Earlier this year, the New Zealand Parliament passed a remarkable piece of legislation declaring the Whanganui River to be a legal person. This was quickly taken up by global media: “New Zealand declares a river a person,” read the headline in the Economist, in an article that revealed uncertainty about what such legal recognition meant. Was it another quirky example from Downunder or a radical and effective form of environmental protection? The legislation was almost immediately taken up by Indian jurists as a precedent for making a similar declaration in respect of the Ganga and Yamuna rivers. Yet the story of the statute’s making is a very local one, in which legal recognition of the river’s personhood is deemed to be a postcolonial incorporation of Indigenous concepts of ecological spirituality and interdependency with nature. Both the local historical context for its making and the tensions that the statute manifests need careful unpacking.
The Te Awa Tupua (Whanganui River Claims Settlement) Act recognizes the particular attachment to and understanding of local Māori Iwi, who collectively take the name of the river. Whanganui Iwi refer to their “tupuna awa,” or ancestral river, and explain that they are ancestrally obliged to protect the river in order to protect themselves. Recognizing their definition of this ancestral being as an “an indivisible and living whole,” the act defines the river as a “spiritual and physical entity that supports and sustains both the life and natural resources within” it and “the health and well-being” of the communities of it (Sections 14 (1) and 13 (a)). Many have therefore claimed that the passage of this statute in an otherwise secular settler state demonstrates, in a neat postcolonial reversal, that the law is finally “catching up” with Indigenous spiritual knowledge. As earlier versions of the bill were debated in parliament, Māori politicians from across the political spectrum hailed the extraordinary labor of earlier generations of Whanganui leaders whose efforts have culminated in this belated legal recognition. Media reports and commentaries commended the government for finally understanding that, for Whanganui people, the river is a person.
However, in what follows, I question the assumption that the legal fiction of personality is an accurate translation into law of what Whanganui people believe and practice. Holding open a space for considering the declaration of the river’s legal personality in critical terms—itself a “way of caring for and even renewing the object in question”1Wendy Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton: Princeton University Press, 2005), x.—I argue that this beguiling notion cannot capture the plural and heterogeneous expressions of attachment, practices of belonging and care, economic interests, and complex notions of identity that Whanganui people bear in relation to the ever-changing river. The legislation is better interpreted as a strategic compromise reached between Iwi and the New Zealand state, as these distinct political entities negotiate settlement packages for long-standing grievances. It may also be another example of particular postcolonial imaginings in this country as it re-locates itself in the watery south Pacific rather than as a distant outpost of Britain. In this process of geopolitical reorientation, notions of Indigeneity and the sacred provide new ways of expressing national identity.
The declaration of legal personality endows the Whanganui River with standing in court where it can defend its rights. In drawing up the legislation, lawyers turned to the argument made by American environmental scholar Christopher Stone in 1972 that trees should have legal standing. (Though, significantly he did not consider the role of Indigenous peoples in pushing for environmental protections.) Stone defended his controversial argument as necessary in order to move beyond seeing nature as a “thing” valued only in terms of an economic resource. In any case, as he pointed out, plenty of non-human objects had already been granted legal standing, notably corporations and even states. In the post-World War II era of expanding human rights, those who had previously been considered as right-less—including women and African Americans—were winning new legal equality. Expanding the idea of legal personality to include non-human natural objects was itself an inevitable expansion of the morality of the law, he claimed. In the case of non-humans, while these legal persons could not, of course, represent themselves in court they could be represented by humans appointed to attend to their interests. Following Stone’s proposals, the Te Awa Tupua Act creates a guardianship structure, with one representative appointed by Whanganui Māori and another by the government. They are charged with supporting the river’s health and representing it if and when legal issues arise.
In the context of a settler state seeking to further enhance a distinctive policy of biculturalism in a post-imperial world, using the “vehicle” of legal personality carries with it a particular kind of politics. Some hope that protecting the river’s health in terms that recognize distinctive Indigenous relationships to water might even take New Zealand law in a new direction—toward an indigenized future that is better attuned to environmental exigencies. It is certainly a far cry from a 1958 legal decision on the rights of Whanganui Māori to their river, in which one judge dismissed the “cosmogonic [sic]” explanations of claimants about their inextricable identity with the river as “mere symbolism,” unrecognizable in a positivist legal idiom of “practical realism.”2Quoted in Miranda Johnson, The Land is Our History: Indigeneity, Law and the Settler State, (New York: Oxford University Press, 2016), 140. In hearings about the river in the 1990s, the Waitangi Tribunal (created in 1975 to investigate Maori claims of breach to the colonial Treaty of Waitangi) acknowledged that conceptual binaries drawn in earlier court cases between the material and spiritual, the real and the symbolic, were untenable. It also found that Whanganui people’s relationship to the river was distinct. “Ko au te awa, ko te awa ko au” (“I am the river, the river is me,”) goes one of their most well-known sayings, which the tribunal interpreted as an Indigenous concept of belonging that could not be easily folded into notions of property ownership.
It is perhaps the rhetorical effectiveness of this phrase, its economic expression of an interdependent identity of the river and the people, that has led some lawmakers and a wider public to claim that, in Indigenous terms, the river is a person. But doing so echoes older colonial and racist tropes of natives mistaking Europeans for gods. To refer to a river in ancestral terms, or to express one’s sense of identity as intertwined with that of a natural force or process, is not equivalent to what Stone (rightly) worried might be seen as a “fanciful” notion, that non-human natural objects could be considered legal persons. The simplistic idea that the river is a person does not accord with the complex record produced over a century and more of protests, petitions, and litigation on the part of several generations of Whanganui leaders who wanted to control the use of the river by individual settlers and government bodies.
This archive reveals diverse, complex, and even contesting accounts and claims about Whanganui peoples’ changing relationship to, need for, and dependence on this waterway. They certainly spoke of the river as ancestor and life-giver, but in none of the accounts that I have seen do Whanganui people call the river a “person,” which etymologically refers us back to roles played in theatre, to the masks worn on stage or in public life. The river was (and is) a boundary and highway; it harbored potentially harmful forces that need to be respected and placated. Whanganui people prayed at its edge and were baptized in it. They demanded that riverboats plying the tourist trade along the “Rhine of Maoriland” pay royalties to them, and they sought compensation for gravel removed from the river’s bed. Many Whanganui people were, and are, devout Catholics, and in legal appeals they quoted Biblical passages and they recounted founding stories of the “plaited rope” that bound together the different communities from the headwaters to the sea.
The Australian philosopher of science Helen Verran asks us to consider the “puzzling process of singularizing a governance object” as a political event, particularly in cases where different knowledge systems are in play. In this case, the fiction of legal personality singularizes diverse and heterogeneous understandings of the river in a form that, it is claimed, actually recognizes Māori beliefs and practices. This claim serves a wider politics of national identity in which New Zealand becomes postcolonial by incorporating, through a process of translation, key elements of Indigeneity. In questioning the adequacy of that translation, I am holding open a space for telling other stories, ones that do not necessarily accord with the expectations of postcolonial politics, or reveal the moral progress of the law, or even necessarily equate Indigeneity with a spiritual attachment to nature.