Te Awa Tupua (Whanganui River Claims Settlement) Act

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (“the Settlement Act”) was enacted to recognise the special relationship between the Whanganui River and Whanganui iwi - an association of three ancestral groups: Hinengāku of the upper river, Tama Ūpoko of the middle reaches and Tūpoho of the lower Whanganui. The river serves a critical role in the lives of the iwi – it is their native river, their primary source of travel, and a source of physical and spiritual sustenance. The Settlement Act provides for the river’s long-term protection and restoration by making it a legal person in the eyes of the law. A legal person is an entity that has the same rights and responsibilities as a person.

The Settlement Act is the result of a Treaty Settlement, an agreement between the Crown and a Māori claimant group to settle that claimant group’s historical claims against the Crown. The process of settling claims is led by the Office of Treaty settlements and results in an Act for each settlement. From the 1880s to 1920s, the Crown – with little or no iwi consultation – conducted works to establish a steamer service on the Whanganui river and extract minerals from its bed, eroding its ecological quality, destroying eel weirs and fisheries, and degrading the river’s cultural and spiritual value. Whanganui iwi first petitioned Parliament in the 1870s, continuing for decades to seek compensation and justice through several courts and the Waitangi Tribunal.

Ruruku Whakatupua

Ruruku Whakatupua, the Whanganui River Deed of Settlement, provides for the full and final settlement of all historic Treaty of Waitangi claims of Whanganui Iwi in relation to the Whanganui River which arise from Crown acts or omissions before 21 September 1992.

The Deed of Settlement has two parts and comprises two documents:

Ruruku Whakatupua – Te Mana o Te Awa Tupua is primarily directed towards the establishment of a new legal framework (Te Pā Auroa nā Te Awa Tupua) for the Whanganui River that is centered on the legal recognition of the Whanganui River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements, as an indivisible and living whole – Te Awa Tupua.

Ruruku Whakatapua – Te Mana o Te Iwi o Whanganui is primarily directed towards Whanganui Iwi and the recognition and further development of the relationship between Whanganui Iwi and the Whanganui River through both cultural and financial redress.

Purpose of the Settlement Act

Section 3 states the purpose of the Settlement Act is:

to record the acknowledgements and apology given by the Crown to Whanganui Iwi in Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui; and
to give effect to the provisions of the deed of settlement that establish Te Pā Auroa nā Te Awa Tupua; and
to give effect to the provisions of the deed of settlement that settle the historical claims of Whanganui Iwi as those claims relate to the Whanganui River.

The Settlement Act provides a settlement of $80 million to redress these “actions and omissions” of the Crown. An additional $1 million contribution establishes a legal framework to support the Whanganui River, which will act on the river’s behalf and protect its interest. A $30 million contestable fund will also be created to advance the river’s health and restoration.

Te Pā Auroa nā Te Awa Tupua - The legal framework

Section 10 highlights that the legal framework provides for:

the legal recognition of Te Awa Tupua (legal person)
the legal recognition and effect of Tupua te Kawa (intrinsic values)
the establishment of Te Pou Tupua (office), its membership reflecting the partnership under the Treaty of Waitangi/Te Tiriti o Waitangi
the establishment of Te Kōpuka nā Te Awa Tupua (strategy group)
the development and effect of Te Heke Ngahuru ki Te Awa Tupua ( the strategy)
the vesting of the Crown-owned parts of the bed of the Whanganui River and other lands in Te Awa Tupua (legal person)
the establishment of Te Korotete o Te Awa Tupua (Te Awa Tupua Fund)

Te Awa Tupua – legal person

Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements (s 12). Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person (s14).

Section 17 states Te Awa Tupua is to be treated as:

an institution for the purpose of applying for registration as a charitable entity under the Charities Act 2005
a public body for the purposes of clauses 30 and 30A of Schedule 7 of the Local Government Act 2002
a public authority for the purpose of section 33X of the Maritime Transport Act 1994
a registered collector of taonga tūturu for the purposes of section 14 of the Protected Objects Act 1975
a public authority for the purposes of the Resource Management Act 1991
a body corporate for the purpose of applying to be a heritage protection authority under section 188 of the Resource Management Act 1991
a public body for the purposes of sections 4 and 35 of the Walking Access Act 2008

Tupua te Kawa – intrinsic values

Tupua te Kawa comprises the intrinsic values that represent the essence of Te Awa Tupua (s 13), namely:

a) Ko Te Kawa Tuatahi

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 supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū, and other communities of the River.

b) Ko Te Kawa Tuarua

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. Te Awa Tupua is an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements.

c) Ko Te Kawa Tuatoru

Ko au te Awa, ko te Awa ko au/I am the River and the River is me. The iwi and hapū of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.

d) Ko Te Kawa Tuawhā

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. Te Awa Tupua is a singular entity comprised of many elements and communities, working collaboratively for the common purpose of the health and well-being of Te Awa Tupua.

Te Pou Tupua – office

The rights, powers, and duties of Te Awa Tupua must be exercised or performed, and responsibility for its liabilities must be taken, by Te Pou Tupua (s 14(2). The purpose of Te Pou Tupua is to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua (s 18). Two people, a representative of the Crown and a representative of Whanganui iwi, will be appointed to Te Pou Tupua (s 20).

Section 19 states the functions of Te Pou Tupua include:

acting and speaking on behalf of Te Awa Tupua;
upholding the status of Te Awa Tupua and Tupua te Kawa;
promoting and protecting the health and well-being of Te Awa Tupua;
exercising the landowner functions in relation to any land vested in Te Awa Tupua; and (e) administering Te Korotete o Te Awa Tupua.

The persons appointed as Te Pou Tupua are required to act in the interests of Te Awa Tupua, consistently with Tupua te Kawa and for no other purpose (s 19(2)).

The role of Te Pou Tupua is to represent and advocate for the interests of the River, not represent its appointors (s 19(1)(a)). However, Te Pou Tupua, when exercising its functions, will also be required to recognise the inalienable interconnection between the iwi and hapū of the Whanganui River and Te Awa Tupua. This will require Te Pou Tupua to develop appropriate mechanisms for engaging with and reporting to iwi and hapū of the River on matters relating to Te Awa Tupua (s 19 (2)(b)).

Te Pou Tupua will also be supported by Te Karewao, an advisory committee comprising three members - one appointed by Whanganui Iwi, one appointed by other iwi with interests in the Whanganui River and one appointed by local authorities. An additional person will also be appointed to Te Karewao by iwi and hapū with interests in a particular part of the Whanganui River when Te Pou Tupua requires advice in relation to a matter affecting a discrete part of the Whanganui River.

Te Kōpuka nā Te Awa Tupua - strategy group

Section 29 establishes Te Kōpuka as a strategy group for Te Awa Tupua. Te Kōpuka is a permanent joint committee (s 33(1)) made up of no more than 17 members (s 32(1)). Te Kōpuka comprises representatives of persons and organisations with interests in the Whanganui River, including iwi, relevant local authorities, departments of State, commercial and recreational users, and environmental groups (s 32(1)-(j)).

The purpose of Te Kōpuka is to act collaboratively to advance the health and well-being of Te Awa Tupua (s 29(3)). The primary function of Te Kōpuka is to develop and approve Te Heke Ngahuru (the strategy) (s 30(1)).

Section 30(2) highlights further functions of Te Kōpuka are:

to monitor the implementation of Te Heke Ngahuru
to review Te Heke Ngahuru; and
to provide a forum for discussion of issues relating to the health and well-being of Te Awa Tupua; and
to perform any functions that may be delegated to it by a local authority; and
to take any other action that Te Kōpuka considers appropriate for achieving its purpose and performing its functions.

Te Heke Ngahuru ki Te Awa Tupua – the strategy

The purpose of Te Heke Ngahuru is to provide for the collaboration of persons with interests in the Whanganui River, in order to address and advance the health and well-being of Te Awa Tupua (s 35).

Section 36 states Te Heke Ngahuru must:

identify the issues relevant to the health and well-being of Te Awa Tupua; and
provide a strategy to deal with those issues; and
recommend actions to deal with those issues

Section 38 states each time Te Heke Ngahuru or an amendment to it, is approved, each relevant local authority must consider its RMA planning documents in light of the Te Awa Tupua status, Tupua te Kawa, and Te Heke Ngahuru; and may, in its discretion, initiate a review of an RMA planning document under section 79 of the Resource Management Act 1991 in order to meet its obligations under sections 15(2) and (3) and 37(1).

If a relevant local authority initiates a review, the local authority must inform Te Kōpuka and Te Pou Tupua of the outcome of that review (s 38(2)(a). If the local authority considers that an RMA planning document requires alteration, it may propose change the document under Schedule 1 of the Resource Management Act 1991 (s 38(2)(b).

Vesting parts of the bed of Whanganui River in Te Awa Tupua

The Settlement Act makes clear that any Crown-owned part of the bed of the Whanganui River ceases to be vested in the Crown, ceases to be a conservation area, ceases to be Crown land, ceases to be a national park and has its reservation revoked (s 40). The fee simple estate in the Crown-owned parts of the bed of the Whanganui River vests in Te Awa Tupua (s 41). The land vested by section 41 must not be alienated.

Conclusion

The Settlement Act provides for Te Awa Tupua to be a legal person with all the rights, powers, duties, and liabilities of a legal person. The rights, powers, and duties of Te Awa Tupua must be exercised or performed, and responsibility for its liabilities must be taken, by Te Pou Tupua. Te Kōpuka nā Te Awa Tupua is the joint committee tasked with advancing the health and well-being of Te Awa Tupua through Te Heke Ngahuru ki Te Awa Tupua.

While it is believed the Whanganui River may be the first river in the world to be bestowed with legal personhood, it is no longer the only one. Merely five days after the Te Awa Tupua (Whanganui River Claims Settlement) Bill passed in the House, India’s Uttarakhand High Court granted the same legal personhood to the river Ganges – perhaps showing just how influential and innovative New Zealand’s approach is.

For further analysis see the article Ruruku Whakatupua Te Mana o te Awa Tupua – upholding the mana of the Whanganui River in May 2014 Maori Law Review here.

Last updated at 2:38PM on November 17, 2017