ABSTRACT
This chapter contemplates the Whanganui River Settlement in Aotearoa New Zealand as an accommodative measure for the purposes of protecting Indigenous sacred sites. The perspective is that of a jurist exploring the boundaries of the law. Although the solutions adopted in this case study are couched in a format familiar to jurists in the four common law strongholds – Aotearoa New Zealand, Australia, Canada, and the United States – a structural difference emerges in that Aotearoa New Zealand here seeks to accommodate the Māori community in question through a deep engagement with their values, customs, and identity – as opposed to undertaking a potentially formalistic consent-seeking exercise. The chapter considers that this might be difficult to replicate in other jurisdictions – even ones with a similar common law legal system – because its success is dependent on cultural factors well beyond the control of the legal system. That said, if the state legal system were willing to accommodate Indigenous values, customs, and identity, on the proviso that it be possible to attach a clear content to such values, customs, and identity, there is no reason in principle why it could not work.
