Rights for Nature in Aotearoa

Interview with Dr Brad Coombes By Nina de Jong

Beech forest in Te Urewera, which was given legal personhood status in 2014. Photo by David Tip on Unsplash (2019)

Dr Brad Coombes is a Senior Lecturer in the School of Environment at the University of Auckland. His research focuses on indigenous peoples’ participation in environmental management. He has worked on Te Tiriti o Waitangi/Treaty of Waitangi environmental claims of several iwi, including Ngāi Tūhoe and Ngāti Tūwharetoa. Brad’s recent work, “Nature’s rights as Indigenous rights? Mis/recognition through personhood for Te Urewera”, criticises the “personhood” or “Rights for Nature” environmental management approach. This approach recognises landscapes as sentient entities, and in some cases legal people, that have their own rights. It has been employed both internationally and in Aotearoa to protect nature in a way that is intended to align more with indigenous values. In this interview, Brad discusses how he became involved with this work, the main shortcomings of the personhood approach to environmental management, and how we should proceed into the future.

How did you come to be a researcher in environmental management and indigenous rights?

Probably the more important story goes back to where I was raised. Kāti Māmoe used to have quite a bit of land in the South Island. When the government redirected and extended the main trunk railway line back in 1888, they compulsorily acquired a corridor right through the middle of that Kāti Māmoe land. Unfortunately, there was what looked to be a simple clerical mistake. Rather than taking 20 yards on either side of the rail, which was the legal maximum that you took for a railway, they managed to somehow take 800 yards on either side. Despite a lot of acknowledgement that it was illegal, we still couldn’t make the court system give our land back. And this included Moponui, which is the maunga tapu or sacred mountain for our hapū. The railway department had no use for the forested lands on either side of the railway, including the whole of Moponui. Eventually, it gave the land to the Department of Tourist and Health Resorts to become a scenic reserve in 1912. We were left with a tiny bit of land down by the sea and a tiny bit of land up past the railway. Neither of these could be used for the purposes that it was used for before. So, the idea of losing your forested rohe, including your important mountains, is definitely not foreign to me. The battle to try and get some of that back influenced a lot of my childhood. Of the 6,500 hectares lost to the railway, the tribe eventually received 420 hectares in reserves and 128 hectares as freehold land because my grandfather just bought it back, and went on to live there. The mixture of, on the one hand, land rights, and on the other hand, somebody else’s vision of what conservation should be, is a personal thing. I was sent off to university with the idea of contributing to the fight to get some of it back.

You worked in the Urewera inquiry district, where a personhood approach for Te Urewera was taken. What was your role in that settlement?

I have been involved with Te Urewera since the year 2000. When I came to this university, the Crown Forestry Rental Trust and the Waitangi Tribunal approached me to research environmental claims that had been brought before the Tribunal. I did environmental history reports for the Gisborne Inquiry District, Te Urewera, Wairoa and Tongariro National Park. The Tribunal gets very specific on land loss issues, but it can’t afford to research everything, so it lumps together all of the environmental claims within an inquiry district and gets one or two people to research them. You basically look at every environmental issue that tangata whenua have been unhappy with since 1840! For Te Urewera, clearly, with the national park overlapping so much of their home territory, conservation management was the number one issue. They wanted to have a clear picture of how it became a national park and how it was managed, with emphasis on how a preservationist style of management alienated Tūhoe rights.

What do you think are the most important merits of a personhood/Rights for Nature approach?

It’s been very hard in Te Urewera, and throughout the rest of New Zealand, for the public to see forests as anything other than forests, and to see mountains as anything other than mountains. One side of the debate has seen them solely as resources to be developed. Another side of the debate has seen them as environmental assets to be protected. And the strength of those two lobbies is so strong that any other view of forests, mountains, landscapes, rivers, is lost on the public. Personalising these spaces through personhood rights might at least prompt some discussion that may, over time, balance that debate so that it’s not so dualistic. However, has it done so yet? I don’t think so. Probably not at all.

The Treaty settlement process, especially where it involves national parks and conservation spaces, has been stalled. It has been fractious, and it wasn’t really going anywhere. And I’m not sure I would argue this, but others certainly would, that anything that can accelerate that process is likely a good thing. I personally tend to stick to the idea that justice always takes time. If you’re trying to speed up a tricky process, it’s always going to backfire. But I am sympathetic to the idea that where Treaty settlement processes apply to the conservation estate, progress has been very slow, and that’s doing nobody any favours. If you can find an innovative, left-field solution that people sign up to, it’s considered a success.

But it’s what is missing from that list of benefits that’s probably more interesting. I try to keep out of the Whanganui River example, just because it’s one of the few that I haven’t been involved with. But I look at what’s happening in the Kaipara Harbour, or the Waikato River, or the Rotorua Lakes, all areas where instead of personhood rights, a different strategy has been utilised. And I see some positive progress. The substantial difference between, say, the Waikato and Whanganui cases is not so much that one has person rights, and the other doesn’t. The idea of a river ancestor was acknowledged with the Waikato case, but it wasn’t made a person. The substantial difference was the investment of money. Investments and clean-up efforts have been made, with federal money coming into the local and regional scales. And Māori are being heavily involved in deciding how that money is spent. The model that seems to be working most in New Zealand is state investment in co-managed restoration. That’s what’s happening in Kaipara, Waikato, and the Rotorua lakes. Where is the investment at Whanganui? And you could also say, where is the collaborative decision-making that goes into it? Because the Whanganui guardians are more champions than they are actual decision-makers. I think that’s indicative – where progress is being made in decolonising freshwater management in New Zealand is not where person rights are being trialled.

Leading on from that, what are your main criticisms of the Personhood approach to environmental management?

When you research your own iwi claim or another iwi claim, you get to know the claimants as people. It’s very long-term research. Whenever a third party or the government presented an option for National Park or Te Urewera, I think about how those particular people I became quite close to would react to it. It’s significant that the reaction that comes up is always surprising, when person rights are suggested. In both of the inquiry districts where personhood came up, in Te Urewera and Tongariro National Park, it was well after the research, after the bulk of negotiations and the hearings, before the idea of personhood came up at all. It’s a belated afterthought, to be honest. The earliest mention was in 2012. At that point, there were just a few idle mentions of what had happened in Ecuador and Bolivia, and was it relevant to treaty settlements in New Zealand? And, originally, Tūhoe were one of the strongest voices saying, “Well no. That’s obviously not relevant to us at all.” Things changed between then and 2014, when Te Urewera was given person rights, but it’s not something that Tūhoe ever demanded. And even if personhood was a good thing, constantly giving indigenous communities something that they didn’t ask for, and denying them what they did ask for, will eventually cause problems. My big fear is that this will backfire because there was no Māori demand for it in the first instance.

The second one is to go back to that duality. New Zealanders think the land is either wholly degraded or perfect and can’t quite come up with a solution for the majority of the country, which is somewhere in the middle. That’s about finding an honourable, sustainable solution that finds a balance between conservation and development. And are we any closer to that, having adopted person rights as our “go to” for Treaty settlements and conservation estate? I think we’re further from it than we ever have been before. We still have that need that’s unresolved, and we’re focusing on the wrong thing by focusing on person rights.

The concern that these rights are easily manipulated has come up in many other parts of the world. When you look at the countries that have written Pachamama into their constitutions, especially Bolivia and Ecuador, it’s been a horrible time of resource extractivism, especially in the petrochemical industries. That means that the award of person rights coincides completely with resource degradation, environmental loss, and the trampling on certain rights for different people. It was supposed to be done in the name of indigenous peoples, but instead it’s enabled the petrochemical industries and mining industries to degrade indigenous territories. It’s the way that these industries have framed nature as, “Well, now that we’re accepting it’s animate, we accept that it can heal itself. So there’s nothing wrong with putting a few cuts and bruises into her.” It’s argued in the north-eastern states of the US that since localised ordinances around person rights have come into place, the mining industry and the fracking industries have found it easier to get around those rights compared to what was there before. And those ordinances were brought in explicitly to rein in those industries.

These issues exist along with the multitude of social justice concerns that personhood raises, like, what is an indigenous right to development in a place that’s now a person? What does this do to forestall indigenous demands into the future? And the quote from one of the interviews I did about slavery: “We still want to own Te Urewera, so are we now slavers because we want to own the land?” What that stands for is how personhood might forestall any future approach to historical justice in these places. Personhood will prevent questions of ownership from being addressed properly in the future.

The lack of balance between conservation and development, and the perpetuation of preservationism is my main academic concern. We need to find a more sustainable-use approach, and personhood rights have set us back on that.

Tongariro National Park is currently being involved in Treaty Settlement negotiations for multiple iwi, including Ngāti Tūwharetoa. Personhood rights, similar to what was applied to Te Urewera, is being considered for these negotiations. Photo by Yulia Gadalina on Unsplash (2019).

A criticism that you have of personhood and rights for nature is that it is not a concept from te ao Māori. In some ways, it is shoehorned into the New Zealand context. In 2001, a prison in Northland was being built at Ngāwhā springs. It had opposition from Ngāpuhi and Ngāti Rangi, who said the taniwha Takauere would be desecrated by the prison construction. Taniwha may in some ways be analogous to a personhood concept, and in contrast to personhood, taniwha are embedded in te ao Māori. Do you think legislation that centred around existing taniwha, for example, might have different consequences to conservation in Aotearoa than a personhood approach?

Well, there are a whole lot of things beyond taniwha at stake there. The pools at Ngāwhā are a wonderful community development project, and they’ve become a site of cultural resurgence in some ways. There was also a deal done with Top Energy, where the company would buy some of the former mined area right beside the springs and give it back to the local hapū. In return, tangata whenua accepted the extension of Top Energy’s works. Tangata whenua have big aspirations for community development on that site. Even back in 2001, there was an essentialisation of the taniwha being the only issue, when many other things were going on. Not the least being the reason for the prison being built in the first place. Around 75% of the inmates are Māori, many from local tribes. There were some Māori that were saying “Yeah, go ahead and build it, we need to be close to those people who are going to be rehabilitated”. Others were saying, “Well this is just a kick in the guts to the concept of community, to put a prison right on what is an important place for us.” I’m not downplaying the narrative of the taniwha, but it wasn’t as central to the whole story as history made it out to be.

As to how it may be more relevant to the New Zealand context, I think: What is personhood? Is it part, or not part, of what you’ve called “te ao Māori”? I personally don’t like thinking about it in those terms. I have a sneaking suspicion that the phrase “te ao Māori” is invented. There’s a truckload of very different cultural perspectives going on for different iwi and hapū, and to singularise that is counterproductive. The starting point is to say, “What’s important to this tribe?” One reason why I would never rule out personhood, for, say, Te Urewera or Tongariro, is that for the tribes involved there, there were elements of personhood in what they do. For my own tribe, Kāti Māmoe? There’s nothing about personhood for us at all. But we are widely held up to be sacrilegious, early victims of colonialism that have lost our way, whereas Tūhoe are often considered to be staunchly defensive of their culture. The “mountains marrying the mist” in Tūhoe’s case, and the “I am the mountain, the mountain is me,” understanding of Te Heuheu’s relationship with Tongariro, suggests to me that there is something endemic about personhood for those particular tribes. So, I think too much gets lost at the “te ao Māori” scale. It’s less of a cultural imposition if you look at what was specifically important to Tūhoe, and specifically important to Tūwharetoa.

Taniwha can be an important focusing aid to draw attention to otherwise hidden issues in environmental management. When State Highway One was in the works, the famous taniwha down towards Mercer came into the media. Previously, there had been no way of getting cultural values on the agenda for environmental impact reporting on building motorways. The public was so transfixed with building motorways that it was very difficult to say, “Well, what should be protected in these landscapes? Where should we spend extra money to go around significant sites?”

I think personhood is no more or less real for Māori, than taniwha. At times, the relevance of both has been exaggerated for Māori, and at times underplayed. But I don’t think either concept and their use in resource management are any more genuine or disingenuous.

Personhood and a Rights for Nature approach in Aotearoa embodies the tension between crown governance and Māori sovereignty. Wai 262 has the potential to change the way conservation and environmental management occurs in Aotearoa. Wai 262 outlines a partnership, ‘in which the Crown is entitled to govern but Māori retain tino rangatiratanga (full authority) over their taonga (treasures).’Do you think this is going to be a workable vision for environmental management? [The Wai 262 claim, also known as the “Flora and Fauna Claim”, was a Waitangi Tribunal claim lodged in 1991, and was one of the largest and most complex in the Waitangi Tribunal’s history.]

It’s notable that it’s been a long time since the reports, and I don’t think we’re much closer to anything tangible coming out of it. Our track record speaks for itself there.

The Tribunal reports do quite a good job of saying that resources are inseparable from their metaphysical properties. It makes clear that we’ve got to start putting those metaphysical properties first, rather than ignoring them. And that is quite a fundamental shift for New Zealand. It’s not that long ago that a judge in court said that Nganeko Minhinnick and her Ngāti Te Ata people’s objections to the Waiuku Steel Works – the taking of freshwater from the Waikato, bringing it to the steelworks, transforming it in terms of heat and chemical pollutants, and then transferring into the Manukau Harbour was “a purely metaphysical objection”, and that was reason for it to be dismissed. That it had no substance because it was “purely metaphysical”. To frame it like that is incredibly insulting. That was in the late seventies, early eighties. If we can capture what’s been said in reports and research for Wai 262, and ensure that the metaphysical properties of nature are realised in courts and tribunals, that will be a great thing. I just don’t quite see what the mechanism for that is. The intent is there, but it’s not like the various parties of Wai 262 have actually come up with mechanisms for getting to that point.

Rotoiti, which is one of the lakes in theRotorua Lakes District. In this region, personhood has not been the focus of environmental issues in treaty settlements. Instead, there has been investment into lake restoration, and an attempt to give a larger role to Te Arawa in environmental decision making. This approach more closely aligns with locally based leadership than personhood rights approaches. Photo by Nicholas Rean on Unsplash (2014).

Do you have any ideas of mechanisms that might work for this vision of Wai 262?

I don’t know if I should admit to being a bit of an anarchist, but academic anarchy is a little different to populist anarchy! I’m a big believer in flax-roots approaches that involve local expressions of leadership. And that’s particularly relevant to the sorts of issues that personhood has been used to address, because giving a landscape personhood is not a local solution. It’s actually a globalised rights discourse that’s trampling on local expressions of personhood and culture. Hopefully, you got that distinction I made earlier between there being something meaningful for Tūhoe and Tūwharetoa to their relations of mountains and forests that may look like personhood is relevant. But it’s not, because personhood doesn’t build on what’s there; it imposes on top of what is there. I would rather find solutions within the community. The relationship between metaphysical properties and physical nature is a very fine tuned thing. It can’t be understood or well managed from a distance. In academic understandings of anarchy there’s still a role for the state, but it’s an enabling role. To make local decision making and local control work in an ever globalised world, we need the state to be actively supporting it. But the initiative has to come from below.

We don’t have a lot of scope for local control in New Zealand. Our particular style of doing things has always been against letting local people take control of their circumstances. A lot of the opportunities for local control have been taken away by the Think Big mentality that we’ve had in New Zealand for a long time, that lead to Tiwai Point smelter near Invercargill, and the Tasman Pulp and Paper Mill in Kawerau.

I think probably the worst thing was the National Development Act in the eighties, which said any major development that is in the national interest can be decided in court in Wellington, rather than at site. It meant that all the local activists were bankrupted by having to go to Wellington to protest, and most of them just dropped out because it’s too expensive. New Zealand’s conception of being a small underdog means we think we will fall behind the rest of the world unless we take a national development perspective.

Local expressions of environmental interest need to flourish for many Māori interests in the environment to be realised. It’s when the local gets enabled, that we’ll be in a position to more honourably and effectively deal with Māori environmental claims.