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Round, D --- "Here Be Dragons?" [2005] OtaLawRw 3; (2005) 11 Otago Law Review 31

Here Be Dragons

David Round*

* Lecturer in Law, University of Canterbury.

New Zealanders are a reasonable people, and few among them would disagree with the propositions in the New Zealand Bill of Rights Act 1990 that “Everyone has the right to freedom of thought, conscience, religion and belief …” and “Every person has the right to manifest that person’s religion or belief in worship, observance, practice or teaching …”.[1] It is not necessary to invent an unwritten fourth article of the Treaty of Waitangi, as some are attempting to do,[2] in order to establish so basic a principle. Many of us, indeed, of whatever religion or none, regret what we perceive as an increasing materialism and loss of any sense of sacredness and meaning in life. Nevertheless, recent sightings of taniwha in the murky waters of the law courts have been greeted not just with surprise but with considerable scepticism and hostility.

The reasons for that hostility are not hard to find. For one thing, we live in a society which is not just post-Christian but in many respects ferociously anti- Christian. Hatred of Christianity – and of Roman Catholicism, in particular, being that part of Western Christianity which still firmly holds to articles of faith, and objective right and wrong – is the anti-Semitism of today. There is a colossal double standard here. Apostles of tolerance and understanding, who would deeply disapprove of ever saying or doing anything which might ever slightly offend anyone else, have no such qualms when it comes to the religion of their own ancestral culture. The most notorious recent example is probably the infamous case of the “Virgin in the Condom”, when the new national museum in Wellington – Te Papa, “Our Place” – insisted on displaying, as part of a touring collection of modern British art, a small mass-produced plastic statuette of the Blessed Virgin Mary, stuffed inside a condom by a seventeen-year old female “artist”, who claimed that this was an artistic work making a comment about the Catholic Church’s attitude to birth control. Considerable public protest and remonstration did nothing to alter the museum’s determination to exhibit the piece, even though it was grossly offensive to Catholics and, indeed, to many other Christians, and even though the piece was not put on public display in several overseas museums and galleries where the collection was exhibited. Contrast this with Te Papa’s behaviour in connection with a 1999 exhibition concerning the Chatham Islands and their Moriori inhabitants. The exhibition failed to make any mention whatsoever of the end of Moriori society at the hands of the 1835 Te Ati Awa invaders, who killed and ate or enslaved the local population, most of the survivors soon dying of disease and despair. A controversy ensued, in which Te Papa went to remarkable lengths to defend its suppression of historical truth for the sake of sensitivity.[3] Te Papa – which daily adorns its cabinets containing Maori objects with fresh vegetation – may have been lawfully entitled to display the Virgin in the Condom, but it most certainly was not compelled to do so, and to so deliberately slap many Christian New Zealanders – including, of course, many Maori – in the face. Te Papa has also announced its intention not to exhibit native lizards, just about our only well- known terrestrial native vertebrates (apart from birds) because they are evidently still considered by present-day Maori as harbingers of evil and doom. The present Prime Minister, at the March 2002 state banquet for the Commonwealth Heads of Government meeting, in the presence of our Queen, refused to allow grace to be said because “we’re not only a society of many faiths, but we’re also increasingly secular”. Yet Maori elders are flown overseas at our expense to lift tapus and expel evil spirits from new New Zealand embassies (including at least one building previously occupied by Australians). We would surely rightly object to flying, say, Catholic priests to new embassies to conduct exorcisms. On what ground can we justify the religious ceremonies of another religion? It is surely reasonably clear that the prevailing ideology of the currently prevailing ruling class furiously opposes any recognition of Christianity in our nation’s law and customs. Christians are surely entitled to ask why any recognition should be granted to any other religion.

In writing of taniwha and the Resource Management Act[4] (hereafter “the RMA”) Mr Rob Harris points out that the recognition of the spirituality of people other than Maori is “not necessarily denied” by the Act. Although Christian spiritual beliefs do not receive the special mention given to Maori beliefs under sections 6(e), 7(a) and 8, nevertheless such beliefs could enjoy some standing as being covered by the various references, in Part II of the Act, “to cultural wellbeing (section 5(2)) stewardship (section 7 (aa)) heritage (section 7(e)), intrinsic values (section 7(d)) finite characteristics (section 7(f)) and quality of the environment (section 7(g))”. (Since then, of course, section 7(e) has been repealed, but a new paragraph (f) of section 6 refers to historic heritage.) This is hardly a ringing endorsement. Many of these matters, to put it mildly, involve religion only very peripherally. Given also that Maori religion is actually a religion of land, of departmental nature gods and, beyond them, of belonging to, coming from and somehow worshipping Mother Earth, Papatuanuku itself, Maori religion obviously has much more potential to influence the workings of the RMA than has Christianity or any other more “advanced” religion – as students of religions would classify them.

Very well, that is simply the social situation in which we find ourselves. We must take things as we find them. But there are other reasons also for the widespread reluctance to embrace taniwha. Picturesque though the legends of Maori religion may be, that religion, like the worship of the old pagan gods of the Greeks and Romans, offers no answers to the profound questions of human existence. What does it say, not only of salvation and eternal life, but of the meaning of life, or even of right and wrong? It now seems generally accepted that the idea of a supreme spirit, Io, existing beyond the departmental gods, was an invention, or at least a development, of tohungas and thinkers after the arrival of Christianity, in an attempt to raise Maori religion to a higher and more intellectually and spiritually respectable level.[5] Certainly we hear little of Io to this day. Despite, or rather, perhaps, because of the clear record of Maori environmental destruction,[6] resource management practices of rahui and tapu had developed by the time of European settlement, and it is perhaps these, more than anything else, that make Maori religion attractive to the idealistic. Mr Harris quotes Bishop Walters as saying that “Maori spiritual practices were rooted in the need to protect resources, maintain lands and ensure survival and are therefore essentially practical …” But two centuries ago, when Tu the war-god was in the ascendant, there was a great preference, if only for practical reasons, for the Christian God of Love. We notice, also, that the nature of the taniwha is altering. Not so long ago, the common understanding was that they were water-dwelling monsters, not infrequently hostile to humankind. Probably they were creatures of real flesh and blood; but even if they were some sort of supernatural or ghostly creature, they were still capable of doing real physical harm. The 1971 Seventh edition of Williams’ Dictionary of the Maori Language defines a taniwha as:

1. A fabulous monster supposed to reside in deep water 2. A shark or any formidable marine creature 3. (figurative) A Chief 4. A prodigy 5. (Used of the human body) A bold poetic figure, as if it were some fierce monster.

Margaret Orbell, in The Illustrated Encyclopaedia of Maori Myth and Legend[7] describes them as physical beings which might create harbours or cause landslides, and which were widely held responsible for deaths by drowning.

“Most”, she writes, “are associated with humans, because every people has a taniwha of their own”; and when all went well, they were guardians of their people. They were nevertheless physical creatures, who might warn of the approach of enemies, or leave their den to be seen in the water as a sign of mourning for the death of a leading rangatira.

On the ocean, taniwha often appear in the form of a whale or large shark. In rivers and lakes they may be as big as a whale, but look more or less like a gecko or tuatara; some have a row of spines down their back, like male tuatara. They may possess bat wings and shark teeth, and some can assume different forms. Horo-matangi in Lake Taupo sometimes takes the form of a reptile, but in the lake itself he appears as a black rock. Many taniwha can assume the form of a floating log …

That is now all changing. Mr Harris[8] conveniently summarises the change, stating that the taniwha “represent the natural forces of the land and sea and are part of the essence or properties of a place”. Taniwha “in most cases … symbolise a tribal or family association with place. It is both guardian and symbolic parent …”

Such an evolution of the taniwha into something more spiritually up to date and sophisticated – very twenty-first century – would, if successful, usefully serve to avoid the central question which must rise unbidden to many minds; a question which is near, if not precisely at the centre of, the issue in Friends and Community of Ngawha Inc. & al v Minister of Corrections.[9] That question, put bluntly, is: In what sense, if any, does a taniwha actually exist?

What is a taniwha? Under what heading would we classify it in our encyclopaedias? Is it (1) an actual physical creature (zoology)? Is it (2) a spirit, faery, an unbodied but genuine force of some kind, capable of being sensed and seen and of doing actual physical harm (Ghosts, force fields, spirit world, ESP; see also poltergeist)? Is it (3) mere idle superstition and fireside tales, used to explain unexpected death and incomprehensible natural phenomena and to frighten children (Mythology, superstition)? Or is it (4) as Mr Harris would say, a “representation of the natural forces of the land and sea”, “part of the essence or properties of a place” and “symbolising a tribal or family association with place; both guardian and symbolic power” (Charming, poetical expression of nature and territorial connection, but easily perverted into meaningless but unquestionable politically-correct mumbo-jumbo)?

Which category is it? Has any possible category been omitted?

Our modern rationalists would at once dismiss (1) and (2), and since they also have soft hearts and would not dream of ever saying anything which would ever hurt any one (apart from people of their own race and culture) they would never be so unkind or chauvinist as to say (3). That obviously leaves only (4) – that a taniwha is a representation, essence, symbol or guardian (or, presumably, an “idea of guardianship”, if it does not exist except as an idea). A taniwha is, then, either:

(a) a belief in something that does not actually exist – to be likened, doubtless, to the sincere but erroneous beliefs of other religions, or (b) an idea; a summary of the properties of land, a symbol of something, a representation.

We might observe that in this latter case, if a taniwha is merely a summary, symbol or representation of something else, then it is surely unnecessary and second-best evidence; one could obtain the same evidence by going directly to the principal source.

Leaving that aside, if the taniwha now falls into this fourth category, then questions about whether the taniwha exists become irrelevant. The idea of the taniwha exists; and other ideas, such as tribal and family associations or natural forces, exist, summarised by the taniwha. Other questions must however arise in consequence: 1. In what sense, if any, can a belief or idea be something capable of respect and perhaps protection under the RMA– an Act dedicated, of course, to the sustainable management of resources? 2. In what sense, indeed, can concepts so amazingly imprecise as natural forces, essences, tribal and family associations, guardians and symbolic powers – all understood, of course, in a very holistic way – be capable of any precise meaning at all, over and above what the traditional guardians of the taniwha choose to say? So vague but powerful a force, properly harnessed, could stop absolutely anything, and could go wherever it pleased.[10] Before we go further, one final reason for European cynicism of the taniwha phenomenon must be mentioned. That is the suspicion that few, if any, Maori actually believe in taniwha in any meaningful sense, and that the recent surfacing of taniwha after a long period of inactivity is not the reappearance of a long- suppressed but always present living belief, but rather the conscious revival of long-dead beliefs (if not the reshaping of inchoate ones, or even complete invention of new ones) for the purpose of pecuniary gain. This author must readily admit that he is in no position to give an authoritative account of the mental processes of all taniwha-professing litigants. But, after all, this is essentially one of the Crown’s arguments in the Ngawha case, where Wild J recorded the “Minister [of Corrections’] response … that Takauere [the taniwha] has little if any modern-day significance to [the tribe] …”[11] Cynicism must remain – mingled, of course, with a sad acknowledgement of the human capacity for willing self-deception. After all, can we not see abundant evidence, even in newspaper reports, that the link between Maori god and mammon is every bit as strong as it was when Tetzel was selling indulgences in Wittenberg to pay for the building of St Peter ’s? According to Mr Owen McShane[12] “Kaipara Excavators has agreed to pay Ngati Wai a ‘cultural liaison’ fee of $1 million so that iwi won’t object to their application to suck up sand from the seabed. It seems sometime during the 1800’s Ngati Wai fought a sea battle somewhere within the 480 square km dredging area and remains from the battle are still on the ocean floor and should not be disturbed. Beats working.”

Mr McShane is sometimes perceived as having a jaundiced view of the RMA; but if things like this are true, perhaps he has a point. After all, if human remains should not be disturbed then they should not be disturbed. How can any monetary payment render acceptable that which was previously unacceptable? That is surely what Christians would characterise as simony – the selling of sacred things and spiritual benefits. According to the Christchurch Press, 30th October 2002, Ngai Tahu is to receive $1.62 million from Contact Energy, in a “mitigation package” which results in Ngai Tahu support for Contact’s applications for resource consents to use the Clutha River. About half that sum was for “research” on Clutha fish resources, and Ngai Tahu university students would receive funding for studying natural resource management. Some locals have described this as “nothing but a bribe to get the consents through”, but a Ngai Tahu spokesman described this as a “narrow view”, and Contact Energy’s general manager said that calling the payment a bribe was “most unfortunate”. Asked whether Ngai Tahu had requested the money from Contact, the Ngai Tahu spokesman replied that “it was a joint effort”.

$540,000 has been spent on “consultation” with Maori in relation to a proposal to build a prison at Hampton Downs. Over $100,000 has been given to the Ngati Rangi Hapu Development Committee for “work” on the Kaikohe prison.[13] The Tasman Bay District Council evidently requires applicants for resource consents to pay consultation fees to iwi, even if iwi are not directly affected.[14] Iwi representatives claimed that councillors who objected to this “were forgetting the spirit of the Act”, and that their iwi were “way behind other iwis” in their handling of such applications. They threatened that any change in council policy would lead them to “reshape their interpretation of the Act” – and warned that litigation would ensue.

On a humbler note, three “primary mauri” and two “kaitiaki taniwha” have recently been sighted in Port Levy on Banks Peninsula, leading to the conclusion, in a “Cultural Impact Assessment of proposed marine farms” that “the entire Port Levy area … is of major spiritual significance to local Maori. It is important that the spiritual guardians present in the Bay not be disturbed. Therefore the application by [a particular firm] to establish marine farms in this area is deemed to be culturally and spiritually unacceptable”.[15] Notwithstanding this pretty clear statement, the report concludes that the firm is “advised to establish and maintain a consultative relationship with the [local] Runaka in relation to any proposed development. A letter of support from [the runaka] would also be required to give confirmation of approval … it is also recommended that a Protocols Agreement be formulated with the Runaka forthwith to establish appropriate ongoing cultural consultation processes”. And in fact the local runaka is now “involved in a mussel farm application” in relation to Port Levy itself.[16] One might in passing wonder exactly how it is that mussel farming comes to be “culturally and spiritually unacceptable”. It cannot be that mussel farms are inherently offensive; the Waitangi Tribunal itself has recently recommended that 20% of all permits for new marine farms go to Maori. It cannot be something to do with the sacredness of the particular harbour and Port Levy, for, after all, the farming of Port Levy land (just as sacred, we are told, as the harbour) is evidently acceptable, seafood is taken from the waters of Port Levy now on a regular basis, and of course Maori there are now “involved in a mussel farm application”. There must be some other reason. How, anywhere, can mussel farms be spiritually offensive? I have never heard an explanation. Ask a Catholic priest, say, why something is offensive, and he will explain, by reference to an entire systematic body of thought and philosophy. We may, of course, disagree with that body of thought; but, if one accepts it, the conclusion in this particular case will follow, and that conclusion is (on its own terms) logical. Sometimes Maori do offer such logical explanations. Ngai Tahu’s desire to prohibit climbers from the summit of Mt Cook is defended on the ground that Mt Cook is their ancestor, and the summit is the ancestor ’s head and the head is the most sacred part of the body. If one accepts the basic premise, then the conclusion is logical. But I have never heard the offensiveness of marine farming explained in a similar way. What is the reason?

A document prepared by Te Runanga o Ngati Puu’s Environmental Management Group was recently publicised by Dr Nick Smith M.P. The document said that its object was to uphold the Resource Management Act and protect Ngati Puu’s natural resources and heritage. According to the Christchurch Press:[17]

It says the first rule on consent application is to “object”. The second rule on consent application is “object”.

“If in doubt go back to rule one (objection gives time, time is of no importance to us, only the application)” it says. The first rule of objection is to claim lack of consultation, the document states. The second is the Treaty of Waitangi, the RMA is the third, and the fourth “anything anyone can think of”. Results would not be measured in dollars, “but the sum of the good that can be gained for the hapu”. Ngati Puu spokesman Ted Shaw said … the document had been intended for discussion only. Environment Minister Marian Hobbs said Maori were “not the only group to use the RMA is such a fashion”.

Many readers, doubtless, will be supportive of the RMA’s general objectives, increasingly uncertain as they are, and would be reluctant, for principled reasons or perhaps only practical ones, to forsake established legal and administrative structures and practices. Any intelligent defence of the Act, however, must first acknowledge that it is not without its defects. Let us be frank and admit that the RMA’s provisions concerning consultation and public involvement in decision- making, commendable though they may be in principle, are nevertheless abused and give the Act a bad name. It was in an attempt to remedy some of those abuses that the recent amending statute was made.[18] A Wellington public policy consultant, Barrie Saunders, said that he has encountered several instances in which “clients have effectively been forced to pay significant sums of money for exercises which seem to serve no real purpose other than to enhance the wealth of the party that might otherwise have objected …”.[19] This is, as Mr Bill Day observes in the same article, “the thin end of the wedge of corruption in New Zealand”. The point hardly needs to be laboured, since examples will probably spring to the minds of many readers. It is, certainly, not only iwi who are so guilty; it can also be, as Mr Day said, competing businesses. It may be difficult, indeed, to develop a system which can distinguish between valid objections, sincere but misguided ones, and ones motivated by pecuniary considerations. But in the long run, one way or another, through the increased costs of developments or the impossibility of necessary developments, we all pay for improperly-motivated objections. The Ministry for the Environment is working on a number of “Business compliance costs projects”, designed to “introduce measures to reduce RMA compliance costs on New Zealand’s business community”.[20] This is in response to the report of the Ministerial Panel on Business Compliance costs, which identified that the RMA:

was a significant cost to business due to:

• Inconsistency in interpretation
• Lack of capacity in local government
• Time delays
• Difficulties in meeting obligations to Maori

In meeting obligations to Maori, however, planned projects include not only assisting local authorities in establishing and maintaining an iwi contacts database – surely not a very complicated matter – and preparing iwi consultation guides, but also:

• Small Business Assistance for Maori Groups – guidance in business skills and charging practices for those Maori entities offering specialist Maori knowledge consultancy services in the RMA context.

We are surely entitled to doubt whether establishing ongoing businesses making a living out of “specialist Maori knowledge” is going to do much to solve the problem. The cynic could well argue that it will serve merely to establish and entrench a vested interest, which would make its living from businesses forced to pay for suitable consultation. Given all these weighty considerations, the precise nature of Wild J’s discussion in Friends and Community of Ngawha et al v Minister of Corrections must be a matter of considerable interest. It should be noted at the outset that His Honour acknowledged that the precise nature of a “point of law”, the only matter on which one may, under section 299 of the RMA appeal to the High Court from the Environment Court, was a matter of some vagueness if not elasticity; His Honour did not take a legalistic or quibbling approach, but still dismissed one of the five grounds of appeal (alleged lack of consultation) on the basis that it essentially concerned a question of fact on which the lower court had already made a reasonable finding. Another ground, involving mana, wairua and mauri, was in part “essentially repetitive” of the central ground, to be considered below, and in part was a challenge to the Environment Court’s factual findings. At the end of his judgment His Honour reminded the appellants of the “very narrow basis” on which they might appeal, pointing out that it was not a general right, and that in cases of this nature the proper expectation was that one’s day in court was to occur in the Environment Court. One should note, also, that as a matter of fact not challenged in the High Court, the only cultural or traditional relationship with any taonga on the land was with two ponds, and that relationship had been recognised and provided for. Finally, one should note that there was complete disagreement among Maori witnesses on the taniwha question. At least one witness described the taniwha (Takauere by name) as the guardian of all the waters of Tai Tokerau, and deposed that the wick drains on the prison site would disturb his home. Others disagreed, one saying that the taniwha lived in a lake some six kilometres away, and, although he travelled away from there, yet did not do so extensively. “Another witness took the position that the taniwha was being misused to fight the prison proposal, in a way that he found offensive”.

The chief ground of appeal, and the focus of the judgment, was that “the Environment Court failed to recognise and provide for a matter of national importance, being the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga …” Seven particulars followed. It was claimed that the (alleged) compromising of the relationship between local Maori and the site was “an adverse effect on the environment”. His Honour observed, however, that sections 6, 7 and 8 of the Act contain principles, or criteria, matters to be considered to one extent or another, rather than effects on the environment, although obviously many of the matters listed will, if implemented, have effects on the environment for good or ill (e.g. the preservation of natural character, the enhancement of the quality of the environment, the efficient use and development of resources). The appellants alleged that the Environment Court erred in restricting the scope of section 6(e) of the Act to tangible, physical considerations, and dismissing spiritual or metaphysical ones. They maintained that, certainly since Bleakley v ERMA,[21] section 6(e)’s reference to taonga must include intangible, spiritual and cultural aspects such as whakapapa (ancestry, descent) mauri (lifeforce) and te reo maori (the Maori language). This claim was in fact accepted by the Crown, which in its turn, however, contended that beliefs are not (and cannot be) a resource under the Act, and that even if they were the sustainable management of resources would not require their absolute protection. How, in any case, can one sustainably manage a belief? No more than any other group do Maori possess a veto over development. They do not obtain one merely because several matters germane to them are listed in Part II of the Act. Even if one could consider beliefs to be part of the environment, the Act does not involve protecting or providing for beliefs. Physical works, after all, do not interfere with beliefs, and it is “impractical” for a court to provide for relationships with spiritual or metaphysical beings.[22] The High Court accepted the Environment Court’s findings of fact that the only specific taonga on the proposed prison site were ones whose relationships with local Maori had already been recognised and provided for by the applicant. Four particular subdivisions of the chief ground of appeal, however, dealt with the taniwha Takauere. The Environment Court was said (by the appellants) to be in error in failing to recognise and provide for “beliefs about” the taniwha, and for finding that claims about the taniwha should not influence its decision. It was alleged – the evidence, as mentioned above, was conflicting – that various works and drains would intrude upon the taniwha’s domain. The Environment Court found that the taniwha was “not a human person nor a physical creature” but could be described as “mythical, spiritual, symbolic and metaphysical”.

Even so, the Act and the Court are creations of the Parliament of a secular State. The enabling purpose of the Act is for the well-being of people and communities, and does not extend to protecting the domains of taniwha, or other mythical, spiritual, symbolic or metaphysical beings. The definition of the term ‘environment’ in section 2(1) does not extend to such. Although sections 6(e), 7(a) and 8 are sometimes referred to as protecting Maori spiritual and cultural values, those sections have been carefully worded. Their meaning is to be ascertained from their text and in the light of the purpose of the Act (see section 5 Interpretation Act 1999). Neither the statutory purpose, nor the texts of those provisions, indicates that those making decisions under the Act are to be influenced by claimed interference with pathways of mythical, spiritual, symbolic or metaphysical beings, or effects on their mythical, spiritual, symbolic or metaphysical qualities.[23]

The Environment Court observed that there are “difficulties” in expecting judicial bodies to decide questions about such creatures as taniwha. If some witnesses allege that proposed earthworks will impede the taniwha, and other allege the opposite, how is the court to decide? No member of the Court was persuaded that any of the earthworks would affect the taniwha, but beyond that the bottom line had to be that “disputes about a taniwha are simply not justiciable”. The appellants alleged, however, that the central issue was not whether the taniwha would survive the prison development (a speculative and non-justiciable issue) but rather - more capable of proof – the issue was that of “the effect of that development on Maori and on the belief some have in Takauere, and thus on their lives.”

We must be careful here. Following authority,[24] the High Court accepted that taonga, mentioned in section 6 of the Act, includes beliefs and legends. (One might observe in passing that this was clearly not the meaning of the word in 1840, when it meant merely “physical possessions” or even “property obtained at the point of the spear”[25] – but let that pass.) Taniwha therefore have to be included in consideration of section 6(e). But the court also wisely declared that it was incapable of deciding competing claims about effects on taniwha, or even whether they existed at all. In that sense, disputes about them are simply not justiciable. The Environment Court had earlier found that some people believed in the taniwha, but also believed the taniwha would not be affected by the prison development. This seems to leave open the possibility that if the evidence were not conflicting, but (say) unanimously agreed that particular works would not affect the taniwha, then the decision might have been different. Indeed, His Honour observed that the taniwha, and Maori belief in him, were “two concepts … inextricably bound up”, and gave the example of a hill where a taniwha had its lair; the removal of the hill by quarrying would obviously affect both the taniwha and the people who believe in it. It would be proper, His Honour said, for the Environment Court in that case to take into account those “dual and interconnected effects”. The difference here seems to be that the evidence was conflicting.

His Honour did go on to say that although beliefs may be ‘taonga’ under section 6(e), there is no way in which they can be part of the ‘environment’, under section 5. Beliefs are not a natural or physical resource, and cannot be managed, sustainably or otherwise. Even if they were, however, all of Part II of the Act speaks of “use, development and protection’, according none of those three things a status superior to that of the other two. They must all be balanced in resource management. “The Act requires compromises and balancing”. There must remain, then, a doubt as to the precise point of the judgment. One final paragraph, in which His Honour sums up the taniwha question, will suffice to illustrate it.

[50] To recap, I consider the Environment Court in this case recognised the sincerity of beliefs in Takauere held by some tangata whenua. But, upon the conflicting evidence, the Court found that the site development work and the prison would not affect Takauere. Perhaps, more strictly, the Court found that every reasonable and practical provision for Takauere had been made, and that that appropriately balanced the competing factors.

What, then, is the reason for the decision? Is it that, “upon the conflicting evidence”, the decision that the works would not affect the taniwha was one open to the courts, and that reasonable and practical provision had been made? Or was it that, on balancing “competing factors”, listed in Part II of the Act, no veto on religious grounds could or should be imposed?

On a practical note, one might add that conflicts as to evidence are not uncommon. Even where evidence is not conflicting, its reception may be accompanied by difficulties. Such was the fate of the evidence of the Reverend Maurice Gray and other members of a “small dissident group” of Maori in Canterbury Regional Council v Waimakariri District Council.[26] After Te Runanga O Ngai Tahu had withdrawn its objections to the resource consent applications for the new Pegasus Bay Development, a “sincere pocket of intense opposition”, encouraged, it seems, by the Canterbury Regional Council, persisted in opposing the developments, relying on the implications of the great destruction of the adjacent Kaiapohia pa in 1831. Not just at the eleventh hour but on the last stroke of twelve, further evidence was produced by a number of witnesses including the Reverend Maurice Gray. He stated that the proposed site “does not have the capacity to withstand another spiritual disruption, which is highly likely should the Pegasus Bay development proceed. Any such disruption would prove to be full and final, with no opportunity for mitigation possible. The traditional system of Authority and its spiritual essence would be forever lost as would its people”. He maintained that he was the “only living repository” of certain knowledge, charged with guarding it for the future, and that certain facts he brought before the court were not known to any other witnesses or persons in authority within Ngai Tahu. The Court respected his confidences, and expressed its regret that he had not made this evidence available at any earlier stage. Nevertheless, it considered it “totally unacceptable at this late stage to halt these proceedings and essentially accept a veto now lodged by a small but sincere group of Maori”. The substance of the Court’s decision was that it was impossible to “sterilise” a large area of land, at least 338 acres, on the basis of the event of 1831 nearby, “save uses of an undefined but inoffensive nature approved by the tangata whenua”. The Court also commented:

Lastly, we record that the Reverend Gray made what we consider a veiled threat when he told us in his rebuttal evidence:-

There were occasions over the last 20 years when I advised against developers going into particular places in the Canterbury/Banks Peninsula area and this advice was ignored. Deaths occurred as a consequence – usually of a bulldozer driver or someone else working for the developer. Should I be asked to, I am prepared to furnish details of when and where these incidents occurred. In response to questions, he refused to either affirm or deny whether parties to proceedings and the decision makers themselves could be at risk. We make clear that this type of evidence is totally unacceptable when made in the course of evidence given in the decision-making process. Over the five year initial development period it is quite likely someone concerned with this proposal will die, peacefully or otherwise. This type of superstitious prediction will be seen as the cause. The job of the Court is difficult enough without being faced with threats of this nature.[27]

That sensible decision of the Environment Court must unfortunately be read in the light of the more recent High Court decision of Justice Ronald Young overturning another judgment of Judge Treadwell’s, in Takamore Trustees and Waikanae Christian Holiday Park v Kapiti Coast District Council.[28] The District Council and the National Roads Board had lodged a notice of requirement for a designation for a new road. Apart from an urupa (burial ground) the land about which local Maori were concerned was not owned by Maori (“although the land owners are apparently sympathetic to Maori concerns”). Much of this land is a “waahi tapu area”, registered by the New Zealand Historic Places Trust and recognised by the District Council in its District Plan. The Environment Court after hearing evidence had concluded that “we do not therefore accept on the balance of probability that the swamps contain koiwi [human remains]”. This was, it might be noted, a conclusion of fact. The Environment Court devoted at least four pages to considering the evidence placed in front of it. Much of the evidence, such as it was, was most imprecise and vague, and there was a substantial conflict of evidence also, as Mr Buddy Mikaere maintained that there were no koiwi or taonga of any sort in the wetland at all. The Environment Court concluded that the evidence it heard was “cryptic and assertive, bereft of any back-up history or tradition which would cause us to give some support to the concept of swamp-burials in the area …”

Nevertheless, despite those pages of consideration of the evidence, Justice Ronald Young came to the conclusion that the Environment Court had not provided any rational reason for rejecting the evidence of kaumatua of the presence of human remains. His Honour did indeed rightly point out that oral history was inevitably oral, and “the fact that no European was present with pen and paper to record such burials could hardly be grounds for rejecting the evidence”. That is of course true. But the consequence of that – especially when in the very next sentence he accepts that “geographical precision [cannot] be reasonably expected” – is that uncorroborated and imprecise assertion must be accepted. His Honour evidently considered that references to Maori matters in Part II of the RMA do away with any requirement for corroboration. He does not explain how section 276 of the Act bears on this point. His Honour emphasised also the absolute necessity of having particular regard (not a veto, certainly, but still a particular regard, which is more than mere consultation) to these concerns. We are to have particular regard, then, to assertion unsupported by corroborative evidence, assertion moreover where any attempt to obtain corroborative evidence – by cross-examination, for example, or by archaeological investigation – would of course be insensitive and not allowed. One can see the point of a newspaper commentator (speaking, certainly, of the Court of Appeal) who has recently wondered “How many judgments does the Court … have to toss, like smouldering cigarettes, into the tinder-dry margins of our society before we reach for the fire-hose?”[29] The matter was then remitted back to the Environment Court, which reconsidered it, guided by Ronald Young J’s words, in Te Runanga o Ati Awa ki Whakarongotai Inc. et al v Kapiti District Council.[30] After a very detailed re- examination of the evidence the Environment Court by a majority came to the same conclusion it had previously. The Court maintained that it had never insisted on the impossible, that documentary evidence of the existence of taonga in the swamp was necessary, but, with ample quoted authority (including that of Judge Whiting, another decision of whose is to be mentioned shortly), insisted that mere assertion was not enough to establish a wahi tapu; evidence was also needed; and that the evidence in this case was, for various reasons, quite inadequate. As in the Genesis cast to be considered shortly, Maori had, it seems, refused to engage in any consultation; their attitude being one of “total opposition”. Short of abandoning the entire project, the Council could do no more by way of consultation, and the Court accepted what is surely good law that it could not “place the opinions of kaumatua in a pre-eminent position”. Quoting Chisholm J in an unreported High Court case[31] it insisted that sections 6, 7 and 8 of the RMA do not “confer a veto over an otherwise legitimate proposal”. The Environment Court ultimately concluded that:

We cannot see any way in which the principles of the Treaty of Waitangi, the principles of section 7 or the principles of section 6 can be applied in a manner which would cause us to set to one side the all-embracing community thrust of section 5, aimed as it is in the present case at a living community suffering extraordinary difficulties and grief as a result of substandard arterials.

Notwithstanding that eminently sensible approach, a new depth in excessively trusting cultural sensitivity and the extension of the RMA’s brief to cover solely spiritual and cultural matters has been plumbed in the recent widely reported Environment Court decision Ngati Rangi Trust, Tamahaki Inc. Society, Whanganui River Maori Trust Board, Hinengakau Development Trust, Ngati Hikairo Hapu Forum, Ngati Tama o Ngati Haua Trust, Pungarehu Marae Incorporated Society on behalf of Ngati Tuera Hapu and Ngati Rangi Trust v Manawatu-Wanganui Regional Council and Genesis Power Ltd.[32] This case, which by common consent is usually referred to simply as the Genesis Power Case, concerned applications for resource consents to enable the Tongariro Power Development (TPD) Scheme to continue in operation. That scheme, constructed in the 1960’s and 1970’s, involved, among other things, the diversion of the headwaters of certain tributaries of the Whanganui and several other rivers so that their waters might be used for the generation of electricity. The diverted waters eventually flowed into the Waikato River. The various resource consents originally issued for this scheme were about to expire, and this case arose out of applications for resource consents to enable the TPD scheme to continue in operation. Judge R.G. Whiting and his commissioners, after 30 days of hearings, found as a fact that environmental damage caused by these diversions was negligible to non-existent. The various environmental woes attributed by Maori witnesses to the TPD scheme were found after very careful consideration to have other causes: land clearance, siltation, fertiliser use, overfishing, etc. It was also accepted by the court that there was no failure to consult. Indeed, the Whanganui iwi, “while requested by Genesis to engage in consultation, …. refused to go down that path unless the water is first returned … and until they have reached a settlement with the Crown in respect of their Waitangi claim”. The Court also heard abundant evidence, however, about “the losses to Maori occasioned by … a despoliation of the river and the denigration of their cultural values” occasioned by the “foreign management” of the TPD scheme. The words “foreign management” are Judge Whiting’s. (The TPD scheme was built by New Zealand government departments and was paid for by the New Zealand taxpayer). Abundant evidence of spiritual damage appears in the judgment. A number of witnesses spoke of “mauri”, the life force – defined in the regional policy statement as “the essential essence of all being”. Essentially. The policy statement is quoted at length:

Mauri – all things, both animate and inanimate, have been imbued with a mauri generated from within the realm of te kore. Nothing in the natural world is without this essential element – the mauri represents the interconnectedness of all things that have being. Just as human kind received the mauri from Tane, so did he inherit the mauri from Ranginui and Papatuanuku. Therefore all natural things, including human kind, share a common whakapapa (genealogy). Humans have an added responsibility to ensure that the mauri inherent in natural resources are maintained. Inappropriate use of resources, for example discharge of sewage to water, impacts directly on the mauri of that waterway and therefore all factors associated with it. The natural balance which exists amongst all things is disturbed and in many cases irreversibly damaged.

There is much more of this sort of thing, and no obvious awareness of the possibility that pollution by sewage could be considered undesirable for other reasons besides its effect on mauri. Mr Buddy Mikaere gave evidence suggesting that much of what was claimed about “mauri” was either modern invention or misunderstanding, but the Court thought little of that. Mr Mikaere also claimed that traditional Maori ideas offer no information about or opposition to the mixing of water from different river catchments, and that modern objections to the practice have “no traditional or cultural base”. Judge Whiting readily preferred the opposite view, held by the Waitangi Tribunal. The Whanganui River, of course, still flows, and for nearly all its length the diminution of flow from the TPD scheme is not perceptible. Nevertheless, much evidence was given that in the old days the river was used for healing, spiritual sustenance, spiritual cleansing, and so on, the strong implication being that this is now impossible. Considerable evidence suggested that “as the illness inflicted on our awa from the diversion of water has crept in, so too has illness among our people …”

This Maori evidence clearly struck a chord with the Court. Judge Whiting, after virtually taking judicial notice of “the way the Maori people regard the maintenance of the pristine nature of their environment which carries with it a continuity of the spiritual and cultural association they have always had with the land”, went on to “reiterate [his] disappointment at not being given the opportunity to have a more in-depth account of the tangata whenua’s feelings regarding what they see as the desecration of their traditional lands by the TPD structures”. He found that “the most damaging effect of [the] diversions on Maori has been on the wairua or spirituality of the people”. A little later he found:

that the TPD has had, and still does have, a significant effect on the Maori people … clearly the loss of the headwaters of their rivers by foreign management has been like a scythe that has partly decimated the very central essence of their cultural being …

Again, that foreign management, and some very bad English. After all of this, Judge Whiting took a generous approach to the “specific imperatives” concerning Maori in Part II of the RMA – which “should not … be read with a limiting pedantry. Nor should they be bogged down in legal niceties …” The cynic, of course, might translate “legal niceties” as “law”. It was therefore necessary to “balanc[e] the effects on Maori against the many benefits of the TPD”. One might have thought, in the light of all the evidence of horrendous spiritual woe which Judge Whiting swallowed hook, line and sinker that the only possible redress would be to refuse the consents, restore the water to its original catchments and thereby set things to rights. Such a decision would be unpalatable to Genesis, of course, but that would just be too bad. But in fact, the Maori appellants claimed that their grievance could be accommodated by:

(i) the release of more water down the waterways, and/or (ii) a reduced term of consent.

Remarkably, it seems that the amount of water required to be returned in order to re-establish spiritual well-being is not the whole amount. How much was required? One Maori witness declared that “it is for us to answer that question”. Lawyers for the appellants “could not quantify what minimum flow of water the Maori people now sought”. His Honour considered that “without such evidence, it would be presumptive [sic] of us to impose minimum flows …. That is a matter only Maori can determine, and it should be determined in an appropriate Maori way”. He added later that “Maori are having extreme difficulty in identifying appropriate restorative action to meet the metaphysical effects on them”. He concluded therefore by granting the resource consents sought for a term of only ten years, a term which would, so he believes, “concentrate and focus the minds of both parties”. It will certainly focus Genesis’ mind; the cynic would not find it so easy to see why it would focus the minds of the Whanganui iwi.

We have already touched upon the legal reasoning underlying the decision. Very little time was devoted to the legal question of exactly how much weight should be accorded to Maori concerns. His Honour, as mentioned above, simply began with the proposition that the Court was obliged to “balance the effects on Maori against the many benefits of the TPD”. This is hardly consistent with Judge Treadwell’s view that sections 6, 7 and 8 cannot “set to one side the all- embracing community thrust of section 5”. Judge Whiting’s interpretation of the effect of the Maori provisions in Part II of the RMA may not mean exactly giving Maori a veto power, but it is getting closer and closer. The net result of this decision, even ten years down the track, will be that little or no water will be returned to the Whanganui River. This decision, by a gullible judge enforcing Maori “spirituality” as something which all New Zealanders are obliged to accept, will merely be used as a device for extracting substantial payments from Genesis for the use of the water. Power prices will increase further. His Honour could have approached the evidence of Maori “spirituality” in a rather more realistic way. By not doing so he has allowed the Environment Court to be a party to a preposterous fraud.

Nevertheless, a less gullible approach has more recently still been taken by Judge Laurie Newhook of the Environment Court. As this article was going to print the New Zealand Herald reported his decision allowing an appeal by Auckland criminal lawyer Barry Hart, who has been seeking since 1998 to mine 30,000 cubic metres of sand annually from a 20 acre pastured site near the Kaipara Harbour. The Historic Places Trust had “registered” the site twenty years ago, and the Rodney District Council refused resource consents because of “iwi cultural issues and the site’s historic and cultural significance”. Sir Hugh Kawharu and other witnesses “told how the area was used for ritual song and speeches but under cross-examination Sir Hugh said he had made no mention at the council hearing of the song and speech rituals”. The consultant archaeologist had “unashamedly formed a close attachment” to local Maori, had assisted them with Waitangi Tribunal claims and in this case had lodged a submission in her own right opposing Mr Hart’s application. The Environment Court “questioned witnesses’ reliability and said there was inconsistency in evidence presented. It considered that ‘everyday activity and widespread but long-lost random burials’ should not prevent new endeavour on the land”.[33]

Justice Young in his decision in Takamore Trustees v Kapiti Coast D.C. observed that only four ‘waahi tapu areas’ have (so far) been registered by the New Zealand Historic Places Trust. It is likely that more will appear soon. A wahi tapu is defined by the Historic Places Act 1993 as “a place sacred to Maori in the traditional, spiritual, religious, ritual or mythological sense”, and a wahi tapu area is “an area of land that contains one or more wahi tapu”. The Trust maintains a register of such wahi tapu and wahi tapu areas, and, by section 32(4) of the Act:

In respect of any registered wahi tapu area, the [Maori Heritage Council, an organ of the Trust] (a) Shall give written notice of the registration to the territorial authority or regional council in whose area the wahi tapu area is located, and (b) May make specific recommendations to that territorial authority or regional council as to appropriate measures the authority or council should take to assist in the conservation and protections of the wahi tapu area.

By section 32(5), any territorial authority or regional council receiving such a recommendation, “shall have particular regard to the [Maori Heritage] Council’s recommendations”. Section 33 of the Act provides:

33. Proposals affecting registered wahi tapu areas –

(1) Where the Trust –

(a) Is advised by the local authority that the authority has received an application for a resource consent in respect of any wahi tapu area; or (b) Is considering an application or proposal under section 14 or section 18(2) of this Act that affects any wahi tapu area; or (c) Proposes to take any action in respect of any wahi tapu area, - the Trust shall refer the application or proposal to the Maori Heritage Council before taking any action in respect of the application or proposal.

(2) The Council shall consult the local territorial authority, the applicant for the resource consent, the relevant iwi or other Maori groups, and the proposers of the wahi tapu area, as the case may require, before taking any action in respect of the application or proposal.

(3) The Council shall, within 3 months of the date of receipt of that application or proposal by the Council, advise the Trust of any comment or recommendation it wishes to make on any application or proposal referred to it under subsection (1) of this section.

Wahi tapu appear both directly and indirectly in the RMA’s matters of national importance. Section 6(e) lists as one such matter “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga”, and paragraph (f), added in 2003, lists as another such matter “the protection of historic heritage from inappropriate subdivision, use and development”. Historic heritage is newly defined to include “sites of significance to Maori, including wahi tapu”.

According to recent newspaper reports[34] 180 hectares of land at Welcome Bay, in the Bay of Plenty, have been registered as a wahi tapu area at the request of local iwi. This has greatly alarmed landowners (whose submissions against registration were ignored) who consider that they have thereby lost property rights without compensation or right of appeal. Trees which one landowner is growing on 30 hectares of the 180 will, for example, not be able to be harvested without the approval of local Maori. The landowners maintain – and the Historic Places Trust does not appear to deny – that the land contains no specific historical or cultural sites, but is rather “referred to in song and verse”. The Chief Executive of the Historic Places Trust, Mr W. Tramposch, has maintained in reply[35] merely that “registration does not give the … Trust the power to control what happens on private property” and that “the [District] Council decides what conditions it will place on activities”. He does not mention that the District Council must have “particular regard” to the Maori Heritage Council’s recommendations.

He agrees that the Historic Places Trust may “recommend appropriate measures that the [District] Council should take to assist conservation and protection”. He fails to offer any assurances about the rigour of the Trust’s examination of the allegation of wahi tapu – such assurances might have served to allay suspicions that claims of sacredness could be invented or exaggerated. Nor does he say anything at all about the inevitable loss to landowners as their property falls in value, as it inevitably will when in order to obtain any resource consent a landowner must rely on the unpredictable and possibly expensive favour of others. Mr Tramposch could have written about these matters, but, for whatever reason, he chose not to. Given his, and presumably therefore the Trust’s , lack of interest in the legitimate expectations and hard-won property of ordinary citizens, we can hardly be surprised that, if anecdotal evidence is to be believed, some landowners are taking steps, of one sort of another, to ensure that their land’s Maori history does not come to the attention of the Trust. We might find it surprising that liberals who supposedly care deeply about infringements on Maori property rights care so little about the property rights of European New Zealanders. But the double standard is well entrenched.

Maori religion, of course, is not limited in its effects just to a few cockies, an unfashionable group who can be and often are ignored and despised by progressive thinkers. Maori “spirituality” can lead in all sorts of directions. The Hazardous Substances and New Organisms Act 1996, for example, requires all persons exercising powers and functions under it to take into account the principles of the Treaty of Waitangi,[36] and also to take into account “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, valued flora and fauna and other taonga”.[37] Acting in accordance with this, ERMA, the Environmental Risk Management Authority, has established its own Maori advisory committee, which maintains that Maori have today, and had historically, practices relating to scientific knowledge.[38] The committee has been generally opposed to genetic modification – it is not alone in that of course – but so far ERMA has declined to accede to its recommendations to decline applications. The Otago Daily Times[39] has commented:

Quite where this point of view will fit into the future of scientific development in our country is difficult to assess. Given the Government’s bald opinion that the constitutional basis of New Zealand is to be found in the Treaty, it seems likely that a Maori perspective will continue to be an essential element in all such procedures, probably more so. This means science and all those who practise it will have to comprehend how to rationalise, for example, Maori customs claimed to be related to genetic engineering with the fact that that process was unknown to historical Maori, and no Maori word for “gene” exists. But, it should be noted, the Authority has in its decision last week now barred a Crown-owned science company, AgResearch, from copying the genetic information of any Maori in an experiment to create cows that give milk containing human proteins which might be valuable in treating human diseases. Logic suggests, of course, that Maori will decline to be treated on spiritual grounds by any medicines that may result …

The present draft of the Aoraki/Mt Cook National Park Management Plan[40] proposes to give the Department of Conservation the power to “encourage and/ or require” climbers not to stand on the summit of Mt Cook. The justification offered is that Mt Cook is the deified ancestor of Ngai Tahu, and standing on the head, the most sacred part, of the ancestor is disrespectful. The Department has been made aware that this would seem to be a breach of section 4 of the National Parks Act 1980, which declares that national parks are “for the benefit, use and enjoyment of the public” and shall be so administered that “the public shall have freedom of entry and access to the parks”. The only limitation is that this is “subject to the provisions of this Act and to the imposition of such conditions and restriction as may be necessary for the preservation of the native plants and animals or for the welfare in general of the parks”. The enforcement of the religious beliefs of a section of the population does not fall within these limitations.[41] For the same religious reason – no real attempt is made to find an environmental one – the plan proposes to discourage – doubtless it would prohibit were that prohibition enforceable – the scattering of the ashes of the cremated deceased within the park, and also will require all climbers required to answer an urgent call of nature[42] away from a hut lavatory in the topuni area[43] to carry their detritus back to a hut lavatory for disposal.[44]

There was a time in the history of our environmental law, before the decision of the High Court in Huakina v Waikato Valley Authority[45] when merely metaphysical and spiritual considerations could not be taken into account in making decisions – under the Water and Soil Conservation Act, at least. In retrospect, the decision of Judge Skelton in the Planning Tribunal in that case, affirming a long-established line of earlier authority to that effect, might have been a wise one. No reasonable citizen would support the mocking of any genuinely-held religious belief – a non-Christian one, anyway, for Christians, as observed above, are clearly fair game. But the present Prime Minister, in defending her decision not to have grace said at the state banquet referred to above, said that, as a consequence of being “increasingly secular”, “in order to be inclusive, it seems to me to be better not to have one faith put first”. Yet under the guise of biculturalism, a real state religion – admittedly a crude and primitive one – is being introduced.[46] And if Maori religion should guide our conservation and environmental policies, why should it not guide everything else as well? Yet recent overseas events should surely warn us that furious religious differences are best avoided. The reason we are trying to lay the foundation for religious wars in our own country remains mysterious to many.

Given the current enthusiasm for all things Maori, and the pretty general words of various statutes, Maori “spiritual” considerations seem likely to be around for a while. There is a distinct element of racial condescension in this approach, assuming as it does that all Maori – all “genuine” Maori, anyway - still hold to ancient pagan and animistic beliefs, and that no real Maori could be, say, a Christian. Judges faced with queues of weeping witnesses must certainly accept that some Maori, anyway, still profess to be pagans and animists – when it suits them, anyway – but nowhere do the most enthusiastic judicial supporters of sensitivity to Maori religion ever consider the question of the wisdom of a state religion and the gross offence given to the majority of citizens – including many Maori – professing another religion (or none). The words of the RMA are general and can certainly, at a pinch, be stretched to cover this sort of thing, but it is by no means a necessary or inevitable interpretation, and it is not a wise one. It is a pity that Judge Whiting did not express his regret at the absence of any evidence on that matter, instead of lamenting that, after 30 days of hearings, he still wanted “a more in-depth account” of the anguish of tangata whenua. The current mania for Maori “spiritual” considerations will, at best, create enormous tangles and complications in decision making, incite considerable ill-feeling, impede the freedom of land-owners to do as they please with their own property subject to that elusive environmental bottom line, and offer considerable scope for abuse of the principle and downright corruption. Here be dragons indeed.

[1] Articles 13 & 15.

[2] See the Parliamentary discussion quoted in (2003) 26 TCL 13/12.

[3] See Peter Munz, “Te Papa and the Problem of Historical Truth”, (2000) 6 History Now, 13-16.

[4] Rob Harris, “Marking a place for taniwha in culture and law”, (2003) Resource Management Journal, 18.

[5] This is the conclusion of Dr Margaret Orbell in her Illustrated Encyclopedia of Maori Myth and Legend (Canterbury University Press, 1995) pp. 72-74. The view that such a spirit had always been known, if only to a select few, now seems generally discredited. It is worth observing that Dr Orbell does not entitle her book “Maori Religion” but rather “Maori Myth & Legend”. The entries nearly all concern particular people, birds, fish, plants, mountains, rivers and other places, and Maori do not style themselves as, say, children of Israel, of God, of the Book, or whatever, but rather as tangata whenua – “people of the land”. “Maori spirituality” seems something of a contradiction in terms.

[6] See for example Dr Tim Flannery’s The Future Eaters (Reed, 1994), cc. 16, 18 and 23, and Jared Diamond, The Rise and Fall of The Third Chimpanzee (Vintage, London, 1992), c.17, The Golden Age that Never Was.

[7] Op. cit.

[8] Op. cit.

[9] [2002] NZRMA 401. The case appears in the Environment Court as Beadle v Minister of Corrections A074/2002, and certain aspects of it have been briefly considered by the Court of Appeal (CA 216/02).

[10] “The Maori resource management term kaitiakitanga is commonly used in legal or environmental contexts but there are dimensions and applications including the system of penalties and rewards, that are not widely understood …

What kaitiakitanga entails in practice is not simply defined, nor does it have a single meaning. Although kaitiakitanga is seen within the broader context of cosmic unity between humans and the universe, it must nevertheless be interpreted on two independent levels: the philosophical and the pragmatic. Each reflects the other. Kaitiakitanga may be interpreted differently between kin groups and, indeed, its application may differ among members of the same kin group. Despite these differences, however, there are some essential features. It incorporates a nexus of beliefs that permeates the spiritual, environmental and human spheres: … Although these customary principles (tikanga) underpinning kaitiakitanga may themselves remain constant, the exercise of kaitiakitanga may be ever-changing, adapting to new circumstances created by law, policy, infrastructural development, shifts in human, bio-physical and capital resources, and the like. Not least, it depends on the readiness of kin groups to capitalize on opportunity. Indeed, many opportunities for Maori have been shaped by Treaty-driven policies by which kaitiakitanga has been recognized by the Crown and others as the practical exercise of mana whenua, or in Treaty language, rangatiratanga. That is, the Treaty defines not only responsibilities, but also status and rights, rights protected by Article Two of the Treaty. However, while Maori have been guaranteed certain Treaty rights and while kaitiakitanga may be a basic principle in all kin group resource management and development policy, in order for rangatiratanga and kaitiakitanga to be substantiated, those rights need to be acted on by Maori and non-Maori.” – Merata Kawharu, “Kaitiakitanga: A Maori Anthropological Perspective of the Maori Socio-Environmental Ethic of Resource Managements”, (2000) Journal of the Polynesian Society, 349, 351, 367.

[11] Supra, paragraph 37.

[12] National Business Review, 7th September 2001.

[13] Dominion Post, 6th September 2002.

[14] Press, 11th December 2000.

[15] Cultural Impact Assessment, Proposed Marine Farms at Port Levy, Beacon Rock, Big Bay and Pigeon Bay, undertaken by Rev Maurice Gray, Jade Associates, May 2001.

[16] Canterbury Aoraki Conservation Board Minutes, 21st February 2002, p. 13. The runaka is now a shareholder in a marine farming company which has since successfully applied to the Canterbury Regional Council for resource consents for a mussel farm in Port Levy. At the time of writing several parties, including the marine farming company itself, are appealing against this decision to the Environment Court.

[17] Press, 12th March 2003.

[18] Readers must however go elsewhere for a detailed examination of the changes made by the Resource Management Amendment Act 2003.

[19] Dominion Post, 5th October 2002.

[20] http://www.mfe.govt.nz/issues/resource/compliance-cost.htm [21] [2001] 3 NZLR 213.

[22] May one observe that a being whose home might be disturbed by drains, or which travels (although not extensively) from water body to water body, does not sound entirely spiritual?

[23] Paragraph 439.

[24] Bleakley v ERMA, supra.

[25] Mr Denis Hampton explores this question in the Otago Daily Times, 1st February 2000.

[26] [2002] NZEnvC 20; [2002] NZRMA 208; already noted in [2002] BRM Gazette 18.

[27] Paragraph 72. The Reverend Maurice Gray, an ordained Anglican clergyman, has stated (pers. comm.) that Christianity does not require one to abandon belief in the gods of the Maori pantheon. Such, indeed, now seems to be the official teaching of the Anglican Church, which now includes studies of nature gods in its theological training. The head of the Maori Anglican Church, Bishop Vercoe, saw “no incompatibility between Christian teaching that there was one God and Maori beliefs that there were many”, and Professor Whatarangi Winiata “believed in both a Christian God and the old gods” (Sunday Star-Times, 2nd September 2001).

[28] 4th April 2003; AP 191/02, Wellington Registry.

[29] Chris Trotter, Otago Daily Times, 27th June 2003.

[30] 30th July 2003; W050/2003.

[31] Ngai Tumapuhiaarangi Hapu Me Ona Hapu Karanga v Carterton D.C. (HC Wellington, AP 6/01).

[32] 18th May 2004; A067/2004.

[33] New Zealand Herald, 14th August 2004.

[34] Independent, 13th November 2002, and Press, 20th November 2002.

[35] New Zealand Heritage (the magazine of the Trust), Autumn 2003.

[36] Section 8.

[37] Section 6(d).

[38] This committee received distinct statutory recognition in 2003 when an amending statute established Nga Kaihautu Tikanga Taiao, a committee which will provide advice to the Authority on “matters relating to policy, process and applications”.

[39] 7th October 2002.

[40] Department of Conservation, October 2001.

[41] As to the questions of why section 4 of the Conservation Act does not allow such a prohibition, see not only the principle generalia specialibus non derogant, but also De Balaenis Noviter Inventis [1996] NZLJ 164, by the present author.

[42] In relation to defecation; urination, mercifully, will not be covered by the plan, although surely equally offensive to the mountainous deified ancestor.

[43] Topuni are an ‘overlay’ of an added area of protection, in this case covering the part of the National Park where Mt Cook itself stands; see ss 237-253 of the Ngai Tahu Claims Settlement Act 1998.

[44] Some of the hut lavatories are evidently reasonably full already (pers.comm.).

[45] [1987] NZHC 130; [1987] 2 NZLR 188.

[46] Is it not a bizarre double standard that the same people who condemn teaching Judaeo-Christian creationism in schools (as an alternative to Darwin’s theory of evolution) are very often the same people who applaud the teaching and state recognition of Maori religion?