIP? This article has argued that legal personality is used in these settlements as a means of regulating relationships regarding the land and river between the state and Māori. The legislative models adopted, which are examined in detail in Section 4, draw on tikanga Māori. The next step is to understand why legal personality was granted to Te Urewera and the Whanganui river in particular. This prompts inquiry into why ownership of the land and river was not transferred, and the non-ownership model adopted. This part therefore begins by setting out the basis on which ownership of Te Urewera National Park and the Whanganui river was claimed by iwi. It then analyses the significance of claims to own these resources for Māori and for the colonial state. 3.1 Māori Claims to Te Urewera and the Whanganui River The grant of legal personality to Te Urewera and the Whanganui river took place as part of the Treaty of Waitangi settlement process, through which the Crown acknowledges breaches of its obligations to Māori under the 1840 agreement. Under the second article of the Treaty, the Crown guaranteed to the tribes: the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession. The Māori language version of the Treaty, to which most Māori signatories assented, expresses the promise using the term te tino rangatiratanga, unqualified exercise of chieftainship, over their lands, villages and all their treasures. The starting point for Māori claims to Te Urewera and the Whanganui river is therefore the exercise of customary authority over the land and river. Settlements of claims under the Treaty of Waitangi prior to 2014 had recognised Māori interests in national parks and rivers in a number of ways.34 However, existing models for legal recognition were considered by many to be inadequate as, in each of these areas, settlements are heavily constrained by Crown policy.35 For the most part, the Crown has ruled out the transfer of conservation estate land to Māori as part of a Treaty settlement.36 It also continues to assert ownership of the beds of navigable rivers under the Coal Mines Act Amendment Act 1903 and, while arguing that no one owns water at common law, claims the ability to allocate rights to freshwater under the Resource Management Act 1991.37 Such was the starting point for settlement negotiations. Negotiations on the status of Te Urewera National Park took place in the context of the Waitangi Tribunal’s inquiry into Tūhoe’s grievances under the Treaty of Waitangi. Though Tūhoe had not signed the Treaty, the Tribunal held that the Crown owed unilateral duties to the tribe under the 1840 agreement.38 The Crown also held obligations under an agreement with Tūhoe, reflected in the Urewera District Native Reserve Act 1896, in which the Crown acknowledged Tūhoe self-government. The Tribunal found that the Crown failed to honour this unique agreement, instead launching, in the early 20th century, a ‘determined Crown assault on Te Urewera reserve lands’39—a purchasing campaign which was predatory and, at times, illegal.40 The Waitangi Tribunal concluded that the park was established in breach of the Treaty and recommended title be returned to Tūhoe, and a neighbouring iwi Ngāti Manawa,41 and the park jointly managed by Tūhoe and the Crown.42 No customary or native title claim was available to Tūhoe as customary title had been systematically extinguished through the processes of the Native Land Court in the early 20th century. Negotiations between the Crown and Tūhoe broke down in 2010 when Prime Minister John Key publicly ruled out return of title to national park lands. Key argued the decision had been driven by the prospect that other iwi would seek the same outcome in their Treaty settlements, or would seek to revisit settlements expressed as ‘full and final’.43 Negotiations between the government and Whanganui iwi also stalled on the resolution of iwi claims to the river. In 1999, the Waitangi Tribunal, one member dissenting,44 had recommended a negotiated solution recognising Whanganui iwi ownership and authority in respect of the river.45 The Tribunal noted that [t]he record clearly shows that Atihaunui [the people of the river] became determined to hold on to the control of the river at all costs from the moment their traditional authority was challenged and their river rights appeared to be threatened.46 However negotiations with Whanganui iwi hit up against two Crown ‘bottom lines’: first, the Crown asserts that at common law no one owns water and second, the Crown claims the right to allocate water resources.47 These starting points are heavily contested and Māori claims to freshwater are the subject of continued legal uncertainty. There is potential for rights to freshwater to be pursued under the common law doctrine of native title,48 and the Waitangi Tribunal has inquired into Māori claims to freshwater generally. In its first report on the issue in 2012, the Tribunal found that ‘Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights’ and that the ‘nature and extent of the proprietary right was the exclusive right to control access to and use of the water while it was in their rohe’.49 Customary or native title claims to the river as whole, or to the bed of a river particularly, are also possible. Over the period of the Whanganui settlement deed’s negotiation, litigation regarding stretches of the Waikato river overturned Crown understandings of the scope of the vesting of the beds of navigable rivers in the Crown and, in 2014 in the same proceedings, the Supreme Court acknowledged the possibility of unextinguished Māori customary rights in the beds of non-navigable rivers.50 In addition, there remains a good argument that the vesting of the beds of navigable rivers in the Crown in the Coal Mines Act Amendment Act 1903 was insufficiently clear and plain to extinguish Māori customary rights in the beds of navigable rivers.51 In short, at the time the Whanganui deed was entered into, there were (and there remain) potential claims to customary title to freshwater, river beds, or to rivers more broadly conceived; though there is considerable uncertainty about whether and how those rights might be legally recognised.52 In negotiations with the Crown, Tūhoe and Whanganui iwi claimed ownership of Te Urewera National Park and the river respectively. In doing so, each were supported by the recommendations of the Waitangi Tribunal. In the case of Whanganui iwi, legal claims based on customary title were also possible, though uncertain. The grant of legal personality arose because the government would not transfer ownership. The next subsection explores the significance of claims to own the resources for Māori and for the colonial state. 3.2 The Meanings of Ownership In Section 2, I set out aspects of a Māori framework for relationships with nature. In that section, fundamental differences between ownership and frameworks for the management of land and rivers in tikanga Māori are apparent. Yet hapū and iwi seeking recognition of their status must contend with property. This section examines critically the significance of ownership claims. Since the 1980s, privatisation has sharpened the demand to speak of ownership, and Alex Frame has argued that the commodification of common resources through the sale of state assets has compelled the pursuit of ownership claims. Says Frame, ‘Not surprisingly, the Māori reaction has been: if it is property, then it is our property!’53 But, as Anne Salmond has noted in respect of the freshwater debates, claimants are placed in a series of ‘double binds’: ‘if Māori kin groups do not claim “ownership” of ancestral freshwater bodies and rights to fresh water are privatized, they may be left with nothing.’54 Relationships with ancestral waterways must be redefined for entry into legal forums, something Salmond describes as ‘an act of commensuration entailing a kind of ontological submission’.55 Tensions arising from the need to speak in proprietary terms in Western legal forums may be managed, in part, by the use of ownership as a metaphor. Debates about ownership, notes Marama Muru-Lanning, are ‘more to do with claims to status and power’.56 The idea of ownership may be used as a mobilising metaphor to bind a group, and to connect the group to its leadership.57 As well as mobilising group members, ownership claims speak to other social groups competing for control of a resource. Ownership may therefore be used to communicate, both internally and externally, relationships between land and political authority that were identified as part of a tikanga Māori framework in section two. Lyndsay Head has argued: among Maori the power of decision making was the chiefly role (whatever was at issue); the power to make decisions over land is therefore the Maori meaning of what is expressed in English as ‘land ownership’.58 This relationship between land and political authority may also appear heightened because of the Crown’s reluctance to address directly Māori claims to political authority.59 Claims to status, power and to make decisions in respect of land may be expressed obliquely in a property framework at least in part because of majoritarian resistance to their expression in political terms. In these ways, Māori ownership claims respond to the need to interact with colonial frameworks. In Pākehā60 society, ownership also has meanings that the common bundle of rights metaphor fails to capture. This is well illustrated in a column, written by David Williams in the New Zealand Herald newspaper shortly after the Prime Minister’s 2010 announcement that title to Te Urewera National Park would not be transferred to Tūhoe. Williams wrote: People need to know that full public access to a national park is guaranteed, that tracks and huts are maintained, and that fish stocks in the lakes are conserved. They need to be assured the land will be cared for and protected for future generations. The meanings of ‘ownership’ are debatable in jurisprudential writings. Concepts like ownership, co-governance, co-management, kaitiakitanga, mana motuhake are for Treaty settlement negotiators to haggle over. For ordinary citizens contacted by a polling agency, why should one legal concept or another really matter?61 Williams’ question is particularly apt given the final shape of Te Urewera and Whanganui settlements, discussed in Section 4. Had title to Te Urewera National Park or to the bed of the Whanganui river been transferred to the name of a tribal ancestor, a practice established in earlier settlements,62 practical aspects of the settlement would likely have been little changed. Politically however, non-owning seems to have made a difference, enabling compromise and settlement with iwi. Property theorists differ on why ownership matters. But, when Williams’ column goes on to note the history of Te Urewera, it can be read as alluding to a more particular problem. That is, why should ownership matter, even when the thing owned is known to have been unjustly acquired? One response to this question is that many Pākehā New Zealanders have little knowledge of the way in which lands and rivers were acquired by the Crown.63 Recent research relating to the establishment of Tongariro National Park demonstrates the persistence of misinformation about the manner in which this national park was legally created.64 Williams’ column stands in the tradition of those who uncover and publicly retell these colonial histories. The title of the column ‘Be bold and talk about the benefits of settlements’ speaks of another solution. Williams argues ‘the Government needs to find the political courage and will to talk up the benefits of durable Treaty settlements’.65 Public history and political courage are vital. But, it is also interesting to consider whether the power of the idea of ownership itself plays some part in resistance to return of Crown held properties. If it does, then this would go some way to explain why the legal personality model has helped to bring the Crown to agreement. Jeremy Waldron has argued that property is normatively resilient and that this resilience ‘lays a kind of curse on the land’ that hampers redress to indigenous peoples.66 He explains: The concept of normative resilience points to a discontinuity between two types of normative judgement associated with an institution: (1) judgements concerning the justification of the institution, and (2) judgement concerning individual conduct in relation to the institution. […] A resilient institution continues to exert itself normatively through its type 2 judgment, notwithstanding the fact that it is discredited at the type 1 level.67 Waldron takes a broad view of type 1 issues, including in the category ‘judgement that the distribution of some specific object or resource is unjust’.68 Normative resilience therefore attempts to explain why one may remain attached to the statement, ‘Object O belongs to X’, regardless of knowledge either that the property system generally is unjustified, or that object O came to belong to X in unjust circumstances. Various theories might account for the dissonance. Waldron’s thesis is that the social pervasiveness of property as an institution makes it normatively resilient. He argues that opponents of existing property arrangements, or those who have been wronged in their establishment, seldom have any choice but to interact with existing property arrangements in their everyday lives. It is difficult to ‘opt out’ of the world of property.69 This resonates with the ‘double bind’ described by Salmond; property is so pervasive it becomes hard to pursue political goals without speaking its language, even if one’s goal includes critical challenge of property itself. The overwhelming need to get by materially and politically may make rejection of injustice in the establishment of property arrangements difficult.70 Moreover, property coalesces with the economic and political power of dominant social groups, reinforcing barriers to significant redress. Waldron also considers the work of Margaret Radin as a possible explanation for the normative resilience of property. Radin argues that once personal identity becomes intertwined with an object, respect for the property right is bound up with respect for the individual. Objects become part of the way in which we constitute ourselves in the world.71 The Crown, a representation of the New Zealand state, was the owner of the riverbed and the national park. Radin’s theory might therefore lead us to ask what role these properties have played in constituting the identity of the colonial state.72 The settlement of land generally is at the heart of colonisation and, in colonial New Zealand, settlement was associated with industry and virtue. Writing of the late 19th century, rural and environmental historian Tom Brooking has said: Like Maori, Pakeha believed that land helped to mould community. Pakeha also believed that ownership somehow improved the character of the owner and enriched in a moral and spiritual sense all those who lived off the land.73 Arguments about land tenure were at the heart of New Zealand colonial society. Yet, notes Boast: All shades of opinion favoured ‘close settlement’, which meant in essence dense rural settlement, a recreation of the densely settled English rural world—but, importantly, minus the petty oppressions of squire and parson.74 The policy of ‘close settlement’ not only affirmed the ideal that working the land was morally improving but, in the tradition of English radicalism, it also rejected the land monopolists and large landowners familiar to British and Irish settlers. Radical politicians, argues Brooking, ‘believed that land could be moulded and reshaped to meet the needs of a larger and more ideal society’.75 The state played a large role in this property tradition. It used land tenure policy as an instrument of its nation building and nationalised key resources—in 1903, the beds of navigable rivers.76 With the establishment of national parks, the state sought to protect nationally important scenic and recreational areas, in part as a radical rejection of the great private estates of England and Scotland.77 Land was therefore intertwined with the emerging identity of the colonial state. Working the land was associated with personal improvement. However, the state was seen to hold land to protect public rights, and this also was associated with the establishment of a better, more just society. In this historical discussion of the development of New Zealand’s property traditions, Waldron’s type 2 judgements, relating to the statement ‘Object O belongs to X’ are embedded in ideological narratives concerning the justification for colonial land policy, and for the property system generally: purchase of Te Urewera land and the nationalisation of the bed of the Whanganui river reflected and aligned with these colonial ideas.78 Waldron’s view that property is normatively resilient seems to have some explanatory power where, over time, Pākehā support for Crown ownership of national parks and rivers has remained strong despite challenges to colonial justifications for ownership. Public resistance to the transfer of ownership to hapū and iwi in this context may to some extent be due to the strength of the association of these properties with the identity of the colonial state.79 Given the particular association of these properties with the state, the New Zealand government’s refusal to transfer title to the park lands and river should be read as a claim to political power; a public assertion of the authority of the state to determine property rights. And, while the state claims power to determine property rights generally in its jurisdiction, conflicts with indigenous groups over property rights are particularly constitutionally significant. Lindsey Te Ata o Tu McDonald has argued that such conflicts drove colonial governments to strive for complete authority within their jurisdictions.80 This places Te Urewera81 and Whanganui settlements in what Mark Hickford has described as ‘conversations without end’82 about ‘whether or not to relate indigenous property rights to authority over territorial space’.83 In this way, behind the dispute about ownership of Te Urewera and the Whanganui river—a dispute about the allocation of property—we see conflict about the right to allocate, and a wider indigenous challenge to the distribution of power. The Crown’s reassertion of the right to allocate property lies behind the use of legal personality. At the same time however, the model may be viewed as an expression of resistance on the part of Tūhoe and Whanganui iwi both to the idea of property itself, and to the claim on behalf of the Crown to the authority to allocate. Through this lens, legal personality becomes a vehicle through which a relationship with the land and river in tikanga Māori may be publicly affirmed. As Hickford notes in his reflections on New Zealand’s political constitutionalism, ‘different actors may explain or understand the same outcome in quite different terms’,84 and it appears the grant of legal personality to Te Urewera and the Whanganui river is an example of this. 4. THE LEGISLATIVE FRAMEWORK I have argued that the choice of non-ownership for Te Urewera and the Whanganui river allows the Crown and Māori to communicate claims to status and power in respect of land. In this section, I look more closely at the legislation declaring Te Urewera and the Whanganui river, Te Awa Tupua, legal entities. I begin by noting that the legislation does not create a legal person but recognises legally the identity of Te Urewera and the Whanganui river in tikanga Māori. Once recognised, the new legal entities enjoy ‘all the rights, powers, duties, and liabilities of a legal person’.85 Second, I analyse separately Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Recognition of an aspect of nature as a legal person determines little about the practical relationships between the Crown and iwi in relation to that resource. Much depends upon the detail of the legislative framework, and here, there are significant differences between Te Urewera and Whanganui models. I use the legislation to support two arguments. First, while it is important symbolically that ownership disappear; practically, it persists. Behind the declaration of legal personality, property remains an organising principle. New Zealand’s framework for use of land and water—the Resource Management Act 1991—also remains in effect; the legal personality legislation amends only aspects of its application. Second, I argue that the legislation reflects the use of legal personality to regulate human relationships. The Acts prescribe who will make decisions on behalf of the legal person, and describe how those decisions should be made. Co-management and co-governance bodies are used. These bodies are a practical means by which different values relating to the land and its use may be discussed. Processes governing these bodies anticipate and provide for continuing disagreement. 4.1 The Recognition of Legal Personality As discussed in Section 2 of the article, the relationship between iwi and Te Urewera and the Whanganui river, Te Awa Tupua, animate the settlements. Whereas Stone’s proposal sought to reconstruct nature as rights bearer, in Aotearoa New Zealand legal personality is framed as recognising the prior, intrinsic identity of nature.86 This is evident in section 3 of Te Urewera Act, which begins with Te Urewera itself: Te Urewera 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. The settlements recognise the identity of Te Urewera and Te Awa Tupua, and their relationship with Tūhoe and Whanganui iwi.87 The law does not claim to create the legal person but, using the framework suggested by Justice Joseph Williams, a modern law of Aotearoa New Zealand may look to its ‘first law’, tikanga Māori, and recognise the status of the river or land arising from that framework.88 This is explicit in Te Awa Tupua Act in which the Crown acknowledges that ‘the recognition of Te Awa Tupua is based on the tikanga and the mātauranga [knowledge] of Whanganui iwi’.89 Nonetheless, the statutory recognition of Te Urewera and Te Awa Tupua as legal entities gives them status in a modern legal system that counts tikanga Māori as only one of its sources. The legislation is founded upon tikanga Māori but exemplifies what Justice Williams describes as the ‘third law’,90 which draws upon both Māori and colonial legal systems to create something previously unknown to both. The declaration of the status of both Te Urewera and Te Awa Tupua is in broad terms. Section 11 of Te Urewera Act 2014 provides: Te Urewera declared to be legal entity Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person. However,— the rights, powers, and duties of Te Urewera must be exercised and performed on behalf of, and in the name of, Te Urewera— by Te Urewera Board; and in the manner provided for in this Act; and the liabilities are the responsibility of Te Urewera Board, except as provided for in section 96.91 Section 14 of Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 declares Te Awa Tupua to be a legal person in similar terms. Some legislative provisions articulate the rights, powers and duties to be exercised and performed on behalf of Te Urewera and Te Awa Tupua.92 However, for the most part, the rights and duties of the new legal entities are not specifically enumerated or prescribed. 4.2 Te Urewera Act 2014 The basic scheme of both Acts is that land that was owned and managed by the Crown and its delegates now vests in the new legal entity. Te Urewera land, formerly a national park, ceases to be vested in the Crown. It now ‘vests in Te Urewera’ and is governed by Te Urewera Board in accordance with the Act.93 There are a number of similarities with the legal framework governing national parks. Broadly speaking, Te Urewera Board steps into the shoes of the Crown to make decisions in respect of the land, though it may do so in a way that reflects Tūhoetanga, Tūhoe culture and the Tūhoe way of life.94 A set of principles governs those who implement the Act. These include the preservation of Te Urewera and its ecological systems and biodiversity. Those exercising powers under the Act must also act so that, as far as possible, ‘Tūhoetanga, which gives expression to Te Urewera is valued and respected’.95 Te Urewera Board speaks and acts on behalf of Te Urewera.96 The Board has full capacity and all the powers reasonably necessary to achieve its purposes and perform its functions.97 For the first three years after settlement, the Board will comprise equal numbers of members appointed by Tūhoe and the Crown. Following this period, a Board of nine members will be appointed, comprising six Tūhoe appointees and three members appointed by the Minister of Conservation.98 Te Urewera scheme includes elements of both co-governance and co-management. 99 Te Urewera Board may be described as a co-governance body: it prepares and approves Te Urewera management plan;100 makes bylaws for Te Urewera, and grants concessions to authorise activities that would otherwise not be permitted on the land.101 Prior to the Act, these functions were exercised by the Minister of Conservation and government bodies and appointees.102 Day to day, Te Urewera will be jointly managed by the Chief Executive of Te Uru Taumata, a Tūhoe governance body, and by the Director-General of Conservation, a government appointee.103 The premise of the Act is that Te Urewera is placed ‘beyond human ownership’;104 there is no person or body who is presumed to hold the incidents or abilities that are said to characterise the relationship of ownership.105 In practice however, the Board enjoys powers that previously characterised the Crown’s ownership of the land as a national park. For example, the Board may grant concessions such as leases, licences, permissions, or easements in accordance with the management plan.106 Other powers usually associated with ownership of land are proscribed by the legislation: Te Urewera is declared inalienable and must not be mortgaged or otherwise disposed of, except in certain narrow circumstances.107 The power to exclude is limited; generally ‘all persons performing functions and exercising powers under this Act must act so that the public has freedom of entry and access to Te Urewera’.108 These restrictions are consistent with the special character of the land—visitors continue to be welcomed to Te Urewera, as they were when it was a national park. The vexed question of mining is complex. Ownership of certain minerals would remain with the Crown were they to be discovered in Te Urewera.109 But, whereas a Minister of the Crown determines whether the holder of a mining permit may access national park land, in the case of Te Urewera, it is the Board which exercises that power.110 In doing so, the Board is subject to the same legal limits as a Minister considering mining activity in a national park.111 In short, it appears that Te Urewera enjoys no greater formal legal protection from mineral exploitation than it did as a national park. What has changed however, is who decides whether access to the land for mining activity would be consistent with the statutory criteria. Here, the power previously exercised by a representative of the Crown is vested in the Board. The Board exercises other governance functions that were previously exercised by public bodies. For example, as is the case with national parks,112 the management plan prepared by Te Urewera Board establishes a kind of localised land use scheme. The Board’s activities are, in certain circumstances, exempted from the controls of the Resource Management Act 1991.113 Thus, if Crown ownership may in some circumstances be considered a placeholder for ‘the aggregate of various rights of control’ over a resource,114 in the case of Te Urewera the rights of control often associated with Crown ownership are generally vested in the Board. 4.3 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 The legislative scheme governing Te Awa Tupua is generally more complex. Political unwillingness to recognise Māori proprietary rights to water, or to permit iwi control of future use of the river has shaped the settlement. Public rights traditions discussed in Section 3, and the complex legal regime governing water and rivers, have also played a part. The deal has been described as ‘ground-breaking’, but also as a ‘compromise to prevent iwi from gaining ownership’.115 This compromise is clearly acknowledged by the Crown in the Act.116 But though the settlement falls short of what was recommended by the Waitangi Tribunal, it is, nonetheless, unique in the context of previously settled claims to freshwater bodies in New Zealand.117 At its heart however, property remains an organising principle of Te Awa Tupua legislation. The fee simple estate in the Crown-owned parts of the bed of the Whanganui River vests in Te Awa Tupua.118 This land is inalienable, but an easement, lease, or licence may be granted on behalf of Te Awa Tupua for a term of less than 35 years.119 While ownership of some minerals in the bed remains with the Crown, others vest in Te Awa Tupua.120 The Act also preserves a range of existing rights: public use and access rights and existing private property rights, including customary rights and title.121 However, the vesting of the Crown-owned parts of the bed does not create or transfer a proprietary interest in water. Further, while the consent of Te Pou Tupua, the human face of Te Awa Tupua, may be required in relation to the use of the bed of the river, this is not so in relation to the use of water.122 The Act also establishes an elaborate structure of co-management and co-governance bodies. These bodies enjoy a range of powers but their activities are united by a common set of values legally recognised as Tupua te Kawa, ‘intrinsic values’ sourced from mātauranga Māori (Māori bodies of knowledge) that ‘represent the essence of Te Awa Tupua’.123 The values acknowledge Te Awa Tupua as a ‘spiritual and physical entity’ as well as its relationship with ‘iwi, hapū, and other communities of the River’.124Table 1 outlines the composition and function of the three main bodies established by the Act.125 Together, these bodies are Te Pā Auroa nā Te Awa Tupua, literally the broad eel weir, symbolising ‘an extensive, well-constructed framework for Te Awa Tupua that is fit for purpose, enduring and the responsibility of all’.126 Table 1. Te Pā Auroa nā Te Awa Tupua: co-management and co-governance bodies established by Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). a While TATA 2017 provides for iwi and the Crown each to nominate one person to the office of Te Pou Tupua, the first appointments, made in September 2017, were made jointly by the Crown and iwi with interests in the river. Dame Tariana Turia and Turama Hawira, each of whom are members of hapū and iwi with interests in the river, were appointed: Christopher Finlayson ‘First Te Pou Tupua appointed’ (4 September 2017) <https://beehive.govt.nz/release/first-te-pou-tupua-appointed> accessed 16 October 2017. b Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 10. c Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 22. d Te Heke Ngahuru is the first autumn migration of eels. The name symbolizes ‘the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource’: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 17. Persons exercising powers under listed statutes must have particular regard for Te Heke Ngahuru, and the approval of this strategy triggers an obligation on local authorities to consider planning documents in light of Te Heke Ngahuru: TATA 2017, s 38. Table 1. Te Pā Auroa nā Te Awa Tupua: co-management and co-governance bodies established by Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). a While TATA 2017 provides for iwi and the Crown each to nominate one person to the office of Te Pou Tupua, the first appointments, made in September 2017, were made jointly by the Crown and iwi with interests in the river. Dame Tariana Turia and Turama Hawira, each of whom are members of hapū and iwi with interests in the river, were appointed: Christopher Finlayson ‘First Te Pou Tupua appointed’ (4 September 2017) <https://beehive.govt.nz/release/first-te-pou-tupua-appointed> accessed 16 October 2017. b Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 10. c Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 22. d Te Heke Ngahuru is the first autumn migration of eels. The name symbolizes ‘the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource’: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 17. Persons exercising powers under listed statutes must have particular regard for Te Heke Ngahuru, and the approval of this strategy triggers an obligation on local authorities to consider planning documents in light of Te Heke Ngahuru: TATA 2017, s 38. 4.4 Processes of Co-management and Co-governance Co-management and co-governance bodies are essential to the legislative scheme supporting Te Urewera and Te Awa Tupua. But, while these kinds of bodies are now a familiar feature of Treaty settlement, they attract scepticism. Brad Coombes and Stephanie Hill argue that co-management may ‘co-opt Indigenous peoples’ interests’,127 particularly when these structures are established without addressing indigenous aspirations for greater political authority.128 Once up and running, co-management bodies may face disagreement over foundational principles. While this is a feature of debates in environmental law generally, it is particularly marked in the context of co-management: as Salmond has noted, indigenous peoples and government representatives may have fundamentally different assumptions about how the world works—for example ‘that a river is or is not a living being’.129 The potential for disagreement appears to be acknowledged in Te Urewera and Te Awa Tupua legislation. While both Acts make general statements regarding the desirability of collaboration,130 they also introduce procedural requirements that engage the parties in participatory, deliberative decision-making. Members of Te Urewera Board and the Whanganui river strategy group, Te Kōpuka, are required to promote unanimous decision making or consensus decisions, being those made in the absence of a formally recorded dissent.131 A vote is taken only if unanimity or consensus decision-making is not practical and, even then, a high degree of support for each measure is required—in effect, neither the Crown and other stakeholders nor iwi may proceed without the support of at least some of the representatives appointed by its partner.132 These processes appear to draw on tikanga Māori both as it is reflected in existing examples of successful joint management,133 and as it is expressed in the constitutional values shared by Māori communities.134 Māmari Stephens has argued that one may identify a particular Māori attitude that public power ought to be exercised: as a means of meeting collective obligation for civic ends; in a way that facilitates group participation and public input; with due process and regard for the standing of those involved.135 These values appear reflected in the procedural requirements of these settlements. A preference for consensus means it is less likely that members can be side-lined, or their views ignored. Generally, these measures will have the practical effect of requiring a longer conversation. Procedural requirements that engage the parties in participatory, deliberative decision-making also align with theories of relative authority. Nicole Roughan, using the Crown-Māori relationship as a case study, has argued that ‘[a]uthority should be conceived as relative, shared, and interdependent, not binary, monist, or independent’.136 Roughan’s theory acknowledges that at times cultural values and practices will be incommensurable. Reason does not dictate an outcome in these circumstances but ‘authorities participate together to decide how the different incommensurable reasons can be best accommodated or compromised’.137 And, as relative authority realises its legitimacy through relationship, it appears that, through this theoretical lens, the agreement of effective outcomes has the potential to enhance the standing of those involved, just as it may in accordance with Māori attitudes regarding the exercise of public power. 5. THE LEGAL PERSONALITY MODEL AND THE CONSTITUTION This article has argued that legal personality was granted to Te Urewera and the Whanganui river to facilitate relationships in relation to land between the Crown and iwi. Use of the legal personality model was prompted by a stalemate: neither the Crown nor iwi were prepared to relinquish their claim to authority over the land and river. Framed only in these terms, it is easy to question the value of these new arrangements. Powers of decision-making shift, but better environmental outcomes are not guaranteed. On the face of the Acts, there is no radical rejection of property as a means of ordering entitlements, but land wrongly taken from indigenous peoples is not returned to indigenous ownership. This new model also seems precarious—while developing constitutional conventions may protect legislation implementing settlement of Treaty claims, under the principle of Parliamentary sovereignty, the legislation is formally subject to repeal by a bare majority. In this final section however, I argue that the frameworks provided by the new legislative schemes are significant. The legislation does not tell us much about what it might mean for land or a river to be a legal person; few rights and duties are prescribed. Instead, it provides frameworks within which, over time, the possibilities of legal personality for nature will be explored. I argue that it is helpful to think of these frameworks as ‘constitutions’,138 which structure relationships between the Crown and iwi. Characterising the schemes in constitutional terms is helpful because it highlights the role the law may play in contests over foundational values, and brings attention to the contribution that this legislation makes to ongoing debate about land, authority and colonisation—issues I have argued are at the heart of these settlements. The Acts frame the relationship between the Crown and iwi in important ways. First, fundamental disagreement is acknowledged—legal personality responds to a contest regarding authority over land. This acknowledgement is essential to establish what James Tully describes as a ‘just constitutional discussion in which each speaker is given her or his due’.139 The law then plays an important role in structuring parties’ interaction and decision-making. Critics of legal personality focus on the indeterminate nature of the ‘voice’ created by the grant.140 But, in these case studies, the grant of legal personality has also provided a theatre for the creation of a bespoke legislative approach to that problem. Te Urewera and Te Awa Tupua Acts focus particularly on who makes decisions on behalf of the legal person, and how those decisions should be made. Processes governing the co-management and co-governance bodies suggest that the legislators’ response to the prospect of continued conflict is to encourage parties to deliberate further. The Acts include broad statements of principle to guide decision-makers. These principles affirm values centred on Te Urewera and Te Awa Tupua. In this way, we might think of the Acts as constitutions made in situ—frameworks that address the structure of power not only in respect of particular peoples, but also in respect of a particular place. Constitution making is always bounded by a particular territory, but I would argue place is present in these settlements in a different way. This is owing to the recognition of the status of Te Urewera and Te Awa Tupua on the basis of the tikanga (indigenous customary systems of values and law) and mātauranga (knowledge) of Tūhoe and Whanganui iwi respectively. Within these systems of knowledge, land has its own mana (authority) and mauri (life force). The land is itself part of the framework, rather than merely a territorial limit upon it. Frameworks for Te Urewera and the Whanganui river also relate to constitutional processes at a national level. Here, it is possible to locate the grant of legal personality within a wider shift in thinking about authority and obligation in relation to land. At common law, the relationship between land and authority is expressed through the doctrine of tenure. Arguably, the grant of legal personality is part of a process of decolonisation through which this doctrine is incrementally recast. Changes to legal understandings of tenure are ongoing and the grant of legal personality to nature is but one marker in this process.141 In the 2003 decision Ngati Apa v Attorney-General,142 the New Zealand Court of Appeal followed the High Court of Australia in Mabo (No 2)143 to find that the Crown did not take beneficial ownership of land upon the declaration of sovereignty. The judgment marked a refashioning of historical understandings of tenure to acknowledge radical title, which the Court found was ‘not inconsistent with common law recognition of native property’.144 The idea that land belongs to no one marks a further shift in understandings of relationship between peoples and land. It was first seen in 2011 when the Marine and Coastal Area (Takutai Moana) Act declared the common marine and coastal area incapable of ownership.145 Boast describes this innovation as ‘a revolution’ in New Zealand’s land law system as, immediately prior to the 2011 Act, all land in New Zealand, save for Māori customary land, was held ‘of the Crown’ under the doctrine of tenure.146 Arguably however, the change brought about by Te Urewera and Te Awa Tupua models is even more striking. Where the 2011 Act states the common marine and coastal area is owned by no one, this legislation recognises the status of Te Urewera and Te Awa Tupua on the basis of the tikanga and mātauranga of Tūhoe and Whanganui iwi respectively. Not only is the Crown removed from the apex of the feudal tenurial structure, but a tikanga based land relationship is legally acknowledged in its place. The great chain of being is disrupted as the Crown is displaced by the natural world. Finally, these Acts—with their emphasis on process and principles—seek to reframe ongoing contest. Settlement of the grievances of Tūhoe and Whanganui iwi is not a single event but an iterative process, and these Acts reflect the understanding that settlement is contingent upon the maintenance of relationships between peoples, and, perhaps, between peoples and land. These arrangements recall Tully’s view that ‘[c]onstitutions are not fixed and unchangeable agreements reached at some foundational moment, but chains of continual intercultural negotiations […]’.147 In this way, the Acts may be regarded as part of the rebuilding of the constitution of Aotearoa New Zealand. Janet McLean has argued that the settlement of the claims of hapū and iwi under the Treaty of Waitangi mark a symbolic return to the moment of the state’s foundation. She argues the personal notion of the Crown and its honour has assisted the settling parties to be conceived as ‘“constituting powers” and not constituted ones’.148 While at times the Crown does assert its position as the constituted Crown—enforcing ‘bottom lines’ regarding the conservation estate, rights to water and Crown minerals, for example—other aspects of settlement engaging the symbol of the constituting Crown return the Crown to ‘the moment of entering the Treaty of Waitangi with Māori’.149 As McLean notes, maintaining the personal notion of the Crown ‘can be regarded as a claim on behalf of Māori to constitutive power to remake the constituted authority of the State’.150 These settlements align with McLean’s analysis—iwi claim constitutive power, and the plastic quality of the Crown assists151—but the legal entity model facilitates a distinctive discourse. That is, the remaking of the authority of the state takes place in situ, and the claim to exercise authority legitimately is bound, at least rhetorically, to responsibility to place. This emerges in the Final Statement of Priorities of Te Urewera Board, published in 2016. The Board begins, ‘this framework characterises Te Urewera as the Marae—the object of our responsibility’.152 The Statement continues: The manuhiri gather, organising themselves, unifying and affirming intent. Across the ātea the pae observes and readies the tīpuna whare and the tanata whenua to receive their manuhiri. This marae—Te Urewera is the only place to authenticate our mutual intent and relationship.153 Tūhoe did not sign the Treaty of Waitangi, and for that reason the constituting parties would not by settlement return symbolically to the moment of entering the Treaty. The statement crafted by the Board does however imagine a moment of encounter and a constitutional process governed by tikanga; this is a process of pōwhiri, or ritual of encounter, whereby the tanata whenua, the people who belong to a particular place, welcome manuhiri, visitors, onto the land and into relationship with tanata whenua. By this image, Tūhoe reasserts its role as host of all peoples who come onto the land and frames the moment of commitment between peoples in an indigenous narrative. The legal entity model is brought to bear in this political imagery—Te Urewera is described as the marae—the space in front of a tīpuna whare, ancestral meeting house, where the pōwhiri takes place. Power in relation to land is not separate from power in relation to people, but the land is reconceived as an object of responsibility or site of commitment, rather than as a site of control. In the statement of the Board, we see the legislative framework used as a forum for discourse that speaks to relationships between peoples, land and authority. This is not to say that the Board secures its vision by this statement—debates about the authority of hapū, iwi and the Crown will continue, as will conflict over the relationship between people and the environment. Rather, I have argued that the legal personality model should be valued as a framework that acknowledges disagreement, and seeks to structure and support the process of negotiation and compromise that arises from it. Footnotes 1 Te Urewera Act 2014 (TUA 2014), s 3(3). 2 Representatives of the British Crown signed the Treaty of Waitangi in 1840. Formal institutional ties to the UK have, over time, been severed and Queen Elizabeth II is now Queen in right of New Zealand advised by her New Zealand ministers. On the role of the Crown in redressing historical wrongs see Janet McLean, ‘Crown, Empire and Redressing the Historical Wrongs of Colonisation in New Zealand’ [2015] NZ Law Rev 187. 3 Te Awa Tupua may be translated as ‘river with ancestral power’: Anne Salmond, ‘Tears of Rangi: Water, Power and People in New Zealand’ (2014) 4 Hau: J Ethnograph Theory 285, 286. For discussion of thesignificance of naming in constructing discourses in relation to the Waikato River see Marama Muru-Lanning, Tupuna Awa. People and Politics of the Waikato River (Auckland University Press 2016). 4 Te Awa Tupua (Whanganui River Claims Settlement) Act (TATA 2017), s 12. 5 A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. 6 TATA 2017, s 18(2). 7 Sir Hugh Kawharu, translation of the Māori language version of the Treaty of Waitangi: <https://nzhistory.govt.nz/files/documents/treaty-kawharu-footnotes.pdf> accessed 5 October 2017. 8 The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975. In 1985, the Tribunal’s jurisdiction was extended to enable it to inquire into any alleged breach of the Treaty since its signing in 1840. The Tribunal has jurisdiction to inquire into claims by any Māori individual or group of Māori, regardless of whether representatives of that ancestral group signed the Treaty in 1840: Treaty of Waitangi Act 1975, s 6. Notably, representatives of Tūhoe did not sign the Treaty. 9 Hapū and iwi are indigenous Māori descent groups. Iwi refers to a larger scale descent group. Hapū also means to be pregnant; iwi also means bone. 10 Simon Day, ‘Healing our Dark Heart’ Sunday Star Times (Auckland, 13 April 2014) <http://www.stuff.co.nz/national/9936055/Healing-our-dark-heart> accessed 5 October 2017. 11 ibid. 12 Aotearoa originally referred to the North Island but is now used as the Māori name for New Zealand. 13 Christopher Stone, ‘Should Trees Have Standing?—Toward Legal Rights for Natural Objects’ (1972) 45 S Cal L Rev 450. 14 Laurence Tribe, ‘Ways Not to Think about Plastic Trees: New Foundations for Environmental Law’ (1974) 83 Yale LJ 1315; Mari Margil, ‘Building an International Movement for Rights of Nature’ in Michelle Maloney and Peter Burdon (eds), Wild Law—In Practice (Routledge 2014) 149. See art 71, Constitution of Ecuador and Cristina Espinosa, ‘Interpretive Affinities: The Constitutionalization of Rights of Nature, Pacha Mama, in Ecuador’ (2015) J Env Policy Plann 1. See also the grant of legal personality to rivers Ganga and Yamuna, Lalit Miglani v State of Uttarakhand & ors (High Court of Uttarakhand, 30 March 2017) <http://lobis.nic.in/ddir/uhc/RS/orders/31-03-2017/RS30032017WPPIL1402015.pdf> accessed 5 October 2017; Erin O’Donnell, ‘At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India’ (2018) 30 JEL in press ; Nurfadzilah Yahaya, ‘Being, River: The Law, the Person and the Unthinkable’ (H-Law, 26 April 2017) <https://networks.h-net.org/node/16794/blog/world-legal-history-blog/177310/being-river-law-person-and-unthinkable> accessed 5 October 2017 and the grant of rights to the Atrato River, Richard Emblin, ‘Colombian Court Grants the Atrato River Rights and Protection’ The City Paper Bogota (Bogota, 8 June 2017) <https://thecitypaperbogota.com/news/a-colombian-court-gives-the-atrato-river-constitutional-rights/17311> accessed 15 October 2017. 15 For an overview see William Twining, General Jurisprudence: Understanding Law from a Global Perspective (CUP 2009) ch 15, online resource, 1–7. Of the many contributions to this debate see especially Frederic William Maitland, ‘Moral Personality and Legal Personality’ in Harold D Hazeltine, Gaillard Lapsley and Percy Henry Winfield (eds), Maitland. Selected Essays (CUP 1936). 16 See David Runciman, Pluralism and the Personality of the State (CUP 1997) pt III in particular. 17 Bryant Smith, ‘Legal Personality’ (1927–8) 37 Yale LJ 283, 296. 18 I am grateful to Janet McLean for suggesting this term. 19 Alex Frame, ‘Property and the Treaty of Waitangi: A Tragedy of the Commodities?’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 224, 237–38. 20 Nin Tomas, ‘Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability (Nijhoff 2011) 219, 222–23. 21 ibid 224. 22 ibid 226. 23 ibid 228. 24 See James Morris and Jacinta Ruru, ‘Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water?’ (2010) 14(2) Australian Indigenous L Rev 49, 50. 25 This is now one of the statutory values that represent the essence of Te Awa Tupua and is referred to in the apology offered by the Crown: TATA 2017, ss 13 (c) and 70(b). 26 Henare Nikora is cited in Ngahuia Te Awekotuku and Linda Waimarie Nikora, ‘Nga Taonga o Te Urewera’ (A Report prepared for the Waitangi Tribunal's Urewera District Inquiry, Wai 894, doc B6, August 2003) 10. 27 Tomas (n 20) 227, 238. 28 IH Kawharu, ‘Mana and the Crown: A marae at Orakei’ in IH Kawharu (ed), Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (OUP 1989) 211. See also Andrew Erueti who notes that iwi relationship with the environment ‘encompasses a political dimension best encapsulated as mana whenua or tino rangatiratanga’: ‘Conceptualising Indigenous Rights in Aotearoa New Zealand’ (2017) 27 NZULR 715, 735. 29 Merata Kawharu, ‘Environment as a Marae Locale’ in Rachael Selby, Pātaka Moore and Malcolm Mulholland (eds), Māori and the Environment: Kaitiaki (Huia Publishers 2010) 221, 227. 30 Salmond (n 3) 299. See also Marama Muru-Lanning, ‘River Ownership: Inalienable Taonga and Impartible Tupuna Awa’ (2009) 6(2) Sites J Soc Anthropol Cult Stud 32, 46. Muru-Lanning notes that rivers in Māori language are classified with the possessive particle ‘o’ meaning that they are senior or unable to be controlled by human beings. 31 Where TATA 2017 speaks of a guardian it refers a spiritual being or kaitiaki inhabiting the river rapids: sch 8(3). 32 The Board published a draft management plan in May 2017, ‘Te Kawa o te Urewera’ (2017) 5 <http://www.ngaituhoe.iwi.nz/Te-Kawa-o-Te-Urewera> accessed 5 October 2017. 33 Muru-Lanning, ‘River Ownership’ (n 30) 34. 34 For Aoraki Mount Cook National Park and the Ngai Tahu Claims Settlement Act 1998 see John Dawson, ‘A Constitutional Property Settlement Between Ngai Tahu and the New Zealand Crown’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 207; Jacinta Ruru, ‘Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand’s National Parks’ (PhD thesis, University of Victoria 2012) 174–77. For rivers generally see Morris and Ruru (n 24) and re the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 in particular see Tomas (n 20) 241–46; Linda Te Aho, ‘Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand—The Waikato River Settlement’ (2010) 20 J Water L 285. 35 Regarding national parks see Ruru, ‘Settling Indigenous Place’ (n 34) 200–9. For rivers see Tomas (n 20) 220; Morris and Ruru (n 24) 50–53. 36 See Crown Forestry Rental Trust, ‘Guide for Claimants Negotiating Treaty Settlements’ (January 2008) ch 5, 110. 37 See eg Te Aho ‘Indigenous Challenges’ (n 34); Waitangi Tribunal, ‘Stage 1 Report on the National Freshwater and Geothermal Resources Claim’ (Wai 2358, 2012). 38 Waitangi Tribunal, ‘Te Urewera Part I’ (Wai 894, 2009) 152. 39 Waitangi Tribunal, ‘Te Urewera Part III’ (Wai 894, 2012) Letter of Transmittal, 19 October 2012. The reserve lands were later to form the national park. 40 ibid 582, ch 13. See generally Richard Boast, Buying the Land, Selling the Land. Governments and Maori Land in the North Island 1865-1921 (Victoria University Press 2008) 416–22; Judith Binney, Encircled Lands Te Urewera, 1820 – 1921 (Bridget Williams Books 2009). 41 Note that an area surrounding Tāwhiuau Maunga (Tāwhiuau mountain), which was part of the national park, is excluded from Te Urewera and vested inalienably in the name of Tangiharuru, a Ngāti Manawa ancestor: TUA 2014, ss 130–31. 42 Waitangi Tribunal, ‘Te Urewera Part III’ (Wai 894, 2012) 890; Waitangi Tribunal, ‘Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity’ (vol 2, Wai 262, 2011) 363–66. Cf Phil O’Lyver, Jocelyn Davies and Robert Allen, ‘Settling Indigenous Claims to Protected Areas: Weighing Māori Aspirations against Australian Experiences’ (2014) 12 Conserv Soc 89, 100, 103. 43 Claire Trevett, ‘Tuhoe Veto Followed Parks Advice’ New Zealand Herald (Auckland, 18 May 2010 <http://m.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10645708> accessed 5 October 2017. 44 John Kneebone found that settlement should not include ownership of natural water. He recommended that the Trust Board should not be designated a consent authority under the Resource Management Act 1991 and proposed a joint body, comprised of equal Crown and iwi representation, to exercise all the rights and responsibilities of legal ownership of the bed: Waitangi Tribunal, ‘The Whanganui River Report’ (Wai 167, 1999) 345. 45 ibid 343. 46 Te Atihaunui-ā-Pāpārangi are the people of the river: ibid, xviii. See also TATA 2017, s 69(5). 47 Under s 14 of the Resource Management Act 1991, the take, use, damming and diversion of freshwater is prohibited save where it is allowed by a rule in a regional plan or a resource consent, or where it falls within a specified exception. See also Water and Soil Conservation Act 1967, s 21(1). The ability to allocate water take may be delegated to various entities, including an iwi authority, under the Resource Management Act 1991, s 33(2). However, the power is not used and has been described as a ‘dead letter’: Justice Joseph Williams, ‘The Harkness Henry Lecture Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law’ (2013) 21 Waikato L Rev: Taumauri 1, 22. 48 Jacinta Ruru, ‘Undefined and Unresolved: Exploring Indigenous Rights in Aotearoa New Zealands’s Freshwater Legal Regime’ (2010) 20 J Water L 236, 241–42. 49 Rohe is an area of land or territory. Waitangi Tribunal, ‘Stage 1 Report on the National Freshwater and Geothermal Resources Claim’ (Wai 2358, 24 August 2012) 81. 50 Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277; Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67. 51 Though this issue was not before the Court in the Paki litigation. See Richard Boast, Foreshore and Seabed (LexisNexis 2005) 21; Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) 26 (Cooke P). Cf Attorney-General v Ngati Apa [2003] 3 NZLR 642 (CA) [16] (Keith and Anderson JJ). 52 On qualified exclusive native title rights see Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1, 127–28 (Kirby J); Jacinta Ruru ‘Property Rights and Māori: A Right to Own a River?’ in Klaus Bosselmann and Vernon Tava (eds), Water Rights and Sustainability (New Zealand Centre for Environmental Law 2011) 51, 75; Ruru ‘Undefined and Unresolved’ (n 48) 242. 53 Frame (n 19) 234. 54 Salmond (n 3) 301. 55 Salmond (n 3) 302. See also Tomas (n 20) 238–39. 56 Muru-Lanning, ‘River Ownership’ (n 30) 51. 57 ibid. 58 Lyndsay Head, ‘Land, Authority and the Forgetting of Being in Early Colonial Maori History’ (PhD thesis, University of Canterbury, New Zealand 2006) 190. 59 Criticism of the Treaty settlement process often focuses on this failure eg Moana Jackson, ‘Constitutional Transformation. An Interview with Moana Jackson’ in Malcolm Mulholland and Veronica Tawhai (eds), Weeping Waters. The Treaty of Waitangi and Constitutional Change (Huia Publishers 2010) 325. See generally Erueti (n 28). 60 Pākehā is commonly used to describe New Zealanders of primarily European descent. 61 David Williams, ‘Be Bold and Talk about Benefits of Settlements’ New Zealand Herald (Auckland, 17 June 2010) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10652324> accessed 5 October 2017. 62 See eg Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, s 69: sites of significance may be vested in Pootatau Te Wherowhero, the first Māori monarch crowned in 1858. 63 See eg Dale Husband, ‘Too Many Pākehā Don’t Know our History’ E-Tangata (New Zealand, 16 October 2016) <http://e-tangata.co.nz/news/too-many-pakeha-dont-know-our-history> accessed 5 October 2017. 64 Waitangi Tribunal, ‘Te Kāhui Maunga: The National Park District Inquiry Report’ (Wai 1130, 2013). See also Boast, Buying the Land (n 40) 341–52; Ruru, ‘Settling Indigenous Place’ (n 34) 164–65. 65 Williams (n 61). 66 Jeremy Waldron, ‘The Normative Resilience of Property’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 170, 196. 67 ibid 174. 68 ibid 175. 69 ibid 190–92. 70 The role of poverty in the sale of Māori land is one example: Boast, Buying the Land (n 40). 71 Margaret Jane Radin, ‘Property and Personhood’ (1982) 34 Stanford L Rev 957. 72 Radin’s theory is aimed at property owned by an individual. She does touch upon groups as owners arguing that the lack of a convincing theory of group rights makes these cases difficult. She adopts the starting point that the group is necessary for its members’ self-constitution: ibid 1011–12. 73 Tom Brooking, ‘Use it or Lose it. Unravelling the Land Debate in Late Nineteenth-Century New Zealand’ (1996) 30 NZ J History 141, 141–42. 74 Boast, Buying the Land (n 40) 124. 75 Brooking, ‘Use it or Lose it’ (n 73) 142. 76 Richard Boast, ‘Property Rights and Public Law Traditions in New Zealand’ (2013) 11 NZJPIL 161, 175–77. Regarding lakes see Mark Hickford, ‘John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920’ (2007) 38 Victoria U Wellington L Rev 853, 920–23. 77 Tom Brooking, Lands for the People?: the Highland Clearances and the Colonisation of New Zealand: a Biography of John McKenzie (University of Otago Press 1996) 179. 78 Boast argues that the ideological drive for Crown purchase of Māori land is revealed particularly in Te Urewera, one of the last areas subject to a concerted Crown purchasing campaign: Buying the Land (n 40) 235. 79 There may, of course, be other explanations for this resistance. This article argues only that the strength of the association of these properties with the identity of the colonial state is a factor contributing to resistance to the transfer of ownership. In contrast, the Crown has transferred to Māori title to assets that might more readily be regarded as fungible—the ‘Sealord’ commercial fisheries settlement transferred fisheries assets to a statutory organisation, including the rights to fisheries quota and shareholding in a fishing company: Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. 80 Lindsey Te Ata o Tu MacDonald, ‘The Political Philosophy of Property Rights’ (PhD thesis, University of Canterbury, New Zealand, 2009) 138. 81 Te means ‘the’ in Māori hence the absence of a definite article in English in this and other sentences. 82 Mark Hickford, Lords of the Land. Indigenous Property Rights and the Jurisprudence of Empire (OUP 2011) 8–9. See also Mark Hickford, ‘Strands from the Afterlife of Confiscation: Property Rights, Constitutional Histories and the Political Incorporation of Maori, 1920s’ in Richard Boast and Richard Hill (eds), Raupatu: The Confiscation of Maori Land (Victoria University Press 2009) 189. 83 Hickford, Lords of the Land (n 82) 452. 84 Mark Hickford, ‘The Historical, Political Constitution—Some Reflections on Political Constitutionalism in New Zealand’s History and its Possible Normative Value’ [2013] NZ Law Rev 585, 602. Hickford discusses the legal personality settlements at 618–23. 85 TUA 2014, s 11; TATA 2017, s 14. 86 This approach builds upon existing law. Section 7(d) of the Resource Management Act 1991 requires that ‘all persons exercising functions and powers under it … shall have particular regard to intrinsic values of ecosystems’. See also the Conservation Act 1987, s 2: ‘conservation means the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.’ 87 See eg TUA 2014, ss 3, 5(1) and 18(2); TATA 2017, s 13. 88 Williams (n 47). s 11 of TUA 2014 declaring Te Urewera a legal entity follows in the main text below. 89 Mātauranga is knowledge or wisdom. As Tony Angelo has noted, such recognition is not unknown to the common law which, for example, recognised Hindu idols or deities as juristic entities on the basis of Hindu custom: AH Angelo, ‘Personality and Legal Culture’ (1996) 26 VUWLR 395. 90 This is Justice Joseph Williams’ ‘Lex Aotearoa’: Williams (n 47) 32–34. See Jeremy Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in Duncan Ivison, Paul Patton and Will Sanders (eds), Political Theory and the Rights of Indigenous Peoples (CUP 2000) 60, 64 who argues the content of rights associated with indigenous title is ‘transformed through a process of translation and re-expression’. 91 s 96 of TUA 2014 provides that Te Urewera is not liable for rates, fire authority levies or any historic contamination of land. 92 See, eg, ss 44, 70, 102 and 122 TUA 2014; ss 19, 48, 58, 60 and 61 TATA 2017. 93 TUA 2014, s 12. 94 TUA 2014, s 18(2). 95 TUA 2014, s 5. 96 TUA 2014, s 17. 97 TUA 2014, s 19. 98 TUA 2014, s 21. 99 According to the Report of the Office of the Auditor-General, Principles for Effectively Co-governing Natural Resources (Office of the Auditor-General 2016) 8 in the context of agreements between iwi and government, co-management is concerned with day-to-day matters and ‘the collaborative process of decision-making and problem solving within the administration of conservation policy’. Co-governance refers to ‘arrangements in which ultimate decision-making authority resides with a collaborative body exercising devolved power—where power and responsibility are shared between government and local stakeholders’. 100 The Board published a Statement of Priorities in 2016, ‘Te Kawa o Te Urewera’ (2016) <https://issuu.com/teurutaumatua/docs/te_kawa_o_te_urewera__issuu_6_> accessed 5 October 2017. 101 TUA 2014, ss 18 and 62. 102 See National Parks Act 1980, ss 45, 49 and 56. 103 TUA 2014, s 50. 104 Te Urewera-Tūhoe Bill 2013 (146-1), explanatory note. 105 See eg AM Honoré’s essay ‘Ownership’ which outlines 11 incidents that he argues characterise the liberal concept of ownership in AG Guest (ed), Oxford Essays in Jurisprudence (1st edn, OUP 1961) 107. Theorists disagree about the usefulness of the idea of ownership: see eg Jeremy Waldron, The Right to Private Property (Clarendon Press 1988) 29; Laura Underkuffler, The Idea of Property. Its Meaning and Power (OUP 2003) 17. But cf JW Harris, Property and Justice (Clarendon Press 1996) 5, 65. 106 Under the draft management plan, these will be known as Friendship Agreements: ‘Te Kawa o te Urewera’ (2017) (n 31) 37. Any revenue received must be applied to achieving the purposes of the Act: TUA 2014, ss 62(1) and s 39; sch 3. 107 TUA 2014, ss 13 and 111. 108 TUA 2014, s 5(2). 109 TUA 2014, s 64. 110 TUA 2014, ss 56(b) and 64; and Crown Minerals Act 1991, s 61; sch 4. Note however that the power to grant a permit remains with the Crown: Crown Minerals Act 1991, s 25. 111 Crown Minerals Act 1991, s 61. 112 Resource Management Act 1991, s 4(3). 113 TUA 2014, s 43. See also, eg TUA 2014, s 58 re the granting of activity permits. 114 Yanner v Eaton (1999) 201 CLR 351, 370. 115 Laura Hardcastle, ‘Turbulent Times: Speculations about How the Whanganui River’s Position as a Legal Entity Will be Implemented and How it May Erode The New Zealand Legal Landscape’ (2014) (Feb) Māori L Rev 3, 3; Linda Te Aho has agreed with this statement: ‘Ruruku Whakatupua Te Mana o te Awa Tupua—Upholding the Mana of the Whanganui River’ (2014) (May) Māori L Rev 12, 20. 116 TATA 2017, s 69(19). 117 See Linda Te Aho, ‘Ruruku Whakatupua Te Mana o te Awa Tupua’ (n 115) 19. 118 TATA 2017, s 41. 119 ibid s 43. 120 ibid ss 41(3) and 44(2). 121 ibid ss 16 and 46. 122 A consent authority may determine that Te Pou Tupua is an affected person under the Resource Management Act 1991 for the purpose of applications for resource consents relating to water: ibid s 46(3)(a). 123 ibid s 13. 124 ibid s 13(a). 125 In addition to these bodies, the statute provides for further collaborative processes: ss 64, 66 and 67. Some decision makers outside the co-management structures are also required to ‘recognise and provide for’ Te Awa Tupua and Tupua te Kawa; other decision makers must have ‘particular regard to’ the status of Te Awa Tupua and its values (s 15). 126 ‘Whanganui River Deed of Settlement: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 4. Te Pā Auroa is ‘a relevant consideration in the exercise of all statutory functions, powers, and duties in relation to the Whanganui River or to activities in its catchment that affect the Whanganui River’: TATA 2017, s 11(1). 127 Brad Coombes and Stephanie Hill, ‘“Na whenua, na Tūhoe. Ko DoC te partner”—Prospects for Comanagement of Te Urewera National Park’ (2005) 18 Soc Nat Resour 135, 136. 128 Jackson (n 59) 327. 129 Salmond (n 3) 297. 130 TUA 2014, s 31(1)(c); TATA 2017, ss 13(d), 69(19) and sch 4, cl 6. 131 TUA 2014, ss 31(1)(b) and s 7, interpretation; TATA 2017, sch 4, cl 6 and cl 10. 132 Te Urewera Board may make a decision supported by a minimum of 80% of its members: TUA 2014, ss 33, 34 and 36(1)(a). Te Kōpuka may make a decision supported by a minimum of 75% of its members TATA 2017, sch 4, cl 6 and cl 10. 133 The preference for consensus reflects the practice adopted by Ngāti Whātua o Ōrakei in joint management with Auckland Council of reserves at Bastion Point and Ōkahu Bay. The Orakei Act 1991 did not require consensus and indeed gave the casting vote to the presiding member, appointed by Ngāti Whātua: Orakei Act 1991, s 28(8) [the Orakei Act was repealed by Ngāti Whātua Ōrākei Claims Settlement Act 2012, s 100]. Sir Hugh Kawharu, the first Chair of the Board, never used the casting vote. Following ten years of consultation, the management plan was adopted by consensus, no vote being taken: Geoff Cumming, ‘Okahu Bay Offers a Glimmer of Hope’ The New Zealand Herald (Auckland, 1 February 2004) <http://www.nzherald.co.nz/geoff-cumming/news/article.cfm?a_id=88&objectid=3546638> accessed 5 October 2017. 134 As such the procedural requirements are another example of what Justice Joseph Williams describes as the ‘third law’, which draws on, but is distinct from, its tikanga Māori and colonial parents: (n 47) 12. 135 Māmari Stephens, ‘A Loving Excavation: Uncovering the Constitutional Culture of the Māori Demos’ (2013) 25 NZULR 820, 822–23. See also Carwyn Jones, ‘Whakaeke i ngā ngāru—Riding the Waves. Māori Legal Traditions in New Zealand Public Life’ in Lisa Ford and Tim Rowse (eds), Between Indigenous and Settler Governance (Routledge 2012) 174. 136 Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (OUP 2013) 15. 137 ibid 238. Hickford analyses such historical ‘negotiated associations’ in Lords of the Land (n 82) 38. 138 Elizabeth Fisher uses ‘constitution’ in this sense to analyse the role of environmental legislation in framing normative conflict: ‘Towards Environmental Constitutionalism: A Different Vision of the Resource Management Act 1991?’ [2015] Resour Manage Theor Prac 63. 139 James Tully, Strange Multiplicity. Constitutionalism in an Age of Diversity (CUP 1995) 6. 140 Mark Sagoff, ‘On Preserving the Natural Environment’ (1974) 84 Yale LJ 205, 222–3. 141 Proposals currently before Parliament would further unravel the doctrine of tenure by removing the application of bona vacantia to Māori freehold land. Interests would instead revert to the customary group or collective ownership: Te Ture Whenua Māori Bill 2016 (126-2): cl 295(2), 296(2). Owners of individual freehold interests in Māori land would have the power to decide that the land should revert to collective ownership: cl 48. 142 [2003] 3 NZLR 643. I am grateful to Mark Hickford for suggesting that I consider Ngati Apa in this context. 143 [1992] HCA 23, (1992) 175 CLR 1. 144 [2003] 3 NZLR 643 [30]. For the argument that Ngati Apa is ‘indeed a modern revision’ see: David Williams A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press 2011) 208–10. 145 Marine and Coastal Area (Takutai Moana) Act 2011, s 11. 146 ‘Property Rights’ (n 76) 167. This has likely been the position since the enactment of the Te Ture Whenua Maori Act or Maori Land Act 1993 following shifts in understanding of the common law position. See Mabo v State of Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1, 48–49 where Justice Brennan held that the doctrine of tenure applies to ‘every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’. cf Native Land Act 1909 (NZ), s 2 and Maori Affairs Act 1953 (NZ), s 2 under which ‘Customary land’ was defined as land vested in the Crown and held by Natives under the customs and usages of the Maori people. 147 Tully (n 139) 183. JGA Pocock argues that this ‘continuing debate over the meaning of sovereignty does not so much replace, as become, the exercise of sovereignty itself ….’: ‘The Treaty Between Histories’ in Andrew Sharp and Paul McHugh (eds), Histories, Power and Loss Uses of the Past—A New Zealand Commentary (Bridget Williams Books 2001) 75, 93. 148 Janet McLean, ‘Crown, Empire and Redressing the Historical Wrongs’ (n 2) 211. 149 Janet McLean, ‘“Crown Him with Many Crowns”: The Crown and the Treaty of Waitangi’ (2008) 6(1) NZJPIL 35, 57. 150 ibid. 151 See eg Tāmati Kruger on the Crown in Yvonne Tahana, ‘Tūhoe Asks PM Why Tribal Ownership is Evil’ New Zealand Herald (Auckland, 29 October 2010) <http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10683797> accessed 5 October 2017. 152 Final Statement of Priorities (2016) (n 100) 2. 153 ibid 10. See also draft management plan (2017) (n 32) 44. A marae or marae ātea is an open space where the encounter takes place, generally in front of a tīpuna whare, ancestral meeting house. The pae is literally a bench on which the orators of the tanata whenua sit. Tanata (Tūhoe dialect) or tangata whenua are people of the whenua—whenua means both placenta and land. Burial of the placenta following the birth of a child reinforces that child’s relationship to ancestral place. The characterisation of Te Urewera as marae can be seen to mirror national constitutional processes see JGA Pocock (n 147) 94. On the marae as symbolic expression of the continued exercise of mana or authority over lands see Kawharu (n 29) 228. I would like to thank the anonymous referees and the Editor for their thoughtful comments. Andrew Erueti, Julia Harker, Mark Hickford, Elizabeth Macpherson, Susan Watson, David V Williams and participants at the Faculty of Law Workshop at the University of Auckland and the Corporations and Other Legal Entities for Society and Future Generations Symposium at Victoria University of Wellington also provided invaluable feedback. I gratefully acknowledge the research assistance of Daniel McDougall. All errors and omissions remain my own. © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Environmental Law Oxford University Press

‘Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand

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10.1093/jel/eqx029
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Abstract

ABSTRACT In 2014, Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In 2017, the Whanganui River was declared a legal person. This article analyses the grant of legal personality as part of a process that seeks to acknowledge colonial wrongs to hapū and iwi, indigenous descent groups. It argues that a primary purpose of the grant is to regulate human relationships. Legal personality recognises the competing claims of the Crown and hapū and iwi to political authority and allows for the establishment of new legal frameworks, which address who is entitled to act on behalf of the land and river. The article concludes that the settlements should be regarded as constitutional in nature—the grant of legal personality provides a forum for disagreement and compromise, and the opportunity for relationships between peoples, land and authority to be reframed. In 2014, Te Urewera Act declared the land that had comprised Te Urewera National Park a legal entity with ‘an identity in and of itself, inspiring people to commit to its care’.1 The Act creates a board to govern Te Urewera, and to represent its interests. Membership of the board comprises representatives of the Crown2 and of Tūhoe, the tribal group exercising mana whenua (traditional status, rights and responsibilities) over most of the National Park land. The Act gives effect to part of a deed which settles the historic grievances of Tūhoe. In 2017, Te Awa Tupua3 (Whanganui River Claims Settlement) Act was passed to give effect to a deed to settle the historical claims of Whanganui iwi as they relate to the river. The Act establishes a legal framework centred on the recognition of Te Awa Tupua as ‘an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’.4 The Act declares Te Awa Tupua a legal person and establishes the office of Te Pou Tupua.5 This office comprises two persons with interests in the Whanganui River, one to be nominated on behalf of the Crown the other to be nominated by iwi, indigenous descent groups. Te Pou Tupua ‘is to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua’.6 These settlements were borne of many years of struggle on the part of Tūhoe and Whanganui iwi for recognition of serious breaches by the Crown of its obligations under the Treaty of Waitangi. The Treaty, signed in 1840 by representatives of the British Crown and of some indigenous kin groups, is widely regarded as New Zealand’s founding document. By this Treaty, the Crown guaranteed Māori te tino rangatiratanga, the unqualified exercise of their chieftainship, over their lands, villages, and all their treasures.7 Grievances have been addressed through the processes of the Waitangi Tribunal, a standing commission of inquiry established to inquire into Māori claims that laws, policies, acts or omissions of the Crown are or were inconsistent with the principles of the Treaty of Waitangi.8 The Tribunal has the power to recommend redress, which is then the subject of negotiations between the New Zealand government and hapū and iwi.9 At times, however, it seemed settlement for Tūhoe would await another generation. In 2010, Prime Minister John Key ruled out returning ownership of Te Urewera National Park to Tūhoe. Tāmati Kruger, chief negotiator for Tūhoe, was reported as having being instructed by his people ‘not to come back without the return of the land and a path to self-governance’.10 Of Te Urewera’s return, Kruger said, ‘There would have been no settlement without it. With that view I was not then afraid of saying no. I came to understand that saying no was one of my most powerful tools’.11 Settlement of Whanganui iwi’s claims to the river also faced obstacles, particularly given continued legal uncertainty about Māori rights to freshwater and the beds of rivers. Against this background, this article analyses the grant of legal personality to Te Urewera land and the Whanganui river as part of a process which seeks to acknowledge colonial wrongs. This process takes place inside a unitary state governed by a system of Parliamentary sovereignty and is constrained by the unwillingness of the majority to acknowledge or address Māori claims to political authority. In this case, it was constrained also by the Government’s refusal to transfer ownership of Te Urewera and the Whanganui River to hapū and iwi. This article argues that the grant of legal personality is an example of a compromise between the state and an indigenous descent group, each of which claim political authority in that space. In these settlements, the grant of legal personality and the use of non-ownership facilitate relationships between the Crown and iwi by permitting the recognition of their competing claims to exercise authority over the resource. Yet, though the legal personality model is symbolically significant, it determines little about the practical shape of the settlements. While ownership appears absent, the legislation unbundles the incidents associated with ownership and reapportions them within co-management and co-governance frameworks. The article concludes that grant of legal personality acknowledges conflict about the exercise of power over land and rivers, and seeks to reframe the terms under which this conflict continues. This article begins by arguing that a primary purpose of the grant of legal personality is to regulate human relationships relating to the land and river. This focus does not however de-nature Te Urewera or the Whanganui river because the legislation, which sets out how the land and river will be governed, has at its heart tikanga Māori, indigenous customary systems of values and law, discussed in Section 2. In Section 3, the prompt for the use of the legal personality model is explored—legal personality was recognised because the government would not transfer ownership to Māori. I argue that ownership was not transferred because, in part, of the strength of the association of these properties with the identity of the colonial state—while these settlements focus on property, they are negotiated in the shadow of questions of political authority. In Section 4, I analyse the detail of the settlements and conclude that, while ownership may appear to be absent; practically, it persists. Each settlement establishes a kind of sui generis property regime overlaid by processes of co-management and co-governance. Finally, in Section 5, I make a case for the importance of these settlements. The use of the legal personality model is constitutionally significant as it provides opportunity for the reframing of relationships of authority and obligation in relation to land. This article proceeds on the basis that the grant of legal personality to Te Urewera and the Whanganui River is deeply embedded in Aotearoa New Zealand’s12 legal culture, including in tikanga Māori, indigenous customary systems of values and law. The grant of legal personality in New Zealand responds to a distinct legal problem, in its own way. I argue also that the reasons for the innovation are complex: at one level, these settlements seek to focus decision-making about the land and the river around a new set of agreed principles and purposes; at another, there is a symbolic reframing of relationships between people and the environment; further, the settlements can also be regarded as new frameworks for relationships between people. This article argues that these settlements should be understood in the context of New Zealand’s history and legal culture. 1. THE PURPOSE OF LEGAL PERSONALITY The idea that aspects of nature might be conceived as legal persons is associated with Christopher D Stone who published, in 1972, ‘Should Trees Have Standing?—Toward Legal Rights for Natural Objects’.13 This piece may now be considered part of a wider movement advocating legal rights for nature.14 But the grant of legal personality to aspects of nature engages debates in analytical jurisprudence as well as those in environmental philosophy. Questions about whether nature should be recognised as a legal subject return to controversies of the early 20th century about the justifications for the grant of legal personality, and the practical and philosophical puzzles which arise from such a grant.15 Theorists interested in the use of legal personality have long been fascinated by the origins of the word: the English ‘person’ comes from the latin persona, which in turn derives from the Greek, where it signified a mask worn by an actor on the stage.16 Without seeking to explore all the possibilities of this metaphor, I suggest that legal personality brings with it ideas of representation and performance. We should not then be surprised when the use of legal personality for nature permits the expression of competing perspectives. Indeed, the plastic quality of the ‘voice’ of nature might well be essential to the grant of legal personality and its utility—legal personality may be granted to nature to manage and facilitate human relationships. Bryant Smith argues: The broad purpose of legal personality, whether of a ship, an idol, a molecule, or a man, and upon whomever or whatever conferred, is to facilitate the regulation, by organized society, of human conduct and intercourse.17 In the case of Te Urewera and the Whanganui River, the grant of legal personality aims to facilitate the acknowledgement of wrongs done to iwi, and in particular to break a deadlock created by the government’s refusal to transfer ownership of the land and river. By the use of legal personality, the land and river become a forum for relationships between indigenous and settler peoples. This is not an unintended consequence of the use of legal personality, but an important reason for the adoption of the model. Yet where legal personality functions as an instrument to manage human relationships, it risks affecting a kind of de-naturing18—use of the land or river as a site of political negotiation might eclipse the land or river itself. This article argues that while legal personality for Te Urewera and the Whanganui river provides a forum for political relationships between the state and iwi, this forum remains connected with the natural world. In Aotearoa New Zealand, the idea of legal personality for nature has, from the outset, been recognised as having affinity with tikanga Māori, indigenous customary systems of values and law.19 And, as will be discussed in Section 2, tikanga Māori ensures that responsibility to place and to the natural world remains philosophically at the heart of these settlements. 2. THE ROLE OF TIKANGA MĀORI In this section, I set out some principles of tikanga Māori, which, I argue, are central to the development of the legal personality model in Aotearoa New Zealand. I draw on the work of Nin Tomas to describe the Māori conceptual framework for relationships with the natural world. As a starting point, Tomas refers to philosopher Māori Marsden’s description of a Māori world: The conceptual framework Marsden describes is built around a Māori view of ultimate reality that rests on three foundational ideas: (1) that humans are part of an ongoing process that originates from a world of nonphysical existence or ‘wairua’, that is beyond consciousness, time or space; (2) that natural connections exist between ‘te ao wairua’ (the realm of nonphysical or spiritual being) and ‘te ao marama’ (the material world of physical being); and (3) that ‘whakapapa’ (genealogy) informs and links all things into a natural order.20 Tomas then discusses three fundamental aspects of Māori perceptions of the environment. First: Māori law is based on the idea that Papatuanuku (Earth mother) possesses an inherent, powerful personality that is logically prior to, and completely independent of, human existence.21 Second, humans are subjects of the environment, rather than its masters; we are part of an interrelated living whole. Tomas notes therefore that Māori perceive themselves as kaitiaki (caretakers) of the environment.22 Finally, whakapapa (the maintenance of genealogical links to the land) anchors kaitiaki obligations to future generations.23 Within this framework, recognition of aspects of nature as legal entities holds promise as a means of recognising the mana (authority) and mauri (life force) of the land or water.24 As aspects of nature are regarded as tūpuna (ancestors), such recognition also has the potential to better acknowledge the relationship of people and the natural world. In the negotiation of the Whanganui River Deed of Settlement, the pepeha (tribal saying) ‘Ko au te Awa, ko te Awa ko au: I am the River and the River is me’ was often referred to.25 Of the relationship between Tūhoe and Te Urewera Henare Nikora has said: If Tūhoe talks to Tūhoe, then you are talking to Te Urewera. You cannot separate the two. We are all around and within it. We have relations here, there and there. And we are all intertwined. Tūhoe and Te Urewera are one. It is incomprehensible to see them as separate.26Tikanga does not prevent Māori making use of natural resources—the relationship between development and preservation is debated by hapū and iwi, as it is in other communities.27 However, that debate is shaped by the understanding that managing the use of natural resources in a way which preserves their mauri, and their use for future generations, affirms the mana of hapū and iwi also. The group with rights and responsibilities in respect of land, including obligations of kaitiakitanga (caretaking) may be described as holding mana whenua (traditional status, rights and responsibilities). Appropriate exercise of these rights and responsibilities affirms the mana whenua relationship, maintains the legitimacy of the exercise of authority in relation to land, and strengthens leadership. 28 Merata Kawharu has argued: Kaitiakitanga is not simply an ‘environmental ethic’ then, but rather a socio-environmental ethic. It is about relationship between humans and the environment, humans and their gods and between each other.29 Like other foundational concepts, the principles of tikanga Māori are the subject of debate; a debate to which deploying tikanga concepts outside Māori communities, and in legislation in particular, adds complexity. For example, Anne Salmond has noted that in the first draft agreement between Whanganui iwi and the Crown the two people appointed to speak for the river were described as guardians, a common translation of kaitiaki. Salmond argues the legal association of guardianship with children or incapacitated adults marked ‘a radical shift from ancestral conceptions in which … rivers are powerful beings upon whom people depend’.30 Neither Act now speaks of people as guardians of land or river.31 Instead, Te Kawa o te Urewera—the draft management plan for Te Urewera notes at the outset, ‘Te Kawa is about the management of people for the benefit of the land—it is not about land management’.32 Thus, in the Māori conceptual framework, rivers and land are not objects of human control but part of an interrelated whole. However, Māori must negotiate within a different framework, one where, as Marama Muru-Lanning notes, ‘the ownership of property is the primary way that status is recognised’.33 This tension contributes to a range of views within and among Māori groups about the purpose and desirability of claims to ownership. 3. WHY NON-OWNERSHIP? This article has argued that legal personality is used in these settlements as a means of regulating relationships regarding the land and river between the state and Māori. The legislative models adopted, which are examined in detail in Section 4, draw on tikanga Māori. The next step is to understand why legal personality was granted to Te Urewera and the Whanganui river in particular. This prompts inquiry into why ownership of the land and river was not transferred, and the non-ownership model adopted. This part therefore begins by setting out the basis on which ownership of Te Urewera National Park and the Whanganui river was claimed by iwi. It then analyses the significance of claims to own these resources for Māori and for the colonial state. 3.1 Māori Claims to Te Urewera and the Whanganui River The grant of legal personality to Te Urewera and the Whanganui river took place as part of the Treaty of Waitangi settlement process, through which the Crown acknowledges breaches of its obligations to Māori under the 1840 agreement. Under the second article of the Treaty, the Crown guaranteed to the tribes: the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession. The Māori language version of the Treaty, to which most Māori signatories assented, expresses the promise using the term te tino rangatiratanga, unqualified exercise of chieftainship, over their lands, villages and all their treasures. The starting point for Māori claims to Te Urewera and the Whanganui river is therefore the exercise of customary authority over the land and river. Settlements of claims under the Treaty of Waitangi prior to 2014 had recognised Māori interests in national parks and rivers in a number of ways.34 However, existing models for legal recognition were considered by many to be inadequate as, in each of these areas, settlements are heavily constrained by Crown policy.35 For the most part, the Crown has ruled out the transfer of conservation estate land to Māori as part of a Treaty settlement.36 It also continues to assert ownership of the beds of navigable rivers under the Coal Mines Act Amendment Act 1903 and, while arguing that no one owns water at common law, claims the ability to allocate rights to freshwater under the Resource Management Act 1991.37 Such was the starting point for settlement negotiations. Negotiations on the status of Te Urewera National Park took place in the context of the Waitangi Tribunal’s inquiry into Tūhoe’s grievances under the Treaty of Waitangi. Though Tūhoe had not signed the Treaty, the Tribunal held that the Crown owed unilateral duties to the tribe under the 1840 agreement.38 The Crown also held obligations under an agreement with Tūhoe, reflected in the Urewera District Native Reserve Act 1896, in which the Crown acknowledged Tūhoe self-government. The Tribunal found that the Crown failed to honour this unique agreement, instead launching, in the early 20th century, a ‘determined Crown assault on Te Urewera reserve lands’39—a purchasing campaign which was predatory and, at times, illegal.40 The Waitangi Tribunal concluded that the park was established in breach of the Treaty and recommended title be returned to Tūhoe, and a neighbouring iwi Ngāti Manawa,41 and the park jointly managed by Tūhoe and the Crown.42 No customary or native title claim was available to Tūhoe as customary title had been systematically extinguished through the processes of the Native Land Court in the early 20th century. Negotiations between the Crown and Tūhoe broke down in 2010 when Prime Minister John Key publicly ruled out return of title to national park lands. Key argued the decision had been driven by the prospect that other iwi would seek the same outcome in their Treaty settlements, or would seek to revisit settlements expressed as ‘full and final’.43 Negotiations between the government and Whanganui iwi also stalled on the resolution of iwi claims to the river. In 1999, the Waitangi Tribunal, one member dissenting,44 had recommended a negotiated solution recognising Whanganui iwi ownership and authority in respect of the river.45 The Tribunal noted that [t]he record clearly shows that Atihaunui [the people of the river] became determined to hold on to the control of the river at all costs from the moment their traditional authority was challenged and their river rights appeared to be threatened.46 However negotiations with Whanganui iwi hit up against two Crown ‘bottom lines’: first, the Crown asserts that at common law no one owns water and second, the Crown claims the right to allocate water resources.47 These starting points are heavily contested and Māori claims to freshwater are the subject of continued legal uncertainty. There is potential for rights to freshwater to be pursued under the common law doctrine of native title,48 and the Waitangi Tribunal has inquired into Māori claims to freshwater generally. In its first report on the issue in 2012, the Tribunal found that ‘Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights’ and that the ‘nature and extent of the proprietary right was the exclusive right to control access to and use of the water while it was in their rohe’.49 Customary or native title claims to the river as whole, or to the bed of a river particularly, are also possible. Over the period of the Whanganui settlement deed’s negotiation, litigation regarding stretches of the Waikato river overturned Crown understandings of the scope of the vesting of the beds of navigable rivers in the Crown and, in 2014 in the same proceedings, the Supreme Court acknowledged the possibility of unextinguished Māori customary rights in the beds of non-navigable rivers.50 In addition, there remains a good argument that the vesting of the beds of navigable rivers in the Crown in the Coal Mines Act Amendment Act 1903 was insufficiently clear and plain to extinguish Māori customary rights in the beds of navigable rivers.51 In short, at the time the Whanganui deed was entered into, there were (and there remain) potential claims to customary title to freshwater, river beds, or to rivers more broadly conceived; though there is considerable uncertainty about whether and how those rights might be legally recognised.52 In negotiations with the Crown, Tūhoe and Whanganui iwi claimed ownership of Te Urewera National Park and the river respectively. In doing so, each were supported by the recommendations of the Waitangi Tribunal. In the case of Whanganui iwi, legal claims based on customary title were also possible, though uncertain. The grant of legal personality arose because the government would not transfer ownership. The next subsection explores the significance of claims to own the resources for Māori and for the colonial state. 3.2 The Meanings of Ownership In Section 2, I set out aspects of a Māori framework for relationships with nature. In that section, fundamental differences between ownership and frameworks for the management of land and rivers in tikanga Māori are apparent. Yet hapū and iwi seeking recognition of their status must contend with property. This section examines critically the significance of ownership claims. Since the 1980s, privatisation has sharpened the demand to speak of ownership, and Alex Frame has argued that the commodification of common resources through the sale of state assets has compelled the pursuit of ownership claims. Says Frame, ‘Not surprisingly, the Māori reaction has been: if it is property, then it is our property!’53 But, as Anne Salmond has noted in respect of the freshwater debates, claimants are placed in a series of ‘double binds’: ‘if Māori kin groups do not claim “ownership” of ancestral freshwater bodies and rights to fresh water are privatized, they may be left with nothing.’54 Relationships with ancestral waterways must be redefined for entry into legal forums, something Salmond describes as ‘an act of commensuration entailing a kind of ontological submission’.55 Tensions arising from the need to speak in proprietary terms in Western legal forums may be managed, in part, by the use of ownership as a metaphor. Debates about ownership, notes Marama Muru-Lanning, are ‘more to do with claims to status and power’.56 The idea of ownership may be used as a mobilising metaphor to bind a group, and to connect the group to its leadership.57 As well as mobilising group members, ownership claims speak to other social groups competing for control of a resource. Ownership may therefore be used to communicate, both internally and externally, relationships between land and political authority that were identified as part of a tikanga Māori framework in section two. Lyndsay Head has argued: among Maori the power of decision making was the chiefly role (whatever was at issue); the power to make decisions over land is therefore the Maori meaning of what is expressed in English as ‘land ownership’.58 This relationship between land and political authority may also appear heightened because of the Crown’s reluctance to address directly Māori claims to political authority.59 Claims to status, power and to make decisions in respect of land may be expressed obliquely in a property framework at least in part because of majoritarian resistance to their expression in political terms. In these ways, Māori ownership claims respond to the need to interact with colonial frameworks. In Pākehā60 society, ownership also has meanings that the common bundle of rights metaphor fails to capture. This is well illustrated in a column, written by David Williams in the New Zealand Herald newspaper shortly after the Prime Minister’s 2010 announcement that title to Te Urewera National Park would not be transferred to Tūhoe. Williams wrote: People need to know that full public access to a national park is guaranteed, that tracks and huts are maintained, and that fish stocks in the lakes are conserved. They need to be assured the land will be cared for and protected for future generations. The meanings of ‘ownership’ are debatable in jurisprudential writings. Concepts like ownership, co-governance, co-management, kaitiakitanga, mana motuhake are for Treaty settlement negotiators to haggle over. For ordinary citizens contacted by a polling agency, why should one legal concept or another really matter?61 Williams’ question is particularly apt given the final shape of Te Urewera and Whanganui settlements, discussed in Section 4. Had title to Te Urewera National Park or to the bed of the Whanganui river been transferred to the name of a tribal ancestor, a practice established in earlier settlements,62 practical aspects of the settlement would likely have been little changed. Politically however, non-owning seems to have made a difference, enabling compromise and settlement with iwi. Property theorists differ on why ownership matters. But, when Williams’ column goes on to note the history of Te Urewera, it can be read as alluding to a more particular problem. That is, why should ownership matter, even when the thing owned is known to have been unjustly acquired? One response to this question is that many Pākehā New Zealanders have little knowledge of the way in which lands and rivers were acquired by the Crown.63 Recent research relating to the establishment of Tongariro National Park demonstrates the persistence of misinformation about the manner in which this national park was legally created.64 Williams’ column stands in the tradition of those who uncover and publicly retell these colonial histories. The title of the column ‘Be bold and talk about the benefits of settlements’ speaks of another solution. Williams argues ‘the Government needs to find the political courage and will to talk up the benefits of durable Treaty settlements’.65 Public history and political courage are vital. But, it is also interesting to consider whether the power of the idea of ownership itself plays some part in resistance to return of Crown held properties. If it does, then this would go some way to explain why the legal personality model has helped to bring the Crown to agreement. Jeremy Waldron has argued that property is normatively resilient and that this resilience ‘lays a kind of curse on the land’ that hampers redress to indigenous peoples.66 He explains: The concept of normative resilience points to a discontinuity between two types of normative judgement associated with an institution: (1) judgements concerning the justification of the institution, and (2) judgement concerning individual conduct in relation to the institution. […] A resilient institution continues to exert itself normatively through its type 2 judgment, notwithstanding the fact that it is discredited at the type 1 level.67 Waldron takes a broad view of type 1 issues, including in the category ‘judgement that the distribution of some specific object or resource is unjust’.68 Normative resilience therefore attempts to explain why one may remain attached to the statement, ‘Object O belongs to X’, regardless of knowledge either that the property system generally is unjustified, or that object O came to belong to X in unjust circumstances. Various theories might account for the dissonance. Waldron’s thesis is that the social pervasiveness of property as an institution makes it normatively resilient. He argues that opponents of existing property arrangements, or those who have been wronged in their establishment, seldom have any choice but to interact with existing property arrangements in their everyday lives. It is difficult to ‘opt out’ of the world of property.69 This resonates with the ‘double bind’ described by Salmond; property is so pervasive it becomes hard to pursue political goals without speaking its language, even if one’s goal includes critical challenge of property itself. The overwhelming need to get by materially and politically may make rejection of injustice in the establishment of property arrangements difficult.70 Moreover, property coalesces with the economic and political power of dominant social groups, reinforcing barriers to significant redress. Waldron also considers the work of Margaret Radin as a possible explanation for the normative resilience of property. Radin argues that once personal identity becomes intertwined with an object, respect for the property right is bound up with respect for the individual. Objects become part of the way in which we constitute ourselves in the world.71 The Crown, a representation of the New Zealand state, was the owner of the riverbed and the national park. Radin’s theory might therefore lead us to ask what role these properties have played in constituting the identity of the colonial state.72 The settlement of land generally is at the heart of colonisation and, in colonial New Zealand, settlement was associated with industry and virtue. Writing of the late 19th century, rural and environmental historian Tom Brooking has said: Like Maori, Pakeha believed that land helped to mould community. Pakeha also believed that ownership somehow improved the character of the owner and enriched in a moral and spiritual sense all those who lived off the land.73 Arguments about land tenure were at the heart of New Zealand colonial society. Yet, notes Boast: All shades of opinion favoured ‘close settlement’, which meant in essence dense rural settlement, a recreation of the densely settled English rural world—but, importantly, minus the petty oppressions of squire and parson.74 The policy of ‘close settlement’ not only affirmed the ideal that working the land was morally improving but, in the tradition of English radicalism, it also rejected the land monopolists and large landowners familiar to British and Irish settlers. Radical politicians, argues Brooking, ‘believed that land could be moulded and reshaped to meet the needs of a larger and more ideal society’.75 The state played a large role in this property tradition. It used land tenure policy as an instrument of its nation building and nationalised key resources—in 1903, the beds of navigable rivers.76 With the establishment of national parks, the state sought to protect nationally important scenic and recreational areas, in part as a radical rejection of the great private estates of England and Scotland.77 Land was therefore intertwined with the emerging identity of the colonial state. Working the land was associated with personal improvement. However, the state was seen to hold land to protect public rights, and this also was associated with the establishment of a better, more just society. In this historical discussion of the development of New Zealand’s property traditions, Waldron’s type 2 judgements, relating to the statement ‘Object O belongs to X’ are embedded in ideological narratives concerning the justification for colonial land policy, and for the property system generally: purchase of Te Urewera land and the nationalisation of the bed of the Whanganui river reflected and aligned with these colonial ideas.78 Waldron’s view that property is normatively resilient seems to have some explanatory power where, over time, Pākehā support for Crown ownership of national parks and rivers has remained strong despite challenges to colonial justifications for ownership. Public resistance to the transfer of ownership to hapū and iwi in this context may to some extent be due to the strength of the association of these properties with the identity of the colonial state.79 Given the particular association of these properties with the state, the New Zealand government’s refusal to transfer title to the park lands and river should be read as a claim to political power; a public assertion of the authority of the state to determine property rights. And, while the state claims power to determine property rights generally in its jurisdiction, conflicts with indigenous groups over property rights are particularly constitutionally significant. Lindsey Te Ata o Tu McDonald has argued that such conflicts drove colonial governments to strive for complete authority within their jurisdictions.80 This places Te Urewera81 and Whanganui settlements in what Mark Hickford has described as ‘conversations without end’82 about ‘whether or not to relate indigenous property rights to authority over territorial space’.83 In this way, behind the dispute about ownership of Te Urewera and the Whanganui river—a dispute about the allocation of property—we see conflict about the right to allocate, and a wider indigenous challenge to the distribution of power. The Crown’s reassertion of the right to allocate property lies behind the use of legal personality. At the same time however, the model may be viewed as an expression of resistance on the part of Tūhoe and Whanganui iwi both to the idea of property itself, and to the claim on behalf of the Crown to the authority to allocate. Through this lens, legal personality becomes a vehicle through which a relationship with the land and river in tikanga Māori may be publicly affirmed. As Hickford notes in his reflections on New Zealand’s political constitutionalism, ‘different actors may explain or understand the same outcome in quite different terms’,84 and it appears the grant of legal personality to Te Urewera and the Whanganui river is an example of this. 4. THE LEGISLATIVE FRAMEWORK I have argued that the choice of non-ownership for Te Urewera and the Whanganui river allows the Crown and Māori to communicate claims to status and power in respect of land. In this section, I look more closely at the legislation declaring Te Urewera and the Whanganui river, Te Awa Tupua, legal entities. I begin by noting that the legislation does not create a legal person but recognises legally the identity of Te Urewera and the Whanganui river in tikanga Māori. Once recognised, the new legal entities enjoy ‘all the rights, powers, duties, and liabilities of a legal person’.85 Second, I analyse separately Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Recognition of an aspect of nature as a legal person determines little about the practical relationships between the Crown and iwi in relation to that resource. Much depends upon the detail of the legislative framework, and here, there are significant differences between Te Urewera and Whanganui models. I use the legislation to support two arguments. First, while it is important symbolically that ownership disappear; practically, it persists. Behind the declaration of legal personality, property remains an organising principle. New Zealand’s framework for use of land and water—the Resource Management Act 1991—also remains in effect; the legal personality legislation amends only aspects of its application. Second, I argue that the legislation reflects the use of legal personality to regulate human relationships. The Acts prescribe who will make decisions on behalf of the legal person, and describe how those decisions should be made. Co-management and co-governance bodies are used. These bodies are a practical means by which different values relating to the land and its use may be discussed. Processes governing these bodies anticipate and provide for continuing disagreement. 4.1 The Recognition of Legal Personality As discussed in Section 2 of the article, the relationship between iwi and Te Urewera and the Whanganui river, Te Awa Tupua, animate the settlements. Whereas Stone’s proposal sought to reconstruct nature as rights bearer, in Aotearoa New Zealand legal personality is framed as recognising the prior, intrinsic identity of nature.86 This is evident in section 3 of Te Urewera Act, which begins with Te Urewera itself: Te Urewera 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. The settlements recognise the identity of Te Urewera and Te Awa Tupua, and their relationship with Tūhoe and Whanganui iwi.87 The law does not claim to create the legal person but, using the framework suggested by Justice Joseph Williams, a modern law of Aotearoa New Zealand may look to its ‘first law’, tikanga Māori, and recognise the status of the river or land arising from that framework.88 This is explicit in Te Awa Tupua Act in which the Crown acknowledges that ‘the recognition of Te Awa Tupua is based on the tikanga and the mātauranga [knowledge] of Whanganui iwi’.89 Nonetheless, the statutory recognition of Te Urewera and Te Awa Tupua as legal entities gives them status in a modern legal system that counts tikanga Māori as only one of its sources. The legislation is founded upon tikanga Māori but exemplifies what Justice Williams describes as the ‘third law’,90 which draws upon both Māori and colonial legal systems to create something previously unknown to both. The declaration of the status of both Te Urewera and Te Awa Tupua is in broad terms. Section 11 of Te Urewera Act 2014 provides: Te Urewera declared to be legal entity Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person. However,— the rights, powers, and duties of Te Urewera must be exercised and performed on behalf of, and in the name of, Te Urewera— by Te Urewera Board; and in the manner provided for in this Act; and the liabilities are the responsibility of Te Urewera Board, except as provided for in section 96.91 Section 14 of Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 declares Te Awa Tupua to be a legal person in similar terms. Some legislative provisions articulate the rights, powers and duties to be exercised and performed on behalf of Te Urewera and Te Awa Tupua.92 However, for the most part, the rights and duties of the new legal entities are not specifically enumerated or prescribed. 4.2 Te Urewera Act 2014 The basic scheme of both Acts is that land that was owned and managed by the Crown and its delegates now vests in the new legal entity. Te Urewera land, formerly a national park, ceases to be vested in the Crown. It now ‘vests in Te Urewera’ and is governed by Te Urewera Board in accordance with the Act.93 There are a number of similarities with the legal framework governing national parks. Broadly speaking, Te Urewera Board steps into the shoes of the Crown to make decisions in respect of the land, though it may do so in a way that reflects Tūhoetanga, Tūhoe culture and the Tūhoe way of life.94 A set of principles governs those who implement the Act. These include the preservation of Te Urewera and its ecological systems and biodiversity. Those exercising powers under the Act must also act so that, as far as possible, ‘Tūhoetanga, which gives expression to Te Urewera is valued and respected’.95 Te Urewera Board speaks and acts on behalf of Te Urewera.96 The Board has full capacity and all the powers reasonably necessary to achieve its purposes and perform its functions.97 For the first three years after settlement, the Board will comprise equal numbers of members appointed by Tūhoe and the Crown. Following this period, a Board of nine members will be appointed, comprising six Tūhoe appointees and three members appointed by the Minister of Conservation.98 Te Urewera scheme includes elements of both co-governance and co-management. 99 Te Urewera Board may be described as a co-governance body: it prepares and approves Te Urewera management plan;100 makes bylaws for Te Urewera, and grants concessions to authorise activities that would otherwise not be permitted on the land.101 Prior to the Act, these functions were exercised by the Minister of Conservation and government bodies and appointees.102 Day to day, Te Urewera will be jointly managed by the Chief Executive of Te Uru Taumata, a Tūhoe governance body, and by the Director-General of Conservation, a government appointee.103 The premise of the Act is that Te Urewera is placed ‘beyond human ownership’;104 there is no person or body who is presumed to hold the incidents or abilities that are said to characterise the relationship of ownership.105 In practice however, the Board enjoys powers that previously characterised the Crown’s ownership of the land as a national park. For example, the Board may grant concessions such as leases, licences, permissions, or easements in accordance with the management plan.106 Other powers usually associated with ownership of land are proscribed by the legislation: Te Urewera is declared inalienable and must not be mortgaged or otherwise disposed of, except in certain narrow circumstances.107 The power to exclude is limited; generally ‘all persons performing functions and exercising powers under this Act must act so that the public has freedom of entry and access to Te Urewera’.108 These restrictions are consistent with the special character of the land—visitors continue to be welcomed to Te Urewera, as they were when it was a national park. The vexed question of mining is complex. Ownership of certain minerals would remain with the Crown were they to be discovered in Te Urewera.109 But, whereas a Minister of the Crown determines whether the holder of a mining permit may access national park land, in the case of Te Urewera, it is the Board which exercises that power.110 In doing so, the Board is subject to the same legal limits as a Minister considering mining activity in a national park.111 In short, it appears that Te Urewera enjoys no greater formal legal protection from mineral exploitation than it did as a national park. What has changed however, is who decides whether access to the land for mining activity would be consistent with the statutory criteria. Here, the power previously exercised by a representative of the Crown is vested in the Board. The Board exercises other governance functions that were previously exercised by public bodies. For example, as is the case with national parks,112 the management plan prepared by Te Urewera Board establishes a kind of localised land use scheme. The Board’s activities are, in certain circumstances, exempted from the controls of the Resource Management Act 1991.113 Thus, if Crown ownership may in some circumstances be considered a placeholder for ‘the aggregate of various rights of control’ over a resource,114 in the case of Te Urewera the rights of control often associated with Crown ownership are generally vested in the Board. 4.3 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 The legislative scheme governing Te Awa Tupua is generally more complex. Political unwillingness to recognise Māori proprietary rights to water, or to permit iwi control of future use of the river has shaped the settlement. Public rights traditions discussed in Section 3, and the complex legal regime governing water and rivers, have also played a part. The deal has been described as ‘ground-breaking’, but also as a ‘compromise to prevent iwi from gaining ownership’.115 This compromise is clearly acknowledged by the Crown in the Act.116 But though the settlement falls short of what was recommended by the Waitangi Tribunal, it is, nonetheless, unique in the context of previously settled claims to freshwater bodies in New Zealand.117 At its heart however, property remains an organising principle of Te Awa Tupua legislation. The fee simple estate in the Crown-owned parts of the bed of the Whanganui River vests in Te Awa Tupua.118 This land is inalienable, but an easement, lease, or licence may be granted on behalf of Te Awa Tupua for a term of less than 35 years.119 While ownership of some minerals in the bed remains with the Crown, others vest in Te Awa Tupua.120 The Act also preserves a range of existing rights: public use and access rights and existing private property rights, including customary rights and title.121 However, the vesting of the Crown-owned parts of the bed does not create or transfer a proprietary interest in water. Further, while the consent of Te Pou Tupua, the human face of Te Awa Tupua, may be required in relation to the use of the bed of the river, this is not so in relation to the use of water.122 The Act also establishes an elaborate structure of co-management and co-governance bodies. These bodies enjoy a range of powers but their activities are united by a common set of values legally recognised as Tupua te Kawa, ‘intrinsic values’ sourced from mātauranga Māori (Māori bodies of knowledge) that ‘represent the essence of Te Awa Tupua’.123 The values acknowledge Te Awa Tupua as a ‘spiritual and physical entity’ as well as its relationship with ‘iwi, hapū, and other communities of the River’.124Table 1 outlines the composition and function of the three main bodies established by the Act.125 Together, these bodies are Te Pā Auroa nā Te Awa Tupua, literally the broad eel weir, symbolising ‘an extensive, well-constructed framework for Te Awa Tupua that is fit for purpose, enduring and the responsibility of all’.126 Table 1. Te Pā Auroa nā Te Awa Tupua: co-management and co-governance bodies established by Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). a While TATA 2017 provides for iwi and the Crown each to nominate one person to the office of Te Pou Tupua, the first appointments, made in September 2017, were made jointly by the Crown and iwi with interests in the river. Dame Tariana Turia and Turama Hawira, each of whom are members of hapū and iwi with interests in the river, were appointed: Christopher Finlayson ‘First Te Pou Tupua appointed’ (4 September 2017) <https://beehive.govt.nz/release/first-te-pou-tupua-appointed> accessed 16 October 2017. b Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 10. c Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 22. d Te Heke Ngahuru is the first autumn migration of eels. The name symbolizes ‘the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource’: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 17. Persons exercising powers under listed statutes must have particular regard for Te Heke Ngahuru, and the approval of this strategy triggers an obligation on local authorities to consider planning documents in light of Te Heke Ngahuru: TATA 2017, s 38. Table 1. Te Pā Auroa nā Te Awa Tupua: co-management and co-governance bodies established by Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). Body Meaning of title Composition or membership Functions Te Pou Tupua A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. Two persons: One to be nominated by iwi with interests in the river. One to be nominated on behalf of the Crown (s 20).a ‘to act and speak for and on behalf of Te Awa Tupua’ (s 19(1)(a)). Performs landowner functions (s 19(1)(d)). Administers a fund to support the health and well-being of the river (s 19(1)(e); ss 57-59). Centre of a new model of river governance eg must develop with other parties and maintain a register of hearing commissioners qualified to determine applications under the Resource Management Act 1991 for use of the Whanganui river and its catchment (s 19(1)(f); s 61). Te Karewao ‘the strong, pliable and readily available supplejack vine … utilised in the construction of hīnaki (eel pots or traps).’ It is said to symbolise ‘timely and robust support’.b Three persons (regular membership) (s 28): 1 person appointed by the trustees (of the post settlement iwi governance body). 1 person appointed by the iwi with interests in the Whanganui River (other than Whanganui Iwi). 1 person appointed by the relevant local authorities. But, if Te Pou Tupua performs a function in relation to a particular part of the river, Te Karewao must include a temporary member, appointed by the hapū and iwi with interests in that part of the river (s 28). Provides advice and support to Te Pou Tupua (s 27). Te Kōpuka nā Te Awa Tupua Te Kōpuka is white mānuka or tea tree, which is used to build the pā auroa or eel weir. This symbolises ‘the connection, co-operation and strength within Te Awa Tupua’.c Up to 17 members representing a wide range of interests in the river, including ‘including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups’ (s 29(2); s 32). A strategy group. Develops, approves and reviews Te Heke Ngahuru,d the river strategy document (s 30). Should the Regional Council, a local authority, adopt a collaborative planning process for freshwater management in the future, Te Kōpuka must be the group appointed by the Council for that process (s 34). a While TATA 2017 provides for iwi and the Crown each to nominate one person to the office of Te Pou Tupua, the first appointments, made in September 2017, were made jointly by the Crown and iwi with interests in the river. Dame Tariana Turia and Turama Hawira, each of whom are members of hapū and iwi with interests in the river, were appointed: Christopher Finlayson ‘First Te Pou Tupua appointed’ (4 September 2017) <https://beehive.govt.nz/release/first-te-pou-tupua-appointed> accessed 16 October 2017. b Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 10. c Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 22. d Te Heke Ngahuru is the first autumn migration of eels. The name symbolizes ‘the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource’: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 17. Persons exercising powers under listed statutes must have particular regard for Te Heke Ngahuru, and the approval of this strategy triggers an obligation on local authorities to consider planning documents in light of Te Heke Ngahuru: TATA 2017, s 38. 4.4 Processes of Co-management and Co-governance Co-management and co-governance bodies are essential to the legislative scheme supporting Te Urewera and Te Awa Tupua. But, while these kinds of bodies are now a familiar feature of Treaty settlement, they attract scepticism. Brad Coombes and Stephanie Hill argue that co-management may ‘co-opt Indigenous peoples’ interests’,127 particularly when these structures are established without addressing indigenous aspirations for greater political authority.128 Once up and running, co-management bodies may face disagreement over foundational principles. While this is a feature of debates in environmental law generally, it is particularly marked in the context of co-management: as Salmond has noted, indigenous peoples and government representatives may have fundamentally different assumptions about how the world works—for example ‘that a river is or is not a living being’.129 The potential for disagreement appears to be acknowledged in Te Urewera and Te Awa Tupua legislation. While both Acts make general statements regarding the desirability of collaboration,130 they also introduce procedural requirements that engage the parties in participatory, deliberative decision-making. Members of Te Urewera Board and the Whanganui river strategy group, Te Kōpuka, are required to promote unanimous decision making or consensus decisions, being those made in the absence of a formally recorded dissent.131 A vote is taken only if unanimity or consensus decision-making is not practical and, even then, a high degree of support for each measure is required—in effect, neither the Crown and other stakeholders nor iwi may proceed without the support of at least some of the representatives appointed by its partner.132 These processes appear to draw on tikanga Māori both as it is reflected in existing examples of successful joint management,133 and as it is expressed in the constitutional values shared by Māori communities.134 Māmari Stephens has argued that one may identify a particular Māori attitude that public power ought to be exercised: as a means of meeting collective obligation for civic ends; in a way that facilitates group participation and public input; with due process and regard for the standing of those involved.135 These values appear reflected in the procedural requirements of these settlements. A preference for consensus means it is less likely that members can be side-lined, or their views ignored. Generally, these measures will have the practical effect of requiring a longer conversation. Procedural requirements that engage the parties in participatory, deliberative decision-making also align with theories of relative authority. Nicole Roughan, using the Crown-Māori relationship as a case study, has argued that ‘[a]uthority should be conceived as relative, shared, and interdependent, not binary, monist, or independent’.136 Roughan’s theory acknowledges that at times cultural values and practices will be incommensurable. Reason does not dictate an outcome in these circumstances but ‘authorities participate together to decide how the different incommensurable reasons can be best accommodated or compromised’.137 And, as relative authority realises its legitimacy through relationship, it appears that, through this theoretical lens, the agreement of effective outcomes has the potential to enhance the standing of those involved, just as it may in accordance with Māori attitudes regarding the exercise of public power. 5. THE LEGAL PERSONALITY MODEL AND THE CONSTITUTION This article has argued that legal personality was granted to Te Urewera and the Whanganui river to facilitate relationships in relation to land between the Crown and iwi. Use of the legal personality model was prompted by a stalemate: neither the Crown nor iwi were prepared to relinquish their claim to authority over the land and river. Framed only in these terms, it is easy to question the value of these new arrangements. Powers of decision-making shift, but better environmental outcomes are not guaranteed. On the face of the Acts, there is no radical rejection of property as a means of ordering entitlements, but land wrongly taken from indigenous peoples is not returned to indigenous ownership. This new model also seems precarious—while developing constitutional conventions may protect legislation implementing settlement of Treaty claims, under the principle of Parliamentary sovereignty, the legislation is formally subject to repeal by a bare majority. In this final section however, I argue that the frameworks provided by the new legislative schemes are significant. The legislation does not tell us much about what it might mean for land or a river to be a legal person; few rights and duties are prescribed. Instead, it provides frameworks within which, over time, the possibilities of legal personality for nature will be explored. I argue that it is helpful to think of these frameworks as ‘constitutions’,138 which structure relationships between the Crown and iwi. Characterising the schemes in constitutional terms is helpful because it highlights the role the law may play in contests over foundational values, and brings attention to the contribution that this legislation makes to ongoing debate about land, authority and colonisation—issues I have argued are at the heart of these settlements. The Acts frame the relationship between the Crown and iwi in important ways. First, fundamental disagreement is acknowledged—legal personality responds to a contest regarding authority over land. This acknowledgement is essential to establish what James Tully describes as a ‘just constitutional discussion in which each speaker is given her or his due’.139 The law then plays an important role in structuring parties’ interaction and decision-making. Critics of legal personality focus on the indeterminate nature of the ‘voice’ created by the grant.140 But, in these case studies, the grant of legal personality has also provided a theatre for the creation of a bespoke legislative approach to that problem. Te Urewera and Te Awa Tupua Acts focus particularly on who makes decisions on behalf of the legal person, and how those decisions should be made. Processes governing the co-management and co-governance bodies suggest that the legislators’ response to the prospect of continued conflict is to encourage parties to deliberate further. The Acts include broad statements of principle to guide decision-makers. These principles affirm values centred on Te Urewera and Te Awa Tupua. In this way, we might think of the Acts as constitutions made in situ—frameworks that address the structure of power not only in respect of particular peoples, but also in respect of a particular place. Constitution making is always bounded by a particular territory, but I would argue place is present in these settlements in a different way. This is owing to the recognition of the status of Te Urewera and Te Awa Tupua on the basis of the tikanga (indigenous customary systems of values and law) and mātauranga (knowledge) of Tūhoe and Whanganui iwi respectively. Within these systems of knowledge, land has its own mana (authority) and mauri (life force). The land is itself part of the framework, rather than merely a territorial limit upon it. Frameworks for Te Urewera and the Whanganui river also relate to constitutional processes at a national level. Here, it is possible to locate the grant of legal personality within a wider shift in thinking about authority and obligation in relation to land. At common law, the relationship between land and authority is expressed through the doctrine of tenure. Arguably, the grant of legal personality is part of a process of decolonisation through which this doctrine is incrementally recast. Changes to legal understandings of tenure are ongoing and the grant of legal personality to nature is but one marker in this process.141 In the 2003 decision Ngati Apa v Attorney-General,142 the New Zealand Court of Appeal followed the High Court of Australia in Mabo (No 2)143 to find that the Crown did not take beneficial ownership of land upon the declaration of sovereignty. The judgment marked a refashioning of historical understandings of tenure to acknowledge radical title, which the Court found was ‘not inconsistent with common law recognition of native property’.144 The idea that land belongs to no one marks a further shift in understandings of relationship between peoples and land. It was first seen in 2011 when the Marine and Coastal Area (Takutai Moana) Act declared the common marine and coastal area incapable of ownership.145 Boast describes this innovation as ‘a revolution’ in New Zealand’s land law system as, immediately prior to the 2011 Act, all land in New Zealand, save for Māori customary land, was held ‘of the Crown’ under the doctrine of tenure.146 Arguably however, the change brought about by Te Urewera and Te Awa Tupua models is even more striking. Where the 2011 Act states the common marine and coastal area is owned by no one, this legislation recognises the status of Te Urewera and Te Awa Tupua on the basis of the tikanga and mātauranga of Tūhoe and Whanganui iwi respectively. Not only is the Crown removed from the apex of the feudal tenurial structure, but a tikanga based land relationship is legally acknowledged in its place. The great chain of being is disrupted as the Crown is displaced by the natural world. Finally, these Acts—with their emphasis on process and principles—seek to reframe ongoing contest. Settlement of the grievances of Tūhoe and Whanganui iwi is not a single event but an iterative process, and these Acts reflect the understanding that settlement is contingent upon the maintenance of relationships between peoples, and, perhaps, between peoples and land. These arrangements recall Tully’s view that ‘[c]onstitutions are not fixed and unchangeable agreements reached at some foundational moment, but chains of continual intercultural negotiations […]’.147 In this way, the Acts may be regarded as part of the rebuilding of the constitution of Aotearoa New Zealand. Janet McLean has argued that the settlement of the claims of hapū and iwi under the Treaty of Waitangi mark a symbolic return to the moment of the state’s foundation. She argues the personal notion of the Crown and its honour has assisted the settling parties to be conceived as ‘“constituting powers” and not constituted ones’.148 While at times the Crown does assert its position as the constituted Crown—enforcing ‘bottom lines’ regarding the conservation estate, rights to water and Crown minerals, for example—other aspects of settlement engaging the symbol of the constituting Crown return the Crown to ‘the moment of entering the Treaty of Waitangi with Māori’.149 As McLean notes, maintaining the personal notion of the Crown ‘can be regarded as a claim on behalf of Māori to constitutive power to remake the constituted authority of the State’.150 These settlements align with McLean’s analysis—iwi claim constitutive power, and the plastic quality of the Crown assists151—but the legal entity model facilitates a distinctive discourse. That is, the remaking of the authority of the state takes place in situ, and the claim to exercise authority legitimately is bound, at least rhetorically, to responsibility to place. This emerges in the Final Statement of Priorities of Te Urewera Board, published in 2016. The Board begins, ‘this framework characterises Te Urewera as the Marae—the object of our responsibility’.152 The Statement continues: The manuhiri gather, organising themselves, unifying and affirming intent. Across the ātea the pae observes and readies the tīpuna whare and the tanata whenua to receive their manuhiri. This marae—Te Urewera is the only place to authenticate our mutual intent and relationship.153 Tūhoe did not sign the Treaty of Waitangi, and for that reason the constituting parties would not by settlement return symbolically to the moment of entering the Treaty. The statement crafted by the Board does however imagine a moment of encounter and a constitutional process governed by tikanga; this is a process of pōwhiri, or ritual of encounter, whereby the tanata whenua, the people who belong to a particular place, welcome manuhiri, visitors, onto the land and into relationship with tanata whenua. By this image, Tūhoe reasserts its role as host of all peoples who come onto the land and frames the moment of commitment between peoples in an indigenous narrative. The legal entity model is brought to bear in this political imagery—Te Urewera is described as the marae—the space in front of a tīpuna whare, ancestral meeting house, where the pōwhiri takes place. Power in relation to land is not separate from power in relation to people, but the land is reconceived as an object of responsibility or site of commitment, rather than as a site of control. In the statement of the Board, we see the legislative framework used as a forum for discourse that speaks to relationships between peoples, land and authority. This is not to say that the Board secures its vision by this statement—debates about the authority of hapū, iwi and the Crown will continue, as will conflict over the relationship between people and the environment. Rather, I have argued that the legal personality model should be valued as a framework that acknowledges disagreement, and seeks to structure and support the process of negotiation and compromise that arises from it. Footnotes 1 Te Urewera Act 2014 (TUA 2014), s 3(3). 2 Representatives of the British Crown signed the Treaty of Waitangi in 1840. Formal institutional ties to the UK have, over time, been severed and Queen Elizabeth II is now Queen in right of New Zealand advised by her New Zealand ministers. On the role of the Crown in redressing historical wrongs see Janet McLean, ‘Crown, Empire and Redressing the Historical Wrongs of Colonisation in New Zealand’ [2015] NZ Law Rev 187. 3 Te Awa Tupua may be translated as ‘river with ancestral power’: Anne Salmond, ‘Tears of Rangi: Water, Power and People in New Zealand’ (2014) 4 Hau: J Ethnograph Theory 285, 286. For discussion of thesignificance of naming in constructing discourses in relation to the Waikato River see Marama Muru-Lanning, Tupuna Awa. People and Politics of the Waikato River (Auckland University Press 2016). 4 Te Awa Tupua (Whanganui River Claims Settlement) Act (TATA 2017), s 12. 5 A pou is literally a post or stake. It may refer to a physical or metaphorical support or marker of territory. 6 TATA 2017, s 18(2). 7 Sir Hugh Kawharu, translation of the Māori language version of the Treaty of Waitangi: <https://nzhistory.govt.nz/files/documents/treaty-kawharu-footnotes.pdf> accessed 5 October 2017. 8 The Waitangi Tribunal was established by the Treaty of Waitangi Act 1975. In 1985, the Tribunal’s jurisdiction was extended to enable it to inquire into any alleged breach of the Treaty since its signing in 1840. The Tribunal has jurisdiction to inquire into claims by any Māori individual or group of Māori, regardless of whether representatives of that ancestral group signed the Treaty in 1840: Treaty of Waitangi Act 1975, s 6. Notably, representatives of Tūhoe did not sign the Treaty. 9 Hapū and iwi are indigenous Māori descent groups. Iwi refers to a larger scale descent group. Hapū also means to be pregnant; iwi also means bone. 10 Simon Day, ‘Healing our Dark Heart’ Sunday Star Times (Auckland, 13 April 2014) <http://www.stuff.co.nz/national/9936055/Healing-our-dark-heart> accessed 5 October 2017. 11 ibid. 12 Aotearoa originally referred to the North Island but is now used as the Māori name for New Zealand. 13 Christopher Stone, ‘Should Trees Have Standing?—Toward Legal Rights for Natural Objects’ (1972) 45 S Cal L Rev 450. 14 Laurence Tribe, ‘Ways Not to Think about Plastic Trees: New Foundations for Environmental Law’ (1974) 83 Yale LJ 1315; Mari Margil, ‘Building an International Movement for Rights of Nature’ in Michelle Maloney and Peter Burdon (eds), Wild Law—In Practice (Routledge 2014) 149. See art 71, Constitution of Ecuador and Cristina Espinosa, ‘Interpretive Affinities: The Constitutionalization of Rights of Nature, Pacha Mama, in Ecuador’ (2015) J Env Policy Plann 1. See also the grant of legal personality to rivers Ganga and Yamuna, Lalit Miglani v State of Uttarakhand & ors (High Court of Uttarakhand, 30 March 2017) <http://lobis.nic.in/ddir/uhc/RS/orders/31-03-2017/RS30032017WPPIL1402015.pdf> accessed 5 October 2017; Erin O’Donnell, ‘At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India’ (2018) 30 JEL in press ; Nurfadzilah Yahaya, ‘Being, River: The Law, the Person and the Unthinkable’ (H-Law, 26 April 2017) <https://networks.h-net.org/node/16794/blog/world-legal-history-blog/177310/being-river-law-person-and-unthinkable> accessed 5 October 2017 and the grant of rights to the Atrato River, Richard Emblin, ‘Colombian Court Grants the Atrato River Rights and Protection’ The City Paper Bogota (Bogota, 8 June 2017) <https://thecitypaperbogota.com/news/a-colombian-court-gives-the-atrato-river-constitutional-rights/17311> accessed 15 October 2017. 15 For an overview see William Twining, General Jurisprudence: Understanding Law from a Global Perspective (CUP 2009) ch 15, online resource, 1–7. Of the many contributions to this debate see especially Frederic William Maitland, ‘Moral Personality and Legal Personality’ in Harold D Hazeltine, Gaillard Lapsley and Percy Henry Winfield (eds), Maitland. Selected Essays (CUP 1936). 16 See David Runciman, Pluralism and the Personality of the State (CUP 1997) pt III in particular. 17 Bryant Smith, ‘Legal Personality’ (1927–8) 37 Yale LJ 283, 296. 18 I am grateful to Janet McLean for suggesting this term. 19 Alex Frame, ‘Property and the Treaty of Waitangi: A Tragedy of the Commodities?’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 224, 237–38. 20 Nin Tomas, ‘Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights’ in David Grinlinton and Prue Taylor (eds), Property Rights and Sustainability (Nijhoff 2011) 219, 222–23. 21 ibid 224. 22 ibid 226. 23 ibid 228. 24 See James Morris and Jacinta Ruru, ‘Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water?’ (2010) 14(2) Australian Indigenous L Rev 49, 50. 25 This is now one of the statutory values that represent the essence of Te Awa Tupua and is referred to in the apology offered by the Crown: TATA 2017, ss 13 (c) and 70(b). 26 Henare Nikora is cited in Ngahuia Te Awekotuku and Linda Waimarie Nikora, ‘Nga Taonga o Te Urewera’ (A Report prepared for the Waitangi Tribunal's Urewera District Inquiry, Wai 894, doc B6, August 2003) 10. 27 Tomas (n 20) 227, 238. 28 IH Kawharu, ‘Mana and the Crown: A marae at Orakei’ in IH Kawharu (ed), Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (OUP 1989) 211. See also Andrew Erueti who notes that iwi relationship with the environment ‘encompasses a political dimension best encapsulated as mana whenua or tino rangatiratanga’: ‘Conceptualising Indigenous Rights in Aotearoa New Zealand’ (2017) 27 NZULR 715, 735. 29 Merata Kawharu, ‘Environment as a Marae Locale’ in Rachael Selby, Pātaka Moore and Malcolm Mulholland (eds), Māori and the Environment: Kaitiaki (Huia Publishers 2010) 221, 227. 30 Salmond (n 3) 299. See also Marama Muru-Lanning, ‘River Ownership: Inalienable Taonga and Impartible Tupuna Awa’ (2009) 6(2) Sites J Soc Anthropol Cult Stud 32, 46. Muru-Lanning notes that rivers in Māori language are classified with the possessive particle ‘o’ meaning that they are senior or unable to be controlled by human beings. 31 Where TATA 2017 speaks of a guardian it refers a spiritual being or kaitiaki inhabiting the river rapids: sch 8(3). 32 The Board published a draft management plan in May 2017, ‘Te Kawa o te Urewera’ (2017) 5 <http://www.ngaituhoe.iwi.nz/Te-Kawa-o-Te-Urewera> accessed 5 October 2017. 33 Muru-Lanning, ‘River Ownership’ (n 30) 34. 34 For Aoraki Mount Cook National Park and the Ngai Tahu Claims Settlement Act 1998 see John Dawson, ‘A Constitutional Property Settlement Between Ngai Tahu and the New Zealand Crown’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 207; Jacinta Ruru, ‘Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand’s National Parks’ (PhD thesis, University of Victoria 2012) 174–77. For rivers generally see Morris and Ruru (n 24) and re the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 in particular see Tomas (n 20) 241–46; Linda Te Aho, ‘Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand—The Waikato River Settlement’ (2010) 20 J Water L 285. 35 Regarding national parks see Ruru, ‘Settling Indigenous Place’ (n 34) 200–9. For rivers see Tomas (n 20) 220; Morris and Ruru (n 24) 50–53. 36 See Crown Forestry Rental Trust, ‘Guide for Claimants Negotiating Treaty Settlements’ (January 2008) ch 5, 110. 37 See eg Te Aho ‘Indigenous Challenges’ (n 34); Waitangi Tribunal, ‘Stage 1 Report on the National Freshwater and Geothermal Resources Claim’ (Wai 2358, 2012). 38 Waitangi Tribunal, ‘Te Urewera Part I’ (Wai 894, 2009) 152. 39 Waitangi Tribunal, ‘Te Urewera Part III’ (Wai 894, 2012) Letter of Transmittal, 19 October 2012. The reserve lands were later to form the national park. 40 ibid 582, ch 13. See generally Richard Boast, Buying the Land, Selling the Land. Governments and Maori Land in the North Island 1865-1921 (Victoria University Press 2008) 416–22; Judith Binney, Encircled Lands Te Urewera, 1820 – 1921 (Bridget Williams Books 2009). 41 Note that an area surrounding Tāwhiuau Maunga (Tāwhiuau mountain), which was part of the national park, is excluded from Te Urewera and vested inalienably in the name of Tangiharuru, a Ngāti Manawa ancestor: TUA 2014, ss 130–31. 42 Waitangi Tribunal, ‘Te Urewera Part III’ (Wai 894, 2012) 890; Waitangi Tribunal, ‘Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity’ (vol 2, Wai 262, 2011) 363–66. Cf Phil O’Lyver, Jocelyn Davies and Robert Allen, ‘Settling Indigenous Claims to Protected Areas: Weighing Māori Aspirations against Australian Experiences’ (2014) 12 Conserv Soc 89, 100, 103. 43 Claire Trevett, ‘Tuhoe Veto Followed Parks Advice’ New Zealand Herald (Auckland, 18 May 2010 <http://m.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10645708> accessed 5 October 2017. 44 John Kneebone found that settlement should not include ownership of natural water. He recommended that the Trust Board should not be designated a consent authority under the Resource Management Act 1991 and proposed a joint body, comprised of equal Crown and iwi representation, to exercise all the rights and responsibilities of legal ownership of the bed: Waitangi Tribunal, ‘The Whanganui River Report’ (Wai 167, 1999) 345. 45 ibid 343. 46 Te Atihaunui-ā-Pāpārangi are the people of the river: ibid, xviii. See also TATA 2017, s 69(5). 47 Under s 14 of the Resource Management Act 1991, the take, use, damming and diversion of freshwater is prohibited save where it is allowed by a rule in a regional plan or a resource consent, or where it falls within a specified exception. See also Water and Soil Conservation Act 1967, s 21(1). The ability to allocate water take may be delegated to various entities, including an iwi authority, under the Resource Management Act 1991, s 33(2). However, the power is not used and has been described as a ‘dead letter’: Justice Joseph Williams, ‘The Harkness Henry Lecture Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law’ (2013) 21 Waikato L Rev: Taumauri 1, 22. 48 Jacinta Ruru, ‘Undefined and Unresolved: Exploring Indigenous Rights in Aotearoa New Zealands’s Freshwater Legal Regime’ (2010) 20 J Water L 236, 241–42. 49 Rohe is an area of land or territory. Waitangi Tribunal, ‘Stage 1 Report on the National Freshwater and Geothermal Resources Claim’ (Wai 2358, 24 August 2012) 81. 50 Paki v Attorney-General [2012] NZSC 50, [2012] 3 NZLR 277; Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67. 51 Though this issue was not before the Court in the Paki litigation. See Richard Boast, Foreshore and Seabed (LexisNexis 2005) 21; Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) 26 (Cooke P). Cf Attorney-General v Ngati Apa [2003] 3 NZLR 642 (CA) [16] (Keith and Anderson JJ). 52 On qualified exclusive native title rights see Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1, 127–28 (Kirby J); Jacinta Ruru ‘Property Rights and Māori: A Right to Own a River?’ in Klaus Bosselmann and Vernon Tava (eds), Water Rights and Sustainability (New Zealand Centre for Environmental Law 2011) 51, 75; Ruru ‘Undefined and Unresolved’ (n 48) 242. 53 Frame (n 19) 234. 54 Salmond (n 3) 301. 55 Salmond (n 3) 302. See also Tomas (n 20) 238–39. 56 Muru-Lanning, ‘River Ownership’ (n 30) 51. 57 ibid. 58 Lyndsay Head, ‘Land, Authority and the Forgetting of Being in Early Colonial Maori History’ (PhD thesis, University of Canterbury, New Zealand 2006) 190. 59 Criticism of the Treaty settlement process often focuses on this failure eg Moana Jackson, ‘Constitutional Transformation. An Interview with Moana Jackson’ in Malcolm Mulholland and Veronica Tawhai (eds), Weeping Waters. The Treaty of Waitangi and Constitutional Change (Huia Publishers 2010) 325. See generally Erueti (n 28). 60 Pākehā is commonly used to describe New Zealanders of primarily European descent. 61 David Williams, ‘Be Bold and Talk about Benefits of Settlements’ New Zealand Herald (Auckland, 17 June 2010) <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10652324> accessed 5 October 2017. 62 See eg Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, s 69: sites of significance may be vested in Pootatau Te Wherowhero, the first Māori monarch crowned in 1858. 63 See eg Dale Husband, ‘Too Many Pākehā Don’t Know our History’ E-Tangata (New Zealand, 16 October 2016) <http://e-tangata.co.nz/news/too-many-pakeha-dont-know-our-history> accessed 5 October 2017. 64 Waitangi Tribunal, ‘Te Kāhui Maunga: The National Park District Inquiry Report’ (Wai 1130, 2013). See also Boast, Buying the Land (n 40) 341–52; Ruru, ‘Settling Indigenous Place’ (n 34) 164–65. 65 Williams (n 61). 66 Jeremy Waldron, ‘The Normative Resilience of Property’ in Janet McLean (ed), Property and the Constitution (Hart Publishing 1999) 170, 196. 67 ibid 174. 68 ibid 175. 69 ibid 190–92. 70 The role of poverty in the sale of Māori land is one example: Boast, Buying the Land (n 40). 71 Margaret Jane Radin, ‘Property and Personhood’ (1982) 34 Stanford L Rev 957. 72 Radin’s theory is aimed at property owned by an individual. She does touch upon groups as owners arguing that the lack of a convincing theory of group rights makes these cases difficult. She adopts the starting point that the group is necessary for its members’ self-constitution: ibid 1011–12. 73 Tom Brooking, ‘Use it or Lose it. Unravelling the Land Debate in Late Nineteenth-Century New Zealand’ (1996) 30 NZ J History 141, 141–42. 74 Boast, Buying the Land (n 40) 124. 75 Brooking, ‘Use it or Lose it’ (n 73) 142. 76 Richard Boast, ‘Property Rights and Public Law Traditions in New Zealand’ (2013) 11 NZJPIL 161, 175–77. Regarding lakes see Mark Hickford, ‘John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920’ (2007) 38 Victoria U Wellington L Rev 853, 920–23. 77 Tom Brooking, Lands for the People?: the Highland Clearances and the Colonisation of New Zealand: a Biography of John McKenzie (University of Otago Press 1996) 179. 78 Boast argues that the ideological drive for Crown purchase of Māori land is revealed particularly in Te Urewera, one of the last areas subject to a concerted Crown purchasing campaign: Buying the Land (n 40) 235. 79 There may, of course, be other explanations for this resistance. This article argues only that the strength of the association of these properties with the identity of the colonial state is a factor contributing to resistance to the transfer of ownership. In contrast, the Crown has transferred to Māori title to assets that might more readily be regarded as fungible—the ‘Sealord’ commercial fisheries settlement transferred fisheries assets to a statutory organisation, including the rights to fisheries quota and shareholding in a fishing company: Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. 80 Lindsey Te Ata o Tu MacDonald, ‘The Political Philosophy of Property Rights’ (PhD thesis, University of Canterbury, New Zealand, 2009) 138. 81 Te means ‘the’ in Māori hence the absence of a definite article in English in this and other sentences. 82 Mark Hickford, Lords of the Land. Indigenous Property Rights and the Jurisprudence of Empire (OUP 2011) 8–9. See also Mark Hickford, ‘Strands from the Afterlife of Confiscation: Property Rights, Constitutional Histories and the Political Incorporation of Maori, 1920s’ in Richard Boast and Richard Hill (eds), Raupatu: The Confiscation of Maori Land (Victoria University Press 2009) 189. 83 Hickford, Lords of the Land (n 82) 452. 84 Mark Hickford, ‘The Historical, Political Constitution—Some Reflections on Political Constitutionalism in New Zealand’s History and its Possible Normative Value’ [2013] NZ Law Rev 585, 602. Hickford discusses the legal personality settlements at 618–23. 85 TUA 2014, s 11; TATA 2017, s 14. 86 This approach builds upon existing law. Section 7(d) of the Resource Management Act 1991 requires that ‘all persons exercising functions and powers under it … shall have particular regard to intrinsic values of ecosystems’. See also the Conservation Act 1987, s 2: ‘conservation means the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.’ 87 See eg TUA 2014, ss 3, 5(1) and 18(2); TATA 2017, s 13. 88 Williams (n 47). s 11 of TUA 2014 declaring Te Urewera a legal entity follows in the main text below. 89 Mātauranga is knowledge or wisdom. As Tony Angelo has noted, such recognition is not unknown to the common law which, for example, recognised Hindu idols or deities as juristic entities on the basis of Hindu custom: AH Angelo, ‘Personality and Legal Culture’ (1996) 26 VUWLR 395. 90 This is Justice Joseph Williams’ ‘Lex Aotearoa’: Williams (n 47) 32–34. See Jeremy Webber, ‘Beyond Regret: Mabo’s Implications for Australian Constitutionalism’ in Duncan Ivison, Paul Patton and Will Sanders (eds), Political Theory and the Rights of Indigenous Peoples (CUP 2000) 60, 64 who argues the content of rights associated with indigenous title is ‘transformed through a process of translation and re-expression’. 91 s 96 of TUA 2014 provides that Te Urewera is not liable for rates, fire authority levies or any historic contamination of land. 92 See, eg, ss 44, 70, 102 and 122 TUA 2014; ss 19, 48, 58, 60 and 61 TATA 2017. 93 TUA 2014, s 12. 94 TUA 2014, s 18(2). 95 TUA 2014, s 5. 96 TUA 2014, s 17. 97 TUA 2014, s 19. 98 TUA 2014, s 21. 99 According to the Report of the Office of the Auditor-General, Principles for Effectively Co-governing Natural Resources (Office of the Auditor-General 2016) 8 in the context of agreements between iwi and government, co-management is concerned with day-to-day matters and ‘the collaborative process of decision-making and problem solving within the administration of conservation policy’. Co-governance refers to ‘arrangements in which ultimate decision-making authority resides with a collaborative body exercising devolved power—where power and responsibility are shared between government and local stakeholders’. 100 The Board published a Statement of Priorities in 2016, ‘Te Kawa o Te Urewera’ (2016) <https://issuu.com/teurutaumatua/docs/te_kawa_o_te_urewera__issuu_6_> accessed 5 October 2017. 101 TUA 2014, ss 18 and 62. 102 See National Parks Act 1980, ss 45, 49 and 56. 103 TUA 2014, s 50. 104 Te Urewera-Tūhoe Bill 2013 (146-1), explanatory note. 105 See eg AM Honoré’s essay ‘Ownership’ which outlines 11 incidents that he argues characterise the liberal concept of ownership in AG Guest (ed), Oxford Essays in Jurisprudence (1st edn, OUP 1961) 107. Theorists disagree about the usefulness of the idea of ownership: see eg Jeremy Waldron, The Right to Private Property (Clarendon Press 1988) 29; Laura Underkuffler, The Idea of Property. Its Meaning and Power (OUP 2003) 17. But cf JW Harris, Property and Justice (Clarendon Press 1996) 5, 65. 106 Under the draft management plan, these will be known as Friendship Agreements: ‘Te Kawa o te Urewera’ (2017) (n 31) 37. Any revenue received must be applied to achieving the purposes of the Act: TUA 2014, ss 62(1) and s 39; sch 3. 107 TUA 2014, ss 13 and 111. 108 TUA 2014, s 5(2). 109 TUA 2014, s 64. 110 TUA 2014, ss 56(b) and 64; and Crown Minerals Act 1991, s 61; sch 4. Note however that the power to grant a permit remains with the Crown: Crown Minerals Act 1991, s 25. 111 Crown Minerals Act 1991, s 61. 112 Resource Management Act 1991, s 4(3). 113 TUA 2014, s 43. See also, eg TUA 2014, s 58 re the granting of activity permits. 114 Yanner v Eaton (1999) 201 CLR 351, 370. 115 Laura Hardcastle, ‘Turbulent Times: Speculations about How the Whanganui River’s Position as a Legal Entity Will be Implemented and How it May Erode The New Zealand Legal Landscape’ (2014) (Feb) Māori L Rev 3, 3; Linda Te Aho has agreed with this statement: ‘Ruruku Whakatupua Te Mana o te Awa Tupua—Upholding the Mana of the Whanganui River’ (2014) (May) Māori L Rev 12, 20. 116 TATA 2017, s 69(19). 117 See Linda Te Aho, ‘Ruruku Whakatupua Te Mana o te Awa Tupua’ (n 115) 19. 118 TATA 2017, s 41. 119 ibid s 43. 120 ibid ss 41(3) and 44(2). 121 ibid ss 16 and 46. 122 A consent authority may determine that Te Pou Tupua is an affected person under the Resource Management Act 1991 for the purpose of applications for resource consents relating to water: ibid s 46(3)(a). 123 ibid s 13. 124 ibid s 13(a). 125 In addition to these bodies, the statute provides for further collaborative processes: ss 64, 66 and 67. Some decision makers outside the co-management structures are also required to ‘recognise and provide for’ Te Awa Tupua and Tupua te Kawa; other decision makers must have ‘particular regard to’ the status of Te Awa Tupua and its values (s 15). 126 ‘Whanganui River Deed of Settlement: Ruruku Whakatupua, Te Mana o te Awa Tupua’ (2014) <https://www.govt.nz/treaty-settlement-documents/whanganui-iwi/> accessed 5 October 2017, 4. Te Pā Auroa is ‘a relevant consideration in the exercise of all statutory functions, powers, and duties in relation to the Whanganui River or to activities in its catchment that affect the Whanganui River’: TATA 2017, s 11(1). 127 Brad Coombes and Stephanie Hill, ‘“Na whenua, na Tūhoe. Ko DoC te partner”—Prospects for Comanagement of Te Urewera National Park’ (2005) 18 Soc Nat Resour 135, 136. 128 Jackson (n 59) 327. 129 Salmond (n 3) 297. 130 TUA 2014, s 31(1)(c); TATA 2017, ss 13(d), 69(19) and sch 4, cl 6. 131 TUA 2014, ss 31(1)(b) and s 7, interpretation; TATA 2017, sch 4, cl 6 and cl 10. 132 Te Urewera Board may make a decision supported by a minimum of 80% of its members: TUA 2014, ss 33, 34 and 36(1)(a). Te Kōpuka may make a decision supported by a minimum of 75% of its members TATA 2017, sch 4, cl 6 and cl 10. 133 The preference for consensus reflects the practice adopted by Ngāti Whātua o Ōrakei in joint management with Auckland Council of reserves at Bastion Point and Ōkahu Bay. The Orakei Act 1991 did not require consensus and indeed gave the casting vote to the presiding member, appointed by Ngāti Whātua: Orakei Act 1991, s 28(8) [the Orakei Act was repealed by Ngāti Whātua Ōrākei Claims Settlement Act 2012, s 100]. Sir Hugh Kawharu, the first Chair of the Board, never used the casting vote. Following ten years of consultation, the management plan was adopted by consensus, no vote being taken: Geoff Cumming, ‘Okahu Bay Offers a Glimmer of Hope’ The New Zealand Herald (Auckland, 1 February 2004) <http://www.nzherald.co.nz/geoff-cumming/news/article.cfm?a_id=88&objectid=3546638> accessed 5 October 2017. 134 As such the procedural requirements are another example of what Justice Joseph Williams describes as the ‘third law’, which draws on, but is distinct from, its tikanga Māori and colonial parents: (n 47) 12. 135 Māmari Stephens, ‘A Loving Excavation: Uncovering the Constitutional Culture of the Māori Demos’ (2013) 25 NZULR 820, 822–23. See also Carwyn Jones, ‘Whakaeke i ngā ngāru—Riding the Waves. Māori Legal Traditions in New Zealand Public Life’ in Lisa Ford and Tim Rowse (eds), Between Indigenous and Settler Governance (Routledge 2012) 174. 136 Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (OUP 2013) 15. 137 ibid 238. Hickford analyses such historical ‘negotiated associations’ in Lords of the Land (n 82) 38. 138 Elizabeth Fisher uses ‘constitution’ in this sense to analyse the role of environmental legislation in framing normative conflict: ‘Towards Environmental Constitutionalism: A Different Vision of the Resource Management Act 1991?’ [2015] Resour Manage Theor Prac 63. 139 James Tully, Strange Multiplicity. Constitutionalism in an Age of Diversity (CUP 1995) 6. 140 Mark Sagoff, ‘On Preserving the Natural Environment’ (1974) 84 Yale LJ 205, 222–3. 141 Proposals currently before Parliament would further unravel the doctrine of tenure by removing the application of bona vacantia to Māori freehold land. Interests would instead revert to the customary group or collective ownership: Te Ture Whenua Māori Bill 2016 (126-2): cl 295(2), 296(2). Owners of individual freehold interests in Māori land would have the power to decide that the land should revert to collective ownership: cl 48. 142 [2003] 3 NZLR 643. I am grateful to Mark Hickford for suggesting that I consider Ngati Apa in this context. 143 [1992] HCA 23, (1992) 175 CLR 1. 144 [2003] 3 NZLR 643 [30]. For the argument that Ngati Apa is ‘indeed a modern revision’ see: David Williams A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press 2011) 208–10. 145 Marine and Coastal Area (Takutai Moana) Act 2011, s 11. 146 ‘Property Rights’ (n 76) 167. This has likely been the position since the enactment of the Te Ture Whenua Maori Act or Maori Land Act 1993 following shifts in understanding of the common law position. See Mabo v State of Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1, 48–49 where Justice Brennan held that the doctrine of tenure applies to ‘every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’. cf Native Land Act 1909 (NZ), s 2 and Maori Affairs Act 1953 (NZ), s 2 under which ‘Customary land’ was defined as land vested in the Crown and held by Natives under the customs and usages of the Maori people. 147 Tully (n 139) 183. JGA Pocock argues that this ‘continuing debate over the meaning of sovereignty does not so much replace, as become, the exercise of sovereignty itself ….’: ‘The Treaty Between Histories’ in Andrew Sharp and Paul McHugh (eds), Histories, Power and Loss Uses of the Past—A New Zealand Commentary (Bridget Williams Books 2001) 75, 93. 148 Janet McLean, ‘Crown, Empire and Redressing the Historical Wrongs’ (n 2) 211. 149 Janet McLean, ‘“Crown Him with Many Crowns”: The Crown and the Treaty of Waitangi’ (2008) 6(1) NZJPIL 35, 57. 150 ibid. 151 See eg Tāmati Kruger on the Crown in Yvonne Tahana, ‘Tūhoe Asks PM Why Tribal Ownership is Evil’ New Zealand Herald (Auckland, 29 October 2010) <http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10683797> accessed 5 October 2017. 152 Final Statement of Priorities (2016) (n 100) 2. 153 ibid 10. See also draft management plan (2017) (n 32) 44. A marae or marae ātea is an open space where the encounter takes place, generally in front of a tīpuna whare, ancestral meeting house. The pae is literally a bench on which the orators of the tanata whenua sit. Tanata (Tūhoe dialect) or tangata whenua are people of the whenua—whenua means both placenta and land. Burial of the placenta following the birth of a child reinforces that child’s relationship to ancestral place. The characterisation of Te Urewera as marae can be seen to mirror national constitutional processes see JGA Pocock (n 147) 94. On the marae as symbolic expression of the continued exercise of mana or authority over lands see Kawharu (n 29) 228. I would like to thank the anonymous referees and the Editor for their thoughtful comments. Andrew Erueti, Julia Harker, Mark Hickford, Elizabeth Macpherson, Susan Watson, David V Williams and participants at the Faculty of Law Workshop at the University of Auckland and the Corporations and Other Legal Entities for Society and Future Generations Symposium at Victoria University of Wellington also provided invaluable feedback. I gratefully acknowledge the research assistance of Daniel McDougall. All errors and omissions remain my own. © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Environmental LawOxford University Press

Published: Nov 20, 2017

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