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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
RECOGNISING PAPATŪĀNUKU
An analysis of tikanga Māori as a source of environmental law in the era of the climate crisis
Elizabeth Matuanui Fitchett
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Ōtākou
October 2023
Acknowledgements
To my supervisor, Professor Jacinta Ruru, thank you for your feedback, guidance and ever-present enthusiasm. Thank you for first sparking my interest in tikanga in LAWS101, for your quick responses with insightful and helpful comments, and for putting up with my crazy rush to complete this dissertation.
Thank you to my friends and classmates, thank you for your encouragement and kind words, for sharing your lecture notes with me when needed, and for always listening to my rants.
Thank you to my older sister, Caitlin, who has always been my biggest support. Thank you for being a role model, a mentor, a career advisor, and a friend. My academic successes have to belong to you as well.
Thank you to my parents, for ensuring that there are always ice cubes in the freezer for my morning iced coffee!
And thank you to my dog, Tommy.
Table of Contents
I Introduction
Ko te kāhui mauka, tū tonu, tū tonu, ko te kāhui takata karo noa, karo noa ka haere.The people will perish but the mountains shall remain Ngāi Tahu whakatauki.1
Our lives are fleeting, especially when compared to the mountains and other enduring entities of the natural world. But the permeance of the mountains can no longer be assumed. Around the globe, a multiplicity of ecosystems face collapse due to human-induced climate change, which also threatens the lives and livelihoods of many communities.
These crises challenge the suitability of existing New Zealand environmental law. This dissertation considers what a tikanga-informed response to these challenges might involve. I propose that placing Papatūānuku (Mother Earth) at the heart of legal change is one way of doing this. To this end, I consider who Papatūānuku is within tikanga, and how she is currently represented in New Zealand law. I conclude with some remarks on the ways in which New Zealand law might evolve to better incorporate these principles in the future.
Over the last two centuries, human activity has dramatically increased the amount of heat-trapping gas that is released into the atmosphere, resulting in rapid warming of the earth. In 2017, the Intergovernmental Panel on Climate Change determined that human-induced warming reached 1°C above pre-industrial levels.2 If warming is not kept below 1.5°C, the earth is likely to be pushed over various tipping points. If triggered, tipping points will lead to irreversible and severe changes in the climate system. The impacts will rapidly cascade through human and environmental systems, leading
1 Recorded in: Kahu Te Whaiti “Understanding Aoraki” 54 Te Karaka (online ed, 2012) at 12 <www.ngaitahu.iwi.nz>.
2 Intergovernmental Panel on Climate Change Climate Change 2022: Impacts, adaptation and vulnerability: Summary for Policymakers (Cambridge University Press, Cambridge, 2022) at 1-6.
to severe and likely irreversible effects.3 Climate Action Tracker is an independent scientific project that tracks and measures government climate action against the globally agreed Paris Agreement goal of holding warming well below 2°C and pursuing efforts to limit warming to 1.5°C. It assessed New Zealand’s measures as of 7th March 2023 to be “highly insufficient” and “not at all consistent with limiting warming to 1.5°C.”4 According to Climate Action Tracker, if all countries were to follow New Zealand’s approach, warming could reach over 3°C and up to 4°C.
This warming has already had, and will continue to have, enormous effects on Aotearoa’s environment and people. For one, sea levels are rising, which will directly affect around two thirds of New Zealanders who live within 5km of the coastline. Sea levels in Aotearoa New Zealand have on average risen by 17cm in the last century. According to the Royal Society of New Zealand, an additional 30cm is “virtually certain” during this century, with that rise potentially exceeding 1m. A 30cm rise would mean that the current ‘1 in 100 year’ extreme sea level event would be expected to occur once every year in many coastal regions.5 Māori communities are likely to be disproportionately affected, in part because of the physical location of important infrastructure, such as marae and urupa on vulnerable low-lying, exposed, erosion-prone coastal lands.6 Another concern is that nearby land, currently used for productive purposes, may be compromised through rising and/or salinized water tables.7
Glaciers are melting at unprecedented rates, changing the very nature of our mountain ecosystems.8 New Zealand has experienced a significant loss of ice mass over the past forty years (about 35%)9, as well as uneven and unusual advances of glaciers which may be a result of changing patterns of precipitation.10 Overall, the snow-line is retreating, which means, for example, that cold-loving
3 Organisation for Economic Co-operation and Development Climate Tipping Points: Insights for Effective Policy Action (OECD
Publishing, Paris, December 2022).
4 Climate Action Tracker “Country Summary: New Zealand” (7 March 2023) <www.climateactiontracker.org>.
5 Royal Society of New Zealand Climate Change Implications for New Zealand (April 2016) at 27.
6 Landcare Research Hu huringa āhuarangi, he huringa ao: a changing climate, a changing world (Ngā Pae o te Māramatanaga LC3948, Auckland, October 2021) at v-vii.
7 Royal Society of New Zealand, above n 5, at 29.
8 Intergovernmental Panel on Climate Change Climate change 2013: the physical science basis: summary for policymakers, technical summary and frequently asked questions (2013).
9 Greg Bodeker and others Aotearoa New Zealand climate change projections guidance: Interpreting the latest IPCC WG1 report findings.
Prepared for the Ministry for the Environment. (Ministry for the Environment CR 501, April 2022) at 26, 32.
10 Andrew N Mackintosh and others “Regional cooling caused recent New Zealand glacier advances in a period of global warming” (2017) 8(1) Nature Communications 14202.
species are having to migrate to higher altitudes, and flow into lakes and waterways fed by snow and glacier melt is unpredictable and erratic, which is having effects on the ecosystem much further downstream.11
Oceans are warming and acidifying. Work on the impacts of acidification in New Zealand waters, for example, has shown that pāua grow more slowly in acidic conditions and their shells show clear signs of being dissolved.12 Warming waters can result in more frequent algal blooms and/or changes in mahinga kai species.13 Some species, including pests, may thrive under the new conditions while others, particularly native flora and fauna, are diminishing.14
Everyday weather is affected in complex ways, causing disruptive and extreme weather events. Adverse weather events - floods, storms, droughts, and fires - will become more severe and more prevalent. This will lead to fewer frosts and more extreme weather events, for example heavier easterly rainfall, floods, and droughts.15 Horticultural productivity on Māori land blocks may particularly be affected as a result.16
These environmental harms in the climate change context will affect Māori well-being at every level – social, cultural, economic, and spiritual. A changing climate means a changing relationship between people and Papatūānuku. According to the authors of the 2021 Landcare Research Report He huringa āhuarangi, he huringa, by 2100 many aspects of Māori wellbeing are likely to be compromised: “Climate change not only threatens the tangible components of Māori well-being, but also the spiritual components and, most important, the well-being of future generations.”17
11 Andrew M. Lorrey and others “Southern Alps equilibrium line altitudes: four decades of observations show coherent
glacier–climate responses and a rising snowline trend” (2022) 68(272) Journal of Glaciology 1127.
12 Royal Society of New Zealand, above n 5, at 45.
13 Royal Society of New Zealand Human Health Impacts of Climate Change for New Zealand – Evidence Summary (October 2017) at 7.
14 At 4.
15 Intergovernmental Panel on Climate Change “Changes in Climate Extremes and Their Impacts on the Natural Physical Environment” in Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. A Special Report of Working Groups I and II of the Intergovernmental Panel on Climate Change (2012).
16 Royal Society of New Zealand, above n 5, at 5.
17 Landcare Research “Release of Te Ao Māori climate change report” (20 October 2021)
The need for transformational change has been identified in many areas at both the international level and domestic level. The International Panel on Climate Change, for example, places a particular emphasis on transformational change in the fundamental attributes of natural and human systems to enable people to prevent the worst climate impacts and adapt to the already inevitable changes.18
To address these complex environmental harms, including climate change, transformative and institutional change is needed. This requires a fundamental rethinking of the entire environmental system, including the overarching legislative framework that determines how the environment is defined, governed, related to, managed, and cared for in New Zealand.19 One way of doing this in the New Zealand context is to listen more intently to the Māori worldview, and The Treaty of Waitangi provides the stepping stones/bridge into this worldview.
Others are calling for this, too. For example, the Options Development Group (ODG), an independent review body of the Department of Conservation, considers that it is well time for change in the conservation sector. The current conservation system, they say, “has neither delivered biodiversity and conservation outcomes of the scale or scope required nor enabled an active and constructive partnership with tangata whenua under Te Tiriti...”20 What is required, according to the ODG, is engagement in a “wider dialogue about what conservation means for Aotearoa
New Zealand, a Pacific nation in the 21st century.”21
Similarly, the Ministry for the Environment in its 2023 Long-term Insights Briefing found that despite many recent measures and initiatives, given the pressures of climate change, population growth and consumption patterns, there is a significant risk the state of the land will continue to degrade.22
18 Intergovernmental Panel on Climate Change, above n 2.
Department of Conservation Biodiversity in Aotearoa an overview of state, trends and pressures (August 2020) at 119, 161.
19 Options Development Group Partial reviews of the Conservation General Policy and General Policy for National Parks regarding Te Tiriti o Waitangi / the Treaty of Waitangi Report (Wellington, Department of Conservation, 2022) at 5.
20 At 5.
21 At 5.
22 Ministry for the Environment Where to from here? How we ensure the future wellbeing of land and people: The Ministry for the Environment’s Longterm Insights Briefing 2023 (Ministry for the Environment ME 1681, February 2023) at 34;
Ministry for the Environment and Stats NZ Our land 2021: New Zealand’s Environmental Reporting Series (Ministry for the Environment and Stats NZ ME 1555, April 2021); United Nations Convention to Combat Desertification Global Land
Major transformational change is required to address environmental crises. This would involve an interdisciplinary and systems approach, focused on the wider environment and land as wholly interconnected, as well as with all facets of society.
Various sectors of environmental law have developed massively in recent years. For example, positive change has potentially been achieved by the replacement of the Resource Management Act 1991 (RMA) with the Natural and Built Environment Act 2023 (NBEA). In other areas, change is possibly on the horizon, for example with the Supreme Court currently considering a new tort of harm to the environment. And change has been achieved in other areas, for example legal personality of the environment in Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Taranaki Maunga will also soon join them. Jacinta Ruru describes legal personality of this land, river, and mountain as “a significant positive transformation for Aotearoa New Zealand’s environmental and constitutional laws.”23 These politically-inspired, reconciliatory legal arrangements reveal something more nuanced for environmental law. It is possible, according to Ruru, “to stand the stool of sustainability upon a floor and that a more sturdy framework for environmental law is more apparent when the floor accepts humans are part of, rather than, separate from land and water.”24 A sturdier floor still, I propose in this dissertation, will accept the entire raft of tikanga principles related to Papatūānuku.
The time for transformational change of environmental law in New Zealand is now. In various core sectors of environmental law, it has either been achieved, pursued, or called for. What is missing and required is an overarching holistic framework for change. This is the level at which change must occur. I consider the growing necessary role of tikanga and Papatūānuku in a transformed environmental law.
Outlook Second Edition: Land Restoration for Recovery and Resilience. (Bonn, United Nations Convention to Combat Desertification, 2022) at 2.
23 Jacinta Ruru “Indigenous Ancestors: Recognizing Legal Personality of Nature as a Reconciliation Strategy for Connective Sustainable Governance” in S. Atapattu, C. Gonzalez, and S. Seck (eds.) The Cambridge Handbook of Environmental Justice and Sustainable Development (Cambridge Universtiy Press, Cambridge, 2021) 183 at 183.
24 At 193.
The specific response of Aotearoa New Zealand environmental law to these challenges ought to be informed and underpinned by tikanga and Māori perspectives. In recent years, legislation has been making stronger commitments to upholding te Tiriti, and tikanga Māori has been recognised as a further source of law in this country. These are promising signs that Aotearoa is entering a “third law” stage: a stage of law that is a hybrid combination of Kupe’s law (first law) and English law (second law).25
What is clear from these signs is that Māori and Māori law are playing greater roles in New Zealand’s legal landscape. The response of environmental law to the various challenges it faces ought to be in line with this move towards greater recognition of Māori and Māori law - towards Aotearoa’s third law. This extends beyond just giving tangata whenua a merely participatory role, rather it requires enshrining tikanga and Māori values in law, which in turn requires further and more holistically incorporating a Māori understanding of the world into law.
This is a difficult task that must be done with care; it must be properly and authentically grounded in Te Ao Māori, it must give full effect to the rights of Māori owed to them under te Tiriti, and it must be able to respond to the complex and multifaceted environmental problems facing New Zealand.
If environmental law in Aotearoa New Zealand is to take tikanga and its Tiriti commitments seriously, developments must begin from a Māori conception of the world and environment. An essential and fundamental part of this worldview is the pūrākau of Papatūānuku and Ranginui (Sky Father) as personified, living entities. For Māori, Papatūānuku and Ranginui are the primordial parents from whom all life descends; they are the beginning of a web of relationship and connection amongst and between all living things. This story has both cosmological/ontological and legal dimensions; it both informs how Māori conceive of themselves and the universe, as well as revealing the essential principles and values of Māori environmental law. This is the subject of Chapter II of this dissertation. I ask: who is Papatūānuku within tikanga Māori? In doing so, I begin with the story of Papatūānuku, drawing out common elements from various iwi accounts, for each iwi tells a
25 Joseph Williams The Harkness Henry Lecture Lex Aotearoa: An heroic attempt to map the Maori dimension in
modern New Zealand law. [2013] WkoLawRw 2; (2014) 21 Wai L Rev 1 at 11-12.
slightly different version. Then, relying on the works of prominent Māori scholars, I outline the principles of Māori law within this story.
In Chapter III, I ask whether Papatūānuku, in all her legal significance within the Māori world, is seen, heard, and listened to in legislation. This chapter considers where and how the principles and practices of tikanga Māori in relation to the environment are recognised in the current legislative landscape of Aotearoa New Zealand. Chapter IV follows on from this and considers recognition of environmental tikanga in common law: the case of Smith v Fonterra Co-operative Group Limited is Aotearoa’s leading climate litigation case.26 Smith, an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for the Iwi Chairs Forum, is asking the Court to recognise tortious harm to the environment. The case is awaiting decision from the Supreme Court.27 The analysis in Chapters III and IV is purposefully high-level and broad so that the general status of tikanga and Papatūānuku in state environmental law can be seen.
In Chapter V, I consider what it would look like to represent Papatūānuku in New Zealand law. How should Papatūānuku be seen, heard, and listened to in law? The conclusion of this dissertation is that transformational change of environmental law is needed, particularly in the modern context of climate change. Representing Papatūānuku in law might be the next step. Infusing Aotearoa law with Te Ao Māori and moving towards legally valuing what Māori value (for example, Papatūānuku) would be a massive step towards according Māori more equal status in law and perhaps securing a more equal constitutional relationship with the Crown. Moreover, doing so would create a legal system that is capable of responding to the environmental challenges of the 21st Century.
26 Smith v Fonterra Co-operative Group Limited [2021] NZCA 552, [2022] 2 NZLR 284.
27 Smith v Fonterra Co-operative Group Limited [2022] NZSC 35.
II Who is Papatūānuku in Tikanga?
Papatūānuku is atua, tupuna and the land simultaneously: there is no sensible way of separating out the ways in which humans experience our relationship with her.
Ani Mikaere.28
The previous chapter outlined the scale and nature of environmental challenges that New Zealand law must respond to. This chapter considers how these challenges are understood from a Māori legal perspective. This is an inquiry in tikanga. A useful starting point for tikanga in the environmental sphere is with the pūrākau of the primordial parent Papatūānuku (Mother Earth). Māori understanding of the environment and natural world begins with her; all life and all things flow and descend from the primordial parents. This pūrākau of Papatūānuku informs legal principles and values of tikanga. Before an in-depth analysis of the tikanga relating to Papatūānuku and the environment, it will be helpful to briefly discuss tikanga more generally.
Tikanga Māori is a complete, interconnected, and coherent system of norms and principles that inform the right or correct way of acting in the Māori world in any given circumstance or context.29 It is a living, relational system that is driven by values and principles.30 Though it is often translated as Māori law, or Māori customary values, these translations tend to be too simplistic. Tikanga, the noun form of the word ‘tika’ meaning ‘right’ or ‘correct’, encompasses all the behaviours, practices, rules, customs, and protocols that are ‘correct’.31 Moko Mead describes it thus:32
28 Ani Mikaere Colonising Myths - Maori Realities : He Rukuruku Whakaaro (Huia Publishers, Wellington, 2013) at 179.
29 Hirini Moko Mead Tikanga Maori (Revised Edition): Living by Maori Values (Huia Publishers, Wellington, 2016) at 13-28.
30 ET Durie “Will the settlers settle? Cultural conciliation and law” [1996] OtaLawRw 1; (1996) 8 Otago LR 449 at 455.
31 Mead, above n 29, at 15.
32 Mead, above n 29, at 18.
Underpinning all activities that members of whānau, hapū and iwi engage in is an ethical system and a system of common law that we refer to as tikanga Māori. Judgements are made as to whether the people are mindful of the principle of tikanga and are following the rules that accord with tikanga. In simple terms, they are following the accepted rules of how certain actions should be done and what they are doing meets the standards of being tika (right) and pono (true to the culture and looking right). The common law aspect is emphasised by the fact that there were punishments for those individuals who did not follow the tikanga.
Tikanga is broader than law, yet it does encompass legal systems, processes, and principles.
The Maitake Mai Aotearoa report on constitutional arrangements in Aotearoa holds that it can be defined as both a law, as well as a discrete set of values: “As a practical law it influenced everything from the political organisation of iwi and hapū to the social interactions of individuals. As a set of values, it summed up what was important in the Māori world view – it is the ‘ought to be’ of Māori existence.”33 These two parts of tikanga are interrelated and mutually reinforce each other; it is hard (perhaps impossible) to separate the legal system from the values and principles. Thus, as a legal system, it informs and determines one’s rights, duties, obligations, powers, and privileges.
It is a legal system that is values and principles based. Unlike English law, which is found in statute books and rules, tikanga is found in a range of different sources including stories, and it must be understood in its proper context. Māori stories as legal texts help to make visible aspects of Māori law that can help to drive developments in the state legal system. The story of Papatūānuku and tikanga principles is an example of tikanga in action as a legal system.34
The Ani Mikaere quote that began this chapter talks of humans’ relationship with Papatūānuku, which is very telling of a Māori worldview. For Māori, the natural world is personified, and has spirit and mauri (lifeforce). Relationships with the natural world and Papatūānuku define who Māori are. This is why, for example, the way of asking “who am I?” is “ko wai au?”, which literally translates as “who are my waters?” For Māori, it is wai (waters), maunga (mountains), awa (rivers), moana (seas)
33 Iwi Leaders Forum Working Group on Constitutional Reform, The Report of Matike Mai Aotearoa – The Independent
Working Group on Constitutional Transformation (2016) at 41.
34 A.W. Reed, Ross Calman (ed) Reed Book of Maori Mythology (Reed Publishing, Auckland, 2004) at 2.
and whenua (lands) that define who a person is and their identity. This is also why, for example, the common translation of ‘tangata whenua’ as ‘people of the land’ is too simplistic and does not fully account for the connection between Māori and Papatūānuku. It does not recognise ‘whenua’ as meaning both ‘land’ and ‘placenta’.35 A more accurate translation might take ‘tangata whenua’ to mean people born of the placenta of Papatūānuku, of the land where their own placenta has been buried and where their ancestors have lived.
For Māori, the universe developed in three stages: Te Kore (the nothing, the void, chaos)36, Te Po (the night/darkness) and Te Ao Mārama (the natural world of light and life). These three stages are often thought of as an ongoing cycle of “conception, development within the womb, and birth"37 Life began to stir in Te Kore and from this came Papatūānuku and Ranginui. Māori Marsden likens this process to seed and plant growth in the womb of darkness: “It is here that the seed-stuff of the universe and all created things gestate. It is the womb from which all things proceed.”38
There is much variation among the different iwi accounts as to how Papatūānuku and Ranginui came to be. For example, “The Lore of the Whare-wānanga” records the Io tradition, wherein Io (sometimes called Io-matua-te-kore, or Io the parentless) is the supreme being who created all things39 and brought into being the first gods Ranginui and Papatūānuku, “the male and female principles out of which all things derived.”40 Other accounts tell of Papatūānuku arising from the darkness of Te Kore. Cleve Barlow describes it as night begatting Papatūānuku, the female
35 HW Williams A Dictionary of the Maori Language (Government Printer, Wellington, 1971) at 494.
Te Ahukaramū Charles Royal “Papatūānuku – the land - Whenua – the placenta” (24 Sep 2007) Te Ara - the Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/papatuanuku-the-land/page-4> Māori Marsden “The Natural World and Natural Resources: Māori Value Systems and Perspectives” in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of the Rev. Māori Marsden (The Estate of Rev. Māori Marsden, Otaki, 2003) at 45.
36 Cleve Barlow Tikanga whakaaro: key concepts in Māori culture (Oxford University Press, Auckland, 1994) at 55; Māori Marsden “God, Man and Universe: A Māori View” in Te Ahukaramū Charles Royal (ed) The Woven Universe: Selected Writings of the Rev. Māori Marsden (The Estate of Rev. Māori Marsden, Otaki, 2003) at 16-21.
37 Ani Mikaere The Balance Destroyed (Te Wānanga o Raukawa, Otaki, 2017).
38 Marsden, above n 36, at 20.
39 H.T. Whatahoro and S. Percy Smith The Lore of the Wahre-wānanga; or Teachings of the Māori College On Religion, Cosmogony, and History (Cambridge Univsersity Press, Cambridge, 2011) at 38.
See also: Elsdon Best Māori Religion and Mythology Part 1 (P.D. Hasselberg Government Printer, Wellington, 1982).
40 Marsden, above n 36, at 17.
element.41 And A. W. Reed describes how “the earth was taking shape within the womb of darkness, and a formless sky pressed heavily upon it.”42
What is common among most iwi is that within Te Pō, Ranginui and Papatūānuku came to be, laying together in a tight embrace. And from their union, ngā atua, the gods, were born. These are the gods from which all life flows.43
Iwi accounts vary as to how Papatūānuku and Ranginui came together. For example, Ngāi Tahu tradition tells of how Ranginui came to lie atop Papatūānuku. Before Raki [South Island dialectal spelling for Rangi] wedded Papatūānuku, she had a first husband, Takaroa [Tangaroa].44 Whilst Takaroa was away burying the placenta from their child, Papatūānuku and Raki had several children. Takaroa returned to find Papatūānuku, together with Raki, and as a result, a fight broke out between Raki and Takaroa. Takaroa stabbed Raki.45 Takaroa then left Raki, weak and injured from battle, to lie atop Papatūānuku.46
Other versions tell a simpler story. Marsden, for example, tells of Ranginui, looking down and seeing the spirit of Papatūānuku, descending to cohabit with her.47
The union of Papatūānuku and Ranginui produced many children, who are the gods. The specific number, order, and identity of their children varies across iwi, but most accounts record upwards of 70 children. Cleve Barlow notes that of the 70 gods, seven are particularly well-known: Tangaroa (god of sea)48, Tāne (god of the forests), Tāwhirimātea (god of wind and elements), Rongomatāne (god of kumara and cultivated crops), Haumia (god of the fernroot and wild fruits and herbs),
41 Barlow, above n 36, at 94.
42 Reed, above n 34, at 3.
43 Barlow, above n 36, at 10-12.
44 In Ngāi Tahu whakapapa, as well as other iwi whakapapa, Raki had several wives before Papatūānuku. Various versions record 6 wives of Raki, though there is disagreement as to the number and order of those wives. See Rawiri Te Maire Tau Ngā Pikitūroa o Ngāi Tahu The Oral Traditions of Ngāi Tahu (University of Otago Press, Dunedin, 2003) at 56. 45 Matiaha Tiramorehu, and Manu Van Ballekom, Ray Harlow (eds) Te Waiatatanga mai o te Atua: South Island traditions (University Dept. of Māori University of Canterbury, Christchurch, 1987) at 25.
46 Rawiri Te Maire Tau, above n 44 at 51. Tiramorehu, above n 45, at 25.
47 Marsden, above n 36 at 17.
48 Note that while Barlow is recording Tangaroa as the child of Ranginui and Papatūānuku, the Ngāi Tahu version outlined above tells of Takaroa/Tangaroa being the first husband of Papatūānuku.
Tūmatauenga (god of man and war), and Whiro (god of evil, disease, and pestilence).49 Hiroa calls the first six of these atua the “departmental gods”, who were “important enough to receive divine authority over certain departments of life.”50
The atua, trapped in between the embrace of their parents were unable to live in such a dark and enclosed space. Ranginui and Papatūānuku had to be separated. Accounts differ as to the motivations for the separation. According to the Ngāi Tahu tradition recorded by Matiaha Tiramōrehu, Raki, injured atop Papatūānuku after his fight with Takaroa, asked Tāne and his other sons to kill Raki so that they may live. “Your plan is right” Tāne said, “that you should be killed by us so that the world can develop to be the world.”51 Other accounts record a great debate amongst the gods about what to do. In this debate, it was suggested that their parents should be killed so that the gods may be free. Tāne, opposed to the killing, proposed separating them instead.52
Tāne, with the help of his brothers, is generally credited with the separation of Ranginui and Papatūānuku. Paia is also often told of as playing a key role, his strength and karakia being crucial in the separation.53 Tāne, with his back against Papatūānuku and his feet against Ranginui, pushed them apart. Four pou were erected to prop Ranginui up, keeping him separate from Papatūānuku.54
Ranginui and Papatūānuku were separated, and Te Ao Mārama, the light of day, entered the world. However, Ranginui and Papatūānuku were distraught at being separated. Ranginui’s tears showered
49 Barlow, above n 36, at 10-11; Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 796, 2011) at
24 records a similar telling by Wiremu Pākehā, a renowned tohunga of Ngāti Awa.
50 Te Rangi Hiroa The coming of the Māori (Whitcombe and Tombs, Wellington, 1949) at 454; Marsden, above n 35, at 44- 45.
Note that some iwi disagree as to who Takaroa/Tangaroa is. Some record him as the uncle of Raki/Rangi, some as a contemporary of Rangi, but most record him as the son of Ranginui and Papatūānuku. Reed, above n 34, at 8; and Marsden, above n 36, at 16.
51 Tiramorehu, above n 45, at 25.
52 Agathe Thornton The Birth of the Universe Te whānautanga o te Ao tukupū: Māori oral cosmogony from the Wairarapa (Reed Publishing, Auckland, 2004) at 86.
53 Best, above n 39, at 83-85.
54 Tiramōrehu names two of the pou Toko-mauka [maunga] (Mountain-prop) and Rua-tipua (Support-spirit), see: Tiramōrehu, above n 45, at 26. Other accounts record the four pou as the four winds, see: Witi Ihimaera Navigating the stars: Māori creation myths (Penguin Random House New Zealand, Auckland, 2020) at 57.
Papatūānuku in rain, and she in turn covered him in mists.55 Tāne, seeing his parents upset, naked, and apart, cloaked them: Ranginui in stars, and Papatūānuku in trees and forests. Many accounts go on to tell the story of Tāne and Hineahuone, the first woman who was created by Tāne from the earth of Papatūānuku.56 Many Māori trace their ancestry back to this story, and conceive of themselves as descendants of Tāne, and ultimately, Papatūānuku and Ranginui.
The story of Papatūānuku illustrates tikanga that is central to the operation of Māori society and informs understandings and practices relating to the natural world. The remainder of this chapter asks: how does this story of Te Ao Mārama inform and translate into principles and practices of tikanga Māori? I draw particularly on the work of Māori legal jurists Durie and Williams, as well as the Waitangi Tribunal57 to identify seven tikanga principles: whanaungatanga and whakapapa (kinship and genealogy); indivisibility of the natural world; kaitiakitanga (guardianship); utu (reciprocity); mauri (life force) and mana (authority). These are some of the core principles of tikanga and Māori law; they inform one’s rights, obligations, and duties, as well as more generally the ‘correct’ way to act.
For Māori, whanaungatanga (kinship) and whakapapa (genealogy) describe both the descent from Papatūānuku and connection to all parts of the natural world. Ani Mikaere describes this descent as “everything in the natural world, ourselves included” sharing a common ancestry.58 And Professor Margaret Mutu, describing the kinship relationship, states that “...because man and nature are descended from a common ancestor, they are one and the same.”59 Whanaungatanga is a web of connection with both linear (descent or whakapapa) dimensions as well as lateral (kinship)
55 Waitangi Tribunal, above n 46, at 25; Tiramorehu, above n 45, at 26.
56 Ministry of Justice He Hīnātore ki te Ao Māori: A glimpse into the Māori world (March 2001) at 14.
See also: Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity — Te Taumata Tuarua (Wai 262, 2011) vol 1 at 17.
57 ET Durie “Custom Law” (Waitangi Tribunal discussion paper, 1994, republished by Treaty of Waitangi Research Unit, May 2013) at 4–5; Williams, above n 25.
58 Mikaere, above n 28, at 176.
59 Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 10.
dimensions. Whanaungatanga is therefore a metaphysical framework that allows Māori to place themselves within the world,60 which acknowledges the entanglement of people, places and practices. Apirana Mahuika of Ngāti Porou described whakapapa as the “heart and core of all Māori institutions from Creation to what is now iwi.”61 The Waitangi Tribunal describes it as a “a revolving door between the human, physical, and spiritual realms”62
As legal concepts, whanaungatanga and whakapapa detail the standards and norms for maintaining proper relationships amongst and between Māori and all things.63 Through whakapapa that reaches back to Papatūānuku and Ranginui, Māori are an integral part of the environment and the natural.64 This connection and relationship is the source of the rights and obligations of Māori in relation to the natural world.
The Waitangi Tribunal Muriwhenua Land Report is an example of whakapapa as a legal concept in action. The Report considered whether certain land transactions between the Crown and Māori amounted to permanent land alienation or not. Māori contended that they had a distinctive tenure system and a substantial culture so “antithetical” to land sales that sales could not have been in their minds.65 Whakapapa informed the relationship that Māori had with the land which meant that the land transactions were not, and could never have been, sales.66 The Tribunal found that Māori saw themselves “not as owning the land but as being owned by it. They were born out of it, for the land was Papatūānuku, the mother earth who conceived the ancestors of the Māori people.”67 Justice Sir Joseph Williams, who then acted as claimant counsel before the Tribunal, recalls the evidence of Ngāpuhi and Muriwhenua leader, Rima Edwards. According to Williams, Edwards recounted that the connection between the whenua and Panakareao (the Chief of Muriwhenua at the time of the transactions) “was as tangible as the umbilical cord of a child.”68
60 Carwyn Jones “Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand” (2021) 1(2)
Legalities 162 at 167.
61 Apirana T Mahuika “Whakapapa is the Heart.” in K.S. Coates and P.G. McHugh (eds) Kokiri Ngatahi/Living Relationships: The Treaty of Waitangi in the New Millennium (Victoria University Press, Wellington, 1998) 215 at 219. 62 Waitangi Tribunal, above n 56, at 13.
63 See for example: Ministry of Justice, above n 56.
64 Waitangi Tribunal, above n 49, at 28.
65 Waitangi Tribunal Muriwhenua Land Report (Wai 45, 1997) at 23.
66 At 24.
67 At 23.
68 Joseph Williams “Ka kuhu au kit e ture, hei matua mō te pani” (2018) Māori LR 3 at 7-10.
Related to whakapapa is the concept of indivisibility and oneness. There are at least two aspects to this. The first is that the natural world cannot be divided up into composite parts: waters, land, sea and sky cannot be separated and must be understood as an interconnected whole. The second is that the spiritual and physical world cannot be separated. Māori do not share the Western concept of animate and inanimate in the natural world.
For Māori, all things have mauri (life-force) and wairua (spirit). In the Waitangi Tribunal report on the Foreshore and Seabed Policy, claimant counsel Ms Sykes described how “energies may change where Papatuanuku meets Tangaroa, but Papatuanuku still exists throughout.”69 Water, land, foreshore and seabed cannot be separated into distinct, un-connected parts, and nor can they be separated as physical entities from their spiritual.
Kaitiakitanga (‘kai’ meaning a role or person; ‘tiaki’ meaning to care, guard, or watch over; ‘tanga’ a suffix used to make verbs into nouns), involves the ethic of guardianship and trusteeship. In the environmental sphere, kaitiakitanga flows from, and must be understood in connection with, the relational framework of whanaungatanga and whakapapa, for no right or obligation in resources can be sustained without that right-holder maintaining an ongoing relationship with the resource.70 Kaitiakitanga is about maintenance of good relationships, not only amongst living people but between people and the atua, the natural environment, and between current, past, and future generations. These relationships are key considerations for living kaitiaki when determining the correct course of action.71
Carmen Kirkwood summarises kaitiakitanga and its context succinctly: “One’s whanaunga [kin] and tupuna [ancestor] include the plants and animals, rocks and trees. We are all descended from
69 Waitangi Tribunal, above n 59, at 4.
70 Waitangi Tribunal, above n 56, vol 1 at 105.
71 Merata Kawharu “Kaitiakitanga: a Maori anthropological perspective of the Maori socio-environmental ethic of resource management” (2000) 109(4) Journal of the Polynesian Society 349 at 352.
Papatūānuku; she is our kaitiaki [guardian] and we are in turn hers”72 Kaitiakitanga describes the legal obligation that any right over a resource or person carries a “reciprocal obligation to care for his, her or its physical and spiritual welfare. Kaitiakitanga is then a natural (perhaps even inevitable) off-shoot of whanaungatanga.”73 No relationship, no right.
Kaitiakitanga is not a principle of general environmental guardianship that can simply apply in any and all contexts: it “cannot be accurately translated into an equivalent Pakeha concept, as its origin is derived from a spiritual rather than an English jurisprudential background.”74 For this reason, criticism has been levelled at various non-Māori legal instruments and initiatives that co-opt and transplant Māori legal terms and principles like kaitiakitanga without their full meaning or context.75
Kaitiaki obligations require that relationships with atua and the natural world are balanced and that whanaungatanga is maintained. This invokes the principle of utu, which is a generally benign and neutral concept of reciprocity, satisfaction, equivalence, or response.76 In the past, it has been mistranslated as being only a violent concept of revenge.77 Utu and kaitiakitanga contain both pragmatic and philosophical dimensions. Pragmatically, they require the preservation and sustaining of resources for the continued benefit and maintenance of both current and future generations.Philosophically, they reflect the whakapapa relationships between Māori (present generations, tīpuna, and uri), the atua, and Papatūānuku and Ranginui.
Kaitiakitanga creates obligations in relation to the natural world, and utu requires the fulfilment of those obligations to restore balance and maintain whanaungatanga. Mead conceives of it as being the proper response to a take or hara (claim or harm), which brings about a state of ea.78 Utu reflects the
72 Carmen Kirkwood and others “Kaitiakitanga: Māori perspectives on conservation” 2 Pacific Conservation Biology 7 at 13.
73 Williams, above n 25, at 4.
74 Selwyn Hayes “Defining Kaitiakitanga and the Resource Management Act 1991” (1998) 8 Auckland U L Rev 893 at 893.
75 See, for example: Kawharu, above n 71, at 351; Tom McRae “Is Prince Harry's Travalyst campaign cultural appreciation or appropriation?” Newshub (online ed, 10 May 2022).
76 Mead, above n 29, at 34.
77 At 34.
78 Marsden, above n 55, at 33-34, 133-134.
constant striving for balance within the Māori world, and places particular emphasis on restorative justice as a response to harm.
Māori Marsden elaborates on the reciprocal relationship between Māori and Papatūānuku:79
Papatuanuku’s (Earth Mother) children live and function in a symbiotic relationship. From unicellular through to more complex multicellular organisms each species depends upon other species as well as its own, to provide the basic biological needs for existence. The different species contribute to the welfare of other species and together they help to sustain the biological functions of their primaeval mother, herself a living organism... She nourishes them, they nourish her.
Importantly, principles like utu and kaitiakitanga do not prevent using and benefiting from natural resources. Rather, as in this symbiotic, reciprocal relationship that Marsden describes, Māori specifically have the right to utilise the resources of Papatūānuku in exchange for protecting and sustaining those same resources; and by extension, Papatūānuku herself. Utu involves the maintenance of harmony where anything that is given or taken would require something to be returned.80
All living things descending from Ranginui and Papatūānuku, possess mauri (life force) which is protected by a kaitiaki or atua. Any neglect or harm done to mauri is a breach of tapu (sacredness). Tapu is everywhere in Te Ao Mārama: in people, places, buildings, things, words, and in all tikanga.81
The preservation of mauri entails rules and obligations, which maintain balance in the natural world. Tapu can require permanent bans and prohibitions, like rāhui, which is a temporary form of prohibition. A rāhui is often used to preserve and maintain the mauri of the natural world, including birds, fish or any natural element. Rāhui recognises that it is necessary to balance human need with the preservation of the resource and the protection of its mauri.
79 At 45.
80 Durie, above n 30, at 455.
81 Mead, above n 29, at 33, 49-50, 153-163.
A common example of tapu and rāhui as legal concepts is when a person drowns in a river or at sea. The area where the drowning occurred becomes tapu as it is immediately affected by the tapu of death. A rāhui is placed on the locality for a specified time and then lifted.82 Tapu and rāhui often connect to kaitiakitanga in the sense that a kaitiaki is required to protect tapu, using the mechanism of rāhui. in order to uphold mauri.83
Mana is a complex term that has multiple meanings including authority, control, influence, prestige and power. 84 Williams describes it as the source of rights and obligations of leadership. Mana is derived from whakapapa. It is inherited from the atua, providing a person with an unbroken link to their past, as well as connection to their future.85 As a political and constitutional concept, Professor Margaret Mutu describes mana as “power and authority that is endowed by the gods to human beings to enable them to lead.”86 And Marsden notes how it enhances a person’s prestige, which in turn gives him “authority to lead, initiate, organise and regulate corporate communal expeditions and activities; to make decisions regarding social and political matters”87
Barlow, translating mana as ‘power’ or ‘authority’, identifies four aspects: mana atua (mana of the atua, passed on to all whom they created); mana tupuna (mana handed down through whakapapa); mana tangata (mana acquired by an individual based on their ability, skills, and knowledge); and mana whenua (mana associated with possession of lands).88 Mana must always have a source (whether in atua, tupuna, tangnata or whenua).
Having and maintaining mana is dependent on fulfilling responsibilities in relation to the source of that mana. For example, mana whenua, referring to authority or power in relation to lands, reflects
82 At 33.
83 Kawharu, above n 71.
84 Mead, above n 29, at 32; Williams, above n 25, at 3.
85 Mead, above n 29, at 32.
86 Margaret Mutu “Constitutional intentions: The Treaty of Waitangi texts” in M Mulholland and V Tawhai (eds) Weeping water:. The Treaty of Waitangi and constitutional change (Hui Publishers, Wellington, 2010) at 26.
87 Marsden, above n 35, at 40.
88 Barlow, above n 36, at 61-62. This is by no means a complete list. Other aspects, for example, include mana wāhine and mana moana.
both a right to possess and use lands, as well as a requirement of kaitiaki responsibilities to sustain and care for the mauri of the whenua. The Waitangi Tribunal considers the relationship between mana and kaitiakitanga: “Those who have mana must exercise it in accordance with the values of kaitiakitanga – to act unselfishly, with right mind and heart, and with proper procedure. Mana and kaitiakitanga go together as right and responsibility, and that kaitiakitanga responsibility can be understood not only as a cultural principle but as a system of law.”89
Mana and rangatiratanga (terminology used in the Treaty meaning ‘sovereignty’) are inextricably linked.90 The Waitangi Tribunal Report on the Manukau Claim elaborates on this:91
In Williams Dictionary the first meaning given to “mana” is “authority of control” but even the examples cited for its use in that context incorporate the subsequent given meanings, “influence, prestige, power and psychic force”. As we see it, “rangatiratanga” denotes “authority”. “Mana” denotes the same thing but personalises the authority and ties it to status and dignity. The difficulty is that in Māori thinking “rangatiratanga” and “mana” are inseparable—you cannot have one without the other—but in European thinking “authority” is an impersonal concept and can stand apart from the personality to the lawmaker. The result is that “mana” is often left untranslated.
Mutu similarly notes that each whānau or hapū is kaitiaki for the area over which they hold mana whenua, that is, their ancestral lands and seas. Should they fail to carry out their kaitiakitanga duties adequately, not only will mana be removed, but harm will come to the members of the whanau or hapū. Thus, a whānau or hapū who still hold mana in a particular area take their kaitiaki responsibilities very seriously.92
Mana is intricately linked to the maintenance and enhancement of relationships, both among people and with the natural world. Virtually every aspect of an activity, from governance to resource management, is intertwined with the preservation and elevation of mana.
89 Waitangi Tribunal, above n 56, at 53.
90 Waitangi Tribunal Report on the Motunui Waitara Claim (Wai 6, 1983) at 50-53; Mead, above n 29, at 228.
91 Waitangi Tribunal Report on the Manukau Claim (Wai 8, 1985) at 67.
92 Waitangi Tribunal, above 59, at 8.
This chapter, through the story of Papatūānuku, has illustrated the tikanga principles relating to the natural world. While there is no exhaustive or authoritative list of the key values of tikanga Māori, the aforementioned principles are commonly acknowledged as being central to systems of Māori law.
Sourced in Māori cosmology and particularly in the story of Papatūānuku, Māori have a spiritual connection to nature and the environment wherein the world is perceived as a unified, interconnected whole with mauri and mana; both people, nature, and all things exist together in a web of whakapapa with both linear and lateral dimension, sharing the same ancestral source, and linked by whanaungatanga.93 Māori are descendants of the land and of Papatūānuku herself: being tangata whenua means to be born of the womb of Papatūānuku.94 This whakapapa and whanaungatanga relationship between Māori, Papatūānuku and the natural world is the source of identity, and legal obligations and rights, particularly kaitiaki obligations. These rights, obligations, and relationships must be managed appropriately. This involves a balanced and reciprocal relationship between Papatūānuku, the atua, Māori and all living things.
Andrea Tunks observes that human-induced environmental harms and climate change upsets the balance achieved by the offspring of Papatūānuku and Ranginui, and the web of whakapapa that binds them, and us, together: 95
The presence of polluting substances changes the roles and dynamics amongst the atmospheric entities. Each descendant of Rangi and Papatuanuku is forced to absorb the excess emission of pollutants. This impacts upon their abilities to fulfil their functions within the overall web.
The following quote from Ngāi Tahu’s tribal vision makes a similar point:96
93 In the matter of the Omnibus Plan Change ENV-2020-CHC-128, 11 February 2022 (statement of evidence of Rima
Edwards) at [33].
94 Williams, above n 35, at 494; Te Ahukaramū Charles Royal, above n 35; Marsden, above n 35, at 45.
95 Andrea Tunks “Tangata Whenua Ethics and Climate Change” (1997) 1 NZJEL 67 at 81.
96 Ngāi Tahu Ngāi Tahu 2025 (March 2001) at 8 <www.ngaitahu.iwi.nz>.
Our natural environment – whenua, waters, coasts, oceans, flora and fauna – and how we engage with it, is crucial to our identity, our sense of unique culture and our ongoing ability to keep our tikanga and mahinga kai practices alive. It includes our commemoration of the places our tūpuna moved through in Te Waipounamu, and the particular mahinga kai resources and practices we used to maintain our ahi kā anchoring our whakapapa to the landscape. Wherever we are in the world, these things give us our tūrangawaewae. They form our home and give us a place to return and mihi to and provide us with what we need to be sustained as Ngāi Tahu.
Derived from this Māori world view, Māori Marsden suggests people involved in environmental management should be guided by three basic principles: humankind’s contribution is to enhance and maintain the life support systems of Papatūānuku; people should treat Papatūānuku with love and respect in recognition of her life-supporting function, her role in the creation of the natural world, and her place in our own whakapapa; and we do not own Papatūānuku, but are recipients, and therefore stewards, of the natural environment.97
97 Marsden, above n 35, at 46; Waitangi Tribunal, above n 56, at 105-106.
III Is Papatūānuku Seen, Heard, and Listened to in Legislation?
The Earth, Papatūānuku, will do what she has always done and seek to maintain her mauri.
However, humanity’s ongoing inclusion in her recalibration is now up for question. A global wide reversal of colonisation – by bringing tangata whenua back into balance – might just save us from being ejected back into the timeless embrace of the universe, the great ātea of Ranginui.
Paul Tapsell.98
Are the core principles of tikanga Māori, outlined in the previous chapter, followed and applied in the environmental law of Aotearoa New Zealand, and if so, how? This question guides the inquiry of the present chapter.
The current legislative framework for environmental management is principally contained in the Environment Act 1986, the Conservation Act 1987, and the Resource Management Act 1991. I also consider the Natural and Built Environment Act 2023, which replaces the RMA. I also consider how legal personality has been used in legislation – Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 – as a mechanism to creatively acknowledge Māori connection with the natural world and resolve Treaty settlement claims. I finally consider climate specific legislation - The Climate Change Response Act 2002.
This chapter purposefully and deliberately takes a high-level, broad approach in order to consider what these Acts reveal more broadly about the legal landscape of Aotearoa New Zealand and how it is developing to recognise tikanga and Papatūānuku. My ultimate aim in this chapter is to examine the evolution of environmental law since the 1980’s, showing the general progression of the incorporation of tikanga principles. Ultimately, I ask: is Papatūānuku seen, heard, and listened to in legislation?
98 Paul Tapsell Kāinga People, Land, Belonging (Bridget Williams Books, Wellington, 2021) at 176.
Current environmental legislation tends to regard people as having absolute authority over the land. In this kind of relationship, people have rights to control and exploit natural resources, with little regard to maintaining balance and reciprocity. Māori scholars have argued that this imbalance in the relationship between people and nature contributes to current environmental harms: biodiversity loss, pollution of lands and waterways, and human-induced climate change.
Moreover, this places power and decision-making authority in the hands of government and property owners.99 This leaves little room for the interests of tangata whenua, who, having limited opportunity to exercise kaitiakitanga, and are often confined to being consultees or objectors.100 The Environment Act 1986 and the Conservation Act 1987 are examples of this imbalanced relationship. These are both important pieces of environmental legislation in Aotearoa New Zealand, and respectively established the Ministry for the Environment and the Department of Conservation.
The Environment Act 1986 established the Ministry for the Environment and the Parliamentary Commissioner for the Environment.101 The Ministry administers a number of environmental statutes, including the RMA.102 The Environment Act is to ensure that, in the management of natural and physical resources, full and balanced account is taken of: “the intrinsic values of ecosystems; all values which are placed by individuals and groups on the quality of the environment; the principles of the Treaty of Waitangi; the sustainability of natural and physical resources; and the needs of future generations.”103
The Conservation Act 1987 is an Act to promote the conservation of New Zealand’s natural and historic resources.104 It establishes the Department of Conservation, as well as the New Zealand Conservation Authority and conservation boards, which are responsible for devising and
99 Waitangi Tribunal, above n 56, at 87, 110, 115, 245.
100 At 110, 115.
101 Environment Act 1986, s 28. Conservation Act 1987, s 5.
102 Other Acts administered by the Ministry for the Environment can be found on its website:
<https://environment.govt.nz/acts-and-regulations/acts/>.
103 Environment Act 1986, long title.
104 Conservation Act 1987, long title.
administering a policy and planning framework for conservation lands and resources, and for the day-to-day management and administration of those lands and resources.105
References to the "principles" of the Treaty of Waitangi are included in both the Environment Act 1986 and Conservation Act 1987; in s 4 of the Conservation Act and the long title of the Environment Act. Despite the Treaty incorporating provisions, a major criticism of these Acts is that they uphold Western, anthro-centric preservation and protection ethics in relation to the natural environment.
The Conservation Act, which lacks an explicitly stated purpose is described in the long title as “[a]n Act to promote the conservation of New Zealand’s natural and historic resources, and for the purpose to establish a Department of Conservation.”106 “Conservation” is defined as the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.107 This definition of ‘conservation’ reflects a western ‘perfect conservationism’, where nature has an inherent right to exist free from human interference.108 This kind of conservationism was born out of a drive to protect the natural environment from exploitation and conversion to agriculture.
The criticism is that this definition does not properly recognise the intrinsic whakapapa relationship of kinship and reciprocity between Māori and Papatūānuku that is governed by rights and obligations. This kind of conservationism fails to uphold the rights and “aspirational goals of tangata whenua to use NZ’s native biodiversity once populations reach safe levels.”109 The relationship between Māori and Papatūānuku is a reciprocal one with the overall aim of balance, and therefore use of the natural environment is essential: “Māori are, in effect, being asked to engage with and contribute to a national conservation system that often conflicts with their constitutional right to
105 Conservation Act 1987, pt 2A.
106 Conservation Act 1987, long title.
107 Conservation Act 1987, s 2.
108 Phil O’B. Lyver and others “Building biocultural approaches into Aotearoa – New Zealand’s conservation future” (2019) 49 Journal of the Royal Society of New Zealand 394, at 395.
109 At 396.
engage with the environment on their own terms which was guaranteed under the Treaty of Waitangi.”110
Kaitiakitanga, reciprocity between humans and the environment, and sustainable use is not provided for at all under these Acts. And while s 4 of the Conservation Act contains powerful Treaty provisions (s 4 which was interpreted by the Supreme Court in Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation to be a powerful provision that creates a positive obligation requiring more than mere procedural steps; substantive outcomes for Māori may be required111) in practice, outside of Treaty settlements “tangata whenua have had very limited visibility, and little material input and influence within the conservation system.”112 Crown ownership and control of taonga, waterways, conservation lands, and species left little room for tikanga and mātauranga. The result being that “tangata whenua do not see themselves as part of the conservation system”113 In preventing and controlling sustainable customary use, the Conservation Act dictated that whanaungatanga relationships, kaitiakitanga obligations, and utu could not be upheld.
In response to these concerns, in 2020 the Department of Conservation established an Options Development Group (ODG) to assess the Department’s compliance with Tiriti obligations. The ODG began by recognising that tangata whenua have a deep and enduring relationship and understanding of the natural world and te taiao that extends back to Papatūānuku wherein the “identity, culture and mātauranga of tangata whenua are intimately linked to the natural environment of Aotearoa New Zealand.114
110 At 396.
111 Ngaii Tai Ki Tamaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 at [52].
112 New Zealand’s Biological Heritage National Science Challenge, Adaptive Governance and Policy Working Group Me Tu a Uru An Action Plan for a Flourishing and Abundant Environment (2023) at 35. A more global perspective on indigenous participation in conservation is given in: Lara Domínguez and Colin Luoma “Decolonising Conservation Policy: How Colonial Land and Conservation Ideologies Persist and Perpetuate Indigenous Injustices at the Expense of the Environment” (2020) 9 Land 65.
113 Options Development Group, above n 19, at 32.
114 At 19.
The ODG recommended transformational reform of the conservation system based on “a unique ethic and practice of conservation that is apt and effective for Aotearoa New Zealand.”115 This reform, the Group recommended, should honour Te Tiriti and provide for the meaningful exercise of rangatiratanga and kaitiakitanga by tangata whenua to ensure that Papatūānuku thrives. As part of this reform, they recommend that by 2026 conservation legislation be reformed to include a purpose section that “embodies a shared vision for thriving indigenous biodiversity and the natural environment, which recognises and protects the mauri and the interconnectedness of all the elements of te taiao and their health and wellbeing; upholds the intrinsic whakapapa relationship between tangata whenua and te taiao; and ensures and enables the sustainable use and enjoyment of the natural environment for the wellbeing of future generations.”116 In an exciting development, the Department has adopted ‘thriving Papatūānuku’ as an overarching purpose to conservation in Aotearoa.117
Despite these developments, there is still a long and complex path to moving away from the long- standing Western conservation approach. For example, some conservationists have criticised the management of Te Urewera under the governance structure established under the Te Urewera Act. They argue that the Te Urewera Act, which preserves “in perpetuity a legal identity and protected status for Te Urewera”118 and establishes Te Urewera Board to govern and act on behalf of Te Urewera,119 has ineffectively managed biodiversity in the area, leading to an increase in pests and a decrease in rare species such as the kōkako.120
Tūhoe rebut these allegations, saying that under-resourcing and lack of support makes their task difficult. Moreover, Tūhoe claim that they are patiently stripping away the western conservation ethic of DOC and legislation. Tūhoe claim that pest management and biodiversity protection must be part of a broader conversation on conservation, with the interests and concerns of iwi at the forefront. This involves fundamentally rethinking the entire management of Te Urewera.121 The
115 At 18.
116 At 68.
117 Department of Conservation “Our purpose and outcomes” <www.doc.govt.nz>.
118 Te Urewera Act 2014, s 4.
119 Te Urewera Act 2014, ss 16-18.
120 For example: Tony Wall “Pest control efforts in Te Urewera have changed - some conservationists worry about the fate of native species” Stuff (online ed, New Zealand, 01 Apr 2022) <www.stuff.co.nz >.
121 Ngāi Tūhoe Te Kawa o Te Urewera Management Report (September 2017).
concern is that where iwi do have input and influence in the conservation system, under-resourcing and lack of institutional knowledge and political support perhaps means that conservation responsibilities like kaitiakitanga cannot be effectively fulfilled. Moreover, the Western conservation approach is pervasive, and cannot easily be dismantled, let alone by only the Tūhoe iwi and Te Urewera Act.
The Resource Management Act 1991 (RMA) “was the first genuine attempt to import tikanga in a holistic way into any category of the general law.”122 However in practice, it often treated tikanga principles, like whakapapa and whanaungatanga, in a transactional manner: Māori tend to only be ‘consulted’ or ‘engaged with’ on specific issues or policies, and most existing policies and practices do not adequately reflect the depth of relationships between tangata whenua, Papatūānuku, and the natural world. Nor is the exercise of tino rangatiratanga provided for, allowing those relationships to be sustained according to tikanga. Rather, these relationships tend to be ‘balanced’ alongside other considerations. The Natural and Built Environment Act 2023 (NBEA) will replace the RMA over the coming years.123
The RMA has been criticised for its lack of real environmental commitment and a weak sustainability approach. Its lack of commitment to tikanga and Te Tiriti make it ill-equipped to view and respond to environmental harms through a tikanga Māori lens.124
The s 5 purpose of the RMA - to promote the sustainable management of natural and physical resources - has been criticised as too broad, unclear, and ultimately weak.125 Section 5 defines ‘sustainable management’ as managing the “use, development, and protection of natural and physical
122 Williams, above n 25, at 29.
123 Other parts of the RMA are being replaced by The Spatial Planning Act 2023.
124 Resource Management Review Panel New Directions or Resource Management in New Zealand Report of the Resource Management Review Panel June 2020 (June 2020) at 50. For a general overview of criticisms of the Resource Management Act from the Waitangi Tribunal, see: Ministry for the Environment Extracts from Waitangi Tribunal commentary, findings and recommendations on the Resource Management Act 1991 (Ministry for the Environment ME 1549, June 2021).
125 At 34, 35, 48-50; Environmental Defence Society. Reform of the Resource Management System: The Next Generation: Synthesis Report (Environmental Defence Society, Auckland, December 2018) at 145.
resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well-being and for their health and safety...”126 This has been criticised as involving a separating and weighing up of social, cultural and economic considerations alongside environmental ones.127 This leads to inappropriate trade-offs on environmental bottom lines in favour of economic and/or social benefits.128 These trade-offs take the natural world to be a tool for aiding socio-economic development.129 This, commentators argue, has consequently crippled the RMA’s potential to protect the environment.130
The Supreme Court offered some clarity to interpreting s 5 in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd. The Court held that s 5 is to be read as an “integrated whole”, meaning that environmental protections must be actively balanced alongside other considerations. While s 6 does provide for preservation and protection of the natural environment, it is subject to the s 5 purpose. Section 6 does not give primacy to preservation or protection within the concept of sustainable management, instead, s 5(2) makes clear that environmental protection from adverse effects is an aspect of sustainable management, but not the only aspect.131
The overall result is that under the RMA, environmental outcomes were poor, particularly in relation to freshwater, climate change, biodiversity, land, and the marine environment.132 The Environmental Defence Society comments that “the environmental outcomes of the RMA have not met expectations” and that it has “largely failed to achieve the goal of sustainable management.”133
126 Resource Management Act, s 5(2)
127 For example: Simon Upton, Helen Atkins and Gerard Willis "Section 5 re-visited: a critique of Skelton and Memon's analysis" (2002) 10(3) Resource Management Journal 10. See also: Peter Skelton, Ali Memon “Adopting sustainability as an overarching environmental policy: A review of section 5 of the RMA.” (2002) 10(1) Resource Management Journal 1. 128 Resource Management Review Panel, above at n 124, at 43-50.
129 At 43-50.
130 At 49
131 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593 at [24], [26]
[148]–[149].
132 Ministry for the Environment, above n 25. Ministry for the Environment, above n 125, 35-36
Ministry for the Environment Regulatory Impact Statement: Supplementary Analysis Report: The new Resource Management System
(21 September 2022) 161-171.
133 Environmental Defence Society. Evaluating the Environmental Outcomes of the RMA: A Report by the Environmental Defence Society. (Environmental Defence Society, Auckland, June 2016) at 6.
As well as having weak environmental commitments, the RMA has been criticised for insufficient recognition of te Tiriti and tikanga Māori. It both failed to achieve substantive outcomes for natural features and resources of significance to Māori,134 and did not properly uphold the principles of te Tiriti, or acknowledge tikanga.
Several provisions in Part 2 of the RMA relate to te Tiriti and tikanga. Section 6(e), matters of national importance, requires decision-makers to recognise and provide for “the relationship of Māori and their culture and traditions within their ancestral lands, water, sites, wāhi tapu, and other taonga”. Section 7(a) includes kaitiakitanga as ‘other matters’ that decision-makers have to have particular regard to. And section 8 requires decision-makers to “take into account the principles of the Treaty of Waitangi.”
These Part 2 provisions have been heavily criticised. For one, all these provisions are trumped by section 5, meaning that commitments to te Tiriti and tikanga principles can be traded-off for other benefits.135 Moreover, the Act defines kaitiakitanga as “the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources”136 This definition, often interpreted as has been criticised as being too simplistic and isolated from the deep and cosmological underpinnings of tikanga137 – which were discussed in Chapter II of this dissertation.
Section 8 does not require any kind of substantive outcomes or create any positive obligation to give effect to te Tiriti or its principles, only to “take them into account”.138 This is “less than an obligation to apply them.”139 And, since the Act requires considerations to be weighed and balanced this means that guaranteed Tiriti rights may be diminished or watered-down when weighed against
134 On sustainable management of fresh water, see: Waitangi Tribunal The Stage 2 Report on the National Freshwater and Geothermal Claims (Wai 2358, 2019) at 129-137.
135 Waitangi Tribunal Report on Te Rohe Pōtae Claims Part IV (Wai 898, 2019) at 589-590.
136 Resource Management Act 1991, s 2. This is the same definition used in the Natural and Built Environment Act 2023, s 11.
137 Kawharu, above n 71; Hayes, above n 74.
138 Resource Management Act 1991, s 8.
139 Waitangi Tribunal. The Whanganui River Report (Wai 167, 1999) at 330.
the competing interests of others.140 This is an “entirely inadequate” degree of recognition and protection of Māori interests as required by the Treaty.141
Other parts of the RMA provide for transfer of functions and joint management arrangements, iwi management plans, Mana Whakahono ā Rohe agreements (added in 2017) and consultation with Māori, among other things.142 However, such provisions fail to completely empower Māori. Iwi often are only consulted, and decision-making power still rests with the relevant local authority.143 It has produced inconsistent and inequitable results depending on iwi, capacity, resources, and relations with local government and authorities.144 Meanwhile, the powers to transfer real authority to Māori are purely discretionary, and have rarely been touched. Together, these provisions have established a structure where Māori are unacceptably confined to the role of objectors rather than leaders with mana.145
The overall effect is that, despite the great number of provisions providing quite extensively for Māori interests, these have not led to substantive outcomes for Māori or meaningful involvement or engagement in the resource management legislative space. The Waitangi Tribunal states: “Nearly 20 years after the RMA was enacted, it is fair to say that the legislation has delivered Māori scarcely a shadow of its original promise...”146 And this, the Tribunal notes, is a loss for all New Zealanders, for “Māori interests often coincide with other environmental interests, and the preservation of Māori culture is truly a matter of national importance”147
140 At 330.
141 Waitangi Tribunal, above n 134, at 66.
142 See, for example: RMA 1991 s 6, s 7(a), s 8, s 33, s 36B, s 58L-58U, s 62(1)(b), sch 1 cl 65, sch 4.
143 Catherine Iorns Treaty of Waitangi duties relevant to adaptation to coastal hazards from sea-level rise (The Deep South National Science Challenge, Wellington, 2019) at 84-86.
Waitangi Tribunal, above n 135 at 500.
144 Resource Management Review Panel, above at n 124, at 91; Robert Joseph and others, “The Treaty, Tikanga Māori, Ecosystem-Based Management, Mainstream Law and Power Sharing for Environmental Integrity in Aotearoa New Zealand – Possible Ways Forward” (Sustainable Seas National Science Challenge, November 2019) at 45-46; Courtney Bennett and others “Mana whenua engagement in Crown and Local Authority-initiated environmental planning processes: A critique based on the perspectives of Ngāi Tahu environmental kaitiaki” (2021) 77(2) New Zealand Geographer 63.
145 Williams, above n 25, at 22.
146 Waitangi Tribunal, above n 56, at 285.
147 Waitangi Tribunal, above n 49, at 186.
The RMA is in the process of being replaced in a massive legislative overhaul. It will, in part, be replaced by the Natural and Built Environment Act 2023 (NBEA) which received royal assent on 23rd August 2023 and will gradually phase in over the next several years. The NBEA responds to the weak sustainability approach, and a lack of commitment to tikanga and Te Tiriti that its predecessor suffered from.
Most significantly, the NBEA addresses the failures of the RMA by replacing the ‘sustainable management’ purpose of the RMA with its own purpose of upholding Te Oranga o te Taiao.148 ‘Te Oranga o te Taiao’ was specifically after consultation with Freshwater Iwi Leaders Group and Te Wai Māori Trust who felt that, compared to alternatives, it was a more appropriate reflection of a te ao Māori approach, and better encapsulated the intergenerational importance of the health and well- being of the natural environment.149 Specifically, ‘Te Oranga o te Taiao’ better reflects the innate whakapapa-based relationship between Māori and te taiao. This is a positive sign that the legislature is receptive to more complete and accurate inclusion of tikanga Māori relating to Papatūānuku.
The purpose of the NBEA must be achieved in a way that protects the health of the natural environment and enables the use and development of the environment in a way that promotes the well-being of both present and future generations.150 The Act defines “Te Oranga o te Taiao” as meaning all the following:151
(a) the health of the natural environment;
(b) the relationship between the health of the natural environment and its capacity to sustain life;
(c) the relationship between the health of the natural environment and the health and well-being of people and communities;
(d) the interconnectedness of all parts of the environment; and
(e) the relationship between iwi and hapū and te Taiao that is based on whakapapa.
148 Natural and Built Environment Act 2023, s 3.
149 Ministry for the Environment Natural and Built Environments Bill Parliamentary paper on the exposure draft (Parliamentary Paper C32, 29 June 2021) at 29-30.
150 Natural and Built Environment Act 2023, s 3(2).
151 Natural and Built Environment Act 2023, s 3(3).
Whilst ‘sustainable management’ in the RMA focused on balancing socio-economic development with environmental protection, ‘Te Oranga o te Taiao’ draws far more heavily on mātauranga Māori concepts and seems to represent a stronger environmental and sustainability approach that prioritises whanaungatanga relationships and the interconnectedness between Māori, Papatūānuku and all living things, as well as utu, and a promotion of Māori interests. Conceptually, Te Oranga o te Taiao is far more closely aligned with tikanga on Papatūānuku than sustainable management ever was or could be.
Section 6 of the NBEA focuses on ‘systems outcomes’ as opposed to the RMA’s ‘matters of national importance.’152 The difference is that the NBEA, in reframing based on ‘system outcomes’, focuses resource management on enhancing the quality of the environment by pursuing defined outcomes and targets, subject to specified environmental limits. This is intended to recognise what New Zealanders collectively value about our environment, including concepts from te ao Māori.153 Section 6(2) of the NBEA also specifically calls for the restoration of certain aspects of the environment where they are degraded, which is a significant departure and improvement from s 6 of the RMA, which only called for maintenance or preservation. Note also that section 6 of the NBEA includes climate change provisions where the RMA did not.154
A very significant development is that the NBEA includes mātauranga Māori measures of environmental health - mana and mauri - as well as ecological integrity. The NBEA also lists the exercise of tikanga Māori (including kaitiakitanga) as outcomes, whereas the RMA lists kaitiakitanga under the less important ‘other matters’ of section 7.155 The NBEA also has a stronger treaty incorporating provision than the RMA. Section 5 of the NBEA requires that: “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of te
152 Resource Management Act 1991, s 6; Natural and Built Environment Act 2023, s 6.
153 Resource Management Review Panel, above at n 124, at 42.
154 Climate change was included in the less important “other matters” of section 7: RMA s 7(i).
155 The RMA does, however, list the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga and protection of customary rights in s 6 ‘matters of national importance’: Resource Management Act 1991 ss 6(e) and (f).
Tiriti o Waitangi” where the RMA required only that principles of the Treaty be “taken into account”.156
Overall, the NBEA and its purpose of Te Oranga of te Taiao, particularly in comparison to the RMA’s ‘sustainable management’ is a step forward for Māori and for Papatūānuku. The NBEA relates far more closely to a Māori understanding wherein the environment is personified by the primordial parents of Papatūānuku, and Ranginui. It also more accurately reflects the innate whakapapa-based relationship between Māori and Papatūānuku,157 and better incorporates principles and values of tikanga, particularly those discussed in Chapter II.
However, some concerns still remain. Te Oranga of te Taiao is a new and somewhat vague concept. And while it may be an aspirational conceptual shift, there are concerns that the operative provisions of the NBEA do not uphold fully uphold that purpose. How much these refocused and reframed NBEA provisions and purpose will actually achieve is yet to be determined. What is clear, however, is that the NBEA is a significant step forward in placing tikanga and tikanga-based concepts at the core of environmental legislation.
One of the biggest, most ground-breaking developments in the law of Aotearoa New Zealand in relation to recognition of tikanga and the natural world is the passing of Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. These Acts, the result of Treaty of Waitangi settlements, recognise and codify the mauri, mana and personality of various natural features through the mechanism of legal personality.158
156 Resource Management Act 1991, s 8; Natural and Built Environment Act 2023 s 5.
The Supreme Court interpreted the Tiriti provision of s 4 of the Conservation Act, which is similarly worded to s 5 of the NBEA, as a positive obligation that requires more than mere procedural steps; substantive outcomes for Māori may be required: Ngai Tai Ki Tamaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368.
157 Ministry for the Environment, above n 149, at 30.
158 A similar re-designation of Taranaki Maunga as a legal person, which will include the present Taranaki National Park, will soon be enacted. See: Te Pire Whakatupua mō Te Kāhui Tupua/Taranaki Maunga Collective Redress Bill 2023 (293- 1).
Tikanga is explicitly acknowledged in the Whanganui River Act. Section 69 states that “The Crown acknowledges that to Whanganui Iwi the enduring concept of Te Awa Tupua— the inseparability of the people and the River—underpins the responsibilities of the iwi and hapū of Whanganui in relation to the care, protection, management, and use of the Whanganui River in accordance with the kawa and tikanga maintained by the descendants of Ruatipua, Paerangi, and Haunui-a- Paparangi”159 And the Waitangi Tribunal notes how the river is not owned, but rather transmitted from “ancestors, from the original ancestress, Papatuanuku, the earth mother, through the first people to the current occupying tribes, and was bound to pass to the tribes’ future generations.”160
The Tribunal found that the river is a single and indivisible entity, comprised of water, banks, and bed, in which individuals have particular use rights of parts but where the “underlying title remained with the descent group as a whole, or conceptually, with their ancestors.”161 The river, as an indivisible whole cannot be broken down and analysed by its constituent parts of water, bed, and banks, or of tidal and non-tidal, navigable and non-navigable portions, as may be necessary for the purposes of English law. Understanding the river this way requires understanding the river as a tupuna awa, or a river that either is an ancestor itself or derives from ancestral title. The indivisibility of the natural world has often been the subject of legal debate, particularly in relation to the foreshore and seabed.
Te Urewera is beautifully described by Tūhoe as “of Papatūānuku.” 162 She163 is a living entity, encompassing mountains, forests, lakes and river valleys which are fundamental to Tūhoe identity and way of life. For Tūhoe, Te Urewera is their ewe whenua, their place of origin and return, their homeland and heart.164 Tūhoe are “na tamariki o te kohu, the children of the mist, the descendants of the mountains and the ever-present mist. Tūhoe origins lie in the land itself.”165
159 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 69(2).
160 Waitangi Tribunal, above n 139, at 48.
161 At xiv.
162 I adopt the she/her pronouns in reference to Te Urewera, which are used in Te Kawa o Te Urewera Management Report,
above n 121.
163 Te Kawa o Te Urewera Report, above n 121, at 21.
164 At 43; Te Urewera Act 2014, s 3(5).
165 Te Kawa o Te Urewera Report, above n 121, at 43.
Te Urewera Act records Te Urewera as “ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty... a place of spiritual value, with its own mana and mauri ...Te Urewera has an identity in and of itself, inspiring people to commit to its care ... Tūhoe hold mana by ahikāroa; they are tangata whenua and kaitiaki of Te Urewera.”166
Te Urewera management plan, Te Kawa o Te Urewera, describes how the use of property rights by the western legal system has fractured nature, and displaced devotion for Papatūānuku with ownership rights that serve individual advantage. This has separated Te Urewera-Papatūānuku into parts, rendered her as a resource with rival priorities, and failed to see and unify “the whole, which is nature collectively.”167 Legal personality redresses this.168
Recognising the legal personality of natural features demonstrates how the state legal system can embrace tikanga Māori, Māori law, and Te Ao Māori in relation to the natural world. These Acts are examples of how law “can be used creatively to find redress solutions in the quest for reconciliation”, and are tangible bridges to Māori law, recognising that some natural resources have agency as ancestors.169
The principal Act in Aotearoa New Zealand on climate change is the Climate Change Response Act 2002 (CCRA). Its purpose is to establish a legal framework that will enable New Zealand to adapt to climate change as well as to meet our international and domestic obligations, particularly those under the Paris Agreement and Kyoto Protocol. It was significantly amended in 2019 by the Climate Change (Zero Carbon) Amendment Act 2019, which commits New Zealand to net zero emissions by 2050, excluding biogenic methane, which has separate reduction targets.170 The main mechanism
166 Te Urewera Act 2014, s 3.
167 Te Kawa o Te Urewera, above n 121, at 24.
168 At 24.
169 Jacinta Ruru “Listening to Papatūānuku: a call to reform water law” (2018) 48(2-3) Journal of the Royal Society of New Zealand 215 at 221.
170 Climate Change Response Act 2002, s 5Q1(b). Note this excludes biogenic methane, which has its own targets: Climate Change Response (Zero Carbon) Amendment Act 2019, s 8, which inserts s 5Q into the principal Act.
of this legal framework for achieving net zero is the emissions trading scheme.171 The CCRA also established He Pou a Rangi – the Climate Change Commission (CCC), which is tasked with reviewing the 2050 Target, assisting government with the preparation of emissions budgets and the tracking of progress against those budgets.
Section 3A of the CCRA extensively and explicitly details how, and in what ways, the Treaty is to be given effect under the Act. For example, ss 3A(ab), (ac) and 5H(1)(d)(ii) require that decisions on nominations and appoints to the CCC particularly consider nominations from iwi and Māori representative organisations, and are made with regard to the Treaty and te ao Māori, including tikanga and mātauranga.172 And ss 3A(ad), (ae), and 5ZS(4)(a) provide for the protection of Māori interests, including the economic, social, health, environmental, ecological and cultural effects
of climate change on iwi and Māori.173
While the provision for Māori interests and recognition of the Treaty are extensive, Anna-Marie Skellern considered whether s 3A is a broad and meaningful Treaty clause, or “is it, as described by Green Party MP Metiria Turei, ‘a very complicated clause’ which is ‘very narrow in its approach’?”174 The specificity of s 3A, Skellern notes, is arguably a double-edged sword. For one, the Act only requires the Minister to ‘consult’ with Māori, which requires only a process for feedback and information rather than for decision-making and agreement. For another, in explicitly elaborating on when and how Treaty principles are to be given effect to, the Act arguably circumscribes “the issues in respect of which the Minister is required to consult with Māori” and creates no overarching provision for Treaty principles to be considered.175
Policy documents produced under the Act, however, do seem to genuinely consider and give regard to Māori interests and tikanga Māori. The advice of the CCC to the Government on its emissions
171 Climate Change Response Act 2002 s 3(1)(b).
172 Climate Change Response Act 2002, ss 3A(ab)-(ac), 5H(1)(d)(ii)
173 Climate Change Response Act 2002, ss 3A(ad), 3A(ae), 5ZS(4)(a).
174 Anna-Marie Skellern “The Climate Change Response Act 2002: The Origin and Evolution of S 3A - The Treaty Clause” (2012) 10 NZJPIL 167 at 183-184 (citation omitted).
175 At 185.
Note that the Supreme Court’s interpretation of the similarly extensive and explicitly worded s 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 may change this. Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801.
budgets and emissions reduction plan specifically draws on tikanga values, which the CCC considers necessary to achieve an equitable and fair transition to a low emissions economy.176 New Zealand’s first emissions reduction plan proposes a transition to a climate-resilient society that will draw on mātauranga Māori and go beyond Western knowledge systems.177 The plan also contemplates Te Ao Māori, and draws on many of the tikanga concepts detailed in Chapter II: 178
Te ao Māori is a holistic world where all life is connected. The spiritual realm is complemented by the physical realm, and both are interdependent. In this sense, a whakapapa (genealogy) relationship links the physical and spiritual worlds. Pūrākau (stories) express this connection and are powerful frameworks for relating to the natural environment as living tūpuna (ancestors), to be revered and cared for. This whakapapa relationship also links the wellbeing of Māori people to the wellbeing of the natural environment.
Thus, while the Act has provision for Te Ao Māori and tikanga, it is limited to a ‘consideration’ that must be regarded in certain contexts. Perhaps policies made under the Act reveal stronger commitments. However, in the absence of legislative provisions, Māori are left with few options for exercising rangatiratanga. This leaves Māori claims relating to climate change at the mercy of the courts and common law, as in the case of Smith v Fonterra Co-operative Group Limited which I discuss in Chapter IV.
I have considered seven pieces of legislation: The Environment Act 1986, The Conservation Act 1987, The Resource Management Act 1991, Te Urewera Act 2014, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, The Climate Change Response Act 2002, and the Natural and Built Environment Act 2023.
These legislative instruments together form a picture of where and how tikanga is provided for in environmental legislation. Note that the CCRA does mention te ao Māori, including tikanga, but it
176 Climate Change Commission Ināia tonu nei: a low emissions future for Aotearoa (31 May 2021) at 340.
177 Minister of Climate Change Te hau mārohi ki anamata Towards a productive, sustainable and inclusive economy (Ministry for the Environment, ME 1639, June 2022) at 49.
178 At 48.
does not mention any specific tikanga principles. The following is a diagram depicting this overarching picture:
Progress Over Time of the Recognition of Tikanga in Legislation
2023 NBEA
2017 Te Awa Tupua 2014 Te Urewera
2002 Climate Change
Response Act
1991 RMA
1987 Conservation Act
1986 Environment Act
Whakapapa/Whanaungatanga Indivisibility Kaitiakitanga Utu Mauri Mana
Figure: Progress over time of the recognition of tikanga in legislation
IV Is Papatūānuku Seen, Heard, and Listened to in Common Law?
Common law is also developing alongside legislation in response to environmental harms, climate change, and recognition of tikanga and Papatūānuku. The case of Smith v Fonterra Co-operative Group Limited is currently before the Supreme Court, who will decide whether New Zealand will recognise a new tort of harm to the environment. This case, the leading case on climate litigation, is bought by Māori seeking to enforce tikanga principles in the climate change context. This case reflects an innovative approach by Māori in the courts to advance direct recognition of tikanga.
Before considering Smith in detail, it will be helpful to briefly consider three recent and important cases as a starting point for recognition and incorporation of Māori values into common law: Takamore v Clarke, R v Ellis, and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board.
In the 2012 case of Takamore v Clark, the Court had to decide whether tikanga practices or English common law would determine burial of the deceased.179 Mr Takamore, of Tūhoe descent, had lived in Christchurch for twenty years with his non-Māori partner, Ms Clark. When he died, Ms Clarke was appointed executor by Mr Takamore in his will. According to English common law, Ms Clarke, as executor, was entitled to determine where his body was buried. However, contrary to Ms Clarke’s wishes, his body was taken by members of his family and buried in accordance with Tūhoe tikanga. The issue was who had the right to possess and dispose of Mr Takamore’s body – the executor, as per English common law, or the whānau pani (the wider bereaved family), as per tikanga.
The Supreme Court unanimously dismissed the appeal and held that Ms Clarke was entitled to proceed under an exhumation license and have Mr Takamore buried in a place of her choosing.
179 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
Tipping, McGrath and Blanchard JJ held that the English common law rule should prevail.180 However, this should reflect the cultural context of Aotearoa New Zealand. Thus, the executor is required the executor to take into account the particular practices, values, and views of the immediate and wider family, this includes giving due weight to tikanga and Māori burial practices where relevant.181 In separate dissenting judgments, Elias CJ and William Young J held that the executor does not necessarily have the role of first-decider. Though the executor is entitled to high priority, their view is but one of a range of views that must be considered.182
The approach to tikanga in Takamore shows how tikanga was seen as one consideration to be weighed amongst others. Significantly, however, all the judgments recognised that the common law requires reference to tikanga.
More recently in Ellis v R, the Supreme Court considered whether tikanga should inform the common law in deciding whether a criminal appeal should continue after the death of the accused. Under English common law, this would normally bring an end to the proceedings. The Supreme Court was unanimous that tikanga has been and will continue to be recognised in the common law of New Zealand where relevant.183 Chief Justice Winkelmann acknowledged tikanga is the first law of New Zealand and was not displaced or extinguished by the arrival of the English common law.
In Te Ao Māori, “tikanga has continued to shape and regulate the lives of iwi, hapū and whānau down to the present day. The tikanga that continues to operate in society reflects values that are older than our nation.”184 This recognition of tikanga in Ellis was informed by a ‘Statement of Tikanga’ produced by tikanga experts.185 The statement explained why, according to tikanga Māori, the appropriate response to the circumstances in the Ellis case would be to allow the appeal to continue. Hara, mana, whakapapa, whanaungatanga, and ea were identified as being particularly
180 At [114].
181 At [150]-[158].
182 Natalie Coates “What does Takamore mean for tikanga? – Takamore v Clarke [2012] NZSC 116” (2013) Māori LR 14.
183 Ellis v R [2022] NZSC 114 at [19]; Ellis v R [2022] NZSC 115 at [108]–[110] per Glazebrook J, [171]–[174] per Winkelmann CJ, [257]–[259] per Williams J and [279] per O’Regan and Arnold JJ.
184 Ellis v R[2022] NZSC 114 at [172].
185 Ellis v R SC 49/2019, 31 January 2020 (Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara). See also: Ellis v R [2020] NZSC Trans 19, SC 49/2019.
relevant to this case. The Court’s recognition of tikanga was attentive to the Māori world view, yet judges are appropriately cautious of the risks where applying tikanga; it could result in “adapting and expounding Tikanga from those whose responsibility it has been since time beyond memory”.186
Carwyn Jones in “Lost from Sight: Developing Recognition of Māori Law in Aotearoa New Zealand” provides an excellent analysis on tikanga relating to death, including the pūrākau of the great ancestor, Hine-nui-te-pō, and how this tikanga is recognised by the courts in Takemore and Ellis.187
Another case, more recent still, is Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board, which held that “other applicable law” and “existing interests” in s 59 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 includes respectively tikanga, and tikanga-based customary rights and interests, such as kaitiakitanga.188 Williams J and Glazebrook J also agreed that this determination cannot only be looked at through a Pākehā lens.189
It is clear that tikanga is, and will continue to be, recognised in the common law of New Zealand. What about in relation to the environment and Papatūānuku?
Mr. Smith, an elder of Ngāpuhi and Ngāti Kahu and the climate change spokesperson for the Iwi Chairs Forum, was concerned that too little was being done for climate change in the political sphere and that the climate crisis, as well as many of those other harms discussed in Chapter I, called for a response from the common law.190 Mr. Smith bought proceedings against seven New Zealand companies and sought injunctions requiring each company to produce or cause zero net emissions from their respective activities by 2030. His claim was grounded in the three distinct claims of negligence, public nuisance and a proposed novel “breach of duty” tort.
186 R v. Ellis [2022] NZSC 114 at para [120]
187 Jones, above n 60.
188 Trans-Tasman, above n 175, at [8], [151]-[155], [237], [295]-[297].
189 Williams J at [297] and Glazebrook J at [237] n 371.
190 Smith v Fonterra Co-operative Group Limited [2021] NZCA 552, [2022] 2 NZLR 284 at [3]- [4].
The High Court struck out Smith's actions in negligence and public nuisance but declined to strike out the action in respect of a novel tort. Smith appealed and the respondents cross-appealed.191 In 2021 the Court of Appeal struck out Smith's action in respect of the novel tort and upheld the High Court's strike out decision in respect of the actions in negligence and public nuisance. The Court of Appeal's judgment is currently under appeal before the New Zealand Supreme Court.
In the Court of Appeal Mr Smith submitted that tikanga should be a principle and value that infuses the Court’s consideration of the issues in relation to all three causes of action. His submission draws very heavily on tikanga related to Papatūānuku (though often using English translations), including principles of: kaitiakitanga, utu, whanaungatanga and whakapapa: 192
Kaitiakitanga as a principle of tikanga Māori incorporates concepts of guardianship, protection and stewardship of the natural environment including recognising that a right in a resource carries with it a reciprocal obligation to care for its physical and spiritual welfare as part of an ongoing relationship.
The Court of Appeal held that the issue of climate change cannot be effectively addressed through tort law. Instead, it must be addressed through a sophisticated regulatory response at a national level. Private litigation against a small subset of emitters, requiring them to comply with requirements that are more stringent than those imposed by statute, will not be effective to address climate change at a national level, let alone globally.193 It will be costly, inefficient, and arbitrary in its application and impact, relying on individuals like Mr Smith to bring actions. Moreover, striking out Smith’s claims is therefore not inconsistent with the Treaty because the Treaty underlines the need for shared action and a common approach that pays attention to distributional effects, not a piecemeal one.
Moreover, leaving climate change to be controlled through regulatory means is consistent with kaitiakitanga.194
Mr. Smith argued that tikanga values, particularly those that relate to and derive from Papatūānuku, were relevant in determining whether a novel “breach of duty” tort exists. In his submissions to the
191 Smith v Fonterra Co-Operative Group Ltd [2020] NZHC 419, [2020] 2 NZLR 394.
192 Smith v Fonterra Co-operative Group Limited [2021] NZCA 552, [2022] 2 NZLR 284 at [7].
193 At [16], [24-[28].
194 At [29]-[35].
Supreme Court, Mr Smith holds that development of a new tort is consistent with the principles of tikanga:195
Tikanga Māori focuses on what is “tika” or right. It is both deeply principled as well as pragmatic. When climate change is looked at through the lens of tikanga, the frame would not be a narrow correctional approach that is focused on the idea of individual harm to Mr Smith. Instead, the core question would go to the action and whether it is tika.
The simple answer is that the action in question in these proceedings is not tika. The emission of GHGs causes unequivocal and significant harm to the environment that manifests itself in a multiplicity of ways that disproportionately impact vulnerable populations such as Māori. These emissions not only result in an ecocentric harm directly to Papatuanuku, Ranginui and their descendants (the personified atua of the natural world) but they also harm those that have interests in the environment including kaitiaki and mana whenua such as Mr Smith. This creates hara.
A tikanga-informed approach to addressing the harm of climate change emphasizes relational connections through whakapapa and whanaungatanga. Unlike common law torts, tikanga's perspective on harm extends to both individuals and collectives connected to the damaged natural world, making it broader. Tikanga requires that when harm occurs, steps are taken to restore balance, including rāhui, which prohibits specific human activity through tapu, allowing time for resource recovery. Tikanga therefore supports tortious harm to the environment and the issuing of injunctions to restrain emissions, particularly at the request of kaitiaki like Mr. Smith.196
The Supreme Court is currently deciding these arguments. However, Mihiata Pirini and Rhianna Morar suggest that even if this particular case fails, the court may be forced to engage in these arguments more directly if, for example, tort proceedings were brought on behalf of the Whanganui River, which has the status of a legal person.197
195 In the Supreme Court of New Zealand between Michael John Smith and Fonterra Co-Operative Group Limited
SC 149/2021, 15 June 2022 (Appellant's Synopsis of Submissions on Appeal) at [158]-[159]; In the Supreme Court of New Zealand between Michael John Smith and Fonterra Co-Operative Group Limited SC 149/2021, 22 June 2022 (Submissions for Te Hunga Rōia Māori o Aotearoa (The Māori Law Society)).
196 Appellant submissions, above n 195, at [158]-[163].
197 Mihiata Pirini and Rhianna Morar “Climate Change and the Claiming of Tino Rangatiratanga” (2021) 5 NZWLJ 86 at 112.
Ultimately, these cases show that common law is engaging with, and developing to recognise, tikanga values and Māori cosmogony particularly in the environmental sphere. Cases like Smith show how far law has come, and alludes to where it might go next. Smith also perhaps helps set the ground work for constitutional change. Pirini and Morar characterise this case as an exercise of tino rangatiratanga through the vehicle of the courts. In this case, the bringing of tort proceedings is an act that “seeks to trouble, disrupt, and unsettle established colonial orthodoxies.”198 While our current constitutional arrangements do not recognise tino rangatiratanga as an equal sphere of authority over issues such as climate change, cases like Smith challenge this and might be a driver of change.
198 At 86.
V How Should Papatūānuku be Seen, Heard, and Listened to in Law?
The holistic view/approach of Māori avoids the compartmentalisation and isolation of one institution from another and the piecemeal approach to conflict resolution. The piecemeal approach has one major weakness – it prescribes for the symptoms rather than the real causes.
Māori Marsden.199
In this closing chapter, I make some suggestions on what transformational change of environmental law might look like if it properly considers tikanga. My intention is to make some broad suggestions and comments about where environmental law in Aotearoa could go to next. In this chapter, I propose that transformational change is needed. Aotearoa New Zealand law has made commitments to upholding obligations and rights of te Tiriti and tikanga in both common law and legislation.Taking these commitments seriously in environmental law requires consideration of Papatūānuku. It is only through a change of approach and scope that a more inclusive approach to environmental harms will be enabled and realised, with tangata whenua, Papatūānuku, and the relational values of te taiao at its heart.200 I consider legislative and constitutional avenues for change. Granting rights (often, constitutional rights) to Nature is a very topical development. I offer some preliminary insights into why this must be treated cautiously in the Aotearoa New Zealand context.
Legislative amendments are not enough to achieve the kind of change that is required. For example, the 2017 RMA amendments which added in Mana Whakahono ā Rohe agreements are important, but alone, this is not enough to address environmental challenges. According to the Department of Conservation’s ODG it is well time for transformational change in the conservation sector, which requires a “fundamental rethinking of the entire conservation system, including the overarching
199 Marsden, above n 35, at 33.
200 Options Development Group, above n 19, at 5.
legislative framework that determines how conservation is defined, governed, managed and delivered in Aotearoa New Zealand.”201 While the RMA has recently been reformed, the Conservation Act (and the suite of related legislation), the Environment Act, and the overarching legislative framework must be reformed as well.202
There have been some very recent and exciting shifts on what a tikanga, Papatūānuku-centred, environmental framework might look like. At a government level, the Department of Conservation adopts a ‘te mana o te taiao’ framework in their biodiversity policy. The Ministry for the Environment vision is premised on “he taiao tōnui mō ngā reanga katoa, a flourishing environment for every generation.”203 This focuses on deep environmental responsibility and reciprocity as a core uniting societal value in Aotearoa New Zealand and conceives of the land as wholly interconnected with the wider environment, as well as with all facets of society.
A recent Māori-led report, Me Tu a Uru, recommends a relational environmental governance framework whereby the environment flourishes and sustains and nurtures all people of Aotearoa. It envisages a framework where tangata whenua, tangata Tiriti, the Crown, and Papatūānuku are connected, and the relationship amongst and between them is balanced and reciprocal.204
Practically speaking, transformational change ought to recognise and uphold rangatiratanga and kāwanatanga. This would include strong, action-based instruments for shared decision making, where Māori participate on equal footing and with equal authority, as opposed to being consultees.205 It must recognise the rights of tangata whenua to maintain environmental relationships, exercise decision-making authority in relation to taonga, and restore the health of their ancestral environments and Papatūānuku more broadly. It must allow for the exercise of tino rangatiratanga (and co-governance where appropriate) in relation to the environment – this is something a common law tortious harm to the environment could also allow for. And it must provide for the relevant tikanga principles and values, particularly whanaungatanga, utu, and kaitiakitanga for
201 At 5.
202 At 59.
203 Ministry for the Environment, above n 22, at 34-36.
204 Me Tu a Uru, above n 112, at 24-30.
205 Maria Bargh and Ellen Tapsell “For a tika transition: strengthening rangatiratanga” (2021) 17(3) Policy Quarterly 13.
environmental decision-making, and in recognition of the mana and mauri of the natural world and Papatūānuku.
The key takeaway is that legislation must transform from its current ethic – which is driven by ownership and management by exclusion – to one that is driven by a holistic and thriving living environment with tangata whenua involved as equal and active partners. Reports and policies are moving in this direction, as well as some legislative developments (for example, the NBEA), but fundamental reform and rewriting of environmental law is required.
In a more aspirational move for the future of Aotearoa New Zealand law, environmental reform may form part of an overall constitutional reform that is more inclusive of Māori and tikanga. The Matike Mai Aotearoa Report on constitutional transformation envisaged a type of constitutionalism for Aotearoa based upon He Whakaputanga 1835 and Te Tiriti 1840, where tikanga is recognised as a concept and as a baseline for any effective constitutional transformation; rangatiratanga without tikanga as law is a contradiction in terms.206
A core constitutional value that Matike Mai Aotearoa identified was the value of place, which is based on the importance of the land and respect for all living things. This includes relationships with the natural world and “an understanding that the wellbeing of humans depended upon the well-being of Papatūānuku as a living entity rather than a resource.”207
The Report also found that rangatahi were particularly concerned about Papatūānuku. Five core values for a transformed constitution were identified from the seventy wānanga organised by the rōpū Rangatahi. These five core values were identified as the basis for all other constitutional values. One of these values is the health and wellbeing of Ranginui and Papatūānuku.208 Rangatahi were concerned about the environment and thought that any new constitution ought to include the recognition and protection of Ranginui and Papatūānuku to ensure they are adequately cared for.
206 Matike Mai Aotearoa, above n 33, at 43.
207 At 68.
208 At 94.
Treating our whenua, lakes, rivers and other water bodies with respect should be an underlying constitutional principle and called for constitutional recognition and protection of traditional knowledges and the associated tikanga. And any constitutional recognition of Papatūānuku depends on the effective exercise of rangatiratanga. As already discussed, cases like Smith and common law developments might drive change in this area.
One thing to note is that affording legal rights and personality to Papatūānuku as a whole (which might be an attractive next step given the pre-existing legislative framework for this in Te Awa Tupua and Te Urewera) in constitutional reform, ought to be approached with caution. Rights of Nature is an increasingly popular topic in global political and legal spheres and has been advanced in countries like Ecuador and Bolivia. However, it may be inappropriate in the current Aotearoa New Zealand context where Acts like the Environment Act and Conservation Act still uphold Western ways of thinking.
While Rights of Nature may seem to provide much stronger foundations for holistic, overarching environmental protection, and give effect to a Māori understanding of the world, the concern is that it may come at the cost of Māori people; the risk is that tikanga and Te Ao Māori may be hijacked and placed into a legal system that is still dominated by Westernised concepts. Rights of Nature ought to be pursued in a way that fully recognises the Māori worldview. As Ruru states, “Legal personality of the environment as applied in New Zealand should only ever be done in a manner that honours and respects the Māori worldview, including Māori law”209
That is not to say that constitutional recognition of Papatūānuku ought never to be pursued. In fact, Matike Mai Aotearoa notes that several written submissions commented on the Rights of Nature in the Bolivian constitution: 210
There seem to be numerous parallels with our world view, especially the idea of kaitiakitanga and the responsibility everyone should have towards Papatūānuku...but enshrining them in a constitution gives them a meaning and force that is currently missing here. They give a model for what is possible.
209 Ruru, above n 169.
210 Matike Mai Aotearoa, above n 33, at 65.
The important thing is that if this is to happen, it must be done in a way that respects tikanga, tangata whenua and Te Ao Māori. Legal developments are heading in this direction: in Chapters III and IV I discussed how tikanga and the Māori world view is increasingly being recognised in state law. Legislative transformation may signal that Aotearoa New Zealand is ready to recognise the Rights of Papatūānuku, grounded firmly in a growing constitutional sphere for rangatiratanga.
The opening quote of this Chapter from Marsden reflects the current situation and developments in environmental law of Aotearoa New Zealand – piecemeal, compartmentalised, and isolated from one institution to another. For example, while the RMA is in the process of being replaced by a seemingly improved NBEA, the Environmental Act and Conservation Act, on the other hand, are shy of four decades old and in desperate need of updating. This leaves complex questions – like how Aotearoa New Zealand should respond to climate change – up to the courts and common law to determine in cases like Smith v Fonterra Co-operative Group Limited.
The problems that are facing environmental law are interconnected and multifaceted – the response must be too. A ‘whole of Government’ approach towards the recognition of Papatūānuku is required; the current piecemeal and siloed department-by-department approach is not conducive to an Aotearoa New Zealand that honours Te Tiriti o Waitangi or tikanga.
VI Conclusion
The environmental harms and associated societal challenges that Aotearoa faces are complex and multifaceted. I have argued that for us to adequately respond to these challenges, the law must evolve and to do this it is necessary to have a clear understanding of the problems that we face. Aotearoa New Zealand is increasingly recognising tikanga as a source of law in Aotearoa that informs both common law and legislative law. Thus, to understand the ways in which the law of Aotearoa New Zealand ought to evolve in order to adequately respond to the problems that climate change presents us with, we must understand these challenges from a Māori perspective.
I have suggested that one way that the law might evolve is through centring Papatūānuku. In Chapter II, I explored the status of Papatūānuku and her position within Māori cosmology and her status within tikanga Māori.
In Chapter III, I examined the ways in which legislative law has evolved. I explained that the response of legislation to environmental harms and its incorporation of tikanga has progressed a lot in recent years but that these developments have been inconsistent and uneven across different sectors of law. In Chapter IV, I assessed recent changes in common law, which recognises that tikanga has been and will continue to be recognised in the common law of Aotearoa New Zealand where relevant. The decision of the Supreme Court in Smith v Fonterra Co-operative Group Limited will soon determine whether tikanga could support tortious harm to the environment and Papatūānuku.
In the final chapter of this dissertation, Chapter IV, I looked to the future. Based on my analysis of the existing Aotearoa state law, I proposed two avenues for transformational change: legislative and constitutional. An overarching legislative and/or constitutional framework focused on a thriving Papatūānuku is my aspiration for the future of Aotearoa.
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