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New Zealand: Bill Establishing River as Having Own Legal Personality Passed

(Mar. 22, 2017) On March 14, 2017, the New Zealand Parliament voted to pass the Te Awa Tupua (Whanganui River) Claims Settlement Bill (the Bill). (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, as reported by the Māori Affairs Committee, New Zealand Legislation website.) The Bill “gives effect to the Whanganui River Deed of Settlement signed on 5 August 2014, which settles the historical claims of Whanganui Iwi [tribes] as they relate to the Whanganui River.”  (Te Awa Tupua (Whanganui River) Claims Settlement Bill, PARLIAMENT OF NEW ZEALAND (last visited Mar. 16, 2017); Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016).)

Background

The Minister for Treaty of Waitangi Negotiations, Christopher Finlayson, noted that the passage of the Bill “brings the longest running litigation in New Zealand’s history to an end,” and that “[t]he Whanganui Iwi has fought for recognition of its relationship with the Whanganui River since the 1870’s.”  (Press Release, Christopher Finlayson, Whanganui River Settlement Passes Third Reading (Mar. 15, 2017), BEEHIVE.GOVT.NZ.)

The Whanganui River, situated in the country’s North Island, is New Zealand’s longest navigable river. (“Background,” Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014supra.) In 1840, when the Treaty of Waitangi between the British Crown and various Māori chiefs throughout the country was signed, “the iwi and hapu [subtribes] of Whanganui (Whanganui Iwi) possessed, and exercised rights and responsibilities in relation to, the Whanganui River in accordance with their tikanga [customary norms]. A substantial Māori population was dispersed along the River and its major tributaries.” (Id.) Over the subsequent decades, various government actions, omissions, and legislation substantially affected the ability of the Whanganui Iwi to be involved in the management of the river and to exercise other rights with respect to it. (Id.) Its claims to ownership of the river were heard by the courts between 1938 and 1962, when the Court of Appeal ruled that “Māori customary ownership of the riverbed had been extinguished by the granting of Crown titles to riparian blocks.”(Id.Re the Bed of the Whanganui River [1962] NZLR 600.)

The Whanganui River Māori Trust Board was established by statute in 1988 “to negotiate for the settlement of all outstanding Whanganui Iwi claims over the Whanganui River.” (“Background,” Whanganui Iwi (Whanganui River) Deed of Settlement Summary 5 Aug 2014, supra; Whanganui River Trust Board Act 1988, New Zealand Legislation website.) In 1990, the Trust Board lodged a claim regarding the river with the Waitangi Tribunal, which inquires into claims of breaches of the Treaty of Waitangi by the Crown. (Id.; About the Waitangi Tribunal, WAITANGI TRIBUNAL (last updated Sept. 19, 2016).) The Tribunal completed its report on the claim in 1999, finding that the Treaty of Waitangi had guaranteed Whanganui Iwi rights to ownership, management, and control of the river and that they have never “freely and willingly” relinquished those rights. (Waitangi Tribunal, The Whanganui River Report xiii (Wai 167, 1999), Ministry of Justice website.)

In 2003, Whanganui Iwi, again represented by the Whanganui River Māori Trust Board, and the Crown, represented by the New Zealand government, agreed to terms of negotiation for the settlement of the historical claims with respect to the Whanganui River. (He Kaupapa Kotahi – He Ara Whakamua: Whanganui River Claims – Terms of Negotiation (Mar. 6, 2003), New Zealand Government website; additional supporting documents related to the negotiations and settlement available at Whanganui Iwi, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016).) As a result of the negotiations, a deed of settlement was signed by the Iwi in 2014. (Press Release, Chris Finlayson, Whanganui River Deed of Settlement Signed (Aug. 4, 2014), BEEHIVE.GOVT.NZ.) The legislation to give effect to the deed of settlement was subsequently introduced in May 2016.

Aspects of the Bill’s Legal Framework for the Whanganui River 

One part of the Whanganui River Deed of Settlement (Ruruku Whakatupua—Te Mana o Te Awa Tupua) “is primarily directed towards the establishment of Te Pā Auroa, a new legal framework, which is centred on the legal recognition of Te Awa Tupua, comprising the River from the mountains to the sea, its tributaries, and all its physical and metaphysical elements, as an indivisible and living whole.” (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-1, Explanatory Note, New Zealand Legislation website.) Clause 14 of the Bill states that

(1) Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.

(2) 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 on behalf of, and in the name of, Te Awa Tupua, in the manner provided for in this Part and in Ruruku Whakatupua—Te Mana o Te Awa Tupua. (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, cl 14.)

“Te Pou Tupua” is an office created by the Bill “to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua.” (Id. cl 18(2).) It comprises two people, one nominated by the Iwi and one nominated by a government minister. (Id. cl 20.) Clause 19 of the Bill lists various functions for the office, including

  • “to act and speak for and on behalf of Te Awa Tupua”;
  • “to promote and protect the health and well-being of Te Awa Tupua”;
  • to perform landowner functions with respect land vested in Te Awa Tupua under the legislation;
  • to maintain the Te Awa Tupua register, which is a register of hearing commissioners “qualified to hear and determine applications under the Resource Management Act 1991 for resource consents—(a) relating to the Whanganui River: (b) for activities in the Whanganui River catchment that affect the Whanganui River” (id. cl 61; Resource Management Act 1991, New Zealand Legislation website); and
  • to administer a contestable trust fund established to “support the health and well-being of Te Awa Tupua.” (Te Awa Tupua (Whanganui River) Claims Settlement Bill, cl 57.)

In exercising its functions, Te Pou Tupua must, in addition to other requirements, “act in the interests of Te Awa Tupua and consistently with Tupua te Kawa.” (Id. cl 19(2)(a).) “Tupua te Kawa” is defined as comprising “the intrinsic values that represent the essence of Te Awa Tupua” including, among others, that “[t]he iwi and hapu of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.” (Id. cl 13.)

The government will make an initial payment of NZ$30 million (about US$21 million) to establish Te Korotete (the trust fund), and will also make payments of NZ$200,000 (about US$140,000) per year for 20 years “as a contribution to the costs associated with the exercise of its functions by Te Pou Tupua.”  (Explanatory Note, supra.)

In addition, a River Strategy Group will be established to develop the River Strategy (Te Heke Ngahuru ki Te Awa Tupua), which must be taken into account by those exercising functions or powers under certain other legislation. (Te Awa Tupua (Whanganui River) Claims Settlement Bill, Government Bill 129-2, cls 29-38.)

Other Redress

The second part of the Deed of Settlement (Ruruku Whakatupua—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.” (Explanatory Note, supra.) Cultural redress includes the Crown’s acknowledgments of and apology for past wrongs, the strengthened relationship between Whanganui Iwi and the Crown, authority for Whanganui Iwi to carry out certain customary activities, “the assignment of official geographic names to certain places,” and “agreement to progress a social services project with relevant agencies.” (Id.)

The financial redress component involves a payment of NZ$80 million (about US$56.1 million) and “an additional payment of $1 million for transitional and implementation matters relating to the establishment of Te Pā Auroa.” (Id.)

Other Settlements of Historical Claims

The Office of Treaty Settlements within the Ministry of Justice is responsible for negotiating the settlement of historical Treaty of Waitangi claims. (Office of Treaty Settlements, NEW ZEALAND GOVERNMENT (last updated Mar. 15, 2017).) Since the early 1990s, the government, on behalf of the Crown, has reached multiple settlements with various iwi in different parts of the country. In 2014, as part of the settlement of claims by the Tuhoe iwi, land within a national park in the central North Island was vested in an entity, Te Urewera, with its own legal identity.  Just as the Whanganui River  is administered by an iwi nominee and a government nominee, Te Urewera is governed by Tuhoe and Crown nominees who must act in the best interests of Te Urewera. (“Redress,” Ngāi Tuhoe Deed of Settlement Summary 4 Jun 2013, NEW ZEALAND GOVERNMENT (last updated Oct. 31, 2016); Te Urewera Act 2014, New Zealand Legislation website.)