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II. De l’identification des populations autochtones à la reconnaissance de leurs territoires : quelle(s) géographie(s) ?

Nature’s rights as Indigenous rights? Mis/recognition through personhood for Te Urewera

Les droits de la nature comme droits autochtones ? Mal/reconnaissance par le statut de personne pour Te Urewera
Brad Coombes


En Aotearoa (nom indigène de la Nouvelle-Zélande), le principe de reconnaissance de la nature en tant que sujet de droit a été incorporé aux mécanismes de résolution des revendications du Traité de Waitangi. De nouvelles lois ont ainsi attribué une personnalité juridique aux paysages de deux parcs nationaux et aux relations que les Maori entretiennent à leur égard – et des dispositions similaires vont suivre pour d’autres parcs –, dans un souci de valorisation et de ménagement accru de ces espaces. Il n’est cependant pas certain que lier la reconnaissance des droits autochtones aux droits de la nature soit applicable et efficace. À Te Urewera, alors que les revendications formelles ont davantage procédé de la perte de terres que du mépris des valeurs bioculturelles, l’attribution du statut de sujet de droit à cet espace a constitué un moyen de contourner la restitution de terres ancestrales à la tribu locale, Ngai Tuhoe. Un tel statut ne sert par ailleurs que très partiellement les intérêts des membres de la tribu qui, en raison du maintien d’une forme stricte de conservation, vont difficilement pouvoir vivre ou travailler sur leurs terres. Plutôt que de s’attaquer à l’inclusion factice, aux injonctions essentialisantes et aux formes de reconnaissance circonscrites que l’on observe dans les processus de règlement de revendications ailleurs dans le monde, l’attribution du statut de personne à la nature au soi-disant bénéfice des Maori est un acte de mal/reconnaissance qui associe maladroitement l’autochtonie à l’environnement, le développement à la préservation et l’humain aux valeurs naturelles.

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Introducing a new person

1Between 1954 and 2014, the Crown administered Te Urewera as a national park – first through the Department of Lands and, from 1986, through the Department of Conservation (DoC). Those earlier transitions in authority were concomitant with the implementation of new national parks legislation (1952 and 1980) which clearly stated the objective for protected areas management as strict preservation of indigenous species and habitats (refer to section 4, this article). The impact on the cultural, economic and social values of Tuhoe was substantial [Waitangi Tribunal, 2017]. Under Te Urewera Act 2014, therefore, the park became “a legal entity [that] has all the rights, powers, duties and liabilities of a legal person” [s. 11(1)]. Te Urewera Board, two-thirds of which is Maori, now administers the former park. A similar solution was subsequently implemented for the Whanganui River and its national park, and two other parks will soon operate under the personhood model. That is a striking reversal from how Aotearoa’s parks had been managed previously, but some iwi (tribes) are uneasy that this will become a template for resolving diverse claims against the conservation estate. Here, I report interviews with members of a former Tuhoe claims committee and associated Maori stakeholders. I first collaborated with them at the turn of the millennium to support their Treaty of Waitangi claims, at which time they keenly anticipated claims resolution through land ownership transfer and comanagement. As the 2014 legislation provides for comanagement but not exchange of land titles, many of the original interviewees requested a follow-up study and an opportunity to be re-interviewed about the translation of their claim within a rights-for-nature framework. The research reported here examines how that framework inhibits discursively Tuhoe ambitions within a future of non-development.

2Overseas policymakers monitored New Zealand’s experiments with person rights, and states in India copied them for parts of the Ganges river system and two glaciers. The higher courts later revoked the decision for the Ganges so the status of the new legal persons is unclear, suggesting that rights-for-nature are malleable and fragile [Kinkaid, 2019]. Outwardly, personhood for nature appears congruent with Indigenous demands, especially in Aotearoa where tribal identities and Treaty claims are often based on relational understandings of cross-species kinship. Tuhoe’s ancestry is associated with the interplay of natural elements, and if the “mist marrying the mountain is a metaphor for us saying we did not come from anywhere else…we are attached to nature, we are attached to Te Urewera” then personhood for Tuhoe’s parents is intuitively proper [Kruger, 2017: 4]. It also complies with Indigenous assertions of nature’s agency, but the new legal persons will not represent themselves. Along with Te Urewera’s comanagement board, two human guardians act as champions for the Whanganui River. Yet, discourse analysis of the disjunctures amongst Maori claimants, person-parks and guardianship mechanisms has been negligible.

3I associate personhood for nature with state recognition, concluding that it has perverse influences on Indigenous identities and agendas. Recognition and rights-based models for claims settlement discursively control, hegemonize and silence decades of activism that sought Indigenous autonomy and repatriation of resources. Recognition of an Indigenous homeland as a legal person may be problematic for those who desire to reclaim ownership. Although often predicated on slavery, settler societies long ago criminalized ownership of persons, signifying one of many discursive restraints of personhood that discipline Indigenous claims to ownership. Rights-making involves the social construction of group identities as worthy beneficiaries, and the need for Indigenous peoples to demonstrate ecocentrism to secure rights is an archetypal imposition of Wolfe’s [2006] repressive authenticity. Biased expectations that Indigenous communities will support conservation have triumphed over an Indigenous right-to-development in the past, so some are skeptical that recognition of nature’s rights can also address their own rights. It has been difficult to satisfy Indigenous or environmental agendas in an era of rabid developmentalism, so problems will surely magnify if trying to achieve both within claims settlements.

Rights-for-nature, Indigenous rights and the inadequacy of rights

4Claims settlements are conditioned by an expectation of reconciliation so are intended to safeguard such impossible conceptions as a singular nation-state and a unified settler society. Consequently, “the burden of supporting reconciliation is borne differentially by Indigenous and non-Indigenous peoples” [Palmer and Pocock, 2019: 1]. As one-time protagonist and newfound partner for Indigenous claimants, the Crown has become a slippery concept in claims settlement [Borrows, 2017]. Indigenous organizations struggle to find voice beyond the local, whereas the Crown and its allies are poly-vocal and affiliated to powerful, multi-scale institutions. In those uneven circumstances, the benefits of claims settlement are offset by false inclusion, where greater Indigenous participation in policy communities is easily coopted and at the expense of such other agendas as land repatriation [Coulthard, 2014]. Settlements are predicated on the need to identify historic moments of colonial repression, Treaty-making or -breaking and expressions of original conditions, including records of pre-contact resource use [Borrows, 2017]. Lack, or lack of recording, for any of those requirements may invalidate claims before commencement.

5Indigenous claimants often foreground their credibility and readiness for settlement by framing themselves as worthy victims of colonial repression or forest denizens at one with nature. Yet, that may backfire within the repressive authenticity of rights-making procedures over which Indigenous peoples have limited control [Wolfe, 2006]. Rights derived from ecological credentials may confine Indigenous communities to future scenarios of non-development. The “danger here is that protections for indigenous rights become contingent upon – and are thus eroded or taken away without – adherence to conservation outcomes” [Witter and Satterfield, 2019: 1103]. Where claims are based on either essentialized notions of ecological nobility or non-Indigenous destruction of nature, the holding of claimants to their eco-positionalities or societal backlash may diminish any rights that have been awarded [Martínez Novo, 2018]. Personifying nature is likely to deepen expectations of Indigenous ecological nobility, so the same or an aggravated impact on Indigenous development rights can be expected.

6Addressing Indigenous claims through rights-for-nature is problematic because the latter can only act as a form of recognition – an identity politics that fails to reauthorize Indigenous polities and may mis/recognize the causes of Indigenous circumstances [Tola, 2018]. Indigenous scholars attack recognition, arguing that it provides only for a cultural right-to-be and fails to address colonial atrocities [Coulthard, 2014]. It is tautological for the state, as perpetrator of historical violence, to become arbitrator of resolution mechanisms in the present. After long periods of state elimination then assimilation of Indigenous lifeways, recognition of a right-to-be is insufficient to sponsor Indigenous resurgence. Decolonization demands “redirection of energies away from attempts to further modify the conditions of colonialism…from within” the state apparatus [Elliott, 2018: 62]. It anticipates living as Indigenous within alternative social structures, but recognition merely revises the appreciation of Indigenous beings within another’s system. It is a weak form of multiculturalism that obfuscates colonial practice, fails to address structural racism, and forsakes redistribution of power [Hale, 2018]. The core assumption is a “perceived relationship” between “affirmed recognition” and “autonomy of marginalized individuals” but there are no linear connections between the two [Coulthard, 2014: 3]. Burgeoning Maori research on claims settlement confirms that these limitations are replicated in New Zealand. Conflicts based on the re-writing of history to suit current generations, the burdens of state-imposed mandates and organizational preconditions or how to disburse, independently utilize and maintain the benefits of Treaty settlement are now commonplace [McCormack, 2016; McDowell, 2018; Mutu, 2018].

7Rights-based approaches to resolving Indigenous claims against protected areas have also become conventional but, notably, they have served conservation elites more than Indigenous claimants [Witter and Satterfield, 2019]. To so embed Indigenous politics in assertions of kinship with nature that claimants accept nature’s rights as their own results in outcomes analogous to the earlier framing of claimant authenticity according to ecological credentials. It too risks a future of non-development, and it has emerged at a time when demands for land repatriation have become academically and politically unfashionable [Bhandar, 2016]. Both right- and left-wing actors contest those demands, stating that renewed Indigenous interest in land ownership is false consciousness: an adoption of the mean-spirited possessiveness of their former oppressors [Coulthard, 2016]. By contrast, perceived planetary crises yield public validation of protected areas as never before. Most sites where rights-of-nature have been gazetted in Aotearoa, Australia, USA and South America are protected areas, perhaps alerting to important contradictions. Preservation of forests through national parks has been a colonizing act of aggression, with wide-ranging cultural and socio-economic impacts [Brockington and Wilkie, 2015]. Those impacts are often dismissed as historic, but Lunstrum and Ybarra [2018] prove that displacement of Indigenous peoples for conservation purposes is increasing in an era of alleged biosecurity risks and ecological crises. A national park is not an obvious site for joint resolution of Indigenous and environmental interests.

8The origins of rights-for-nature in civic lobbying against resource extraction in the Global North have been reviewed elsewhere [Kinkaid, 2019]. Their genealogy and dispersal reveals that transnational activists misunderstood Indigenous cosmo-visions in the Global South before misapplying rights-for-nature there [Espinosa, 2019]. A global epistemic community transfers understandings of what ought happen to Southern forests through the vernacular of nature’s rights, but that influence is obscured by the similarity of their lexicon with local significations of nature’s agency [Rawson and Mansfield, 2018]. Building on that apparent similarity, and “by treating rights for nature as a natural truth” the approach “naturalizes the colonial history of legal personhood…turn[ing] to western notions of rights, personhood, and holism as the solution” [ibid.:100]. Personhood for nature is not endogenous to native communities of the Global South, and that its constitutional recognition accelerated rather than prevented resource extraction in South America confirms that allegation [Valladares and Boelens, 2019]. Locus standi for the new legal persons has been uncertain, and even in places where person rights protect against environmental abuse, the same cannot be concluded for associated Indigenous interests [Tola, 2018]. Indigenous and environmental concerns are related but claims that rights-for-nature will resolve both cannot be substantiated.

9Geddis and Ruru [2019] argue that personhood in Aotearoa is no simple transfer of rights-for-nature from overseas; rather, it is a response to a political impasse over Maori demands for resource ownership. Personhood parallels Maori-specific ways of relating to landscapes as kin and reflects the call for an expanded sense of responsibility to resolve Indigenous and planetary concerns [Iorns Magallanes, 2019]. Hence, it is claimed that rights-for-nature are implemented “in recognition of the inseparable connection between people and place” [ibid.: 89, my emphasis] and are “an indigenous self-ownership model, which requires no human justification for environmental protection” [Iorns Magallanes, 2018: 84]. Those claims disregard the global influences on rights-for-nature, and they do not account for the problematic nature of recognition itself. Revealingly, academic praise is often based on the way personification of nature might realize nature’s rights and is only sometimes based on its capacity to address Maori interests.

10Academic inquiry into Aotearoa’s experiments with personhood has been effusive, but it seldom engages directly with Maori claimants. The professed benefits range from transformational effects for communities and development [Charpleix, 2018]; a sense of justice and inclusion [Ruru, 2017]; the bridging of cultures [Geddis and Ruru, 2019; O’Donnell and Talbot-Jones, 2018]; and a platform for environmental citizenship [Ruru et al., 2017]. Jones is one of the few Maori critics, maintaining that nature’s legal “personality is a Western legal concept…expressing some fundamental ideas from within Maori legal traditions” but it does not “recognize the value of Maori legal traditions” [Jones, 2016: 98]. As I suggest below, it also contradicts commitments to self-determination in the Treaty of Waitangi.

Te Urewera and Treaty of Waitangi claims

11During 2001-9, I was commissioned to research claims submitted for the Urewera Inquiry District of the Waitangi Tribunal. The research included historical inquiry into the impacts of conservation, along with advising on comanagement, and it was used extensively in the Tribunal’s Te Urewera Report [Waitangi Tribunal, 2017]. Among other iwi, my whakapapa (genealogy) includes Ngati Kahungunu, whose homelands are adjacent to those of Tuhoe. I was likely invited to contribute because of that connection, but it had advantages and disadvantages for liaising with local iwi. Although archival research was the primary focus, I completed 23 interviews with Maori negotiators, kaumatua (elders) and land managers. In 2017-9, several participants requested that I return to review their Treaty settlements. 13 of the original interviews were considered relevant, and permission was sought to use transcripts for new purposes. Ten interviewees in the original sample were re-interviewed, with six new participants. The research presented here is based on 29 interviews with 19 individuals, enabling before-and-after comparisons.

12Most interviewees were surprised that local claims were decanted into debates about rights-for-nature. They recognised that Maori ownership of the park had become unattainable, so they framed person rights as a “worthy but unanticipated compromise” [Interview, Maori Resource Manager, 16.4.2018]. That colonization had reduced Tuhoe landholdings by 92% explains why sacrifice of ownership claims was unforeseen. As punishment for civil wars in the 1860s, land was confiscated at the north and south, even though Tuhoe involvement in those wars was minimal. Displaced peoples and defeated armies sought refuge in local forests but the government brought war to Te Urewera in pursuit of them, before using land confiscation to punish all parties [Binney, 2009].

13Later, colonial guilt led to experiments with Tuhoe autonomy over the lands that were not confiscated. The Urewera District Native Reserve Act 1896 was intended to provide self-rule, and it also protected against land speculation by permitting only a Tuhoe tribal committee to sell land [Long Title; s. 21]. The government soon contravened its own legislation, purchasing from individuals, fragmenting land portfolios for all parties and reducing land security for Tuhoe [Waitangi Tribunal, 2017, vol.IV]. Conservationists also lobbied to secure as a scenic reserve the watershed of Lake Waikaremoana, at the south-east of Te Urewera. To resolve emerging problems and competing agendas, lands were compulsorily amalgamated during the 1920s, but with Tuhoe losing more land than was transferred to, or confirmed in the name of, the tribe [Wazl, 2002]. Public reserves were established on the lands allocated to the Crown, becoming the nucleus for Te Urewera National Park. After establishment in 1954 and extensions between 1957 and 1982, the park overlapped most of the native reserve, symbolizing local perceptions of injustice in conservation legacies. If Tuhoe-Crown relationships were to improve, land title was the principal issue to be resolved in Treaty settlements [Coombes and Hill, 2005].

14Conservation impacted local iwi in many ways; it was culturally insensitive and contravened the principles of the Treaty [Waitangi Tribunal, 2017, vol.VI]. Scenic and game reserves criminalized the bird hunts upon which a land-locked people had been dependent. At best, participation in park planning defaulted to post hoc consultation. Moreover, as the amalgamations of the 1920s did not address fully land fragmentation, designation of protected areas and catchment control regulations impacted significantly on the use of Tuhoe land remnants, arrogating most Tuhoe opportunities for development [Coombes, 2003]. At the time of Tribunal hearings (2002-3), however, it was “not inflexible management but land dispossession which mattered most” for Tuhoe [Interview, Tuhoe Resident, 16.7.2002]. Between the hearings and release of Tribunal reports (2014-7), ownership transfer was understood as non-negotiable for Tuhoe [Higgins, 2014].

15Approaches to resolving land claims often include protections for customary environmental interests, and prima facie rights-for-nature seem relevant to Maori interests under the Treaty of Waitangi 1840. However, emancipation for Te Urewera is no direct honoring of the Treaty for Tuhoe. Tino rangatiratanga – the quintessential values and practices of chieftainship – was guaranteed in Article II of the Treaty, and it extends Maori rights beyond protection of biocultural preferences. Achieving rangatiratanga and its assurance of tribal autonomy is the highest priority for Maori claimants [O’Sullivan, 2019]. Yet, neither self-determination nor historical justice are the principal goals for Treaty settlement. Rather, neoliberal silencing prevails, with the Crown delimiting the scope of settlements to mute future claims [McCormack, 2016]. Its primary objective is extinguishment of claims as quickly as possible to prevent Treaty rights from impeding its plans for resource development [Mutu, 2018]. Neoliberal compensation and property rights are favored solutions, but prominent recreation and conservation lobbies ensure those approaches are deployed more in natural resource planning than in conservation [McCormack, 2017]. Conservation remains highly preservationist, and Crown policy restricts the return of the 30% of Aotearoa covered by the conservation estate to special circumstances and small parcels of land [OTS, 2018].

16The decision to adopt rights-for-nature in Aotearoa is inseparable from earlier rejection of comanagement models used in some Australian parks. Those models place comanagement in a context of land transfer to Aboriginal claimants, state allocation of resource rentals to the new owners, and retention of protected areas [Bauman et al., 2013]. Although there are valid criticisms, including the generation of unusable tenures and restricted development rights, many claims negotiators supported application of leaseholder-comanagement to Te Urewera. It was “the solitary plan on the table that accepted Tuhoe ownership as the basis for collaboration” [Interview, Treaty of Waitangi Claimant, 22.9.2002], so it “was the only proposal that ticked all boxes, including land repatriation” [Interview, Tuhoe Land Administrator, 16.3.2001]. In 2009, a meeting was scheduled to apply the ‘give over, lease-back and comanage’ approach. While supported by many claimants, Department of Conservation (DoC) staff, government ministers and NGOs, the Prime Minister refused to engage, fearing the precedent that retitling of parklands would establish [Sanders, 2018]. According to the main Tuhoe claims negotiator, the Prime Minister dismissed any future based on Maori ownership of Te Urewera because “it was now public land and all New Zealanders owned it, and loved it” [cited in Kruger, 2017: 5]. It is significant that the hastily developed alternative of personhood was grounded in admiration for wilderness and discourses of the public good.

17To implement person rights whilst appearing to resolve Tuhoe claims, two legislative interventions were required: Te Urewera Act 2014, which established Te Urewera’s identity as a person along with its rights and associated procedures, and the Tuhoe Claims Settlement Act 2014. The latter established protocols for better relationships, and it created an asset base for the tribe. $170m in cash and Crown assets are included in the settlement, but there was almost no return of land. Section 2(c) of Te Urewera Act removed Te Urewera from the jurisdiction of the National Parks Act 1980, making it inalienable and responsible to itself. Commitments to self-determination in the provision of health, youth and other social services are radical, and resurrect the original intent of the native reserve [Stephens, 2014]. Likewise, by centering Tuhoetanga (Tuhoeness) within planning, and by re-authorizing Tuhoe forms of resource management [s. 18(2)], Maori culture and governance is affirmed more than in any other environmental statute of Aotearoa. The new board has a defining role through the writing and review of management plans [s. 18], but many years will pass before its work can be evaluated.

Person rights displace tribal ownership claims

18Recognizing the immediacy of invasive species and other ecological threats, most interviewees moderated their criticisms of rights-for-nature to avoid possible delays to forest restoration, and they continue to do so. According to one elder, “while our Treaty claims remained unsettled for so long, the predation of native trees by possums got worse, so we compromised” [Interview, Kaumatua, 11.7.2018]. Earlier, this concern for cultural keystone species established a basis for rapprochement with DoC, leading to joint pest management operations and, in turn, the discovery of collaborative models that were applied elsewhere in the park. “While we waited on the Treaty settlement process, we did those restoration projects with DoC, and that proved to both parties how passionate we are about taonga (treasured) species” [Interview, Tuhoe Ecologist, 15.12.2017].

A ‘natural’ outcome?

19Several interviewees referred to their “whakapapa relationship” with such native bird species as kiwi (Apteryx mantelli) and kereru (Hemiphaga novaeseelandiae). For those reasons, “treating Te Urewera as a person isn’t a complete load of European paru (dirt/sewage). It was a natural outcome of earlier collaborations and discovery of shared values” [ibid.]. Yet, the repeated sentiment that acceptance of person rights was a begrudging or conditional act of compliance rather than the preferred outcome of claims settlement may reveal the impending fragility of those rights. Resigned acceptance also shrouds comanagement provisions of the settlement: “although uncomfortable with negotiating joint management as if that could be separate from ownership, waiting for the perfect comanagement model would have handed the forests to the possums and the stoats” [Interview, Claims Negotiator, 22.11.2018]. Many participants were enthusiastic that collaborative provisions extend beyond advisory roles, embrace a majority for Tuhoe on the Urewera Board and do not include the vesting of final decision-making power with state officials. Nonetheless, “a good framework for collaboration within a context of failure to properly settle our land claims will confront escalating problems over time” [Interview, Maori Land Administrator, 19.7.2018]. Interviewees had become frustrated with years of activism to secure ownership of the park only for that agenda to fail them, but their frustrations do not convey unreserved support for personhood. During 30 years of research, hearings and deliberations for the settlement process, many of the original claimants passed away, so personhood “was a case of agreeing to anything in front of us before one further kaumatua died” [Interview, Tuhoe Resident, 22.5.2018]. Likewise, “when the PM cancelled the meeting” to draft a settlement based on leaseholder-comanagement, “it was clear that we’d never get ownership, so we asked, ‘Do we need it?’ [Interview, Kaumatua, 13.10.2018]. Whether ownership transfer remained appealing became moot because it was proscribed, so tribal priorities, the personhood approach and comanagement were reimagined in a quest for “feasible, though less desirable, alternatives” [ibid.].

20Even those who accept the central role of personhood in their settlement remain apprehensive about the ‘full and final’ nature of all Treaty of Waitangi settlements. Tuhoe may receive no further opportunities to own its ancestral homeland or to re-legislate tribal rights. Therefore, that “the government forced us into an all-or-nothing position on tangata-tanga” (personness) rather than “allowing us to trial it in a more limited way” was “disrespectful” [Interview, Kaumatua, 11.7.2018]. Claimants argued that the government skirted discussion of transferring title to Maori and declaring Te Urewera a person, indicating the Crown’s true motives and an unfair discrepancy in the degree of compromise expected of claimants and the state. One elder maintained that pressure to accept rights-for-nature was “unfairly confrontational given the history of land loss and genocide we were put through” [Interview, Kaumatua, 13.10.2018]. Both the Crown and Maori shed their ownership claims and that can be characterized as a neutral outcome, but “that ignores the deprivations of a colonial past and, because you can’t harvest, farm or develop a person, our future potential” [Interview, Tuhoe Politician, 12.2.2019]. In this regard, the separation of the Tuhoe Claims Settlement Act 2014 from the Urewera Act 2014 is revealing. It represents a separation of conservation law reform from all other aspects of Tuhoe’s claims, entrenching rather than resolving the global failure of park managers to reconcile conservation and development. The settlement transferred shares in exotic forests and other assets to Tuhoe but, notably, those assets are almost all located outside the tribe’s rohe (ancestral territory).

21Before the idea of personhood was applied to Te Urewera, Tuhoe favored settlement models that resolved jointly development and environmental agendas. It sought “a balancing of the forest’s needs against our rights as Treaty partners” [Interview, Claims Settlement Negotiator, 7.3.2019]. Some models of comanagement were acceptable because they recognised that “what’s good for Tuhoe will also be good for Te Urewera” [Interview, Tuhoe Resident, 22.5.2018]. Although wary of its capacity for co-option and manipulation, tribal representatives accepted the potential in comanagement as a possible antidote to the preservationism in past modes of conservation. They anticipated that its relational characteristics would integrate plural values across cultures and species. Since 2014, however, tribal aspirations for development have been circumscribed within separate legislation and, ironically, the other, person-centered law seems biocentric: “The (Urewera) Act may be a good thing for Te Urewera but what it does for Tuhoe is unspecified and uncertain” [Interview, Maori Land Administrator, 19.7.2018]. These quotations highlight emerging Tuhoe concerns that rights-for-nature will restrict development options:

Fragmentation was always a problem for us…But I’d argue there’s more fragmentation now. The Claims Settlement Act provides for commercial opportunities and compensation, and the Urewera Act is mostly biological with some cultural protection. It’s all black or white, so we ask where can we do balanced, sustainable alternatives? [Interview, Maori Land Administrator, 19.7.2018].

…past government policy was always fearful of Tuhoe development. They denied us development by restricting land conversions. But making the ngahere (forest) a person pushes that denial into the future. The TCSA (Tuhoe Claims Settlement Act 2014) is in our name but provides only developmental opportunities outside our rohe. The TUA (Te Urewera Act 2014) is not in our name but it denies us any development in our rohe. Unfair histories of denial are being repeated on Tuhoe [Interview, Tuhoe Ecologist, 15.12.2017].

22Contrary to those opinions, Strack [2017: 11] commends the Urewera Act, declaring “that it removes the conventionally Western perspective on land preservation that is exemplified by the national park status.” However, his view disregards the similarities between the Urewera Act and the National Parks Act 1980. The latter is fundamentally preservationist, with a goal to protect “scenery of such distinctive quality, ecological systems, or natural features so beautiful, unique, or scientifically important that their preservation is in the national interest” [s. 4(1)]. The two purpose statements of the Act define conservation by reference to preservation (5 instances), public access (3), maintenance of natural values (2), recreational potential (3) and “intrinsic values” (ss. 4-5). Nevertheless, the equivalents in the Urewera Act are as or even more florid: “Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty…prized by all New Zealanders as a place of outstanding national value and intrinsic worth” [s. 3]. Allusions to preservation (4 instances), beautiful natural features (2), public use (3) and “intrinsic values” are equally prominent in those purpose statements [ss. 3-4]. Although the Urewera Act includes unique commitments to defend “cultural heritage” and “maintain the connection between Tuhoe and Te Urewera” [s. 4], those commitments are overwhelmed by preservationist sentiments.

Collaborating with the living and the non-living

23Duplicitously, the “disestablishment of the National Park was in name only” [Interview, Ngati Manawa Social Worker, 13.11.2018], and the continuing dominance of preservationism influences how claimants regard their settlement and associated provisions for collaboration. Before personhood for Te Urewera, local Maori were wary about whether comanagement would disrupt or dilute their land claims [Coombes and Hill, 2005]. As one elder stated, “If you collaborate on a decision, it’s much harder to disagree or revisit it later. If you find yourself disappointed, you get told ‘but you contributed to that decision so it must have been fair’” [Interview, Tribal Policy Advisor, 27.1.2019]. After claims settlement, some are more worried about displacement of Maori interests through collaboration because it is unclear whether Te Urewera’s person rights are in any ways transferable to them. “Who owns Te Urewera remains the central issue here” and “the fiction of personhood makes that even more problematic” [Interview, Kaumatua, 11.7.2018]. A characteristic of person rights in Aotearoa is that neither the state nor Maori are to own the new persons. Of the ten participants who were interviewed in both phases of the research, nine stated that personhood was a diversionary tactic – “a gutless attempt to make it impossible for us to own our lands again” [Interview, Tuhoe Resident, 22.5.2018]. Irrespective of whether personhood is a satisfactory outcome from a process that was dominated by state power, irrefutably it was unsolicited by Tuhoe until the last moment of the settlement process.

24The ‘full and final’ nature of the Tuhoe Claims Settlement Act 2014 [s. 6(2)(f)], along with policies for all Treaty of Waitangi settlements [OTS, 2018], means that future land retitling is unlikely. Action to achieve that end is difficult in an era of person rights for Te Urewera:

It’s harder to fight against the logic of nobody owns this space than it is to fight against public ownership. They say nobody can own these forests because they own themselves and everybody should own this space. But our Treaty settlement can’t be transformational if it’s filtered through person rights. For a century we’ve fought against the idea that this is a playground for wealthy Pakeha (non-Maori) to enjoy their scenery, but rights-for-nature bolts down that mentality of conserving wilderness for rich people and their pastimes [Interview, Ngati Kahungunu Claims Negotiator, 14.4.2017].

25Personhood defaults to old, ideologically-loaded notions of public rather than Indigenous rights, but assertions of public rights are also saturated with culturally distinct, non-Maori discourses of recreation and preservation. The national interest, the public domain and the alleged rights of all New Zealanders – the country’s adolescent conceptions of equality – have long triumphed over Indigenous rights. In that context, application of person rights to conflict-ridden national parks embeds further the discourses that delimit Maori development and serve White privilege. Double standards are applied to Maori demands for ownership: “If a Pakeha is inclined to own some land, they’re applauded…but if a Maori wants to own their ancestors’ lands, they’re insulted as greedy pariahs, selfish developers or traitors to the national good” [Interview, Tuhoe Politician, 12.2.2019].

Representing nature and Indigenous rights

26Conceptions of wilderness will condition the future of Te Urewera, but Tuhoe ontologies focus instead on centuries of co-evolution between Tuhoe and Te Urewera:

I’m not against thinking about the rights-of-nature, but surely the point of Treaty settlement is to think about our rights as a people. Maybe how the different rights are intended to mingle will come clear later…But I fear that we’ve been separated from Te Urewera by our own settlement. Our history in making Te Urewera what it is – us modifying it; it modifying us – gets overlooked if you think of it as a person with its own identity. The settlement is a bit too silent about mechanisms for treating Te Urewera as a person, a friend or a relative. There’s total certainty that we can’t own it, but there’s a lack of certainty about how we can care for it [Interview, Claims Negotiator, 22.11.2018].

27Lay discourses about how living persons should be treated complicate these matters. Several interviewees raised metaphors about emancipation or servitude and how they may become embroiled in Tuhoe politics. Tuhoe ownership claims were “superseded by a new identity for Te Urewera as a tangata (person), so forevermore we will be treated as slavers when we state a desire to own it” [Interview, Kaumatua, 13.10.2018]. Another interviewee mused that “nobody will be seen to support an end for emancipation, a return to slavery” but “our relationship with Te Urewera was never one of master and slave” [Interview, Tribal Policy Advisor, 27.1.2019]. Clearly, some limitations in framing landscapes as living persons were not fully discussed before completion of the settlement, and that may lead to future conflicts.

28Person rights for Te Urewera are not directly Tuhoe’s rights, and that is one of several limits to the enforceability of any rights created. Te Urewera’s agency as a legal entity does not extend to self-representation and vesting rights in figures who cannot present in a courtroom is not new. From first establishment of the national park, Crown agents covetously framed remaining Tuhoe land blocks as enclaves that should be purchased [Coombes, 2003]. Although small and isolated, multiple families valued those blocks, so determination of their shareholders in the Native Land Court was fractious. The court often vested such lands in the name of long-dead ancestors as a convenience, so that it was not required to resolve competing claims from plural Maori interests. It was presumed that customary lore, oral history and inheritance practices would direct land interests to those worthy of them. Often, however, lines of inheritance were ambiguous, so representatives for the named ancestors could not utilize any rights to which they were entitled. Effective champions for those spaces were sometimes missing from civic or courthouse debate, and for decades many Maori reserves were (ab)used as parkland.

29Te Urewera has become a legal person, but it is no more alive than the ancestors in common who were named by past lawmakers to evade difficult decisions. One interviewee maintains that “we’ve done the non-living kin thing before by vesting our interests in common ancestors. It didn’t work then so I can’t trust that lodging our rights in this new person will work now” [Interview, Maori Land Administrator, 19.7.2018]. Even a supporter of personhood accepts that “as Te Urewera won’t be banging on any courtroom doors, the effectiveness of this comes down to how well the rules for advocating on her behalf are written” [Interview, Claims Settlement Negotiator, 7.3.2019]. Recognition that protocols for ongoing deliberation are a key concern for any Treaty settlement reveals gaps in the personhood approach. The two laws of 2014 include few details about maintaining Crown-claimant partnerships into the future, and it is unlikely that assured mechanisms for sustaining relationships will emerge soon. A recurring concern about comanagement in New Zealand is that protocols for engagement are often excluded from policy directives so they can develop extemporaneously and with specific reference to their local milieu (refer to the conservation-related provisions of the Taranaki settlements [Te Arawhiti, 2020]). While that is a laudable alternative to the conventional stenciling of such protocols across space, in the ambiguous circumstances where Tuhoe and Te Urewera’s rights are intermingled such flexibility may result in unrealizable rights.

Problematic implementation

30The first outputs of Te Urewera Board were draft plans for awarding hunting permits and managing Te Urewera, but the documents eschew rules and inflexible procedures in favor of “principles” and “virtues” to “shape our responsibilities and choices to guide Te Urewera Board decisions” [Te Urewera Board, 2017: 9]. They are aspirational rather than stipulating procedures for, inter alia, deliberation, so they “will involve a process of unlearning, rediscovery and relearning” [Te Urewera Board, 2017: 9]. The management plan “is a work in progress but the work is by necessity adaptive rather than by preordained rules” [Interview, Claims Settlement Negotiator, 7.3.2019]. Most interviewees accept that adoption of personhood approaches requires an open-ended approach. Nonetheless, Board members are also directed to “promote unanimous or consensus decision making” [Te Urewera Act 2014, s. 31(1)(b)]. If that fails, they must accept “a minimum of 80%” consensus and acceptance by two of the three appointed officials [s. 36(1)(a), (b)]. For some interviewees, those approaches to decision-making are unsatisfactory and arbitrary: “So, all those years debating comanagement models and we end up with the unpredictable outcomes of bloody consensus on the fly” [Interview, Maori Land Administrator, 19.7.2018]. Legal personhood filters Tuhoe’s rights through those of Te Urewera, and in that context reliance on consensus also makes those rights contingent upon deliberative competency so they are insecure.

31Comanagement’s capacity to incorporate human diversity and to resolve funding dilemmas was also a concern in earlier Treaty negotiations. Inter- and intra-tribal tensions, particularly those relating to an ongoing political role for hapu (sub-tribes), as well as complex divisions based on location, age or disbursement of benefits, had long stymied proposals for collaboration [Coombes and Hill, 2005]. Assumptions of a simple dyadic relationship between the state and an idealized Maori community failed to incorporate plural positionalities. Yet, the Urewera Act and the draft plan are ambiguous about how such tribes as Ngati Manawa, at the western edge of Te Urewera, or Ngati Kahungunu, at the south-east, will be included, even though tribal interests are overlapping. Under Maori traditions, rohe (tribal territories) and boundaries are fluid contact zones where resource rights are negotiated on a case-by-case basis, but the person rights approach is no better at incorporating that fluidity than any other comanagement alternative that was investigated. Earlier, I suggested that evading internal conflicts amongst Maori groups motivated the Native Land Court’s vesting of rights in common ancestors. It is likewise convenient for the Crown that implanting Maori rights within the new legal identity of Te Urewera “removes any need to distinguish one tribe’s rights from another’s, so it transfers that problem to Maori themselves” [Interview, Ngati Kahungunu Claims Negotiator, 14.4.2017]. Because the emphasis is on Te Urewera’s rights, neither law from 2014 clarifies when or where Ngati Kahungunu interests should be integrated into management decisions, so there is potential for continuing or new injustices.

32The Urewera Board also confronts ecological predicaments that require access to Crown resources. Provisions for regarding the Board in ways that parallel the funding arrangements for local DoC conservancies are established in Te Urewera Act, so the budget for park management is a public responsibility [Sanders, 2018]. Yet, “if this is now a person, we have to think ahead to old age then rebirth, and there are uncertainties going forward” [Interview, Kaumatua, 13.10.2018]. Invasive species and climate change were regularly identified as national or global-scale challenges that may require new sources of funding, but how the Board will secure them is unclear. DoC is itself underfunded, with state failures to adjust budgets for inflation and new responsibilities leading to financial deficits, “so there isn’t much point in the Board becoming a mini-DoC, which is how it is treated under the new funding arrangements” [Interview, Ngati Kahungunu Claims Negotiator, 14.4.2017]. The Urewera Act is special purpose legislation applying to one location, but it is difficult to determine its likely success in the absence of wider policy reforms, including new funding and a turnaround in the national preoccupation with wilderness preservation.


33Many Indigenous philosophers call for renewal of kinship bonds with non-human others, so dealing with Indigenous and nature’s rights jointly is consistent with some Indigenous ontological framings of importance. However, that claim disregards the origins of rights-for-nature, who it will benefit and how it may displace other priorities of Indigenous communities. The rights-for-nature framework is exogenous to Maori communities, but its apparent imminence and relevance to Indigenous cultures may displace other agendas, and particularly the desire to renew ownership of lands lost to colonial practices. The philosophies that inform Te Urewera’s newfound status are not so new – they are a continuation of historically resilient discourses of wilderness and its preservation that have alienated Maori from their homelands in the past.

34The juridicization of everything from genomic title to parental obligations and responsibilities for the life-supporting capacities of future generations may indicate that personhood is part of an inexorable and organic progression [Rawson and Mansfield, 2018]. However, there is nothing natural in the way rights for nature have been injected into a history of laborious work by Indigenous peoples to reclaim their lands and authority. From the time the Crown reneged on its responsibilities under the Urewera District Native Reserve, Tuhoe activism has unequivocally pursued land repatriation. Until recently, state attempts to discipline those tribal preferences through the politics of inclusion and appeals to the public good were unsuccessful: it seemed certain that parklands would be returned to Tuhoe. At present, however, the public appeal of personhood and its capacity to mask or extend preservationism have silenced Tuhoe ownership claims. New Maori rights are implied in the personhood status of Te Urewera, but those rights are ambiguously transferable to Tuhoe. The tribe will surely make best use of Te Urewera’s new status and, from the vantage of Te Urewera Board, they will enliven conservation practice with new and old ideas. Nonetheless, a settlement that was intended to reintegrate Tuhoe and Te Urewera may induce new separations and perpetuate old injustices.

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Brad Coombes, « Nature’s rights as Indigenous rights? Mis/recognition through personhood for Te Urewera »Espace populations sociétés [En ligne], 2020/1-2 | 2020, mis en ligne le 20 juin 2020, consulté le 17 septembre 2021. URL : ; DOI :

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Brad Coombes

School of Environment
The University of Auckland
PB 92019
23 Symonds St, Auckland, New Zealand

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