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David Round

Prosecuting Sonny Tau

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I am pleased to hear that the Department of Conservation is prosecuting Sonny Tau, big man in Northland’s Nga Puhi, for the possession and indeed, so I understand, for the killing of five native wood pigeon or kereru (Hemiphaga novaeseelandiae). A Departmental officer at Invercargill International Airport is said to have found the five dead pigeons in Tau’s possession as he was about to board a flight. To hunt, kill or have in ones possession absolutely protected wildlife such as the pigeon is a serious offence under the Wildlife Act 1953; the penalty is a fine of up to $100,000 or two years imprisonment.

I must admit that for a while I was worried that the Department was not going to prosecute. I am afraid that from time to time the Department does show itself to be a little ~ over-delicate? pusillanimous? downright cowardly? ~ in its approach to Treaty issues. An old friend, indeed, was so worried that he laid a complaint himself at his local police station ~ where the girls in blue were not at all helpful, and rather surprisingly seemed to take a very dim view of citizens reporting criminal behaviour, at least where Treaty issues were involved. He thought I should also lay a complaint, and I was resolved to do so after my return from a few days down south. I even thought about urging all of you, gentle readers, to follow suit! But now I am back, there appears to be no need.

It would of course be disastrous for the pigeon were there to be no prosecution ~ just as it would be if some appalling ‘progressive’ judge were to decide that Tau’s ‘Treaty rights’ took precedence over the provisions of the Wildlife Act. Such a judicial decision is not a paranoid fantasy ~ I recall that some years ago another accused Northland Maori was discharged without conviction because the stupid judge thought that pigeon poaching by Maori ‘should not be against the law’. But the eyes of the nation will be on this case. Assuming the facts are as they have been reported, then if Tau is not convicted and suitably sentenced, it will be open slather on the poor old pigeon. Everyone of Maori descent in the country would be killing their ‘traditional food’. It will be their Treaty right! Tahu Potiki, writing in the Press, sees no reason why a ‘modest take’ should not be allowed where pigeon numbers are abundant. Does it not occur to him that the numbers will not be abundant for very long?

Moreover, if Maori were given a special racial right to take a protected species, then we may be sure that not only Maori will be doing so. Any number of New Zealanders not of Maori  descent will resent the racial favouritism shown to those of another ethnicity, and will take pigeons themselves; perhaps out of mere bloody-mindedness, perhaps because of a desire to eat what was, after all, also a traditional food of our British pioneer ancestors. I remember one old aunt of mine telling me not just of pigeon, but of kaka pie! What could the objection be? The bird could not be endangered ~ if it were, no-one would be allowed to take it. So why should those of one racial ancestry be allowed to kill pigeons, while others who do exactly the same thing are sent to jail? I cannot see the New Zealand public putting up with that.

The case has some intriguing aspects. The accused is of a Northland tribe, and was arrested in Southland. I daresay the movers and shakers in Maoridom are always popping in to visit each other and compare notes on how their struggle against oppression is getting on. Alas, my own ignorance of Maoridom’s finer nuances makes me unable to speculate as to exactly whom Tau might have been visiting, or what hui attending. But then, we learn also that he was stopped by a Departmental officer at Invercargill International Airport. It is not often that one sees DoC officers hanging around domestic airline terminals. We may assume, surely, that the officer was there for some particular purpose ~ that he had, at least, been tipped off ~ or even, perhaps, that he had been following this matter for some time.

Was this an isolated incident, or perhaps part of a rather larger operation? Do northern Maori regularly come south to kill pigeon? Is poaching regularly occurring?  Is the South Island public conservation estate becoming a game park for North Island Maori?

Because, after all, isolated incident or not, why would anyone risk detection by carrying absolutely protected species on an aeroplane? Why fly pigeon up north? Might it be because there are not enough up north? Why would that be? Some years ago a Maori campaigner against pigeon poaching warned that pigeon would soon become extinct in Northland if the amount of poaching there did not decrease. In 2010 the Sunday Star-Times repeated this prediction. I can only speculate as to what has happened since. Are any left? Declining numbers would certainly not be good evidence of that wise stewardship ~ the role of Maori as kaitiaki, guardians ~ which is supposedly so strong a strand in Maori culture. An investigation into Northland pigeon numbers and poaching might cast a very revealing light on the great kaitiaki hypocrisy.

And according to some reports, anyway, the five pigeons were found not in his luggage but under his coat. Five of them! Were they in a plastic bag? Did they rustle? Bleed? At the very least they must have bulged strangely….

I imagine that Tau’s defence might involve a claim that pigeon are a ‘traditional food’, and perhaps that section 4 of the Conservation Act 1987, which says that ‘This act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi’, justifies his actions. Let us think about these.

A traditional food? Undoubtedly. Just like kiwi, kaka, penguin, woodhen (weka), tui, kakapo, albatross.  Just like moa, for that matter. I leave you to recall the fate of our eleven species of moa. Just like whitebait, paua, crayfish, mussels, every sea and river fish; just like seals and dolphins. Sir Tipene O’Regan, indeed, has called for the ‘harvesting’ of fur seals, as well as saying that the only reason for protecting pigeons now is to enable numbers to increase to the point where they can be eaten again. Not a very spiritual attitude, I’d have thought; but then perhaps his bruising encounters with the white man’s world in Hanover Finance have blunted his fine, albeit only one-sixteenth, Maori sensitivities. (Another former Maori member of the Conservation Authority was once reported as saying that pigeon were among the traditional foods which she expected to see whenever she visited a marae, and their non-appearance was a failure of hospitality. Mercifully, she was not reappointed; but the fact that she was appointed in the first place is not a good sign.)

Maori once ate just about everything they could lay their hands on. In fairness, in their past circumstances we would probably have done the same. But we have moved on since then. We can now walk into a supermarket and buy a nice big fat frozen chook for a surprisingly modest sum. Sandra Lee, of Ngai Tahu descent and sometime Minister of Conservation, considered it completely unacceptable to eat pigeon in the age of Tegel chicken. I agree. Changing circumstances force all of us to abandon some of the traditions of our ancestors. Cultures evolve. Living cultures are not museum pieces, frozen in time.  Is Maori culture not capable of evolving to recognise changed circumstances and new realities? To allow the ‘traditional foods’ defence would exempt Maori from just about any law in the country protecting or regulating the gathering of native species. It would be open slather for them ~ it would be completely unacceptable to the rest of the nation ~ and it would very rapidly lead to extinctions. Pigeon is not a necessary food; the eating of pigeon is to make a political point, not to stave off hunger.

What about Tau’s ‘section 4 defence’; that somehow ‘Treaty principles’ entitle him to flout the laws that bind everyone else? He is of course being charged under the Wildlife Act, not the Conservation Act, but the courts have chosen to hold that section 4 of the Conservation Act applies not just to the Conservation Act itself but to every other Act the Department administers, even if that other Act has its own differently-worded Treaty section! This is not logical, although from some of our judges it is sadly predictable. But even so, section 4 only allows Treaty principles to be used in interpreting statutes. Section 4 does not override statutes. It does not say that a part of a statute is invalid because it (allegedly) breaches ‘Treaty principles’. It just says that if there is wiggle room ~ if a statute is capable of more than one meaning ~ then section 4 will  be wheeled in to produce the interpretation more in line with ‘Treaty principles’. But I cannot see that there is any wiggle room here.

And then we come to the big question ~ would ‘Treaty principles’, in any case, justify pigeon poaching? As we all know, ‘Treaty principles’ can produce absolutely any result that any claimant wants, so we should not be too convinced by anyone’s claim, let alone Tau’s. It is also regularly forgotten that the courts’ list of principles is not just a list of Maori rights, but also of Maori obligations. The courts have said that principles include the duty to be loyal to the Queen’s government, to co-operate reasonably with it and to obey the law.

The Waitangi Tribunal, needless to say, has offered its own views on this matter in its ‘findings’ on the Wai 262 claim. This claim, originally lodged in 1991, alleged that all native plants and animals were taonga guaranteed to Maori under the Treaty, and that absolutely any laws concerning native species, including ones protecting them, were invalid as a breach of the Treaty. In 2011, twenty years later, the Tribunal, perhaps somewhat to our surprise, did not go quite so far, although it did go on about Maori as kaitiaki ~ cultural guardians ~ and to that end recommended significant changes to give Maori an equal voice with the Department in decision making ~ which, although certainly giving primacy to conservation, should also recognise the rights of iwi to ‘maintain their culture’. Uh huh.

If I may quote from an article in a learned journal which I wrote at the time:

‘The Report recommends something less than full Maori ownership. It does recommend, however, substantial Maori involvement in management and decision-making, which might well be considered to be a recognition of some sort of proprietary interest. Its extra layers of bureaucracy and management would of course come at a financial cost, possibly at the expense of spending on endangered species themselves. The Report clearly contemplates increased use of native species as an expression of Maori culture, and that could have significant consequences. The report summary says only that supporting kaitiaki relationships ‘can’ improve environmental outcomes, and it can easily be imagined that many newly created and empowered Maori management structures with a voice equal to the Department’s might not have the survival and recovery of species as their primary concern. It remains to be seen what comes of the report, but the sceptic might not necessarily consider it to be a guarantee of an improvement in the lot of endangered native flora and fauna.’

Some Maori now are agitating for such changes to be made. If they are made, it will be for political reasons, not conservation ones, and inevitably our long-suffering wildlife will suffer further. We may well be hearing more about this matter in the future. This disgraceful pigeon poaching is an aspect of a wider political picture.

(But note, anyway ~ for what it is worth ~ that not even the Waitangi Tribunal claims that there is an unrestricted right for Maori to kill pigeons now. That is something, at least.)

It will be interesting to see the writhings of the hand-wringers on this issue. They are all deeply committed to Treaty principles, of course; I know people who have copies of the Treaty on their bedroom or office wall; but they are all also, from their very comfortable well-paid inside-job-no-heavy-lifting vantage point, very deeply environmentally concerned. Where will they stand, I wonder? Do not expect anything coherent or courageous.

Where did the role of Maori as ‘kaitiaki’ come from, by the way? ‘Kaitiakitanga’ appears in section 7 of the Resource Management Act, and is defined in the Act as ‘the exercise of guardianship by the tangata whenua of an area in accordance with tikanga maori in relation to natural and physical resources; and includes the ethic of stewardship’. It has ~ now ~ a certain vague legal basis, then. But does it have any basis in fact or common sense? (Or is it simply another example of our own pathetic national inferiority complex and cultural cringe before the noble savage? You choose!) Tau, and numerous other poachers, are clearly not displaying much responsible guardianship. Nor is this anything new. Maori fires were responsible for destroying between a third and a half of our original pre-human forest cover, and the archaeological record shows regular cycles of over-exploitation. Dr Kerry-Jayne Wilson, in her magisterial Flight of the Huia; Ecology and Conservation of New Zealand’s Frogs, Reptiles, Birds and Mammals, estimates that about thirty-eight native vertebrate species were rendered extinct by human action before 1800, and only another fifteen species have become extinct since then. (Another thirty-six species have become extinct on the mainland, but survive on offshore islands.)

Indeed, Dr Tim Flannery, the author of The Future Eaters, An Ecological History of the Australasian Lands and People has written of Maori’s first several centuries of resource exploitation and destructive forest clearance, catastrophic soil erosion and biological impoverishment ~

‘But such desperate and wasteful strategies cannot continue for long ~ even in a rich land like New Zealand ~ for soil and forests are not inexhaustible. By the seventeenth century the Maori, their options limited by the decisions of the past, were facing economic and cultural crisis. Driven by hunger, the peaceful lifestyle of their Polynesian ancestors was under a threat as dire as were their food sources. The land of milk and honey once possessed by their ancestors was, as the Maori would say ‘Ka ngaro, i te ngaro, a te moa’ ~ lost as the moa is lost. By the time Europeans first sighted New Zealand, the resource crisis was in full swing…..’

A simple matter of resource shortages is enough, Dr Flannery suggests, to explain the brutal and utterly ruthless warfare, genocide, and cannibalism which had darkened Maori life and turned it into a thing of uncertainty and terror long before the Treaty.  Only the fortuitous arrival of Europeans with their pork and potatoes prevented an even more catastrophic population collapse.

The pioneers, of course, contributed their own fair share of destruction, which continues to this day; but that damage was certainly no worse. In fairness also let us admit that without that destruction New Zealand would not be the productive and prosperous land that it still is. Equally importantly, since the nineteenth century there has also been a very fine and continuing record of conservation work and initiatives.

Yes. I have been an active conservationist, tramper, amateur naturalist and lover of my own wonderful country since my youth. I consider it grossly offensive that one small racially defined minority, with an environmental record by no means impressive, has somehow managed to hijack the self-flattering title of natural guardians. I ~ many of us ~ have a proven track record giving us a much better claim to be guardians. Instead, we are by implication cast as the villains, against whom virtuous Maori are somehow guarding what is in some sense specially their property. To hell with that. It is not wicked white men who are killing the pigeons. Just who are the true spiritual guardians here?