The River Flows in You and Me: Legal Personhood of the Whanganui River

Traditional storytelling passes on Indigenous knowledge, cultural beliefs, values, histories and traditions that make sense of the world. Māori legend tells that the Whanganui River in New Zealand emerged after a battle between the brother volcanoes Taranaki and Tongariro over the maiden volcano Pihanga. On Taranaki's defeat, he gouged a scar in the earth which filled with a stream of water that sprang from Tongariro’s side.

River's are globally threatened

The world's rivers are in crisis due to an increasing range of anthropogenically-induced threats. Top-down interventions including dams for irrigation and HEP purposes have moderately to severely impacted the flow regimes of 48% of rivers through flow regulation and fragmentation. By inhibiting fish migration and decreasing river–floodplain connectivity, dams induce secondary impacts including habitat degradation and fish biodiversity loss (Juracek, 2015). Increased rates of salinisation and sediment trapping near dams can result in habitat homogenization through the decline of salt intolerant species and reduced turbidity and nutrient loading downstream (Shmutz & Moog, 2018).

In 2016, one UN study reported that severe pathogenic pollution affected 30% and salinisation affected 10% of all rivers in Latin America, Africa and Asia. Changing climatic conditions are also altering freshwater riverine ecosystems. More variable patterns of precipitation and evapotranspiration are shifting the hydrological regimes of rivers in Central and Eastern Europe, impacting water storage, surface runoff, soil moisture and seasonal snow packs (Stagl et al., 2013). In ecological terms, hotter temperatures detrimentally impact ectothermic species, including stunting and reducing the reproductive capabilities of fish.

The Māori and the Whanganui River

One proposed approach to protect rivers has been to look beyond western hierarchical ontologies in river management, which regards rivers as physical resources for human use. The legal personhood of the Whanganui recognises its inherent value beyond its resource aspect for Māori communities and the ecosystems within their tribal land, placing it in a new relation with human beings and deserving of equivalent rights.

There has been a 140-year long effort to have the river legally recognised and protected as a Māori ancestor and Te awa tupua (River with Ancestral Power). Its ecological degradation has been conceptualised as "the tragedy of the ecosystems commons" playing on Hardin's 1968 analogy, as it has been regarded as a public resource and not the property of the Māori (Kahui & Cullinane, 2019). The government has technically owned its riverbed since 1930 for mining purposes, for example. The river has been badly contaminated with bacteria, algae and fine sediment from agriculture and industry which has decimated its fish biodiversity. Moreover, the construction of the Tongariro Hydroelectric Power Scheme has reduced flow in the river by 50%, and diverted six of its headwaters which has resulted in the mixing of water from different tribal domains, a Māori spiritual offence.

In 1975, the Waitangi Tribunal was established to address Māori claims for land rights which has since resulted in the Waitangi Treaty. This has been broken by successive governments almost every year since it was signed, although they have issued apologies and settlements to the Māori. It was clear that a better solution was needed.

Figure 1. Image of the Whanganui River between Pipiriki and Jerusalem

In 2012, legal personhood was granted based on the river's right to be protected from exploitation and reclaim its 'Mauri', its innate life force (Charpleix, 2017). It represented a more-than human conservation approach which recognised the hybridity of the river and its community and the network of relations it is involved in (Whatmore, 2001). Its description as a source of 'ora' (life, health, and well-being) and with the Māori saying “Ko au te Awa, ko te Awa ko au” (“I am the River, the River is me”) in the deed reflected the belief of shared origin in the Māori cosmology of creation. The rights of the Whanganui are legally enforceable by local communities who can also participate in policy-making and river management.

Nature conservation in the Anthropocene

The Whanganui is known to the Māori as the River of Great Waiting. Ironically, its legal personhood represents a shift in the way Indigenous knowledge is used to inform nature conservation; the Māori are no longer waiting to be taken seriously in policy. The Earth Law Centre (ELC) have created a Universal Declaration of River Rights advocating for legal personhood status for more rivers. You can sign the declaration here.

Figure 2. Universal declaration of the rights of rivers created by the ELC

Rights-based environmental policy does come with a set of challenges, however. There is ambiguity over what constitutes entitlement to legal personhood status: could this stretch as far as a sacred rock or pebble? Or, does it open up the possibility of a future where natural resources and humans compete over things like air and water and could this undermine conservation efforts?

Historical conservation efforts largely failed to address the needs of Indigenous communities and more work is needed to ensure that Indigenous imaginations of nature are considered in environmental policies. Ultimately, the nature/culture divide is blurring in the Anthropocene, and Indigenous approaches including rights-based frameworks can enable conservation efforts to address this new ontological monism or 'mode' of nature, or even "diversity of contested natures" (Macnaughton & Urry, 1998:1).