Abstract

This paper grapples with a fundamental question for a decolonial ecology that is posed by Malcom Ferdinand: How can a world be created from Earth and from its plurality of others and their multiple ontologies? The issue of incommensurable ontologies is explored through a case study that concerns a New Zealand legal settlement between local Māori tribes and the government, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. The Settlement is cited internationally due to its granting of the status of legal person to the river system, that is informed by an Indigenous view of nature. However, despite its important gestures towards a Māori ontology and traditional rights, the Settlement is still a document in law of British origin. In the paper, I discuss the mechanisms through which the two ontologies figure: juxtaposition, passages between incommensurable entities, extension of Western notions, adoption of alien concepts, and third space newness.

Keywords: decolonial ecology, incommensurable ontologies, Te Awa Tupua Whanganui River Claims Settlement

Introduction

In his work on the history of Western attitudes towards nature, Coates[1] argues that from the time of the ancient Greeks, the prevalent attitude in the West with regard to the environment has been the righteousness of man’s control and domination over nature whose starting point lies in the hierarchical separation of culture and nature. Other peoples around the world, notably Indigenous peoples, have other traditions that express a more immersive, inter-dependent, relational and respectful approach to the environment. During colonization by European colonial rulers up until the mid-twentieth century, the beliefs and practices of Indigenous cultures were treated by the colonizer as inferior and were often suppressed[2]. Coloniality, defined as the colonization by Western narratives and promises of modernity including the capitalist logics of growth, ownership, extractivism and exploitation is still strongly in evidence in the world today[3]. Yet, there are also contestatory voices, notably with regard to the environment in the form of movements and philosophies that developed from the 1960s, such as ‘deep ecology’ which rejects anthropocentrism in favour of ecocentrism where all living things have an equal right to flourish[4]. At the same time as this greening of views in the West, in various countries the value of Indigenous worldviews has been acknowledged, which is not only environmentally-friendly but also a decolonial move. Decoloniality of knowledge consists in promoting the re-existence of devalued or suppressed knowledges of the global South, such that multiple epistemologies are valorised and thus approaches to problems enriched[5]. Indeed, Western environmentalism has been criticized for its universal pretension and for not taking account of localized perspectives and also injustices in human society. A decolonial ecology[6] involves a kind of restorative justice in a dual way, because through restoring knowledges that are environmentally friendly and that have been devalued as a result of colonization and coloniality, ecological well-being may also be restored[7].

For Ferdinand[8], envisaging and constructing a new equitable world from the diversity of humans with their contrasting ontologies together with more-than-humans is the key objective of decolonial ecology. Ferdinand does not, however, elaborate on how diverse and even incommensurable ontologies could co-exist and possibly inter-relate, how what Mignolo and Walsh call ‘interculturality’[9], putting diverse cultural logics into an equitable relationship, could be achieved. This paper contributes to reflection on the encounter and relationships between incommensurable ontologies. An impactful contact zone where such a situation may occur is the law. The paper’s aim is thus to present a case study that offers insights into how incommensurable ontologies can co-exist in a legal settlement that concerns the environment. The settlement studied, Te Awa Tupua Whanganui River Claims Settlement[10], contains two highly contrasting perspectives that relate to the environment and that are held by people living in the same country, Aotearoa New Zealand. These are a fundamentally Western worldview that is held by the majority population of European settler descent and is embedded in legal and social systems, and a traditional worldview of the Māori, the Indigenous people. It is important to recognize, of course, that a ‘worldview’ is a distillation from varied complex reality[11]. The aim of Te Awa Tupua Whanganui River Claims Settlement is to settle historical complaints from the Māori people living on the river with respect to their access to the river and the health and well-being of the river. The Settlement document follows a growing trend in Aotearoa New Zealand to give an important place to a Māori worldview within the British-based law of the land, thus producing legal pluralism. After presenting the historical and cultural context for the case study, I will examine the different ways in which the incommensurable worldviews figure in the Settlement document.

History, culture and the te awa tupua whanganui river claims settlement

The Indigenous people of New Zealand, the Māori, arrived in their waka (canoes) from East Polynesia in 1320 to 1350 CE. Very attached to the land and the landscape where their ancestors landed, the Māori refer to themselves as the tangata whenua (the people of the land). The importance of the land and its natural features is seen in the central concept of the Māori worldview, whakapapa, that has been translated as ‘genealogy’. Whereas in English ‘genealogy’ refers to human ancestors, for Māori people, ancestry encompasses not only humans but also more-than-humans: rivers, mountains and sea coast at the place where the person’s community lives as well as spirits[12]. Networks of relationships are indeed central to the Māori way; Māori have closely knit extended family groups linked through whanaungatanga (family connection and belonging) that entails mutual rights and obligations. The relationship with nature is embodied in kaitiakitanga (reciprocal care) that can be exemplified as follows with respect to a river. Tribes living on the river obtain benefits from the river in terms of water, fish and eels; they are also protected by the taniwha (the spirits of the river that inhabit the rapids). In return, the tribes look after the health and well-being of the river. More generally, the kinship bond between humans and more-than-humans implies a set of reciprocal community obligations to nurture the mauri (life force) of people, flora and fauna, landforms and waterways that collectively form one’s whakapapa[13].

As for the country’s colonial history, New Zealand became a colony of the British empire in 1841. In 1907 New Zealand was granted the status of dominion whereby the country was largely self-governing, then it gained full statutory independence in 1947 while remaining a member of the British Commonwealth and recognizing the British monarch as head of state. Whereas the country is no longer a British colony, the question remains, though, as to whether or how settler colonialism is on-going in various guises. An important factor to take into account is demographics. According to the 2018 census and based on self-identification of ethnicity, the population comprises 70.2% persons of European descent, 16.5% Māori, 15.1% Asians, and 8.1% Pacific Islanders. There is a heavy demographic dominance of Pākehā, white people, and of institutions inherited from the era of the British colony. Yet, there has been a clear development from the early days of colonialism till today.

Similarly to other European colonies of the 19^th century and earlier, the policy of the colonists was one of assimilation of the Indigenous people. Māori were Christianised and encouraged to abandon their own customs, and speaking the Māori language was banned in schools. Furthermore, in a number of cases their land was confiscated, thus breaking the strong identificatory bond with the land. At the same time, colonists enacted damage to the land through deforestation, the introduction of non-endemic species, and the creation of resource-intensive industries that resulted in air and water pollution. Both Indigenous land and people were harmed. At the turn of the 20^th century, it was even considered that the Māori people and their traditional ways might die out, since their numbers had been decimated by diseases brought from Europe, and there had not only been cultural assimilation but intermarriage with settlers. However, the disappearance of the Māori did not occur. They had always provided strong pockets of resistance, and from the 1960s and 1970s there was a political and cultural renaissance. This was spearheaded by the movement whereby Māori protested against land loss, and by the revival of Māori culture and language, notably through the creation of Māori language immersion schools for youngsters. In 1987, Māori was recognized as an official language of Aotearoa New Zealand. On the political front, a vital landmark was the establishment of the Waitangi Tribunal in 1975 to hear the cases of historical injustice. The tribunal engaged strongly with a Māori worldview through its upholding of the Treaty of Waitangi (1840), the treaty between the British crown and Māori chiefs that is a founding document for Aotearoa New Zealand in its somewhat conflicting English and Māori versions. Following on from the recommendations of the Waitangi Tribunal, settlements have been reached, such as the one studied in this paper, between the iwi (tribes) and the Crown (the government) that embody legal pluralism and promote co-management. The settlements represent the ambition to progress towards a bicultural nation[14].

This is work in progress, since given the entrenched nature of established institutions, the inequitable power relations in society, and the demographic situation, certainly from the perspective of Māori thinkers settler colonialism is on-going. The question arises as to what exactly ‘decolonisation’ refers to in the Aotearoa New Zealand context given that Indigenous cultural practices as in all societies have been and are in constant evolution that includes borrowing and modifying from other cultural groups, notably the colonizer. Ocean Ripeka Mercier solves this conundrum by adopting an inclusive approach that embraces a wide range of cultural concepts: “decolonisation seeks to embody pre-colonial, [current] Indigenous, and non-colonial paradigms; it unearths and addresses colonial thinking”[15]. Working at an epistemological level is considered to be essential as a prior step to action. For some thinkers, such as Moana Jackson, who was a prominent jurist, the main objective of decolonisation is to reclaim the right of Indigenous people to once again govern themselves[16]. This alludes to ideas such as according governance powers to rūnanga, tribal assemblies. Currently in practice are co-management arrangements between Māori and (local) government that may query existing conceptual frameworks. With respect to fresh water management, Parsons et al. write: “Decolonisation requires us to query and contest the knowledge(s), values and practices that underpin dominant ways of governing and managing rivers”[17]. Parsons et al. report that from the mid-2000s, Māori have been partners in decision-making relating to freshwater systems, and that new governance arrangements place emphasis on mātauranga (Māori knowledges) and tikanga (Māori customary practices and behaviours)[18]. Where decolonisation means the adoption of a Māori worldview with respect to the environment, this is automatically an ecologically-friendly move given the bond of care between the iwi (tribes) and the natural phenomena of the land that they traditionally inhabit. Thus, the decolonial and the ecological are intertwined[19].

A legal settlement that encompasses the principles of decolonial ecology[20] is the focus of this paper, the Te Awa Tupua Whanganui River Claims Settlement. Disputes regarding the river have been on-going since 1873 between the Whanganui River iwi (tribes) and the government. An early dispute was over eel weirs. These are structures built on the river by Māori to catch eels[21]; early settlers wished to use the river as a means of transport, so they destroyed the weirs that created an obstruction. A more recent significant dispute has been over the operation of the Tongariro hydroelectric power station that diverts headwaters of the Whanganui River. For Māori, this is damaging to the river both ecologically and spiritually[22]. Finally, after more than 140 years of contestation, following a report from the Waitangi Tribunal, a settlement between government and iwi was reached in 2017. As well as laying out a future co-management structure, the Te Awa Tupua Whanganui River Claims Settlement contains an apology and provisions for financial redress. Such reparation of past social injustices, along with repair of environmental harms, are considered to be essential by Ferdinand[23] as a foundation for creating a new ecologically and socially just world order. The Settlement document incorporates Māori perspectives, for example: Te Awa Tupua is defined not only as the river, but as an ecosystem including connected lakes and wetlands and tributaries flowing into the river, and it comprises the whole length of the river from the mountains to the sea. Furthermore, the recognition of this ecosystem’s spiritual significance to the Māori is part of its definition. Included explicitly in the Settlement document is a series of Māori principles and values, of which the most well-known is ‘Ko au te Awa, ko te Awa ko au’ (I am the river, and the river is me), a saying that illustrates the close bond between people and river. In alignment with Māori respect for the river, the Settlement bestows on Te Awa Tupua, the river system, the status of a legal person whereby the river owns itself. This has been much remarked on, and links to the growing international rights of nature movement. Legal standing is a means by which the existence and interests of more-than-humans can be recognized as part of our shared world[24].

However, all is not so straightforward, since the Settlement upholds the pre-existing government and private property rights in regard to the river, and although it incorporates Māori principles and values, the Settlement still has its basis in British law and Western concepts. The result is a document that contains incommensurable worldviews, te ao Māori (a Maori worldview) and te ao Pākehā (a White/Western worldview). In order to establish a new socially and ecologically just world order called for by Ferdinand, the issue of living together with those who espouse incommensurable ontologies (including in relation to the environment) is fundamental. Ferdinand asks the following question:

• Comment composer un monde depuis la Terre et depuis sa pluralité constitutive d’autres et de leurs multiples ontologies?[25]
  (how can a world be composed from the Earth, from its constitutive plurality of others and their multiple ontologies?[26])

The following section will aim to answer the multiple ontologies part of this question with respect to one particular case, that of the Te Awa Tupua Whanganui River Claims Settlement.

Configurations of incommensurable worldviews

In the Settlement, there are a range of different types of inter-relation and outcomes with respect to the worldviews that are categorized here as follows: juxtaposition, confusion/non-analytical logic, passages, extension of Western concepts, acceptance/adoption of alien concepts, and third space newness.

Juxtaposition is a prominent way in which Māori and Pākehā worldviews figure in the Te Awa Tupua Whanganui River Claims Settlement. Incompatible notions and worldviews are simply presented side by side. In her remarks on the Settlement document, Salmond[27] notes the weaving together of Māori ancestral and modernist ideas that are co-present but do not merge. She says that this corresponds indeed to a Māori conceptual process of shifting between different dimensions of reality. Salmond sees juxtaposition positively, since it avoids the need for a fusing of horizons, and for providing or imposing one set of assumptions about the world. Juxtaposition is represented visually and linguistically through language forms, since the text is in English and contains untranslated Māori words. Here is an example:

1. 71. 2c) The Crown acknowledges that Whanganui Iwi have responsibilities as tāngata tiaki in relation to 1) the mana and mouri of the Te Awa Tupua and 2) the mātauranga that underpins that mana and mouri[28].

Not providing translations of the Māori terms indicates that these concepts are culturally specific and thus not translatable in a satisfactory way. One worldview cannot be translated into the other[29], so leaving the terms in the Māori language upholds the full sense of the Māori concepts. In terms of the general context, the use of te reo Māori (Māori language) within English has become common in Aotearoa New Zealand: decolonising work is often seen in the elevation, revitalisation, and normalising of the use of te reo, since language is a key means of implanting concepts[30].  

Throughout the Settlement document, titles and sub-titles have English and Māori versions that are very different in meaning. This is another type of juxtaposition that expresses contrasting thought paradigms. Whereas the English titles are abstract, the Māori titles are often concrete, describing elements of the natural environment or traditional manmade practices relating to nature, and they have a metaphorical sense. Here is an example:

• Te Pā Aurora [the Broad Eel Weir] nā Te Awa Tupua
• The Te Awa Tupua Framework[31]

The English term ‘framework’ does derive from a concrete sense, but has taken on an abstract meaning, signifying here the main features of the Te Awa Tupua Settlement. In contrast, the Māori te pā aurora is clearly concrete: it refers to the eel weir, the traditional structure built on the river to trap eels, referred to above. In each case of such titles, the concrete Māori item evokes relevant connotations. Te pā aurora refers to the idea that the framework for the Settlement will be extensive, well-constructed, fit for purpose, durable and the responsibility of all, just like a broad eel weir. In some instances, the difference between Māori and English titles illustrates a difference in point of view on an issue. Whereas in the title “Whanganui Iwi Redress”, redress refers to cultural and financial redress for the Māori tribes (iwi) of the river, the corresponding Māori title “Te Mana o Te Iwi o Whanganui” means the mana (self-worth) of the Whanganui iwi[32]. Regaining self-worth is what is of the utmost importance for the people (and one means of this is through cultural and historical recognition).

Beyond titles in the two languages, conceptual juxtaposition illustrating contrasting perspectives on a topic is evident in the document. A telling example concerns the Tongariro hydroelectric power station. As mentioned earlier, this power scheme has been a significant bone of contention between the government and the Whanganui river iwi, because it diverts headwaters from the river. From the Māori point of view, the loss of water from the river results in both ecological harm (eg. destruction of eel habitats) and spiritual harm (water has a mauri, life force, that needs to be carefully maintained)[33]. From the government point of view, hydroelectricity is a clean and ecologically friendly source of power, and Tongariro has contributed significantly to Aotearoa New Zealand electricity provision. These two points of view are juxtaposed in the Settlement document with the Crown (government) acknowledging both:

1. 69. 16) The Crown acknowledges that the diversion of the Whanganui River for the Tongariro Power Development scheme – a) is considered by Whanganui Iwi to be inconsistent with their tikanga[34] b) has had an adverse effect on the cultural and spiritual values of Whanganui iwi c) has caused distress and remains a significant grievance for Whanganui iwi.

17) The Crown acknowledges the national importance of the Whanganui River and its contribution to New Zealand’s development […] its value as a resource for electricity generation, including the significant contribution it has made to the generation and stability of New Zealand’s electricity supply[35].

Juxtaposition of incommensurable worldviews can lead to a sense of confusion which may be conceived alternatively as the application of non-analytical logic. Analytical logic proscribes contradictory statements being both held as true, whereas in non-analytical logic this is possible[36]. Whereas in a legal document, we would expect from a Western perspective that key terms would be given a single definition that holds throughout the document, this is not necessarily the case in the Whanganui River Claims Settlement. The key term Te Awa Tupua is defined initially as follows (and this remains the dominant definition in the document):

1. 12. Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements[37].

In the subsequent section of the document where intrinsic Māori values representing the essence of Te Awa Tupua are discussed, a different definition is provided:

1. 13. d) Te Awa Tupua is a singular entity comprised of many elements and communities, working collaboratively for the common purpose of the health and well-being of Te Awa Tupua[38].

In this second definition, Te Awa Tupua includes ‘communities’ which is a clear reference to the people of the river. The definition reflects the Whanganui iwi’s bond with the river, and the Māori relational and caring outlook between human and more-than-human entities. In the initial and dominant definition, spiritual significance of the river is mentioned, but people do not seem to be a part of Te Awa Tupua. It is as if a Western outlook could not fully grasp the Māori worldview.

A second example of confusion or non-analytical logic concerns the first definition of Te Awa Tupua above as an “indivisible whole” (which reflects a Māori conception) incorporating all its “physical elements”. Normally, one would think that water is a physical element that is part of the river. However, as a legal person, Te Awa Tupua owns the land (the riverbed), but not the water[39]. This is because under British-based law, water cannot be owned, since it is moving. There is a contradiction, therefore, between a holistic Māori view of the environment, and British-based law.

So far, we have discussed juxtaposition (that in some cases leads to a sense of confusion due to highly contrasting or even contradictory approaches). Elements of worldviews are presented side by side without engagement. In order for incommensurable ontologies to engage with one another, there needs to be a means of passage. Lyotard’s[40] philosophical thought places emphasis on respecting incommensurable difference where there is no just way of reconciliation or adjudication. Nevertheless, he also proposes that incommensurable entities can be envisaged as islands in an archipelago and that travelling between them may occur. In the case of the Te Awa Tupua Whanganui River Claims Settlement, the passage between islands (incommensurable thought systems) is achieved through the notion of respect. Whereas in former times Māori traditions, worldview and language were denigrated, today in Aotearoa New Zealand, they are respected and are being more and more integrated into administrative processes and daily life. This process that started in the 1970s has accelerated greatly in recent years and is visible and audible in the prevalent use of the Māori language, among other things, for names of institutions and places. In terms of our settlement, there is mutual respect for the interlocutor, iwi and Crown. There is also shared respect for the object of attention, the river system. Whereas in earlier times rivers were treated like sewers for the discharge of waste and chemicals from factories and farms, today there is a concerted desire by many in Aotearoa New Zealand to restore the health of fresh waterways in the land. Environmentalists thus straddle the Māori-Pākehā divide. The notion of respect for all parties, including the iwi of the river, and for the intrinsic value of the river system provided the basis for a willingness to work together on the Te Awa Tupua Settlement that resulted in the possibilities of juxtaposition of and also engagement between different worldviews, and thus in a decolonial ecological approach.

The engagement takes different forms. The first is the extension of Western concepts. A crucial feature of the Settlement is granting the status of ‘legal person’ to the river system. Normally in British-based law that is part of te ao Pākehā (White/Western worldview), a ‘legal person’ applies to a business corporation. In the Settlement, this notion is extended to a natural and spiritual phenomenon, Te Awa Tupua. The idea of granting legal personhood to natural phenomena was first mooted by the early thinker on the rights of nature, Christopher Stone[41]. Applying the concept of ‘legal person’ to natural phenomena in Aotearoa New Zealand was suggested by Māori jurists James Morris and Jacinta Ruru[42] as a means of finding a notion in Western law that would reflect the high and respectful status accorded by Māori to natural phenomena such as mountains, forests, rivers and the seashore which are considered to be taonga (treasures), ancestors, and powerful spiritual entities. In Aotearoa New Zealand, prior to the Te Awa Tupua Settlement, there was already a precedent for applying legal personhood to natural phenomena, since Te Urewera, a native forest, had been granted this status in 2014. It is indeed a considerable extension of Western law. The implications are significant, since the natural phenomenon as legal person has rights on a par with human rights, and this status thus bodes well for the protection of the health and well-being of the environment.

We can consider the extension of the concept of ‘legal person’ to Te Awa Tupua as reaching out towards te ao Māori (Māori worldview) in the sense of according a high status to the river system. On the other hand, the notion of legal person is alien in important respects to Māori conceptions. The form of engagement of Māori with the Pākehā worldview found in the Settlement document is the acceptance or adoption of (partially) alien concepts. In participating in the elaboration of the Settlement, Māori have accepted the format of a British-based legal document as well as various juridical and general concepts that it contains. The reason that ‘legal person’ is very different from te ao Māori is that it is an individualistic entity that has rights and duties. This contrasts with whanaungatanga and kaitiakitanga, the Māori collectivist and memorial conceptions of intergenerational reciprocal relations and obligations of care involving networks of humans and more-than-humans[43]. Furthermore, ‘legal person’ provides the status as a subject under the law which does not reflect the Indigenous concept of the river as a living being. Another fundamental Western concept that is alien to a Māori worldview is that of ‘ownership’. For Māori, you live with the land where your ancestors have lived in a reciprocal relationship of care; indeed, the land is one of your ancestors. You cannot own the land, since that entails a relationship of domination and treating the land as a mere resource. Obliged to operate within a British-based legal system, Māori have, however, accepted and used the concept of ownership in undertaking various land and seashore claims in order to assert their right to live with the land. This is the familiar move of the (former) colonized using the (former) colonists’ tools to further their interests[44]. In the Whanganui River Claims Settlement, Māori accept the concept of ownership in that the fee simple title of riverbed land previously owned by the Crown has now been vested in Te Awa Tupua which as a legal person is now owner of that land. With the parties mutually reaching out towards each other, the Settlement becomes a site of negotiation and compromise.

The final configuration of incommensurable worldviews to be discussed is that of third space newness. For Bhabha[45], a ‘third space’ displaces the histories and cultures that constitute it originally to set up something different from a hybrid merging, something that appears to be more radically new, new political initiatives or new structures of authority. As discussed above, Te Awa Tupua is a physical and metaphysical river system entity that has been granted the status of a legal person which has rights and duties. Given that it has rights and duties, how can a river system speak for itself when necessary in institutional settings such as courts? The solution that has been found through the Settlement negotiations is the creation of another entity called Te Pou[46] Tupua that consists of two people, one chosen by the Whanganui iwi and one appointed by the government. The role of Te Pou Tupua is to act on behalf of Te Awa Tupua, and the dually appointed membership illustrates the practice of co-management by Māori and government authorities that is a model currently favoured in Aotearoa New Zealand[47]. The full set-up as laid out in the Te Awa Tupua Whanganui River Claim Settlement is quite complex, since Te Pou Tupua consults an advisory committee, and there is also a long-term strategy board. The term that comes to mind to describe Te Pou Tupua is ‘representative’, that is, Te Pou Tupua is the human representative of the river system Te Awa Tupua. However, this term is not used in the Settlement document, probably because from the Māori point of view, ‘representative’ indicates a certain weakness such as a child needing to be represented in court, whereas for Māori, Te Awa Tupua is a powerful being. The term used in the Settlement to describe Te Pou Tupua is ‘human face’. This links to the Māori conception that a person is the living face of his or her ancestors, connoting reciprocal relationality and responsibility. The combination of Te Awa Tupua and Te Pou Tupua stemming from Western concepts of legal person and representative, and Māori concepts of indivisible natural and spiritual entity and reciprocal relationships, has created a noticeably new kind of set-up that could potentially be used as a model for promoting environmental protection in parallel situations[48].

Concluding remarks

 The Te Awa Tupua Whanganui River Claims Settlement represents a positive step forward, since it has allowed emancipation of both the Indigenous people and nature through a process of decolonisation in this particular case. However, there are remaining issues. Given what I have categorized as areas of confusion or non-analytical logic, and given the ongoing demographic and power imbalance in the country, there may be future frictions in terms of the implementation of the Settlement. Be that as it may, through this case and others the valorisation of an Indigenous worldview is now firmly implanted in Aotearoa New Zealand, which favours future environmental protection. Looking to other parts of the world, it is clear that there is commonality among various Indigenous peoples in terms of their respect of nature, connected communities and holistic thinking. The Aotearoa New Zealand cases contribute to an international jurisprudence where Indigenous perspectives have been incorporated into legal texts, notably the granting of rights to Pachamama, Mother Earth, in the Constitution of Ecuador (2008) and in law by Bolivia in 2009[49]. Beyond the similarities in Indigenous outlooks, there are specificities of different systems of beliefs and practices. It can be worthwhile to focus on local Indigenous worldviews and their concepts in relation to decolonial ecology. One of the enriching Māori concepts is mauri, a universal life force that precedes the people/thing distinction, which can lead to a more respectful approach than the age-old Western view of humans dominating nature that is based on a people/thing separation. Other valuable concepts mentioned above are whakapapa (ancestry that includes humans and more-than-humans, notably environmental phenomena, in a reciprocal relational network) and kaitiakitanga (reciprocal care between human and more-than-human)[50]. Such outlooks permit a nurtured and nurturing relationship with Earth, thus joining with ethics proposed by Western philosophers of deep ecology and ecocentrism[51].

This paper has focused on an important legal document of Aotearoa New Zealand that brought peace and justice after more than 140 years of disputes between the iwi of the Whanganui River and the government. A central feature of the Te Awa Tupua Whanganui River Claims Settlement is granting the status of legal person to the river system. While being a concept from Western law, this move is inspired by the Māori view of the river as a powerful being. In general, the conjunction of different conceptual systems in the Settlement produces something effective that is not only beneficial for the environment, but also takes into account a Māori viewpoint: a decolonial action is thus undertaken within British-based law. Giving a place to both worldviews is an act of epistemological and social justice[52] that is enacted concretely in the form of a co-management arrangement. Through its examination of how contrasting worldviews co-exist and inter-relate in the Settlement, the paper contributes to reflection on the broad aim of decolonial ecology that is concerned with developing a new equitable world order among more-than-humans and humans who hold multiple ontologies[53]. In our current world, it is essential to focus on modes of living together while respecting differences, which can be worked out in a number of ways, including innovative conflict resolutions that involve the environment such as the one studied here.

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• Rutherford, Jonathan, “The Third Space: Interview with Homi Bhabha”, in Identity: Community, Culture, Difference, edited by Jonathan Rutherford, London, Lawrence & Wishart, 1990, 207-221.
• Salmond, Anne, “Tears of Rangi: Water, Power and People in New Zealand”, HAU: Journal of Ethnographic Theory, vol. 4, no. 3, 2014, p.285-309.
• Santos, Boaventura de Sousa, Epistemologies of the South: Justice Against Epistemicide, Boulder, Paradigm Publishers, 2014.
• Stewart, Georgina Tuari, Māori Philosophy: Indigenous Thinking from Aotearoa, London et al., Bloomsbury, 2021.
• Stone, Christopher, “Should Trees have Standing?”, Southern California Law Review, vol. 45, no. 2, 1972, p.450-501.
• Tanasescu, Mihnea, “When a River is a Person: From Ecuador to New Zealand, Nature Gets its Day in Court”, Open Rivers: Rethinking Water, Place and Community, no. 8, 2017, p.127-132.
• Taylor, Paul. W, Respect for Nature: A Theory of Environmental Ethics, Princeton: Princeton University Press, 1986.
• Te Awa Tupua (Whanganui River Claims Settlement) act 2017, version 12 April 2022, accessed 11 January 2023. URL : https://www.legislation.govt.nz/act/public/2017/0007/latest/versions.aspx

Notes

[1] Peter Coates, Nature: Western Attitudes since Ancient Times, Cambridge, Polity Press, 1998, p.28.

[2] Mike Ross, “The throat of Parata”, in Imagining Decolonisation, edited by Rebecca Kiddle, Wellington, Bridget Williams Books, 2020, p.30.

[3] Walter Mignolo & Catherine Walsh, On Decoloniality: Concepts, Analytics, Praxis, Durham, Duke University Press, 2018.

[4] Arne Naess, “Self-realization: An Ecological Approach to Being in the World”, The Trumpeter: Voices from the Canadian Ecophilosophy Network, vol. 4, no. 3, 1987, p.35-42.

[5] Santos, Boaventura de Sousa, Epistemologies of the South: Justice Against Epistemicide, Boulder, Paradigm Publishers, 2014.

[6] Malcom Ferdinand, Une écologie décoloniale : Penser l’écologie depuis le monde caribéen, Paris, Seuil, 2019.

[7] Moana Jackson, “Where to Next? Decolonisation and the Stories in the Land”, in Imagining Decolonisation, edited by Rebecca Kiddle, Wellington, Bridget Williams Books, 2020, p.133-155.

[8] Malcom Ferdinand, op. cit., p.389.

[9] Walter Mignolo & Catherine Walsh, op. cit., p.59.

[10] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, version 12 April 2022, accessed 11 January 2023. URL: https://www.legislation.govt.nz/act/public/2017/0007/latest/versions.aspx. In the Māori language, te means ‘the’, awa means ‘river’, and tupua means ‘spirit’.

[11] For Stewart, a Māori worldview is a placeholder term for diverse specific traditions that are localised and place-based, unlike each other and continuing to evolve, but sharing a philosophical base. Georgina Tuari Smith, Māori Philosophy: Indigenous Thinking from Aotearoa, London et al., Bloomsbury, 2021, p.39.

[12] Apart from the spiritual aspect, this could be compared to Norwegian philosopher Arne Naess’ notion of the ecological or expanded self that involves humans identifying with other life forms. Arne Naess, art. cit.

[13] Catherine Iorns Magallanes, “Nature as an Ancestor: Two Examples of Legal Personality for Nature in New Zealand”, Vertigo: La revue électronique en sciences de l’environnement, Hors-série 22, 2015, accessed 12 January 2023. URL : https://journals.openedition.org/vertigo/16199?lang=en

[14] Atholl Anderson, Judith Binney & Aroha Harris, Tangata whenua: A History, Wellington, Bridget Williams Books, 2015.

[15] Ocean Ripeka Mercier, “What is Decolonisation?”, in Imagining Decolonisation, edited by Rebecca Kiddle, Wellington, Bridget Williams Books, 2020, p.42.

[16] Moana Jackson, art. cit., p.135.

[17] Parsons, Meg, Karen Fisher & Roa Petra Crease, Decolonising Blue Spaces in the Anthropocene: Freshwater Management in Aotearoa New Zealand, Cham, Switzerland, Palgrave Macmillan, 2021, p.9.

[18] Parsons, Meg, Karen Fisher & Roa Petra Crease, op. cit., p.253.

[19] Specific programmes of ecological decolonisation in Aotearoa New Zealand comprise eliminating noxious exotic species, preserving native species, reforestation, weed and pest control, and reversing the damaging effects of industrial, horticultural and pastoral activities. Ocean R. Mercier, art. cit, p.52.

[20] Malcom Ferdinand, op. cit.

[21] For an image of an eel weir, see https://collections.tepapa.govt.nz/object/29354 (accessed 31 Jan. 2023).

[22] Elaine Hsiao, “Whanganui River Agreement: Indigenous Rights and Rights of Nature”, Environmental Policy and Law, vol. 42, no. 6, 2012, p.371-375.

[23] Malcom Ferdinand, op. cit., p.391-392.

[24] Malcom Ferdinand, op. cit., p.389.

[25] Idem.

[26] Malcom Ferdinand, Decolonial Ecology: Thinking from the Caribbean World, trans. Anthony Paul Smith, Cambridge UK, Polity Press, 2022, p.234.

[27] Salmond, Anne. “Tears of Rangi: Water, Power and People in New Zealand”, HAU: Journal of Ethnographic Theory, vol. 4, no. 3, 2014, p.285-309.

[28] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.50.

[29] Despite this, here are some brief and approximate translations of words appearing in the quote that are provided for the benefit of the reader: tāngata tiaki = guardians, mana = self-worth, mouri = life force, and mātauranga = Māori knowledges.

[30] Ocean R. Mercier, art. cit., p.59.

[31] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.14.

[32] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.69.

[33] Catherine I. Magallanes, art. cit.

[34] Tikanga = Māori customary practices and behaviours.

[35] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.48.

[36] This relates to the deconstructionist concept of breaking binary thinking.

[37] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.14.

[38] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., p.15.

[39] Te Awa Tupua (Whanganui River Claims Settlement), op. cit., 46. 1(a), p.30.

[40] Lyotard, Jean-François, Le différend, Paris, Éditions de Minuit, 1981.

[41] Christopher Stone, “Should Trees have Standing?”, Southern California Law Review, vol. 45, no. 2, 1972, p.450-501.

[42] James Morris & Jacinda Ruru, “Giving Voice to Rivers: Legal Personality as a Vehicle for Recognizing Indigenous Peoples’ Relationships to Water?”, Australian Indigenous Law Review, vol. 14, no. 2, 2010, 49-62.

[43] Matthias Kramm, “When a River Becomes a Person”, Journal of Human Development and Capabilities, vol. 21, no. 4, 2020, p.307-319.

[44] A distinction needs to be made between cultural assimilation (where the colonizer imposed a European system and suppressed Indigenous ways); the extension of a Western concept in order to come closer to an Indigenous conception (as in ‘legal person’); and Indigenous people choosing to deploy or agree with Western concepts and practices that are acceptable, useful or advantageous to them.

[45] Jonathan Rutherford, “The Third Space: Interview with Homi Bhabha”, in Identity: Community, Culture, Difference, edited by Jonathan Rutherford, London, Lawrence & Wishart, 1990, 207-221, p.211.

[46] Pou means pillar, post, support.

[47] Parsons, Meg, Karen Fisher & Roa Petra Crease, op. cit., p.253.

[48] Te Urewera native forest, that was also recognized as a legal person, has a similar arrangement with a Board for governance and management comprising both Tuhoe iwi and Crown membership. A third natural entity in Aotearoa New Zealand, Taranaki Maunga (mountain), has been granted the status of legal person, but its management arrangement has not yet been finalized at the date of writing.

[49] Mihnea Tanasescu, “When a River is a Person: From Ecuador to New Zealand, Nature Gets its Day in Court”, Open Rivers: Rethinking Water, Place and Community, no. 8, 2017, p.127-132.

[50] Māori thinkers have also suggested replacing the concept of ‘decolonisation’ by Indigenous concepts, whakapapa (Mercier, art. cit., p.81) or whakatika, restoration (Jackson, art. cit., p.140).

[51] Arne Naess, art. cit.; Paul. W Taylor, Respect for Nature: A Theory of Environmental Ethics, Princeton: Princeton University Press, 1986.

[52] Boaventura de Sousa Santos, op. cit.

[53] Malcom Ferdinand, op. cit.