I was born in the 1970s during an era of emerging new domestic and international law and policy more attuned to reconciliation with Indigenous peoples, rather than stark annihilation. The colonial awakening of justice for Indigenous peoples has been a slow burn. As I near the age of 50, I reflect on the change, especially in recent years. There is now a nod, in some legal quarters, to not just the human rights of us as Indigenous peoples in the collective sense but also to our embodied ancestors in lands and waters.
The slow burn
Initial growth of international law in the early 20th century fundamentally ignored us as Indigenous peoples, including our ongoing assertions in law as continuing sovereign entities with jurisdiction over our lands, territories and resources.1 International law ignored our humanness. Attempts to engage with the League of Nations were rebuffed. For example, Indigenous representatives in the 1920s were denied access to speak to the League about the rights of their people to live under their own laws, on their own land and under their own faith.2 International human rights law could not see Indigenous peoples. It was not until the 1970s that the United Nations and member states began taking small steps towards recognising Indigenous peoples’ rights and responsibilities.3 Earlier views that Indigenous peoples should be simply assimilated or integrated became unacceptable, at least by some.4 Indigenous peoples often remained sceptical even with the development of international human rights because of its tendency to focus on the individual rather than the group.
A transformative moment was in 2007 with the United Nations General Assembly’s adoption of the Declaration on the Rights of Indigenous Peoples. The Declaration has been applauded for pushing the liberal human rights paradigm “by explicitly referring to the right to self-determination, embracing collective rights, and expressing an understanding of the interrelationship between rights to heritage, land, and development”.5 For example, the expansive Declaration recognises that “Indigenous peoples and individuals are free and equal to all other peoples and individuals”,6 and that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard”.7
This is good. This is just. But law in all its forms can and should do more. If we are to disrobe the colonial shackles and recognise Indigenous peoples and our legal systems not as ‘savage’ but as equally, albeit differently, civilised then our state legal systems can and should adapt. And, this is happening, slowly.
The new just swell
In my home country, Aotearoa New Zealand, in the Maori way of understanding the world, we are all connected. Kinship is at the heart of the Maori legal system. Kinship is “a revolving door between the human, physical, and spiritual realms”8 meaning we as Maori personify the landscape around us.
There is now a suite of laws that aspire to recognise this, our Indigenous peoples’ humanness. Of international acclaim, in 2014, Te Urewera, a large forested then national park, became simply: Te Urewera “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person”.9 Three years later, in 2017, legislation gave legal personality to the country’s third longest river, the Whanganui River.10 Law is currently being drafted to recognise Mount Taranaki / Egmont – the mountain that stands as the centre piece of the country’s second created national park – as a legal person “effectively giving the mountain the same protections as a citizen”.11 Legal personality of this land, river and mountain mark a significant positive transformation for Aotearoa New Zealand’s environmental and constitutional laws. These laws provide a connective example of how western colonial law can positively forge a bridge to Indigenous laws. These resolutions are ground-breaking political solutions to constructively accept at a national level Maori Indigenous laws for knowing, caring for, and using lands and waters. They recognise our human rights as Maori in a very Maori way.
So, through the eyes of Maori, Te Urewera is the heart of the fish caught by Maui (a demigod); Whanganui River is a tupuna (ancestor) as is Mount Taranaki/Egmont. For example, in the Whanganui River legislation, the statute importantly recognises that specific Maori tribal federations have responsibilities for the health and wellbeing of the river because: “Ko au te Awa, ko te Awa ko au: I am the River and the River is me”.12 The Act recognises that the face of the river – Te Awa Tupua – is “a legal person and has all the rights, powers, duties, and liabilities of a legal person”.13 An office has been created to “be the human face of Te Awa Tupua and act in the name of Te Awa Tupua”.14
The new ‘management’ plan for Te Urewera, which is more of a care plan for the land and a management plan for the people, deliberately sets out to “disrupt the norm.”15 The Plan openly embraces a process of “unlearning, rediscovery and relearning to seize the truth expressed by our beliefs.”16 The orientation of the Plan is stated as: “Deliberatively, we are resetting our human relationship and behaviour towards nature. Our disconnection from Te Urewera has changed our humanness. We wish for its return.”17 This Plan knows that the answers to biodiversity wellbeing lie intimately within the lands themselves if we listen carefully:18
Nature speaks all the time and is understood only by the sincere observer and heedful mind and heart. Humanity has much to gain from reigniting a responsibility to Te Urewera for within these customs and behaviours lies the answers to our resilience, to meet a forever changing climate. Through committing to Te Urewera values, we are innovating our instincts and adjusting our behaviour to ensure a prosperous future that is secure.
This is what recognising the full human rights and responsibilities of Maori looks like. I hope state legal systems around the world can continue to build on this positive transformative momentum which is being realised in Aotearoa New Zealand to recognise not just Indigenous peoples as having human rights, but that our ancestors in the mountains, forests and lakes do too.
- For example, see James Anaya, Indigenous Peoples in International Law (2nd ed, OUP, 2004); Claire Charters, ‘A Self- Determination Approach to Justifying Indigenous Peoples' Participation in International Law and Policy Making’ International Journal on Minority and Group Rights, 17/2 (2010): 215.
- See, for example, Claire Charters, ‘Indigenous Peoples and International Law and Policy’ in Benjamin J Richardson, Shin Imai and Kent McNeil (eds) Indigenous Peoples and the Law. Comparative and Critical Perspectives (Hart Publishing 2009) 161.
- Mattias Åhrén, Indigenous Peoples’ Status in the International Legal System (OUP 2016) 83.
- Sarah Pritchard, ‘Working Group on Indigenous Populations: mandate, standard-setting activities and future perspectives’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (The Federation Press 1998) 40-41.
- Karen Engle, “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights” (2011) 22(1) The European Journal of International Law 141, 142. See also: Claire Charters, ‘The Sweet Spot between Formalism and Fairness: Indigenous Peoples’ Contribution to International Law” (2021) 115 AJIL Unbound 123.
- United Nations Declaration on the Rights of Indigenous Peoples, art 2.
- United Nations Declaration on the Rights of Indigenous Peoples, art 25
- Waitangi Tribunal, Ko Aotearoa Tenei. A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity. Wai 262 (Wellington: Waitangi Tribunal, 2011) at 13.
- Section 11(1) Te Urewera Act 2014. J Ruru “Indigenous Ancestors: Recognizing Legal Personality of Nature as a Reconciliation Strategy for Connective Sustainable Governance” in Sumudu Atapattu, Carmen G. Gonzalez and Sara Seck (eds) Environmental Justice, Sustainable Development and the Social Pillar: Intersections and Critical Perspectives (Cambridge University Press, 2021) 183-195
- Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (2017 Act).
- Blanton Smith “Mt Taranaki to become legal personality under agreement between iwi and government” Taranaki Daily News 21 December 2017 https://www.stuff.co.nz/taranaki-daily-news/ news/100085814/mt-taranaki-to-become-legal-personality-underagreement- between-iwi-and-government?rm=m
- This well-known belief is captured in section 13(c) of the 2017 Act. See also L. Te Aho, “Legislation – Te Awa Tupua (Whanganui River Claims Settlement) Bill – the endless quest for justice” (2016) Maori Law Review.
- Section 14(1) of the 2017 Act.
- Section 18(2) of the 2017 Act.
- Te Urewera Board, Te Kawa o Te Urewera (2017), at 7, online: https://www.ngaituhoe.iwi.nz/Te-Kawa-o-Te-Urewera.
- Ibid at 9.
- Ibid at 8.
- Ibid at 11.