Personifying the Whanganui River

Ecological Solution or Political Stratagem?

Aljazeera’s People and Power recently ran a two-part series on water pollution in New Zealand. Entitled Polluted Paradise, it highlighted the competing interests of two of the country’s most lucrative industries in regard to lakes and rivers.

The tourism sector promotes New Zealand as being 100% pure, a place to visit for the rare opportunity to swim, kayak and fish in crystal clear waters. Farmers want to use that water for irrigation and a boom in dairy farming has led to cows using it too, with increased levels of nitrogen, phosphorus and E. coli consequently entering waterways. Although the promoters of tourism may be loath to admit it, the idyllic locations they advertise are under real ecological pressure. Perhaps the easiest way to appreciate the gravity of the situation is to note that with 6.5 million dairy cows this small nation of 4 million produces the effluent equivalent of a population of 95 million people.

Numerous rivers and streams are unsafe for recreation or consumption. The most dramatic recent example of waterborne pollution in New Zealand happened in the eastern North Island town of Havelock North. Like many other small towns, and even parts of larger cities, Havelock North’s drinking water was taken from sources pure enough to be left untreated. However, after more than a third of the population of the town (5500 of 14,000 people) fell ill with campylobacter infections in August 2016, [1] local authorities traced the source of the outbreak to the pollution of two bores connected to the town’s water supply. “Sheep faeces were the likely source of the campylobacter.” (Department of Internal Affairs).

Towards the end of the People and Power television program the narrator suggests that a new approach to rivers, one spearheaded by Māori in Whanganui might help save a situation currently bogged down by contesting interests, a diversity of proposed solutions, and the sluggish pace of legislation. In a case heard by the Waitangi Tribunal (discussed below), the tribes there managed to get the river recognised as an ancestor with legal personhood. A local Māori leader is presented to talk “on behalf of the river, but first he must seek its permission.” The man is shown saying a brief prayer at the bank. Turning to the camera he says, “This river is me…Ko au te awa ko te awa ko au”. (I am the river, the river is me). The reporter is enthusiastic about the fact that the Whanganui River itself has the legal rights of a person. With interlocutors acting on its behalf, personhood status for the river could give the waterway a unique kind of protection. Indeed, the Waitangi Tribunal inspired Whanganui settlement mechanism might improve the vitality of not only this river but serve as a model for others throughout New Zealand and the rest of the world.

How did this idea, that a river is an ancestor and a person who can act legally, become official policy? After all, New Zealand is a western country where environmentalists typically confront industry in forums that debate interminably with precise measurement the amount and source of pollutants, and their costs in dollars and cents. The personhood of the Whanganui River is a product of the peculiarly local interactions of New Zealand’s colonial history, contemporary politics and Māori culture.

The Rights of New Zealand Māori [2]

Descended from people who sailed from eastern Polynesia (near Tahiti) about 800 years ago, Māori settlers established iwi (Polynesian chiefdoms) throughout an area that comprised 90% of the land mass of Polynesia. After being contacted by Dutch explorer Abel Tasman in 1642, New Zealand was not visited again by Europeans until Captain James Cook landed in 1769. For the next seven decades, sealers, whalers, missionaries, and traders came to New Zealand, doing business under the protection of local chiefs. When land agents in London began to sell parcels to departing settlers in the United Kingdom, the British Colonial Office acted to regularise the situation. Their stated goal was to gain the consent of the natives to establish a colony that would both protect the indigenous people and bring peace and security to what the missionaries had assured the Crown was a developing Sodom of the South Seas (King 2003). The British succeeded in convincing the chiefs to sign a treaty in 1840 (Te Tiriti o Waitangi, The Treaty of Waitangi) that established the colony (later the country) of New Zealand. The Māori became British citizens with recognised rights to their property.

The dual reference to Te Tiriti and The Treaty above is not merely a translation of the document’s name. There were, in fact, two versions paraded around the territory, one in te reo Māori and one in English. These two versions did not say the same thing! Most chiefs signed Te Tiriti. It reserves chiefly power over land, people and other resources while allowing the British authorities to control settler affairs. The English version says that signatories acknowledge British sovereignty.

The existence of a treaty with two versions has caused an immense amount of consternation and academic discussion (e.g. Belgrave et. al. 2004) about who agreed to what. When the colony was first established and the Māori were able to forcibly pursue their interests against the Crown, colonial officials reminded the tribes of the Treaty. After the indigenous society was undermined and the population decimated by decades of colonisation, introduced disease, land sales to colonists and battles with British marines, the government decided that the Treaty of Waitangi was “a simple nullity”. Disestablished as a sovereign independent nation by the Treaty itself, the autochthonous population could have no recourse to it.

The Māori remained convinced that Te Tiriti was important. Signed by their ancestors, the document itself was a taonga (treasure) that contained guarantees that should be honoured. When the Māori (typically) failed in court cases where they sought its protection and redress for seizures and dispossession, they began to protest that the state was founded on fraudulent grounds.

With a growing population that was migrating to towns, a vocal protest movement developed that had the potential to cause considerable civil strife. [3] In 1975 Māori Member of Parliament Matiu Rata proposed a bill that established a Tribunal to hear complaints by Māori people that their treaty rights had been violated. Protest began to move from the streets to the newly established Waitangi Tribunal and, as the judiciary began to recognise its findings, the courts. The Tribunal process obligated the government to engage with the Māori population as partners in running the country and stop treating them as just a minority group. The Tribunal principle – that Māori customs and perspectives must be taken into account whenever their interests are at stake – produced some real benefits. Te reo Māori is now an official protected language of New Zealand. Educational programs promote the maintenance of the indigenous language and culture. Considerable amounts of Crown land have been returned to iwi, and iwi control half of the inshore fishery. The Treaty was literally removed from a drawer where it was forgotten and decaying and brought to the National Archives, and later, in a solemn ceremony involving prayer and the expenditure of millions of dollars, to a prominent place in the National Library.

The Whanganui River Case

The Whanganui River, located in the central North Island, provides an excellent example of how the Tribunal works to settle grievances. The river is New Zealand’s only navigable inland waterway. During the early days of settlement, its various rapids, twists and turns were progressively engineered to make steamboat traffic possible. Shingle from the bed was removed for road works. Tribal groups up and down the Whanganui who had long depended on its eels as a source of food and trade found that the changes to the river rendered useless the large weirs they had constructed along the waterway to drive the eels into traps. The loss of this source of food and income was an important factor in the area’s depopulation. Land was sold or abandoned along the banks and a significant amount of territory became incorporated into what became the Whanganui National Park. Claiming that they never sold the river, local Māori sued for redress, citing the guarantees of the treaty.

In what turned into the country’s longest running legal battle, between 1938 and 1962 the claimants maintained that regardless of land sales, they still owned the river and deserved compensation for its various uses and “improvements”. The Crown’s position was that in English law the owner of land abutting a waterway also owns the bed to a line halfway out from shore. So, when the land was sold, the river bed was included automatically. The Māori claimants, citing the treaty’s guarantees, denied that British legal doctrine about land abutting inland bodies of water had any relevance. According to their custom the river has its own spirits and therefore is a separate entity that could not be part of any land transfer. Their case was lost after a series of appeals and a Royal Commission established that local groups would never permit people from up or downstream to cross their part of the river. Clearly (to the Crown) Māori living along its banks had claimed parts of the river in essentially the same way as the British. Therefore, all property rights to the waterway ceased when the adjacent land it was sold. The tribes were given some money for the gravel.

The Tribunal’s 1999 Report and the subsequent settlement with the government in 2012 that establishes the personhood of the river seem totally to negate these legal precedents. In fact, one could say that the original Māori position now looks official. Perhaps, as one author says, in keeping with the current “ontological turn” in anthropology, the “incommensurable” positions of “modernist” and Māori ancestral “framings” have been woven together here without a merging “in which only one reality is possible and only one set of assumptions about the world can prevail” (Salmond 2014).

My own experience of the area (Levine 2011, 2016) leads me to take a rather different view of the ultimate nature of the river’s personhood. What happened in Whanganui is a political compromise. The Māori claim, the Tribunal process and the government’s response are products of a history of warfare, court cases, and Māori resistance to humiliation and occupation. The Crown’s goal of retaining control (sovereignty) also endures. The tribes will have a say in what goes on in regard to the Whanganui River, but its declared personhood is more a matter of form than substance. Framing “ko au te awa, ko te awa ko au” as a philosophical position, a case of juxtaposing incommensurable realities, may appeal to the devotees of a new fashion in anthropology, but it obfuscates the power politics that the principals are well aware of.

Anthropological quibbles aside, it is unlikely that the personhood of the river by itself will do anything to save it from the damage that has been done to it. It is also questionable that the exotic aspect of personhood is the most crucial element of the case. Despite the impression gained from the People and Power program when it focused on the Māori individual seeking the Whanganui’s permission to talk, there are two official voices of the river that serve as its personhood. One is a representative of the Whanganui Māori. The other is appointed by the government. Since these representatives speak for it, the Whanganui River itself has a diminished status, more like that of a child or incapacitated adult, that we have to protect, than of a thing whose spirits look after us (Salmond 2014:299). Most importantly, the rights of landowners remain sacrosanct and neither interlocutor can interfere with existing private property. Furthermore, the Crown takes the position that water in New Zealand cannot be owned, so the river can’t actually constrain anyone from using it: not farmers, canoeists, hydro-stations, hunters or fishers. A cynical view might be that if, in line with the present government’s approach to natural resource management, they themselves use the river for business (e.g. tourism) purposes, local Māori would be cornered, forced into a possible “self-betrayal” of their avowedly spiritual stance (Salmond 2014:302).

It is the fund of $30 million set up to monitor and improve the river and the $80 million in compensation to the Whanganui Māori that may make it possible to ensure the future of the river. Granted, its personhood is important to the local Māori. Now, hopefully, with the financial resources to do more than protest, they can act to counteract the forces that degrade both them and their river.