A Simple Nullity?: The Wi Parata Case in New Zealand Law and History
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In , Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In , the Whanganui River was declared a legal person. It argues that a primary purpose of the grant is to regulate human relationships. 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 , Te Awa Tupua 3 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.
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With that view I was not then afraid of saying no. 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 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.
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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.
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. 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.
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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.
We should not then be surprised when the use of legal personality for nature permits the expression of competing perspectives. 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. By the use of legal personality, the land and river become a forum for relationships between indigenous and settler peoples.
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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-naturing 18 —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.
Second, humans are subjects of the environment, rather than its masters; we are part of an interrelated living whole. 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. You cannot separate the two. We are all around and within it.
Putting the treaty in context of its time
We have relations here, there and there. And we are all intertwined. It is incomprehensible to see them as separate. It is about relationship between humans and the environment, humans and their gods and between each other. 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.
https://grupoavigase.com/includes/399/5899-conocer-gente-joven.php 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. 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.
Negotiations between the government and Whanganui iwi also stalled on the resolution of iwi claims to the river. In , the Waitangi Tribunal, one member dissenting, 44 had recommended a negotiated solution recognising Whanganui iwi ownership and authority in respect of the river. Customary or native title claims to the river as whole, or to the bed of a river particularly, are also possible.
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. This section examines critically the significance of ownership claims. Since the s, 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.
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. As well as mobilising group members, ownership claims speak to other social groups competing for control of a resource. 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. 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?
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. That is, why should ownership matter, even when the thing owned is known to have been unjustly acquired? 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. Various theories might account for the dissonance. 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.
The overwhelming need to get by materially and politically may make rejection of injustice in the establishment of property arrangements difficult. 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. 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. Arguments about land tenure were at the heart of New Zealand colonial society. It used land tenure policy as an instrument of its nation building and nationalised key resources—in , the beds of navigable rivers.
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. 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.
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. Another miniature sheet was issued in to mark the th anniversary. From Wikipedia, the free encyclopedia.