Feng Shui and wastewater...

Sharron Wooler

Special Counsel

Special Counsel

AAMINZ

 

Phone: +64 7 927 0502
Email: swooler@clmlaw.co.nz

vCard

Bachelor of Arts, Bachelor of Law (Hons), Master of Jurisprudence (awarded with distinction), University of Auckland

Associate member of the Arbitrators' and Mediators' Institute of New Zealand Inc (AAMINZ)

+

A recent article regarding Feng Shui blocking a storm water pipe in Auckland, brought to our attention an interesting topic – the Resource Management Act might be used to address multi-cultural impacts that are not just effects on the environment, but that affect cultural wellbeing.

“The RMA clearly includes the concept of cultural wellbeing in the definition of sustainable management – see Cook Island Community Centre v Hastings DC, W1/1994. This covers Maori and non Maori, but with little other case law guidance for dealing with non Maori matters. The definition of the environment in s2 of the RMA includes the cultural, which by definition must include spiritual lore and customs… The debate has mostly hitherto ignored Pakeha and other ‘spiritual’ beliefs about land which do not have ‘status,’ but conceivably do in terms of cultural wellbeing, stewardship, heritage and possibly in future, intrinsic values, finite characteristics and quality of the environment... there is a potential for more general recognition of non tangible or metaphysical beliefs by the courts. The case law in the non Maori context is still thin, although the legislation appears to provide for such avenues.”

An abbreviated excerpt taken from an article entitled: “Marking a place for taniwha in culture and law" by Rob Harris, Resource Consents Officer, Nelson City which can be found here.

Written in 2003 the above article foreshadowed an aspect of RMA law that is yet to be fully developed, or even much discussed; which is the non-Māori cultural dimension for cultural well-being. As we become an increasingly multi-cultural society we can expect new tensions around cultural wellbeing, and will need to understand the cultural ramifications of many decisions and the potential that there will be effects unique to other cultures that are covered by the RMA, even if we don’t yet know much about them.

The Feng Shui argument regards the potential (cultural) effect of wastewater flowing under a home, which is believed to undermine energy flow and limit wealth. Danny Thorn, Director of Feng Shui Consultants New Zealand and The Feng Shui Academy of New Zealand penned this commentary in direct response to the article and his observations in understanding the cultural importance of Feng shui raise the likelihood that there may be more such claims in the future.

Obviously the same arguments may apply to all cultural concerns and interests, not just Feng shui, and it looks likely that the RMA would, within the usual bounds of expert evidence, recognise impacts on cultural well-being across the cultural spectrum. In this way it may be that the RMA embraces both bi-culturalism and multi-culturalism.

The RMA doesn’t define ‘cultural well-being’ at all.  The Ministry of Culture and Heritage previously tried to define it for past LGA purposes and diverse cultural values and the relationship with sustainable cities and cultural identities were recognised in that attempt.  Despite the fact cultural well-being is an important concept across legislation, it remains undefined but that doesn’t limit its providing for, or recognising, various cultures, or effects on their wellbeing.

The 1994 Cook Islands Community Centre case is still the RMA highwater mark on this type of issue. A 2003 decision found that it could not deal with what it termed the ‘Feng Shui effect’ as an effect on the environment (the issue being cultural sensitivity to a funeral chapel in close proximity to the Solicitor’s premises, thus deterring Asian clients). Interestingly in that decision, the argued impact was not on the people working in the firm, but based on a concern that it would deter new Asian clients and thus impact on the firm’s future earnings. That argument failed on the evidence provided, which was described as ‘vague and ephemeral’, and ‘entirely speculative’. A better argued case may have had another outcome.