Wind claim not hot air

Ngapuhi leader David Rankin

OPENING SALVO 

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.

Technological exploitation
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. 

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71 Comments & Questions

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This is getting crazy. No body owns wind,water sun light etc. I can see why so many people are leaving this country. The story a maui traveling to nz by wind and sea is taught to all in school but it doesn't mean that he now owns it.
If that were the case then your better sign up your bent lawyers to take on the world because air water sun etc is universal.
I can't believe when the court is struggling to keep its head above water that Mr Key acknowledges there claims and the tribunal is a one sided affair

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Few Maori support the wind claim

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this is merely a case of raising the stupid to make water claim look more reasonable!!!!

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Yes, time for maori to join us in the 21st century. All of us are merely caretakers.

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what else can these idiots hold us to ransom over

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radio waves

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the sky. anyone who lives in the sky will pay. those who don't are exempt.

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Most importantly.....the rainbow....'cos it has the pot of gold at one end and a taniwha at the other. No one other than Maori know where the pot of gold is or the taniwha. Since it is hard to find either end of the rainbows....gold and taniwha....specialist 'interpreters' schooled in secret, and up to 1:512 Maori will chose between your bach, boat and Beemer in the end.
And if you don't like it, you get the other end of the rainbow in your backyard.
The inmates have taken over....it's official.

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Time to end this greedy racial grab and scrap the treaty which though relevent then is not in the 21st century. Moari youth are being brainwashed into thinking they are owed something that can only lead to a race war between them and the rest of us. What of all the benefits they havs received from the white man? Can you imagine what the country would be like today under Maori with no outside influence. As a trade off Maori have gained much more than they have ever lost.

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I suppose the next thing they will say is they own the sunlight and want to get a handout from the government for the use of it.

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can i claim compensation for sunburn

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Think of all those farms and forests using the Maori's special sunlight for photosynthesis. I think every one of them should be paying a tax to thank the Maori for allowing their sunlight to fall on NZ.

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How vacuous this has all become... that anyone could actually contemplate adults talking about silly issues such as ownership of air, water, geothermal or even make the comment that Maori were aware of radio frequencies prior to 1840. How bizarre!!! What a way to drag the country even further into a total mess!! It is no longer embarrassing - it is shameful that we are seen on the international comic stage to be utterly lost in a PC muddle of our own making.

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If maori own the wind do thay have to repair all damages coused by the wind ? Or just to stand with an open hand wanting more money from new zealand?

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I am waiting for the maori to lay claim on the earth/crust/magma under my section then they can pay for the earthquake repairs!!!

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Storm (wind) damage is "an act of God", as is earthquake, flooding and other natural occurrences. Sadly, this would eliminate your ability to sue.

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Unbelievable, we are supposed to be caretakers of this world, it seems that greed has a big hand in this.

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When,oh when, is our govt going to legislatively move to put a stop to these rediculous,time-wasting,expensive,fatuous Maori claims?
liberte

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Stop fueling such rubbish Mathew. It is sensationalist media and operators like you who help give Maori the false hope that they own all of God's creations.

That's right, GOD's creations.

Maui was a myth. That is all. Oratory hand downs is not factual, documented evidence. Maori were not here first either. The Morioris were. Maori killed and ate them. Where's their redress?

So get real. Our politicians need to grow spines and stand up to this rubbish that is polluting our minds and nation and fueling racism and separatism. They are dealing with a minority. Majority rules. The rest of us will keep you in your jobs in parliament if you show you too have had enough of this cr$p.

Rankin looks more European than I do, but speaking with his bro accent makes him think he is more entitled than the rest of us. What a loser. So is that Tuku Morgan freak and the Maori Chief.

I agree with some other comments above. No wonder people are leaving this loser country in droves with stupid politicians giving away our crown jewels and hard earned taxes to these loser bludgers.

Enough is ENOUGH. Throw out the Waitangi Tribunal gravy train. Kick all the gravy train losers and their lawyers to shark infested waters and get on running our nation as one.

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Excellent comments W R -- having been born and raised in the far north during the 1950's and 60's let me tell you the likes of Mr Rankin and Mr Morgan were known as plastic maoris and detracted from what were some excellent maori families living in the north during that era.

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Past time for govt to actually govern by putting a stop to these rediculous claims.
Where is a govt with some backbone??
liberte

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I think the Maori need to be careful. There is a big anti reaction building up against what most people think are specious claims,

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Wait until they attempt to own gravity. That should bring them back down to earth.

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Time for govt to show who runs this country!
When last viewed it was not Maori,but we could be forgiven for thinking otherwise.
Presumably this article was written with a certain amount of satire,and it would be funny if it wasn't so serious!
WG

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I suppose the fallacy is that at the time of the Treaty, the only thing that was considered sellable was land: the other objects were taonga, but in a non-monetary value system. It could be disrespectful to the memory of Maui and the ancestors to suggest that the winds could subsequently be flogged off for all time to the highest bidder, perhaps just to buy a few baubles for a small and possibly unrepresentative group of his descendents.

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Scrap the treaty. Now. Before it is too late.

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Where did they come from?
Whose wind did they use to get here?
Whose water did they sail on?
What did they pay, to use these resources?
They had a policy of finders keepers and if someone else had it, they would pillage to get it.
Just greedy, greedy, people
They don't deserve any mana or is that the translation, greed

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I read a book by naturalist Harriet Fleet. She describes indigenous as "self introduced by wind and water". That would make half my family indigenous as they came on the Gainsbourgh.

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Wonder if someone wants to claim all the hot air coming out of the debating chamber?

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Stop the greedy racists now!

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Superb Mathew but almost too close to the bone fore satire. And please put in a good word for David Rankin from time to time. I honour his ability to set up the gullible media, and his willingness to take risks in mocking the Treaty racists and even more the sickly pakeha who feed them.

He reminds us that when politicians with courage to lead in this area do emerge, there will be Maori leaders who will laugh and say "about time and thank God". Among themselves they marvel at how pathetic are the Crown representatives, and how dopey are those taken in by the drama and the weeping. Off the record some will howl with laughter even with politicians such as I was.

But until we get such politicians, who will stand on a defensible and simple principle of colour blind law, we condemn Maori leadership to maintaining the charade.. For what kind of leader (other than David Rankin) can say to his followers, let's stop mulcting the fools, when the game is so much fun and the alternative would be ordinary hard work which only some will be good at.

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Anyone remember the movie Total Recall the Arnold Schwarzeneger one not the Collin Farrel one where the colonies living on mars were being charged for air that they breathe run by the greedy copration now that movie was just a sci fi fantacy. It is now becoming a stand up comedy event of claims now in 2012 air water sunshine etc the list goes on when will this stop? Maui is just a make believe character a legend figure that children learnt in school such as I did when I attended primary school along time ago. Sounds to me that its time to ut a end to all these false claims and figure out more important and serious needs that this country needs to attend child abuse, the health system, christchurch rebuild, schools etc then when that is all over and taken care of we can have our moment of false claims, It's like things were written down on pieces of paper and place in a hat at a drunken office party and what ever you picked out i'e "wind" you had to down a beer.

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All this - currently and in years gone by - just shows that most politicians and parties are basically driven by a sense of self interest and self preservation, the law is an ass and lawyers will do anything for money, and that most members of the public just get tired out by the thought of or effort involved in resisting what to most seems quite mad. One country, one people, please

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The sun is next...after all Maui was the first Maori to catch it.

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Time for National and Labour to have a who-e

Resulting with Legal Aid being withdrawn for any frivolous claims to do with water, air, sunlight, cosmic rays etc. If those who wish to obtain a rent for doing nothing except dreaming up a new Treaty claim, then it is only fair that they weigh up the costs of exercising their rights (they can fund it, borrow off mates, borrow off anyone fool enough to take a punt) against the possible windfall if they succeed.

Nothing brings a persons mind into focus as does writing out a few cheques to cover lawyers fees.

These idiots who are pushing this treaty claim are doing huge harm to the NZ I once thought I knew.

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John Key is right "This is just plain wrong" when is someone going to put a halt to all this nonsense.Farmers,power companies,businesses that rely on water are not going to be at the beck and call of iwi's who will be holding out for the biggest cash return,basically holding the country to ransom....

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Ah Matthew, such cunning. Stir up enough anti-Maori feeling and the whole asset sales opposition will be diverted for middle New Zealand. You must be very proud of yourself.

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How could John Key be so dumb, as to not know this was coming? Especially, after he granted Maori de facto title to the seabed and foreshore, in his quest to ingratiate himself to Maoridom.

By leaving the door ajar, for Maori to pursue their outrageous claims, Key should not be surprised that they have booted the door, wide-open, and are flooding through the door at him, with their usual petulance

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Full and FINAL settlement. Then we park up this stupid Waitangi gravy train for good.

If as a NZ Citizen I am forced to continue to pay via the Tax system for the wrongs of the misinformed and misguided members of the government 100 years ago I suggest that we start recording the cost to the New Zealand tax payer of misinformed and misguided Maori today who are a burden on our justice system and insurance industry.

In 100 years time we can go back and make claims against tribes rich form settlement money invested for 100 years for the social injustice of Maori today.

As somebody who has had their possessions burgled by misguided Maori members of a national gang network who where prosecuted and went (back) to jail at the tax payers expense I could suggest we hold all maori responsible for the actions of a few, like the Waitangi gravy train is trying to do by taking money from the government who increase my taxes proportionately to make up the gap.

But this is about as stupid as somebody claiming to own the wind. The sooner we stop this separatist bullish!t and all start looking forward as New Zealanders the better...

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Is it April 1st already?

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Willie/Stephen/WR and others:
Be assured this is neither satire nor nonsense. It is just a summary of what I think will happen next, absent some significant new development that I can't envisage.
Matthew

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this is not going to help us being a united country

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Matthew, I know you're stirring the pot here mate, but of course this claim could be taken quite seriously.

I hope Maori go for it, with luck it'd be the end of The Treaty.

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If Maori own the water and wind etc that's fine but should they then also pay extra for the electricity that is generated as with out "white man technology" it would not exist.

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The person on the political side of the equation who seems to be most taken aback by the unfolding events is Chris Finlayson as Treaty Minister and AG. He entered politics on the cynical mission of building on his history as a Treaty lawyer for iwi clients. He obviously saw that a couple or three terms in a government which offered him the chance to gain more personal credits in the swap of blankets, coin and guns for power for Maori. In the last few weeks he has taken on the possum in the headlights appearance of someone who is being over-run by the process. He will likely be cast aside by those who he thought would later reward his post parliament return to a law practice with enriched and grateful iwi clients. That probably is not going to be the outcome as he is brushed aside. Political roadkill!!!

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So the Maori actually knew about the magnetic spectrum, right, but still believe in taniwhas, who only accept cash and non taxable koha in order to be satisfied. What a lot of nonsense. A few racist elite aided and abetted by hungry racist lawyers are making a monkeys of the government and taxpayers who have to fund this ongoing fairy tale. Sounds like the re-birth of the separists like Verwoerd and other architects of apartheid are alive and well in Maori circles. Strange that those of us who fought apartheid for so long are oblivious to it in our society, like a unfounded melanoma, but the results will be the same in the end.

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Although conservative the NBR actually has some great journalism. But they need to stop letting there readers comment, they're far to stupid.

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Their/ there QED. Nice.

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Hey Matt you've left one out!
What about fire?
Maaori used fire and it was hugely important to them when the Treaty was signed. That makes it a taonga for sure.
Now everyone is using it with no compensation for iwi.
I'm sure the tribunal will see this as a situation requiring redress.
One more thing:
If certain tribes are due a top up payment when the total of all settlements exceeds one billion - surely the early starters are due a further top up when it gets to the second billion?

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Are they then liable for any damage caused by their wind.? Also I do not require any Damn easterly winds this summer so can they please stop their wind from blasting Canterbury.

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I'm a 7th generation New Zealander and I am a registered Maori on the electoral role. But this is all beyond a joke. I am disgusted by what Maoridom are doing. They are greedy, selfish, racist and separatist. I do not support their actions at all. Seeing the usual suspects on the Maori Council shows they do not represent me or my whanau. They are there for themselves alone. Scum. Nothing filters down to the people anyway. There are some good points made in the comments above (and likely below after this). Get past the emotion and you'll see they are right. The government must act to stop this now. It is damaging our nation beyond belief.

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Great article Matthew you should be nominated for journalist of the year. It is wonderful to read truth for a change. I congradulate your bravery.

Maori will stand together to see these issues through. Thankfully Maori have such people as David Rankin among other leaders who are not afraid to tell it like it is

Great initiative for the King Tuheitia to bring the people together.

Looking forward to the future. This country should be proud to lead the world putting the indigenous peoples rights first.

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Let's face it, the Maori's aren't really claiming the wind per se, what they are really claiming is share in the profits of ALL the wind turbines in NZ.

Yes, they want to profit from all the wind turbines that were built using someone else's money, someone else has taken the risk with, that someone else owns, that were built with technology that wasn't even invented when the Treaty of Fraud was signed.

What I want to know is are they willing to stump up for the losses when these projects go pear-shaped, will they claim that also?

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The treaty gravy train lawyers are just getting started. Next will be geothermal, that's the big kahuna that will be easy to prove with all those Maori boiling hangi pits in Rotorua setting the precedence.

Judges and lawyers have made sure they will be dining out on the tax payer for years when they set up the Waitangi Tribunal.

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When it comes to naked avarice and rapaciousness, your average Waitangi Treaty lawyer makes Maori seem reluctant to board the taxpayer-funded gravy train.

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Is it any wonder people flee NZ in record numbers? This cr*p is never going to stop so I'm glad to be out.

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I have only recently become aware that under international convention/law treaties have only a 40 year life before they are either void or are re-ratified.Could someone answer if that is in fact true and so 1880, 1920, 1960 and 2000 we should have records to show that. Or is it that the Crown legislates privilege under misquided pretence?

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I am starting to believe this is an attempt by journalists to beat up a storm - surely Maori are not serious about grabbing air - come on NZ lets get focused on the real issues and put the same effort into improving the lot for all NZ folk - or do the activists whether they be journalists or others don't really care about improving our lot in a challenging global environment?

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A few points -Maori are indigenous to the Pacific not New Zealand- they merely migrated here as all our ancestors did.

Full and final settlement? what a joke Ngai Tahu have had five such settlements and have a clause in their last one that if settlements go past 1 billion dollars (this figure doesn't include the massive cost of lawyers etc paid for by the crown and the cost to run the Tribunal -or should that be called the Gravy Train) they will receive 16% of all future claims. They have already got their noses in the trough re the water - so don't hold your breathe on a final settlement.

The Crown has settled with Tuhoe $170m - they didn't even sign the Treaty.

The who thing is a sham that is dragging this country down not up!

Everyone is so scared to stand up and say no that is wrong because a small minority of a minority shout you down and call you a "racist".

The media, govt departments and councils, schools are practice the same liberal, pc dribble that has got us into this situation.

A political party new or emerging that comes out with some strong leadership around this will gather a lot of the silent majorities votes.

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"The Crown has settled with Tuhoe $170m - they didn't even sign the Treaty."

Exactly, didn't stop the crown from looting, raping, killing and taking land they weren't entitled too though did it? 170ml? what a joke.

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Will maori also try to claim sunlight used for solar power?

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Wash your mouth. Of course....it was ever so.....

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one of 2 things will come of all this nonsense.

1) country will be ruined financially
2) civil war

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Let Maori have their wind. But they need then to take responsibility for all the problems it causes - soil and foreshore erosion, destruction to coastal properties and high country farms, strom damage to private and commercial properties, international aircraft assisted in their flight to NZ by the Maori wind bearing potential terrorists, disruptive religious and ethnic groups, air-born bio-flora/fauna bringing in pathogenic organisms doing harm to our primary industries... if you want it, Maori, have it both ways.

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Didn't they also use the moon to get here ? That will be next... but will be great when the next americas cup is here - they will have taxi meters attached to the boats that use their wind...

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David Rankin, european and part Maori. as are all of the I-Want-Its.

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Read Chief Seattle's speech.
The Earth ( and the wind, water etc) doesn't belong to us--Maori, Pakeha or whoever.
We belong to the Earth.

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More smoke and mirrors from the Maori elite,to make the water con more digestible.Either way its ching,ching on the cash register...again.

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If you read the account from the early settlers who cam from England to New Zealand like Captain Cook you will find that they bought the wind and sun with them. In fact the sun followed them all the way from England and the wind filled their sails. Maori have there wind and sun and Pakeha have their sun and wind.

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The early Maori navigators came to NZ from the East

NZ's dominate wind is from the West.

Australian wind.

Hence the word 'foul wind" defined as "A wind blowing against the direction of travel".

Like the Maori claim

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...and while I watch these Maori claimants on tv wearing european clothing, driving cars invented and introduced by europeans, living in houses developed and introduced by europeans... and on an on... I wonder why we tolerate this 'one way street'. Maori philosophy... 'what's mine is mine, and whats' yours is mine'.

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