Dawn over Curio Bay on South Island, New Zealand. The bay is at the southern most tip of the island.
Dawn over Curio Bay on South Island, New Zealand. The bay is at the southern most tip of the island.

SocietyMay 22, 2017

Why the ‘public trust’ should be at the heart of an overhaul of NZ environmental rules

Dawn over Curio Bay on South Island, New Zealand. The bay is at the southern most tip of the island.
Dawn over Curio Bay on South Island, New Zealand. The bay is at the southern most tip of the island.

The idea that we hold the atmosphere around us in trust, with a duty to protect it for future generations, is taking hold. And the debate is drawing on everything from an 18th century English jurist to contemporary activism by US peoples of colour, writes Claire Browning.

Nobody owns the sky, but all of our lives depend on it. A series of court challenges by youth to their governments have brought ideas of the “public trust” to the fore, claiming that we hold the atmosphere in trust, have a duty to protect and pass it on to coming generations, and therefore governments must act on climate change.

Independently, Auckland professors Dame Anne Salmond and Klaus Bosselmann are also working on the “public trust”. Bosselmann suggests a framework for global environmental stewardship, which he has taken to the United Nations. UN member states, he argues, are trustees for the Earth. Salmond sees a case for a public trust in rivers and their water in NZ, joining Sir Eddie Durie and the NZ Māori Council in calling for an independent Waterways Commission to take over water matters from the government.

This kind of idea about the public trust goes back at least to 1970, and maybe a long way before that. It’s been called a “drumbeat” of academics and environmental groups. The gist is to extend, to the environment, and to governments and decision-makers, the kinds of duties over the environmental common that we would apply to administering property in a trust: not to damage it, to manage it in perpetuity, for its beneficiaries. The policy case for the public trust is the need for a reality check: the need for a balance on power, against the “self-interested and powerful minorities [which] often have an undue influence on the public resource decisions of legislative and administrative bodies and cause those bodies to ignore broadly based public interests”.

I agree with Anne Salmond about taking public trust ideas, the wisdom of kaitiakitanga, and a bit of good Kiwi no 8 wire, and doing something ingenious. As I’ll explain, though, I disagree with her on a couple of things as well. As part of a wider ecological idea of justice, supported by a grant from the New Zealand Law Foundation, I’ve been looking at the public trust, too.

That work takes as its starting point environmental justice in the United States. Peoples of colour joined in demanding recognition and reclaiming influence and control, from centuries of oppression, cultural dislocation, and discrimination against them in environmental decision-making. Within a decade their demands reached from grass roots activism to Bill Clinton in the Oval Office. They addressed both government and, significantly, the popular environmental groups. Most of the whites are concerned about the surface waters because it is recreation for them,” one of the organisers said. “It is life for us.”

For “recreation” in the quote above, we might say “profit for them”, as well. Environmental justice claims in the US are echoed here, and lived here, by Māori — and others, but at the heart of environmental justice are colonisation stories, about white people’s ideas. Through Waitangi Tribunal findings, Treaty settlements, and challenges put to the Crown and Pākehā by Māori, we are somewhere along a path that has us rethinking some of the environmental ideas in particular — most recently with Te Awa Tupua, the Whanganui River; and most memorably with the foreshore and seabed, now dealt with in NZ in the Marine and Coastal Area (Takutai Moana) Act. The original common law public trust evolved in disputes about the ownership of these lands under tidal waters, and access onto and over them.

Māori, through mātauranga Māori and their tireless, thankless work in calling out injustice, are leading us to an ecological idea of justice in New Zealand. We’re a long way from arriving there yet. There’s a famous photo of Dame Whina Cooper, slowly walking hand in hand with a little child on a winding, gravelled country road. In this story, I’m seeing Pākehā NZ as the child. Dame Whina led the land march or hikoi to parliament, that saw the Waitangi Tribunal established and started the Treaty settlement process on its aching slow steps towards justice.

In both her RNZ interview with Kathryn Ryan and recent opinion in the New Zealand Herald, Professor Salmond comments on what seems selective attention by our government to English common law jurist Sir William Blackstone. She argues that we need to give a new life, through the public trust, to duties “somehow forgotten” which Blackstone described, not to interfere with others’ enjoyment and use of water.

Dawn over Curio Bay. Photo: Steve Fleming / Getty

In his Commentaries on the Laws of England Blackstone called water “a moveable, wandering thing”, a “vague and fugitive” thing, that allowed use, but not an ownership right. To interfere with another’s use — for example, “to stop or divert water that uses to run to another’s meadow or mill; to corrupt or poison a water course”—was an actionable nuisance. His language does suggest actions, rather than, for example, downstream consequences of (criminally ignorant or wilfully blind) omissions by regional councils, and he goes on literally to say: “do any act”.

In the collective writings of Blackstone and others — Bracton, Justinian, who rewrote the Roman law Corpus Juris Civilis, another Roman emperor Marcian — there emerges a short list of other “moveable wandering things” that “by the law of nature … are common to mankind”: sunlight, the air, flowing water, the sea (and, therefore, the seashore), wild creatures.

We should pay careful, not selective, attention to Blackstone, and what we can learn about the public trust. Ironically, however, it points to the opposite conclusion from the one that is sought.

What is wanted, by public trust advocates, is a binding duty on those taking care of our place, that is, the government and regional councils, who are failing to act. But Blackstone describes a civil nuisance matter, between individuals — not a restraint on the government, let alone a positive, publicly enforceable duty on the government to act in a certain way. Some US cases do seem to show that a public trust-type interest, as in public parklands for example, might prompt heightened judicial scrutiny of a process or decision. And secondly: at common law, “in common” mostly meant “free to go and take” — just as users are used to expect with unpriced water and greenhouse gas emissions.

It might be subject to some regulation. But the common law authority for a positive obligation on government to defend any particular interest, or step in on behalf of people and place, is thin. The public trust in access to tidal waters and the shore — specifically for navigation, commerce, and fishing — conceived of a public good served through a very specific bundle of interests, that likely were not a million miles away from the interests of the sovereign at the time, although they incidentally served the public good as well. And so, in some ways, New Zealand governments have grasped all this quite well.

Only in the US has the public trust advanced to broader ideas. But in the US, federal government has had “continuing responsibility” and a fiduciary duty since 1970 to “use all practicable means” to “fulfil the responsibilities of each generation as trustee of the environment for succeeding generations”. Similar laws have trickled down to the laws and constitutions of some state governments. In Hawaii, based on the public trust, the Supreme Court has restored minimum river flows, upholding cultural and ecological purposes among others as true bottom lines. The court put commercial interests in second place to the environmental common good as a priority. But in Hawaii, as well as being supported by a constitutional amendment in 1978, water had been named as a common good in the specific terms of all land grants made.

All of this aside, I agree with Anne Salmond. The NZ parliament can do what it wants, just as the US Congress has done. In the end it therefore doesn’t matter much, if all that Blackstone carries with him down the centuries is the germ of an important idea about duties to others. We aren’t bound in what have been called the “historical shackles” of the common law. Recent Treaty settlements in NZ have seemed to show a new momentum and aptitude for really skilful balance and compromise around these kinds of questions, of ownership in particular, and kaitiakitanga.

I think there is a critical mass and momentum building around our environmental laws that, along with new constitution proposals, could see another overhaul of environmental management in this country to rival the 1980s. It might be the Key-led government’s crowning environmental legacy: the clean-up after the storm.

Because rethinking the public trust links with ideas about property rights and — depending on how it was framed — there is the potential that “any such notion strikes at the very essence of governmental power”, rethinking the public trust also relates to constitutional law reform. Philip Joseph recently said that it is the first task of a constitution to decide what values we want our government and our law to serve.  That is the question at the heart of reclaiming or establishing an idea of the “public trust”: it is a check, and a shift in the balance of power.

For the role of the public trust in this, I would also look at the Department of Conservation. Effectively, DOC is trustee of NZ taonga. Under section 5 of the Conservation Act it is also “under the control of the minister”. In a series of public trust cases relating to the management of parklands in the US, courts have taken a dim view of subordinating public parklands to promoting private profits and commercial interests. In what are just some recent examples, Forest & Bird recently exposed open cast coal mining plans for high value conservation land being done in secret by the government; proposals to take water for bottling from the Aspiring national park would see 3km of pipeline laid, by digger, through tokoeka / Haast kiwi “sanctuary”, including access road up to 8 metres wide.

There must come a point where the politicisation, underfunding and undermining of DOC’s role that has been ongoing demands change. DOC holds enormous reserves of public goodwill, in a trust which Māori and Pākehā have not necessarily shared. For tangata whenua, DOC is usurping the role of kaitiaki. Right now, it is tempting to contemplate removing or amending the minister’s statutory function. Instead, we might rethink the configuration and role of the New Zealand Conservation Authority, putting a differently constituted NZCA at the helm as trustee and kaitiaki. Less radical would be making express and binding in the Conservation Act what already ought to be implicit: the duty of the public trust.

Claire Browning is a policy analyst, former lawyer, and environmental advocate, who has worked for the Law Commission. Her work referred to above, due later in 2017, is supported by a grant from the New Zealand Law Foundation.


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SocietyMay 22, 2017

The white tangata whenua, and other bullshit from the ‘One New Zealand’ crew

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The exhumed skull of a 3,000-year-old Welshwomen. Nazi submarines. Ancient Spanish shipwrecks. The pre-Māori white civilisation theories of Noel Hilliam and his friends have a lot going for them. Except any plausible evidence, writes Scott Hamilton

I spent part of last week at an art gallery in Manurewa, helping to put photographs on the walls. One of those photographs shows three boulders leaning against each other in a paddock encircled by the Great South Road and Auckland’s Southern Motorway. The boulders were thrown out of one of Bombay’s volcanoes millennia ago, and are now one of the small details that decorate the daily commute of tens of thousands of motorists.

For a few New Zealanders, though, the three boulders beside the Southern Motorway are sacred relics of an ancient civilisation. They should properly be called the Bombay Obelisk, and they were brought together not by geological accident but by masons and astronomers.

Over the past 30 years a growing minority of New Zealanders has decided that the first inhabitants of their country had white rather than brown skin. They believe that one or more European peoples emigrated to these islands thousands of years ago, and established a populous and technologically sophisticated civilisation here. This pigmentopia was invaded and conquered by the ancestors of Māori. The warlike Polynesians slew the white men they found, took the women as wives, and appropriated the indigenes’ greenstone carvings.

The “Bombay Obelisk” is only one of scores of supposed relics of a lost civilisation. Like the piles of rocks that can still be found on Auckland’s volcanoes, the obelisk allegedly helped ancient New Zealanders plot the movements of the stars and make abstruse mathematical calculations.

Last week the “white tangata whenua” theory made an appearance in the mainstream media, as Mike Barrington published a lengthy and remarkably uncritical article in the Northern Advocate, an article that was republished on the website of the Advocate’s sister publication, the New Zealand Herald. Barrington reported that Noel Hilliam, a longtime believer in ancient white civilisation, had excavated two skulls and sent them to Edinburgh University, where an unnamed pathologist had examined them and decided that they had come from Wales three thousand years ago.

Barrington’s article was quickly criticised on social media. Māori condemned Hilliam for invading their burial sites and disturbing their kōiwi; journalists asked Barrington why he had not asked a trained scholar of New Zealand’s past about Hilliam; archaeologists mocked the notion of a distinctively Welsh skull.

University of Edinburgh pathologists denied any contact with Hilliam, and Vice published an article about a grave-robbing amateur historian from New Zealand. By the end of the week Mike Barrington’s article had disappeared from the websites of the Advocate and the Herald.

Mike Barrington’s article may have talked nonsense about New Zealand history, but it did provide a reasonably accurate narrative of the careers of the country’s pseudo-historians. Barrington correctly named Kerry Bolton’s 1987 booklet Lords of the Soil as the first published argument for a white tangata whenua. By the time he wrote Lords of the Soil, Bolton had already helped found and run the New Zealand National Socialist Party, which folded shortly after a disastrous performance in the 1975 general election, the Nationalist Workers Party, which offered a slightly more discrete version of the same politics, and the Church of Odin, which combined the worship of Norse deities with more neo-Nazism.

But New Zealand fascists like Kerry Bolton encountered problems their counterparts in Europe did not. Unlike the white peoples of Europe, Pākehā had not lived long in New Zealand. They were latecomers, not an indigenous people. The National Socialist and Nationalist Workers parties condemned immigration from Asia and the Pacific Islands as a threat to New Zealand identity, and warned about the dangers of miscegenation. But rhetoric about overseas invaders sounded curious, coming from the descendants of invaders.

Bolton resolved the problem of indigenity by deciding that the first inhabitants of New Zealand had been white rather than brown. In Lords of the Soil he seized on the oral traditions of Māori who live in the central North Island, traditions which speak of an iwi called Ngāti Hotu, whose members eventually blended with those of other groups. Māori society was fluid, especially in the first centuries of life in Aotearoa, and it was not unusual for iwi to form and dissolve.

But Bolton argued that Ngāti Hotu were not merely another Māori iwi: they were, he insisted, a different people, a “white warrior tribe”, whose ancestors had come to these islands long before Māori. After being attacked by Polynesian invaders, Ngāti Hotu had retreated inland, and made a last stand in the mountains near Lake Taupo. Although Ngāti Hotu had died out, their ancient presence in New Zealand foreshadowed and legitimised the colonisation of the country in the 19th century. When he raised the Union Jack in 1840, Hobson was retaking New Zealand for what Bolton calls “the Europoid race”.

Neo-nazis were not the only Pākehā troubled by questions of identity in 1987. For most of the 20th century European Kiwis had liked to congratulate themselves on their country’s race relations. After the wars and land disputes of the 19th century Māori had, they believed, been assimilated to Pākehā society. Any guilt at the conquests of the 19th century could be assuaged by reference to the Moriori, the Melanesian autochthons of New Zealand whom Māori had chased from Aotearoa to the Chatham Islands and then exterminated.

But the marches and occupations of the 1970s and 80s showed that Māori had not become brown-skinned Pakeha, and by the second half of the 80s the Moriori people had, with the help of Michael King, begun to emerge from the obscurity of myth and insist that they were the Polynesian indigenes of the Chatham Islands, not the descendants of the first inhabitants of the rest of New Zealand. Deprived of their myths of racial harmony and Māori conquest, and upset by the return of land to Māori and the increasing visibility of Māori culture, some Pākehā found the notion of a white tangata whenua beguiling.

A Hilliam comment on John Ansell’s Treatygate blog

In the late 1980s and 90s a number of pseudo-historians took up Bolton’s ideas, and promoted them via self-published books and pamphlets and, later, over the internet. In the early 90s, Martin Doutre, a former Mormon missionary turned self-proclaimed “astro-archaeologist”, began to roam New Zealand in search of ancient observatories like the Bombay Obelisk. Using an infinitely malleable unit of measurement known as the “geomancer’s mile” and other ideas snatched from the pseudo-science of ley lines, Doutre discovered correspondences between the observatories of Auckland and sites like Stonehenge. He also claimed to have found, amidst the kauri trees of Northland’s Waipoua Forest, a vast and ancient stone city. Doutre’s published a book and website called Ancient Celtic New Zealand to advance his claims.

Like Bolton and Doutre, Noel Hilliam had no training in any academic discipline. He was a farmer with a long-time interest in old shipwrecks who became convinced that white peoples had settled New Zealand long before Māori. Hilliam became a volunteer curator at Dargaville’s maritime museum, and began to display archaic Māori carvings there that he claimed belonged to pre-Māori peoples. In a series of articles and a book, he claimed that Phoenician, Greek, Spanish, and Welsh had inhabited ancient New Zealand.

Hilliam has made other remarkable claims over the years. In 1982 he said he had found the remains of an old Spanish ship on a beach near Dargaville, but the wreck vanished before he could show it to anybody. In 2008 he told Radio New Zealand that he had found a Nazi submarine off the Northland coast. The submarine had supposedly left Germany in the last days of the Third Reich, loaded with gold. Hilliam never made good on his promise to reveal the location of the submarine wreck.

The notion of a white tangata whenua promised to relieve Pākehā of their status as latecomers to New Zealand, and to counter Māori talk of historical injustice. But the theory had, and still has, a problem: a complete lack of evidence.

The aquatechnology of ancient Europe would have made a journey even halfway to New Zealand impossible. Noel Hilliam claims the ancient Greeks sailed all the way to these islands, but they struggled to circumnavigate Britain. The ancient Celts crossed the English channel and the Irish Sea, but lacked the ships and the navigational knowledge to get further. Even the Vikings had to island-hop their way to America through the Arctic North Atlantic. The Azores archipelago sits in the Atlantic less than 1500 kilometres from Portugal, yet it was not reached by Europeans until the 14th century. Columbus’s crossing of the Atlantic at the end of the 15th century was far less exacting than a journey to distant New Zealand would have been.

Any large-scale settlement of these islands would have been accompanied by the destruction of forest by fires, and scientists can discover the date at which this sort of destruction began by testing pollen spores preserved in the sediment of lakes. Tests do not indicate any man-made destruction of the forests began until less than 1,000 years ago.

If large numbers of European people lived here thousands of years ago, then archaeologists and builders ought to be finding their skeletons, as well as burial items which reflect a European material culture, like swords and coins. But the oldest skeletons and burial items dug up in New Zealand are distinctively Polynesian, and are less than a thousand years old. No human skeletons or artefacts have been found beneath the layers of ash left by the massive Taupo eruption that occurred about 1,800 years ago.

In recent years a series of scholars have run DNA tests on Māori, in an effort to trace their ancestry. These tests confirm that Māori are a Polynesian people, and that Polynesians have their origins in coastal Asia thousands of years ago. There is no genetic evidence for ancient contact between Polynesians and Europeans.

The believers in an ancient white civilisation are undeterred by the lack of evidence for their claims. They insist that a conspiracy of Māori leaders, politically correct academics, cowardly Pākehā politicians and sinister international organisations is working to conceal and destroy the physical legacy of New Zealand’s first inhabitants. They claim that the stone city in Waipoua forest has been closed to visitors by Department of Conservation staff and local Māori. Elsewhere teams of explosives experts are blowing up the stone houses of the first New Zealanders and sealing burial caves. Ancient European bones and artefacts are being quietly removed from museums, and roads are being built through the sites of Celtic observatories.

In the 1990s Pākehā resistance to Māori land claims and the public visibility of Māori culture became increasingly associated with the notion of a white tangata whenua. In Northland an organisation called the One New Zealand Foundation had been founded to oppose the return of land to Māori and to campaign against concessions to Māori culture like the kōhanga reo movement. Members of One New Zealand wrote long letters to newspapers and members of parliament to warn about the “Māori takeover” of New Zealand. Bolton, Doutre, and Hilliam were all drawn into the Foundation’s work. They claimed, in polemic after polemic, that if only the existence of an ancient white civilisation were acknowledged, then the ‘Treaty industry” and the Māori grievances it was founded upon would disappear.

From Hilliam’s submission to the Constitutional Review Panel

In the 21st century the notion of a white tangata whenua and the movement against Māori land claims and culture has found new leaders and outlets. Advertiser John Ansell, whose controversial “Kiwi versus Iwi” billboards helped take Don Brash to the edge of victory in the general election of 2005, has been an influential recruit to the cause.

After Don Brash became the leader of the Act Party in 2011 Ansell followed him, and designed a new set of provocative advertisements for that year’s election campaign. But Ansell left Act in disgust when the party toned down the rhetoric of the ads, and refused to use the word “Māorification” in them. After branding Act’s leaders “white cowards” Ansell discovered a new mentor in Martin Doutre. Together they set up a campaign called Treatygate, which was designed to alert Pākehā to the dangers of “Māorification”. The Treatygate website featured frequent tributes to Doutre, and Ansell liked to quote the author of Ancient Celtic New Zealand during the campaign meetings he held in provincial North Island towns. Ansell’s campaign helped to inspire a new political party called 1Law4All, which contested the 2014 general election.

Every movement needs a hero, and for the believers in a white tangata whenua Allan Titford came to fill that role. In 1986 Titford bought a farm near Waipoua forest, and upset the local Te Roroa iwi by bulldozing archaeological sites on the property. Titford wanted to subdivide his farm, and sell it off; Te Roroa pointed out that the land was part of a claim they were bringing to the Waitangi Tribunal. In 1992 Titford’s farmhouse was gutted by a suspicious fire; newspapers around the country ran a photograph of Allan standing in the ruins with his wife and their youngest child. Titford blamed Ngati Roroa for the blaze, saying the iwi wanted to chase him off his land.

The One New Zealand Foundation took up Titford’s case, and the farmer began to join Martin Doutre and Noel Hilliam in their expeditions in search of lost civilisations. After sustained lobbying by Titford and his supporters, Jim Bolger’s National government passed legislation that forbade the state from compulsorily acquiring land to use in Treaty settlements. Titford willingly sold his farm for three and a quarter million dollars in 1996, but continued to claim he had been forced from his property by “Māori gangsters” and a cowardly government. John Ansell used Titford as a cautionary tale, and the 1Law4All Party put him on its website.

In November 2013, though, Allan Titford was found guilty of arson and rape and sentenced to 24 years in jail. The Whangarei district court found that Titford had burned down his own house, and had kept his wife as a sex slave for years. In the aftermath of Titford’s conviction, Māori Television’s Native Affairs produced a two-part report called What Lies Beneath, which exposed the links between the notion of a white tangata whenua and the political campaigning of groups like the One New Zealand Foundation.

But Titford is still a hero for the likes of Noel Hilliam, Martin Doutre, and John Ansell. In an angry online statement, Doutre dismissed the case against his friend as another conspiracy intended to keep New Zealanders from understanding the history of their country. John Ansell devoted a series of posts at his Treatygate website to protesting Titford’s innocence.

The photograph of the Bombay Obelisk was taken by Ian Powell, and is part of an exhibition of images and artefacts from the Great South Road at the Nathan Homestead gallery. Powell is a veteran cinematographer and photographer, and his black and white images have a gentle probity. Martin Doutre’s photographs of his “obelisk” tend to remove it from its surroundings, and make it appear impressively tall and wide. Powell, though, took several long steps backwards, and photographed the object in its context. Instead of the monument of a lost civilisation Powell gives us a few stones on a low hill. The “obelisk” is scarcely more impressive than the telephone poles that stride down a grassy slope toward a shard of motorway.

Powell’s photograph has a pathos that reminds me of Laurence Aberhart’s portraits of the decaying halls and churches of New Zealand’s countryside.

Like the colonial architects who gave mock pillars and miniature gothic spires to their modest wooden buildings, the believers in a white tangata whenua are desperate to see Europe in New Zealand. But colonial replicas of the Old World only emphasise the colonial’s distance from that world. Whether they are gothic chapels or standing stones, the replicas of Europe are as sad and fragile as the diorama villages of museums. The fantasy of a white tangata whenua is the work of Europeans marooned a long way from Europe.


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