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Even if Ngapuhi leader David Rankin isn’t entirely serious about his Waitangi Tribunal claim for wind, others will be. That includes the Tribunal itself, the courts and eventually the Crown.
The claim itself will be straightforward. It will be argued that Maori were brought to Aotearoa by the wind, making it a taonga. As a taonga, it is black-letter law that Maori are guaranteed full, exclusive and undisturbed possession of the wind under Article Two of the Treaty of Waitangi.
A rich literature, or at least an oral history, will be used as evidence. Even this Pakeha knows the story of Maui and the Winds, and the National Archives has held documents for more than a century telling us that it is Maui himself who allows the wind to blow. Tawhiri is god of the wind.
It will turn out that every marae in the country has similar myths, passed down through the generations, demonstrating that Maori are not just tangata whenua and tangata moana but tangata hau. In any case, Polynesian sea exploration under sail is an historical fact.
Some may object that unlike land, fish or even water, wind is not the sort of thing that can be owned. It is the mere movement of air, and one person exploiting it does not deprive another. This may have been the prime minister’s point when he said this week: “No one owns water, no one owns wind, no one owns sunlight, no one owns the sea – I could give you quite a long list if you like."
The tribunal and the courts are likely to disagree.
After all, with the electromagnetic spectrum, the tribunal and courts have ruled, and the Crown has accepted, that Maori have a treaty interest.
The spectrum, the tribunal found, was known to Maori before 1840 and was a taonga. Consequently, it said: “[Maori] have a right under treaty principles to the technological exploitation of that spectrum.”
Mere compensation would not be enough. “Maori must have hands-on ownership and management,” the tribunal urged, and the Crown later agreed.
Today, the Maori Spectrum Charitable Trust, Te Huarahi Tika, owns spectrum on behalf of Maori and was a key instigator of 2degrees.
Treaty lawyers will have no problem applying the spectrum arguments to wind, water, sunlight, the sea or anything else on John Key’s list.
What’s more, arguing that one person exploiting wind does not deprive another is quite wrong, as any treaty lawyers who sail in the Royal New Zealand Yacht Squadron’s Wednesday Series know only too well.
Applied commercially, it means that if someone builds a wind farm at one location – say, Meridian Energy or Genesis – it changes how the wind is experienced elsewhere. The will of Maui is thwarted.
Global precedents are also useful, and even a mid-priced treaty lawyer could point out that wind rights have been part of European law and are evolving in the United States.
No active protection
In response, Crown Law could argue there hasn’t been a treaty breach so no question of redress arises. Oh how wrong they would be.
As well as guaranteeing Maori the right to manage taonga according to Maori cultural preferences, the principles of the treaty require the Crown to actively protect Maori treaty rights and to act in the utmost good faith.
It will be quite obvious to any tribunal member that the Crown has failed utterly to meet the required standard. There is no evidence that the Crown has sought to actively protect Maori treaty rights to wind, with the utmost good faith or otherwise. Indeed, as the prime minister’s comments this week indicate, the Crown seems to think such rights don’t even exist, and is arguably even mocking them.
Even worse, over recent years, SOEs have been allowed to go right ahead building wind farms with no thought for the deeper treaty issues beyond those legislated under the Resource Management Act.
Can there be a more egregious breach of the treaty in contemporary times?
Be aware, this thesis is backed by a newspaper column’s worth of research. With a few million dollars of legal aid, Russell McVeagh, Chapman Tripp, Bell Gully, Buddle Findlay or Donna Hall will be able to construct a far more powerful argument designed to ultimately be accepted by a majority of the Supreme Court.