BY KATHY OMBLER
Last year, the Whanganui River was accorded the status of legal personhood. Under the Whanganui River Deed of Settlement the legal entity, Te Awa Tupua, recognised the river’s indivisible and living whole, incorporating all its physical and metaphysical elements, including all tributaries, from the mountains to the sea. Yes, that’s the entire catchment. Everyone, not just iwi, is involved in the new framework, says Gerrard Albert, the man tasked with establishing it.
In 2014 the Crown and Whanganui Iwi signed Ruruku Whakatupua, the deed of settlement for the Whanganui River, marking resolution of the country’s longest- running litigation.
For the iwi this signalled the end of years of hurt, indifference and negotiation; of hearings and appeals with courts, commissions and tribunals who represented a legal system alien to the iwi’s own spiritual and emotional connection to the river.
Ko au te awa, ko te awa ko au. I am the river and the river is me … is what they say. Now, however, they are saying it with their heads held high.
The settlement signals not only a change in attitude but an entirely new construct, Te Awa Tupua and the status of legal personhood, that hasattracted international attention for its audacity and iniquity.
‘We’re essentially creating a voice for the river,’ says Gerrard Albert, chief executive officer of Ngā Tāngata Tiaki o Whanganui, the post-settlement governance entity for Whanganui Iwi.
Te Awa Tupua is not a place name, he explains. ‘It is an innate entity with its own intrinsic values that encompass the entire river system. For the iwi, Te Awa Tupua embraces their spiritual and intrinsic connection with the river.’
It doesn’t mean the river has the same legal rights as a person, he clarifies. ‘This is according the river an essential set of values and rights for itself, expressed in a way so that humans will deal with both the physical and spiritual elements and make better decisions, so it’s not just a cash machine, a sewer or a metal source, and it’s indivisible rather than being chopped into sections and managed in silos.’
A background of hurt
In the late 1800s, riverboats trampled on the mana of the river when channels built for their passage affected fish migrations and destroyed traditional lamprey weirs.
Since the 1930s, iwi fought in vain for customary ownership of the riverbed (excluding the river bed when Whanganui National Park was established in 1987 was just a small gesture.)
In the 1970s, with no consultation, the Tongariro Power Scheme diverted the Whanganui’s clean mountain headwaters to Tokaanu and thence to Lake Taupō. Environmentally, this was a disaster. ‘For the iwi,’ says Albert, ‘it was like drawing our blood.’ Years of appeals won some gains in minimum flow regulations. Albert says iwi will always be fundamentally opposed to the power scheme diversion.
Waitangi Tribunal hearings faltered over decades, punctuated by occupations on Moutoa Gardens and Tieke Marae as iwi voiced frustration at government indifference.
‘Our problem for so long was that when the old people took a case they felt they had to give legal responses to legal enquiries,’ says Albert. ‘They didn’t talk about the spiritual and emotional notions. Politicians had said they didn’t have the capacity to deal with them.’
‘The turnaround began in 2008, when Archie Taiaroa (now the late Sir Archie Taiaroa) said we had to find another way. Instead of approaching from the Crown’s perspective, he said we had to negotiate on the basis of our world view, what we know best, that we are inextricably intertwined with this river and our strongest voice is the river: Te Awa Tupua.’
‘To my mind that was inspired leadership. In settling the claim for the river we needed to use our own kawa, our own values, to heal it and give it a status beyond that which currently existed, to ensure that no matter who is performing governance or management, they are governed by the same values.’
Kayakers paddling the Whanganui River; Photo: Shaun Barnett/Black Robin Photography
All people connect
All people, not just iwi, feel that emotional connection, he adds. ‘There is a collective view about how we should harmonise with the natural world and that’s not just a Māori view. Trampers, canoeists, anyone who comes here can feel it. When we go to the metaphysical as well as the physical river, anyone can express a relationship.’
He recalls a Pākehā councillor ending her speech at a hui with the words: ‘I am the river and the river is me’. ‘Some people
said, “what’s a Pākehā saying that for?” Well isn’t that what we would want them to say? To share our values and perspectives?’
‘When Sir Archie died, his tangi went down-river to Tawata and all the local farmers came down with fern fronds and when Sir Archie passed by they put them in the river. So they not only knew what Archie stood for, they knew how to interact with the river.’
‘That emotional attachment is found throughout the catchment and we need to harness that because that’s the strongest basis for looking after what we collectively hold.’
The river is indivisible
An essential focus, according to the Settlement, is the future health and wellbeing of the river. ‘Everything that makes up the river, all of the catchment, needs to be acknowledged because degradation up-river affects everything down-river.’
Albert spells it out: ‘We’re talking about management of a whole lot of complex activities; gravel extractions, sewage discharges, farm runoff, the milk factory that sought consent to discharge “cow whey” near the river mouth that threatened tuna and inanga migrations.’
Then there is tourism. ‘Tourism numbers here are growing so there are environmental considerations, and we need to consider our ability to manaaki, to look after our visitors. That means looking after their safety, and showing them how to respect the river and respect the tikanga, that in turn enhances the value of their experience. Let’s not have another Uluru here.’
For now, Albert sees a huge role ahead in educating and advocating about the new process. ‘We do need to get better at describing how this can work.’
That said, it’s early days; the exact Te Awa Tupua structure is yet to be defined. He says Terms of Reference are being drafted to describe how it works. ‘This will include the importance of community engagement. A new Strategy Group has yet to meet and there will be a lot of listening before coming up with a strategy. None of this is about rushing; we’ve been waiting a few years already.’
‘What we do know is that Te Awa Tupua now has a voice. When, for example, renewal rights for the Tongariro Power Scheme come along in about 20 years, the river will speak.’ Albert is looking forward to the conversation.
Tieke Marae; Photo: Shaun Barnett/Black Robin Photography
Te Awa Tupua: The legal entity – how will it work?
Te Awa Tupua is a new and robust framework for the whole community, says Albert. ‘It calls for everyone: iwi, farmers, residents, the tourism and recreation and environmental sectors and all those performing governance and management, central and local, to come together, recognise and be guided by the four intrinsic values that represent the essence of Te Awa Tupua.’
‘Because Te Awa Tupua is shared with everyone, we have to be explicit about what these values are.’
Tupua te Kawa: the values
Ko te Awa te mātāpuna o te ora: the River is the source of spiritual and physical sustenance
‘Te Awa Tupua is a spiritual and physical entity that sustains the life within the Whanganui River and the health and wellbeing of the iwi, hapū, and other communities of the River.’
E rere kau mai i te Awa nui mai i te Kahui Maunga ki Tangaroa: the great River flows from the mountains to the sea
‘Noting the indivisibility, so respecting the river as a whole; not through different compartments or council boundaries.’
Ko au te Awa, ko te Awa ko au: I am the River and the River is me
‘Recognition that Whanganui iwi have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.’
Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua: the small and large streams that flow into one another form one River.
‘An allegory about community connection and responsibility, bound by the framework to work inclusively for the health and wellbeing of the river.’
Te Awa Tupua: the framework
Te Pou Tupua: two people who will speak on behalf of Te Awa Tupua, agreed jointly by the Crown and Iwi. Dame Tariana Turia and Turama Hawira are the current pou.
Te Karewao: advisory group to Te Pou Tupua. So far includes Annette Main, a local government appointment; iwi representatives are yet to be appointed.
Te Kopuka nga Te Awa Tupua (Strategy Group): responsible for preparing Te Heke Ngauru, The Whole of River Strategy. The group will include up to 17 people representing iwi, local government and DOC, plus recreation, tourism, environment and primary industry sectors.
Te Heke Ngauru – The Whole of River Strategy: together with the Values, the Strategy will recognise the innate essence of the river, provide strategic direction and over time develop consensus at a high level among all community stakeholders.
The Strategy is not about day-to-day management, however. Local and central government will be expected to give it appropriate consideration in their decision making, explains Albert. ‘There’s a whole raft of legislation; regional plans, district plans and national frameworks; that now has to take into account Te Awa Tupua. The Strategy also defines a quality process that’s a lot more inclusive and less adversarial at the outset than previous regimes.’
This article was originally published in the November 2018 issue of FMC’s Backcountry magazine and supported by the FMC Journalism Fund, using a grant from the FMC Mountain & Forest Trust. To subscribe to the print version, please visit www.fmc.org.nz/