L’esprit de l’escalier, the French call it ~ the wit of the staircase. All those clever things to say that you think of only when you are walking down the stairs after the party is over. I had such thoughts last year, after an interview I did for Fishhead Radio on the subject of the Maori claim, before the Waitangi Tribunal and now to Parliament and government, to fresh water. I am sure that Fishhead Radio was the name of the station, although when I have tried later to look it up on Google it seems rather hard to get hold of. Anyway, the station appears to have a distinct Maori emphasis. Nothing wrong with that ~ we are a free country, after all ~ but it was with a certain nervousness that I approached an interview.
I don’t know why I would worry, given that the case for public ownership of this vital resource is so strong and utterly reasonable, and the case of Maori claimants to ownership of fresh water so preposterous and obviously self-interested. Nor was the interviewer particularly acute or well-informed; he actually asked me at one point if I had ever heard of a document called the Treaty of Waitangi, and I got the impression that this was a serious question rather than sarcasm. My replies were to the point, and so effective, indeed, that although I remained calm but firm throughout, the interviewer very angrily and rudely cut me off at the end. Ah well, you can’t please everyone.
But one can always do better. Although my replies were good, I have thought of some snappier ones since. And so today I offer a new improved version of why this brand-new never-before-heard of Maori claim to fresh water is nonsense. We will concentrate today on the ‘cultural’ arguments ~ the (allegedly) legal arguments we will have to leave for another time.
My radio interviewer explained to me that in his culture ~ by which I assume he means traditional Maori culture ~ fresh water is ‘the tears of Papatuanuku’, and therefore Maori have special rights to it. Leaving aside the issue of the extent to which this radio interviewer, speaking English and living in an international twenty-first century world, actually is a creature of a traditional culture, I make several replies:
- Actually, my understanding was that Papatuanuku was the Earth Mother, and that rain was the tears of Ranginui, the Sky Father, lamenting his separation from her after their children ~ Tane (God Commanding forests), Tu (G/C war), Tangaroa (G/C sea), and co. ~ forced them apart in order to make room for the world of men. I first read this story in A. W. Reed’s Maori Tales of Long Ago ~ I still have my copy, given to me on my sixth birthday in 1959. Happy innocent days…Wikipedia has recently confirmed my childhood memories.
- But leaving this little detail aside! I wonder how seriously modern Maori take the tale of Rangi and Papa, and all the other picturesque tales from the world’s dawn. (Perhaps not all that seriously, if they make such a basic mistake as confusing the Sky Father and Earth Mother?) Are they really like Western creationists, insisting on the literal truth of the book of Genesis, denying the vast age of the earth, the immensity of the cosmos, the sun as the centre of the solar system, evolution and all the rest? Do they still seriously believe in taniwha as genuine physical monsters? Do they still practise the ancient customs ~ human sacrifices at the death of important chiefs, offerings to propitiate demons, the customs of utu and muru (whereby, when someone suffers misfortune, others would seize and perhaps even destroy his possessions…) Well, some of the ancient customs may still be around, but as for the belief system on which they were based, I have my doubts. I rather suspect that the tears of Rangi or Papa are just one carefully-selected fragment, to be preserved for our intimidation while most of the old mythology is consigned to the storehouse of discarded beliefs.
- But even assuming for a brief moment that many Maori are still covert worshippers of the old gods ~ why should their religious beliefs be given priority? Respect them, yes indeed ~ but what is sauce for the goose is sauce for the gander. How about a little respect ~ we do not see much from our cultural leaders ~ for the long-established religion of Western Christendom?
- That religious tradition, indeed, observes that ‘God sendeth rain on the just and the unjust’ The waters, in our tradition, are for everyone.
- And who is to say that Maori tradition is actually any different? Very well, let us accept the rain as the tears of Rangi ~ it is surely quite reasonable that Rangi meant those tears for everyone who lived here, not just those of one particular racial descent. Indeed, in the legend Rangi was just weeping, and not thinking of the human beings below at all. At no point in the legend have I noticed Rangi saying ‘And my tears shall benefit human beings’, let alone ‘And my tears shall benefit Maori human beings, but no-one else!’ What is the authority for that gloss?
- But in any case, we live in a secular society, without any established religion, and that is the way it should be. No-one is compelled to believe anything, or nothing. We have complete freedom of religion or irreligion. And just as it would be quite improper to impose any religion on us ~ although you might not realise that, given some of the spiritual figures lurking in those Maori prayers and karakia we hear on every official occasion ~ so too it is quite improper to impose any state policy which is based on religious belief. If someone announced that, say, we should not allow divorce, because Christianity forbids it ~ well, used to, anyway~ or that we should have no controls on immigration because (according to Pope Francis, it seems) that attitude is ‘unchristian’ ~ we would respectfully reply that that person’s religious opinions have no right to prevail over the public will and the public good. So must it be if it is Maori religion that is at issue.
(It is surprising, by the way, how many people ignore their own principles at this point. How often have you heard some godless atheist, some staunch enemy of religion, announcing that we should follow some particular policy ~ increase social welfare benefits, for example, or admit greater numbers of refugees, even hand over more public resources to the brown capitalists ~ because it is ‘the Christian thing to do’. Unless they are Christians themselves, this is hypocrisy; it is also completely inconsistent.)
In the Waitangi Tribunal’s interim report on the fresh water claim, a convenient list of twelve points ~ twelve ‘indicia of ownership’ ~ appears on page 38. (Indicia is the plural of the Latin indicium, meaning an indication, a sign, a distinguishing mark. It is nice to know that Latin still has its uses.) The claimants claim that these twelve points establish customary proof of ownership. I list them below, with my comments. As we will see, quite a few of them appeal to nothing more than picturesque myth or superstition, and are of the same calibre as the tears of Papatuanuku argument.
Before we look at them though, just note that the claim being made is indeed one for ‘ownership’, or something so close to it as to be practically indistinguishable. The Tribunal in its report repeated the claimants’ words that ‘the closest English cultural equivalent to express this  Maori customary authority is “ownership”. Maori have little choice but to claim English-style property rights today as the only realistic way to protect their customary rights and relationships with their taonga’. Indeed, Annette Sykes, for the claimants, denied ‘that English-style property rights are offensive to Maori or unknown to Maori’, and the Tribunal decided that ‘Maori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights’.
This is worth emphasising, because as of this moment the story is being spread about that the Maori claim is not one for ownership ~ that ownership is a very European, legalistic, unpleasant concept unknown to caring Maori in touch with Papa, Rangi and co. Maori don’t want ownership, no! What made us think that? All they want is just a say, a far greater say than they have now as to what happens to water. The obligations imposed upon Maori to care for their taonga simply mean that they have to be in charge! The Brown Man’s burden….But only panicky prejudiced people like some of us could misinterpret the Treaty claim as being one for ‘ownership’.
Several staunch Maori, all with good English names, have told me this. But it is simply not true. It may well be that they have now decided that since an out and out attempt to obtain ‘ownership’ is unlikely to succeed, then greater influence ~ read, ‘control’ ~ will do instead. And indeed, as long as Maori influence is sufficient to control decisions about water, it does not matter much whether the legal classification of ‘ownership’ is officially attached to it or not. Even if Maori do not end up with ‘ownership’, but ‘only’ with much greater influence in decision-making, the result will still be disastrous. But just note that the claim was for something very close to ownership. You will remember that the ‘research’ sought by the Iwi Leaders Group from the ‘research group’ Sapere actually recommended altering our present water law so that in future rights to water could be privately owned in perpetuity. Those new private owners might not all be Maori, but clearly Maori would not be commissioning such ‘research’ if they were unhappy with the concept of ‘ownership’.
And so to the twelve ‘indicia’ listed by the Waitangi Tribunal as ‘establishing customary proof of ownership’:
- ‘The water resource has been relied upon as a source of food.’ But this could be said of anyone. Many New Zealanders take eels and whitebait, and fish for trout and salmon. Moreover, they can do so without claiming any right to the water itself. One does not have to own a river to take a fish out of it.
- ‘The water resource has been relied on as a source of textiles and other materials.’ Really? Textiles? If we are talking about flax, it grows beside waterways, and in damp places, but is not actually a water plant. Every plant needs water to some extent. The Tribunal might as well say ‘Maori are entitled to own water because they ate plants and used the wood of trees’. And besides the ‘textiles’, just what other resources are we talking about here? And one can use plants without owning water. We all have gardens….
- ‘The water resource has been relied upon for travel or trade.’ Certainly, but not just by Maori. People of all races have so used it; and we all so use water without any sort of implication that this means we own it. The last time you were on a jetboat, did you think you had ownership rights to the river?
- ‘The water resource has been used in the rituals central to the spiritual life of the hapu.’ As in the baptism of Christians, perhaps, and the use of holy water in the Roman Catholic church? Maori are not the only people in the world to have noticed water’s rich symbolism. Who hasn’t?
- ‘The water resource has a mauri (life force)’. Oh yes? I think we are back to the tears of Papatuanuku at this point. This claim is, at the best, a poetic religious belief, but could just as easily be described as mumbo-jumbo. We would need some hard evidence of the life-force. Nor is it necessary for environmental sensitivity.
- ‘The water resource is celebrated or referred to in waiata.’ So singing about something means you own it? ‘When you go to San Francisco/Be sure to wear some flowers in your hair…’ Have I just acquired some valuable American real estate? ‘I see a bad moon rising…’ And I own the moon as well?
- ‘The water resource is celebrated or referred to in whakatauki.’ These are proverbs. Things like ‘You can take a horse to water but you can’t make him drink’, I suppose. Isn’t this rather thin ice on which to base a legal claim?
- ‘The people have identified taniwha as residing in the water resource.’ Are these idiots on the Tribunal for real? What are they on? Taniwhas do not exist. There is not the slightest shred of evidence to suggest that they ever have existed other than as figments of credulous superstition. Yet in the enlightened year of 2016 we are expected to give incredibly valuable public resources away because some people ~ the people wanting those resources, as it happens ~ tell us that man-eating monsters ~ taniwha generally were unpleasant creatures ~ live in those waters? If claimants actually believe in taniwha then they are fools of the first water, and should be given nothing except either some elementary education or a one way ticket to the loony bin. If (as I suspect) they do not actually believe the taniwha actually exist, then they are liars and con-men. I notice that their mates on the Tribunal coyly say merely that ‘the people have identified’ taniwha ~ leaving open the possibility that the Tribunal itself is too enlightened to believe in them. If that is the case, then the Tribunal is actually saying that a nonsensical and erroneous belief is a good basis for a valid claim to the Tribunal. That argument from the Tribunal would not surprise us, of course. But to have it spelt out here reaffirms the utter intellectual and moral corruption of the entire Tribunal process.
- ‘The people have exercised kaitiakitanga over the water resource.’ One can find any number of windy definitions of kaitiakitanga, but they all involve ~ allegedly ~ the exercise by Maori, the kaitiaki, of their sacred status of guardians. The Resource Management Act, to take one of the more concise and comprehensible definitions, defines it 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’. So Maori, then, are the guardians of water. Really? What would that make the rest of us then? It would follow, surely, that if Maori are the guardians, the rest of us, presumably, are the people that Maori are guarding the water against. If they are the caring, environmentally sensitive good guys, it would follow that the rest of us are the bad guys. That is, after all, the general drift of the whole kaitiakitanga business. How many times have we heard this threadbare old tale trotted out ~ to Maori, everything is sacred, imbued with life force, mauri, mana, blah blah blah, while to us Europeans these things are just resources to be used. I don’t know about you, ladies and gentlemen, but as someone who has been an ardent fighter for environmental causes since my youth, I find the suggestion that I and my people are nothing but despoilers as deeply offensive as it is completely untrue. I might add that Maori have, until very recently anyway, been highly conspicuous by their almost total absence from the mainstream New Zealand environmental movement. (The reason usually given for that, should one raise the subject, is that Maori are actually unhappy with the preservationist approach of the conservation movement, since they themselves look upon the natural world as something to be used! So how does that fit in with guardianship?!) I and many other non-Maori yield to no-one whatsoever in our environmental concern. I see absolutely no evidence that Maori are any different from anyone else in their attitudes to water ~ as this whole water grab shows. If you believe that Maori are claiming water for no other reason than to save it from wicked exploitation, then you have rocks in your head. If the Waitangi Tribunal believes the opposite, then, again, it is merely mouthing ignorant prejudices without any regard to very obvious facts or evidence. Its opinions are worthless.
- ‘The people have exercised mana or rangatiratanga over the water resource.’ This is so vague as to be meaningless. The law of New Zealand, the same one law for all, has applied to all water since English law and the Queen’s Peace were established here. At common law there was no ownership of water; the Water and Soil Conservation Act 1967 vested the sole right to use natural water in the Crown, and the Resource Management Act continues the approach that all citizens need permission to use this public resource. Maori may have sentimental attachments to particular water bodies ~ so do many of us. That hardly gives them rights of ownership.
- ‘Whakapapa identifies a cosmological connexion with the water resource.’ Meaning what? That water is ones ancestor or relative? Tribes are descended from rivers, perhaps, just as Ngai Tahu are descended from Mt Cook (a mountain they never saw until their invasion of the south in the eighteenth century)? Other tribes have whales as ancestors. Well, that is picturesque lore, but hardly worth taking seriously. Our own culture has its heroic myths, richer and more splendid than those of the Maori, but I think a court of law has to agree with Carlyle, I think, who, speaking of William Morris’s lengthy reworking of the ancient epic of Sigurd the Volsung, said that he could never take seriously someone whose father was a dragon. Myself, I cannot take seriously a tribunal which sees the descent of humans from rivers as important relevant evidence.
- ‘There is a continuing recognised claim to land or territory in which the resource is situated, and title has been maintained to some if not all of the land on which the water resource sits.’ So if Maori own land nearby, they own the water too. Why does that rule not apply to non-Maori landowners? If Maori ownership of land confers water rights, then non-Maori ownership of land must do the same. Why would there be a difference?
I note with some relief that nowhere in this list, anyway, is the suggestion made that Maori are entitled to water because when in the past they sold land they nevertheless did not sell the water flowing over it. I have heard that argument raised elsewhere, though; and to it I would make a very simple reply. It is, mutatis mutandis, the same reply used by the Court of Appeal in the 1963 Ninety Mile Beach case. (That case was of course overruled by a later Court of Appeal embarking on its own disgraceful political adventure in the Ngati Apa case, which began the whole foreshore and seabed controversy.) But in 1963, when the suggestion was made that the foreshore and seabed might have Maori owners different from the owners of the Maori land above the high tide mark, the simple question was asked ~ where did those owners go when the tide came in? And in the same way, if there is a suggestion that land was sold, but not water (a suggestion which surely cuts against that holistic Maori worldview of everything being one, and connected) the answer can surely be made ~ how was access to that water to be got when the land had been alienated?
So all in all, the arguments of the Waitangi Tribunal are rubbish ~ a mixture of uncritical gullibility, mumbo-jumbo, racism and illogic, all fortified by inbuilt bias. These twelve ‘indicia’ are stupid. They establish beyond reasonable doubt the intellectual bankruptcy of the Tribunal. Yet this body of highly-paid Maori lobbyists masquerading as an impartial tribunal considers them adequate arguments. They have a low opinion of our intelligence; they obviously think it is on a par with their own.