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The Māori in the Room

The Māori in the Room

I had one of those “only Māori in the room” moments yesterday. I have a lot of those. These moments don’t offend me. I work in mainstream tertiary education, I’m Māori and I profess to know something about things Māori. I’ve worked in my field for 10 years. So what did I expect?  Despite all that, these moments can be awkward. So yesterday,  I was in a meeting about a research funding proposal with very clued-up academics from various faculties. The heads swivel in my direction as I am asked my opinion on what I think the best direction for Māori would be in regard to X or Y of the proposal. There is a pause.

Expectations hang heavy in the air. The words I say are to be weighed and perhaps given a weight disproportionate to their value.  Or perhaps the reverse. Sometimes, in moments like these, I can feel my cheeks flame, and sometimes blind panic threatens to set in. On this occasion however, I just snorted, laughed and said, “well, I don’t know!” I may even have thrown my hands in the air.  That’s usually how it is. I really don’t know what Māori need, what Māori want; what direction would be best for Māori, how best to cater to, provide for, uphold, respect, all things Māori. I have no portal into the Māori hive-mind. I take educated guesses in context.That’s all I can ever do.

Of course, a lot of things have had to happen for me to have been the only Māori in that room. The absence of other senior Māori academics weighed more on me than did the cumulative weight of Pākehā expectation. There has been recent research done on the experience of senior Māori and Pasifika academics, so I’m not about go over over the ground that you can read about for yourself here. Suffice to say, my experiences are hardly isolated, as a member of the 6% of the academic workforce who identifies as Māori.

Actually, my ruminations headed in a different, but related, direction. Because I am not just assumed to be an ethnic representative of a people or peoples at moments like this, I am expected to be a proponent of, and knowledgeable in, Māori culture to some degree.

Ah, culture. You marvellous double edged sword, you.

After my meeting, I came home to a Facebook post that underscored the deep ambivalence I have towards our dominant notions of Māori culture.  And here it is; from an article outlining recent efforts being made to get young Māori into information technology.

Computer graphics company Animation Research’s founder Ian Taylor [Ngāti Kahungunu, Ngā Puhi] said the lack of Māori engagement in ICT was disappointing, as in his experience when Māori got their hands on technology they adapted very quickly.

“I believe that Steve Jobs, he didn’t realise it – but he designed the iPad for young Māori. It wasn’t in our DNA to use paper and pen, never has been. We use our hands, we carve, we tell stories. We’re great storytellers and technology has allowed us to engage in that way.”

Reading this reminded me of another such moment in 2014 and another public statement from a prominent Māori educationalist, which I paraphrased at the time:

Terehia Channings of [the recently closed] Turakina Māori Girls’ College, speaking on Te Tēpu tonight of the benefits of Kapa Haka for kids said (I’m paraphrasing) “Well, Maori are practical people. We have problems with maths and science, we learn best with our hands.’

In both cases (and you don’t have to search too far to find other such presumptions bubbling up amongst friends and whānau) an ossified and essentialist understanding of Māori culture is held up and venerated. Māori people are practical, we make things and do things. We tell stories, we perform stories, but we don’t write them down for others to read. And we probably don’t read them either.

[Forgive me if I take a moment off-screen to bash my over-educated head against a rather inviting pale red brick wall.

OK I’m back.]

I remember interviewing the actor and all-round extraordinary bloke Wi Kuki Kaa in 1992. He mused that people had often said to him that Māori were “naturals” at acting, at rugby, and kapa haka.”Nah”, he reckoned. In his view, if he had been raised in another family in another culture he would have been good at the things in those cultures. Māori weren’t “natural” at kapa haka…they were taught to be that way. There may be a genetic inheritance at work, but that can always be retooled in other cultures.

Culture is a human creation, that is all. It is the product of generations of people doing, saying, writing, thinking, eating acting, singing, playing, and being together. Rinse, and repeat. There is no magic formula, there is no high watermark of culture. There is no line we cross exactly when we know a cultural practice or a whole culture has died or forever changed. We just forget. And then we forget that we ever knew.

But culture, despite its blurred edges, performs an important function. Adherence to, or membership of, a culture (over and above mere ethnicity) grants us entry into something transcendent, beyond ourselves as individuals. Membership of a minority culture in particular gives us access not only to that culture and to a meaningful cultural life, but the rights of protection that accrue to that culture at international and in domestic law. If there is no collation of practices, characteristics and products that can be identified as being ‘of’ a given culture then it cannot be protected.

On the one hand we might tend to view culture as a mysterious unifying quality that marks out one set of human beings from another set of human beings. On the other hand, culture is a constraint. Once the hallmarks of a given culture are identified, reinforced and repeated, it becomes really difficult to challenge. Innovation and change pose huge risks to those who identify, particularly with an indigenous or minority culture.

So the very moment we call on culture to help us advance a position, identify solutions to political problems, create unity, affirm kinship, it bites us on the backside and orders us back into the box of our own bloody making. There is no phrase that fills me with more dread than “Māori are…”. And yet, sometimes I use it. Because how else do we target and speak to Māori without identifying who we think Māori are? How do we employ Māori knowledge or seek it, without being open to seeing such knowledge is peculiarly Māori in the first place? How do we challenge Māori culture without first acknowledging that it exists?

I guess the answer is in common sense and moderation. We should reject essentialism and the constraints it places on our evolution as a people. We should reject the position that sees no culture: that way lies hegemony and oppression all over again.

And for the Māori in the room? She had better be a good tightrope walker, is all.

 

 

 

 

 

 

 

Te Puea Marae, Tūhoe & the State of (Māori) Welfare

Te Puea Marae, Tūhoe & the State of (Māori) Welfare

It was the radio report that did it for me, and the tears flowed. A young woman (named “B” in public) and her whānau were farewelled from Te Puea Memoral Marae, after several days of staying there. Their plight caught national attention because B is a cancer patient, and the family been forced to move to Auckland from Hamilton for B’s treatment, staying with family and friends because no affordable housing was available.

Why did I weep? I wept, not only out of compassion for that whānau and the hardship they have been through, but also out of pride.  Te Puea marae had extended to this whānau true manaakitanga, and when the family left the other day to move into a brand new state house, they were farewelled with a poroporoaki. There was kōrero, song , prayer, and tears. Listening to the account, my heart was full. Tikanga Māori and bloody hard work by the family and the volunteers, and social service providers (including WINZ) had shown the meaning of manaakitanga, and the rangatiratanga  of this whānau had been upheld without bureaucratic interference.

To explain (if you didn’t already know!). Te Puea Memorial marae in Māngere decided in May to open up to the public in response to a perfect storm phenomenon in Auckland.

One storm comprised house prices in Auckland increasing by nearly 80% in 5 years, hiking rents in the process and forcing some already vulnerable families into overcrowded bedrooms and garages, or in some cases, out of homes entirely and into cars, or worse.

Another (related) storm has been the decline in available affordable housing, due in large part to the growth of investor-based house purchases, and lack of homes being built sufficient for the growing population. One estimate (see p 20-21), based on 2013 census data reckons 10, 000 houses have simply not been built that could have served to help accommodate Auckland’s growing population.

Arguably, another storm has been the relatively high levels of estimated disengagement or lack of engagement of those in need of housing assistance with the Ministry of Social Development; up to 41% of homeless recently surveyed had not engaged with MSD about housing needs.

So, in May all of these storms converged, and B, her whānau, and all the whānau and individuals staying at Te Puea were sheltering from this combined ferocity. Te Puea Memorial Marae, by opening its doors, and setting up its Manaaki Tangata programme, has taken  voluntary responsibility for the welfare of ‘the people’ at least to the end of August. The marae’s vision of who “the people” are is not exclusive, but it places Māori at the top of the  list, according to Marae chair Hurimoana Dennis.

There is another broader aspect to this story that demands attention. What Te Puea is doing (and other marae and entities around the country beginning to follow its example, including Manurewa Marae) is arguably fulfilling, at least in part, the role of the welfare state. Too grandiose a suggestion? Perhaps not when seen alongside other recent developments, as well as in historical context.

After all, the work being being done by Te Puea Marae is, at one level extraordinary, and at another level completely ordinary. Māori seeking to provide welfare for Māori in a Māori way is a very old story. Even at Te Puea Marae tself, this is hardly new, although the added residential element has created a more intense dynamic.

Kaanga Skipper, marae board member and direct descendant of Te Puea Herangi who the marae is named after, said Te Puea helped many people in the community when she was alive and would be happy at what they were doing.

“I believe when she put the pou into the ground she put me in the ground to make sure I would be available and be here to carry on with the work that she has done.”

There are countless examples of structures, organisations, rōpū, councils and committees set up from the 1840s to the present day by Māori to provide welfare for poor Māori. Often this was necessary because Māori were not considered suitable recipients for charity, and land ownership was assumed to suffice as a resource base upon which Māori  could survive. The later decades of the 19th century put paid to that notion for many Māori communities, but official discrimination against Māori based on that presumption would last well into the middle 20th century.

The Kīngitanga had, even at its foundation in the mid 19th century, the notion of Māori as the dispossessed poor soon to be reliant on the system and aid of others. While preventing land loss was its primary focus, welfare was inextricably linked with that focus.  Māori had become like fish, caught from the sea, and left to dry; maybe to be reliant on the aid of foreigners. In 1858 Wiremu Tamihana provided the following translation of part of Taranaki chief Te Akerautangi’s speech in debating the installation of Potatau as Māori king:[1]

“‘Welcome O King;—welcome to Waikato.

The shame I feel is great
For thou hast made a hapless exit.
And now thou art as fish caught from the sea
And placed upon the stalls to dry;
Are we to feed upon the things that come
From lands far distant?
O son, thou gavest this to me
And caused these lips to be polluted
Which once were sacred. Lo, I’ll lop it off.
Lest it should lead me to adopt its measures.”

Crucial to the idea of providing for Māori welfare was to possess or access sufficient power to make decisions about Māori welfare. Some initiatives sought to establish Māori governance bodies; for example Māori councils were established under legislation in 1900 to enable Māori to make rules about, and attend to, what was understood to be local welfare needs. Māori MPs such as Sir Apirana Ngata and sought to operate within government to achieve Māori welfare through rural land development schemes. But as Māori became separated from land, thus concepts of welfare shifted somewhat from dependence on land to urban-based support from the 1950s. Māori shifted activities accordingly, creating urban-based cooperatives, such as the Māori Women’s Welfare League in 1951.

Many of these initiatives proved an extraordinary testament to the drive of Māori communities to cooperate with the government, but to solve their own welfare problems. As one shining example, the Māori War Effort Organisation (MWEO) morphed from a tribal-based entity intended to facilitate and encourage Māori recruitment for World War II into an extraordinarily successful welfare organisation that had unparalleled reach into Māori communities. An attempt to bureaucratise and centralise the MWEO and capture its success as a part of Native Affairs (later Māori Affairs) Department undermined the success of that original entity, but led eventually to the establishment of the current New Zealand Māori Council and its district Māori committee system.

Bear with me, we’ll be back in the 21st century soon…

And by 1966, 33 such committees had been established in Auckland alone, taking on tasks such as mediating landlord/tenant relationships, providing budgetary advice, undertaking prison work, overseeing Māori wardens, establishing urban marae and carrying out a host of other activities merely labeled “welfare work”.

Sound familiar?

One of the marae established in Auckland during this fertile period was Te Puea, named of course for the redoubtable Tainui leader Te Puea Herangi who popularised the Kīngitanga, and established many marae, prime among which was Tūrangawaewae at Ngaruawāhia. Her greatest fight was against Māori poverty, which she fought all her adult life.

One remarkable thing is not so much the work that Te Puea Marae has done and does now, but that mainstream New Zealand might actually think this focus is new, or unprecedented. If that is the case, that would only go to show how far Māori have been identified in the national eye with being both poor and terminally helpless.

Much of this misperception (if indeed it is such, and not merely a figment of my imagination) can sheeted home to the monolithic power of the idea of the welfare state.  Regardless of the fact that the welfare state, as engendered in 1938 deliberately excluded and underpaid Māori for decades, on the administrative presumption that Māori were too communistic and simply not cut out for self-respecting citizenship, Māori have over the decades become the nonpareil subjects of the welfare state. Of course, as Māori lost land, whānau connection, economic footing and social standing, this welfare identification was probably  inevitable, but has handily erased other powerful versions of the Māori social narrative.

In short, many Māori have always had a vision of Māori welfare that establishes Māori solutions to Māori poverty. A kind of separatism, as Lindsay Mitchell worries, alongside other luminaries of constitutional thought such as John Key?. I don’t think so, because the equally powerful vision in Māori society is that of sharing in the common good with all New Zealanders.

In fact it is this very tension between these two notions (rangatiratanga and sharing in the common good) that underpins a very relational Māori approach to citizenship. Māori communities have sought Māori solutions to welfare because we believe the relationship between Māori the Crown guarantees us that space. The self-same relationship with the Crown guarantees us the same status as everyone else, with concomitant access to the common good. Both manifestations of this relationship can be easily traced to the Treaty of Waitangi.

Treaty settlements are beginning to reveal this interplay even more sharply specifically in regards to welfare, and even more specifically in regards to our benefit system. As I wrote in another post:

The recent Tūhoe settlement [in 2014] includes a social services management plan whereby the iwi works in partnership with Crown agencies to deliver better social services to Ngāi Tūhoe. Interestingly, Tāmati Kruger made the following statement in April [2014]:

…under mana motuhake, the iwi plans to take responsibility for the estimated $9 million of benefit money distributed to Tuhoe annually. As part of the 40-year plan, the tribe will take state funding and use it change the dependency culture.

Kruger said: “We want to work with the Ministry of Social Development in utilising the $9 million of benefits to use some of that for job creation, and also changing a mindset in Tuhoe around being beneficiaries of the state.” 

This plan is in development, on the government side.

At the end of last year a report was made public on the MSD website. MSD commissioned the report by Sapere Research Group to explore the possibilities of devolving Crown liability for social security  on to Tūhoe. This was an exploration of possibilities rather than the formulation of a set plan, and is certainly not indicative of Crown policy. However,the very fact these possibilities are being debated and floated is important, and these discussions must be monitored and kept public.

In my view, relational citizenship, as practiced by Māori, results from maintaining balance between seeking common benefit, or common good for all, and upholding rangatiratanga.

And I have a few warning bells in my mind.

According to this report, MSD is currently working on measuring the actuarial liability for the Crown for Tūhoe’s long terms welfare costs (in line with the investment approach). One of the more interesting parts of this ‘think piece’ takes its shape from a question the report writers were asked:

We have been asked specifically by MSD as to how we would ‘sell the liability’ and, more specifically, if you wanted to ‘sell’ some of the [welfare] liability to Tūhoe, how would you do it?

Wow. Once we can put a price on “welfare”, anything is possible. One suggested model for ‘selling the liability’ this could be:

Partial fiscal decentralisation. Under this option, the individual rights of the beneficiaries would be changed – or provision for an opt-out made – so that a calculated sum of money would be allocated to the Tūhoe to meet agreed social and economic objectives but with a degree of freedom to be negotiated for the Tūhoe to spend these funds more effectively than under the present centrally-managed system. Reasons for doing this would be to honour the relevant aspect of the settlement agreement, but also because it would be believed that the Tūhoe could get better results from the money because of the knowledge, proximity and influence with the potential beneficiaries

There is a lot of water to go under the bridge as yet. Tūhoe has not been consulted on these ideas, because they have (according to Sapere) required the Crown  signatories to the Services Management Plan first to expend the resources to carry out these investigations. It could be years before the shape of the Tūhoe solution to Tūhoe welfare is made public.

But it’s important to be aware that these are the kinds of directions being explored, with massive implications for the notion of a single welfare state. Whatever direction is chosen, if the relationship between any iwi in Tūhoe’s position and the Crown (in regards to welfare) is “divested” too far, the iwi could be the ones to suffer.

The same may be said for the work being done by Te Puea and other marae in the urban context. Here’s hoping the balance does not tip too far.

 

 

[1]      Wiremu Tamihana Southern Cross (New Zealand, 6 August 1858) in E Stokes,Wiremu Tamihana– Rangatira (Huia Publishers, Wellington, 2003) at 165.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Kermadecs, a fishing settlement, and the Long Forgetting.

The Kermadecs, a fishing settlement, and the Long Forgetting.

 

I imagine John Key must have had a lovely warm feeling as he announced before the world  (well, the UN in New York) that New Zealand was finally going to set up an ocean sanctuary at the Kermadecs, the gorgeous smattering of islands in our exclusive economic zone about halfway between here and Tonga. I had a similar feeling when I heard the announcement. What’s not to love?  The world’s oceans desperately need protection; various studies have been tolling mournful tidings about all kinds of grave problems facing our oceans’ health. By one stroke, NZ is now set to better meet our international obligations on protecting coastal and marine spaces.
Our Cabinet, a few days before Key’s speech at the UN, had decided to do what Titanic director James Cameron and the current US Secretary of State John Kerry had been asking us to do. And once the announcement was made, the Left was falling over themselves to remind us that the Greens submitted a private member’s bill on that very issue a few years back, and that Labour had a policy horse in that race too.
Why is there a problem with such a winning idea? Because the Kermadecs, as a part of New Zealand exclusive economic zone, comprises an area from which deepwater quota is currently sourced. So that means the forthcoming sanctuary (comprising a gargantuan 620,000 km2) will be excluded from all fishing and mining. Māori will not be able to source our commercial quota from that area. Nor will there be any opportunity to expand fishing operations in that area. In simple terms, this contravenes the 1992 commercial fisheries settlement. The “Sealords Deal”, as it became known, provided to Māori in recognition of claim settlement 10% of the quota in the QMS as at 1992 (and 20% of any new quota. Plus a bunch of cash and other stuff. Iwi were allocated the quota on a coastline basis, and Aoteroa Fisheries Limited was set up to manage assets on behalf of all iwi, not just those with coastline. Yes. All iwi have a stake in the commercial fisheries settlement.
It didn’t take long for the first rumblings of Māori discontent to surface at such loss of opportunity to appear. Nor did it take long for non-Māori commercial fishing interests to voice opposition to the Crown’s plan. Māori (including Te Ohu Kaimoana) and those other commercial interests have now filed lawsuits against the Crown.
OK, I can’t pretend to be an expert in these (or any other) matters, but it’s pretty easy to see why the Government has got itself into trouble, and yet more litigation, with Māori over this sanctuary. It was inevitable.
The Gummint had simply, it appears, forgotten to remember the Maoris. Again. Well, almost. On the day before Key gave his speech, months, maybe years after the germ of the idea for a sanctuary had developed, weeks after Cabinet sign-off, Dr Nick Smith made a couple of phone-calls to Ngāti Kurī and Te Aupouri as a courtesy to let them know about the announcement Key was to make in a few hours. Smith affirmed:
I do not claim, and have never claimed, that that was consultation.
Indeed. And Te Aupouri and Ngāti Kurī have been allocated seats on the proposed governance  body and support the initiative, despite disappointment at the lack of consultation. However, this is an issue that goes well beyond those 2 closest iwi. In the Cabinet paper, commercial Māori fishing quota rights (as established in 1992) were mentioned as ‘nominal quota’. As an ‘administrative quirk’ because no-one had been using them (see para 50 here).

According to Smith & Key, Māori have not fished in the Kermadecs for at least 10 years, and in any event, only about 20 tons are caught there every year anyway. If Māori are losing rights, that’s OK, because ALL quota holders are losing rights. And anyway, just like anyone else, Māori can pick up their quota OUTSIDE the Kermadecs. Cos, well…fish swim, yeah?

Indubitably, fish do swim.

It may well be quite right that Māori will be practically untouched in their current daily lives by the creation of this sanctuary.  And actually, the exclusion of fishing from the sanctuary might just make the quota fish caught outside it MORE valuable to Māori. So maybe, just maybe, Māori should just get in behind, support the sanctuary, which is a public GOOD after all, and quit looking like a pack of greedy opportunists.
Now wait a minute. Where have I heard talk like that before? It was just over a year ago, when Dr Nick Smith (what, him again?) unveiled plans to sell off Crown land in Manukau for housing purposes. It was a very welcome move; Auckland desperately needs land for housing development. Except that some of the land to be sold off was subject to a Treaty settlement whereby Ngāti Whātua were to have rights of first refusal in the event of sale. This decision ended those pre-emptive rights. Pre-emptively. Court action ensued. A few months later a new agreement was entered into, and High Court action was withdrawn. And Ngāti Whātua now has first rights to develop housing on the land.
Come on, Nick. these two situation are analogous to some degree, surely. A public outcry and massive pressure to DO SOMETHING ABOUT A VERY IMPORTANT ISSUE. Dr Nick Smith comes up with a fantastic solution that will create a public good and a warm feeling for all. Except for that pesky (what was the word? oh yes…) “quirk” of a legislated settlement in place, with a right legislatively bestowed (regardless of how it was used) upon Māori in compensation for earlier loss. A unilateral decision from you (well, and Cabinet) to kill off said right in a defined area. Aggrieved Māori. Surprised and disappointed Government. Court action.  We know what comes next, right? Settlement, a new suite of rights or some kind of compensation for the loss of opportunity, or something similar. Remember the foreshore and seabed anyone?

Ultimately, the sanctuary will go ahead with Māori support, because Māori too understand that we need our oceans to be looked after for future generations. But as Marama Fox rightly said in the first reading of the Bill about the furore that erupted in the wake of the announcement:

All of that could have been avoided, had the conversation been had in the first place. So it is with some trepidation that we support the bill through this first reading stage. We are happy that we are going to have a taonga for all of Aotearoa to enjoy, but let us do our homework properly so that there is nothing to come back on us in the later years and we find ourselves having to relitigate this entire issue.

True, there was no legislative duty upon the Crown to consult iwi in this matter. Regardless, the Treaty relationship continues, despite the existence of ‘full and final settlements’. To paraphrase and subvert Bill Clinton’s campaign team’s slogan from the presidential campaign in 1992: what’s one of the most important thing facing Māori voters today? “It’s the relationship, stupid!”

So Dr Nick…the next time you have a bright idea can you uphold the mana of the Treaty partner by talking deeply to some real live Māori people who are not in the habit of forgetting our social, political and legal history before you go to Cabinet?

 

 

[Dear Reader, an earlier version of this post is available on E-Tangata.]

N-words and the good ol’ Christchurch childhood.

N-words and the good ol’ Christchurch childhood.

Yup, offensive words are used in this post. There is a point to it, ‘kay?

So 61 people have registered objections to the  National Geographic Board’s proposal that the Canterbury place-names Niggerhead, Nigger Hill and Nigger Stream be changed to Tāwhai Hill, Kānuka Hill and Pūkio Stream respectively. And the cute little poll appended to this article reckons 59% of respondents want to keep the N-names.

I don’t know why the objectors are objecting. It might be for perfectly legitimate reasons, for example some genuine issue with the proposed new name. (The earlier proposal for Nigger Stream was for it to be renamed ‘Steelhead Stream’ after a kind of trout, but Cantabrians sensibly pointed out that this trout doesn’t swim in that stream  – hence the new Pūkio proposal).

But for the rest of them, (and those in the poll) who now apparently have some emotional attachment to these old names  what the heck are they thinking? There is no nice historical provenance to these names to get all misty-eyed over. Check out the report here. There are, for example three ‘Darkies’ place-names in Westland. These names appear to refer to ‘Darkie’ Addison, a highly successful African-American prospector in the 1860’s. Fair call. I would not weep if they were changed, but nor woud I object: they mean something and tell you something about the place. The closest we can get with ‘Niggerhead’ is that it was a name for type of grass common to the area that…well, grows in clumps. Hence the allusion, right? Classy. Bollocks to keeping that name, when the perfectly good Māori name for that plant (Pūkio) will do the trick.

So, if name history gives us nothing, if there are perfectly good and meaningful names that could otherwise be used that connect to the flora and fauna of the place, and if the current names are simply offensive to all right thinking people, where the hell are some of these objections coming from? Gee. Given that the names suggested to replace these epithets are all Māori, I dunno. Could it be simple racism? I’ll leave that for others to decide.

I am old enough to remember how common the word used to be in 1970s/1980s Christchurch. One of my mother’s favourite sayings was ‘nigger in the woodpile’ referring to an unforeseen problem. As a kid I used to parrot ‘Eeny-meeny miney mo catch a nigger by the toe, if he squeals let him go…’. I don’t talk about woodpiles to my kids, and tigers are pretty good squealer replacements. I also remember a handstand game we used to play at Paparoa St School (and maybe Heaton Intermediate) where us girls would chant “Nigger, nigger pull the trigger, pop, bang GO!”, where we would do a handstand on the “GO” and the person who stayed up the longest won. These were mere words to us, and I don’t for one moment ascribe to those long ago kids nefarious intent.

But.

Language means something. Public and casual racism in the labels and idioms we use exclude and divide, and the intent behind the repetitive use of the words don’t matter. There is no room for misplaced sentimentality for an old teensy piece of language popular in Canterbury  that meant nothing positive to anyone and merely serves to alienate Māori, African Americans or any other dark-hued person from the rest. We cannot really control the language of others (and nor do I want to), but changing the names would be easy, pain-free, and somehow meaningful.

Here’s to a better environment where such words truly are unusual, not quaint and ‘of their time’, where they jar and shock us, and are consequently freely rejected as the lexical bastards they are.

 

 

Losing Mater.

This is the text of a post I wrote just over a year ago, and never actively shared on social media. Maybe today’s the right time. It’s a year today since Adrienne Lillian Stephens died at the Bethesda Rest Home and Hospital. I will never forget being with her and my brothers as she took her final breath. She had gone by then. Nor will I forget the aroha and manaaki with which we were surrounded in the days after; the friends and whānau (especially her best mate Vana) who came from near and far to do her honour. Never will I forget the care and love the staff at Bethesda gave her and us in those weeks and days. After she died, they asked us to leave the room for just a few minutes do they could tidy her up. They plaited her hair. They put fresh flowers in the room. She was beautiful.

I’m not sure how to mark this kind of anniversary, and when I re-read the post below, I figured that sharing something I had written at 3am in the midst of the grief of that time would be OK. I hope so. So much has changed in the last year, so many tears shed, and yet life has carried on. E tōku Māmā, ka heke anō ngā roimata…

*****

Are there any such things as ghosts of those who still cling to life, I wonder? I feel my mother here in her house, the house where I grew up. I hear her, beyond the range of my real hearing, moving about the house, softly. Carrying her hot water bottle up to bed. Moving softly outside to feed the birds, the creak upstairs must be her on her way to the loo, probably clutching the ever-present transistor radio. I hear the oven door closing. I can smell her too, or at least, the tobacco smoke, that ever-present blue haze, accompanied by the hacking cough. I can sense her sitting at the dining room table ruminating over the crosswords, adding items to the shopping list, keeping up with the diary. Cackling quietly to herself over some absurdity in the paper. I hear the shuffle of the spindly wooden chair as she stands on tiptoe to peer over the top of the fence onto Papanui Road for the latest local outrage to get her juices flowing. She always watches The Road. The missing recycling bins; the occasional vandalised letterboxes; and the sniffy reproachfulness of Her Next Door, who (apparently) everybody round here loathes. The Road is a living stream of cars, people, dogs, bikes, news, and the rumbling buses belching their payload of gritty exhaust fumes, mimicking little earthquakes that nobody needs. And then there is her little green oasis nestled between the house and the fence. The place where the birds come to feed and talk. The broken birdbath, the dishes with honey water and the containers with breadscraps. I can hear her “took-took”ing to the birds. Not those bloody starlings though. No truck with those bloody bullies. Wax-eyes, sparrows, fantails…and before the earthquakes, the hedgehogs. We wonder where the little hedgehog family went to, four years ago. She misses them.

I am sitting here at 2am in the morning and I am waiting for the bang of the poker on the floor upstairs to let me know it’s time to Turn That Bloody TV Off. I’m waiting for the turn of the handle of the door into the hallway and for her to drift into the room on her way to put the kettle on. She’s going to be pretty mad. Never the tidiest of people, I have let the lounge in which I am camping turn into, well, a freedom camper’s paradise. Minus the poo, at least.

So I can hear all these things and see them all too, if I close my eyes and block out the Emmerdale marathon on TV. But she isn’t here, and she never will be again. At least, I don’t think so. Not until she lies here and we gather for her.

My mother is sleeping fitfully, no doubt, a few streets over, at the Bethesda Rest Home & Hospital. Her mind and body wander now, and she is waiting for the close of this chapter. I’ll go back tomorrow to sit with her. I’ll marvel anew at the kind of ethereal beauty that has come upon her recently as she slips just a little further away from us. She slips in and out of this world and then she’ll blindside me with her wit and knowingness. And then she’s off again into a world we can’t really enter. Her knees are enormous. That’s what happens when the flesh disappears from every other part of her body. Joints become bulbous.

Smoking, the one thing that gave her The Passenger, as she calls her tumour, the one thing that put her in hospital last month and into 24 hour end-of-life care this month, is also the thing that gives her days rhythm, her movements purpose. The crosswords and diary sit unfilled, except by us, her children, as we try to fill in the gaps, perhaps to hold out to the world that there is still continuity with that old life. Twice a day comes the pilgrimage, the slow wander with the walker, or lately, the wheelchair, to the scruffy green patch, with the tables and plastic chairs, where she lights her cigarette, breathes deeply, and sighs in contentment. The smoke floats around her like a deadly nimbus; but the irony still pinches. That one thing that puts her here, is the one thing that gives her any remnant of her owned life now. She picked up her first cigarette at the age of 15 in Eastbourne, about the time she left school and her parents divorced, around 1951. She thinks she pinched one of her dad’s. Well, they all smoked. And now, she revels in the camaraderie of the shunned. She smokes out here with the staff and with a couple of the residents. She’ll smoke alone if you let her, and the cigarette perches weakly between her fingers with the ash always threatening to drop onto her lap. The smoke wreathes me too, and I breathe it in.

The other day one of the new nurses joined us; a lovely young lady in her twenties. As my brother said later, she knows, surely, that my mother may be her future. If so, she gives no sign, just her kind smile.

So much kindness at that place. When she had a terrible pain break through the slow-release morphine fug yesterday, our mother wept, and her eyes were wide with fear. I pressed the call-button willing my own tears to stay inside, and within seconds the nurses were there, bustling, stroking, soothing, administering, watching. “Don’t scare me like that!’ said one, not because the situation was beyond her ken, but because she just didn’t want my mum to be in that terrible pain. Neither do we.

Well. Perhaps time to try and sleep again, before the tears burst out again and the sounds of my mother’s not-yet ghost once again inhabit these quiet hours.

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Banning Karakia in schools? A cultural can o’ worms, or beat-up?

My eye was drawn to a catchy headline thrown to me by my Facebook feed the other week. The headline read:

Karakia could fall foul of ban on Bible teaching in state schools

Upon clicking, I discovered AUT Professor Paul Moon had asserted  that: “Banning religious practices in schools, may inevitably extend to removing karakia from schools as well”. This piece was followed up by a report on Te Karere.

My first response to these reports was a swift stab of, “Oh, no you bloody don’t!” Many, many Māori would have had their hackles raised at the mere prospect of State interference in what many consider to be primarily a cultural, rather than a religious, practice. I can’t think of a serious endeavour, or hui, in everyday Māori cultural life, where karakia don’t have some kind of presence, even if a muted one. The most irreligious of Māori will often still take part in karakia. Would kids and teachers in kura kaupapa Māori, for example, really be faced with a ban on saying karakia? I wondered.

So why has this issue been raising its head (and not for the first time)? You may have missed it, but an important case was due to be heard in the High Court last month. Jeff McClintock had filed a claim against Red Beach school in Auckland for alleged failures of its duties under the Education Act 1989 in regards to the allegedly discriminatory treatment his daughter received after she opted out of Bible classes. The matter morphed into a national issue and by early April this year, the big guns were lined up to be joined as parties to either side of the action; including the Human Rights Commission, the Secular Education Network, and the Churches Education Commission.

Interest had been building over the past 18 months or so, tensions were rising…and then; nothing. Mr McLintock failed to get some papers into the court on time, and the case was thrown out, its central claims left un-argued. Despite this damp squib anti-climax, there may yet be some progress on this front, as an appeal has been lodged against the court’s decision.

So what is the connection between McClintock’s issue and karakia? The article I read did not identify exactly how karakia might qualify as ‘a religious practice’ or how it could be controlled or banned, let alone if , or how, such a path could even be implemented. There are a few building blocks that need to be put in place before we can agree with the Secular Education Network’s confident assertion that McClintock’s case (if it does get heard) would not result in the banning of Maori cultural practices.

First of all; just what are we allowed to do, in our public education system? Some of the answer is in s77 of the Education Act 1964:

every State primary school shall be kept open 5 days in each week for at least 4 hours each day, of which hours 2 in the morning and 2 in the afternoon shall be; and the teaching shall be entirely of a secular character.

So, our primary public education system is a secular one, and has been since the inception of free, compulsory education in 1877; separation of church and state, and all that.Except..when it may not be.

(And interestingly, secondary education need not be secular, and Boards of Trustees have discretion to allow non-discriminatory religious instruction under the Education Act 1989; arguably a hangover from the days when education was not compulsory beyond the age of 13)

s78 of the 1964 Act says that primary schools can close for short periods of time during the day:

for the purposes of religious instruction given by voluntary instructors approved by the school’s board and of religious observances conducted in a manner approved by the school’s board or for either of those purposes; and the school buildings may be used for those purposes or for either of them.

So. religious instruction and religious observation can be carried out at secular primary schools during periods of agreed closure. As an example, during lunchtimes, schools are ‘closed’ for instruction, so available for Bible classes as matters of religious instruction (teaching children what to believe, not teaching about religions). This is when the children who opt out might be set aside to read a book, or even wash dishes, or some other alternative activity.

Yes, opt out. Under s79(1) children may opt out of any such instruction, as long as their parents or guardians request this, in writing, of the school. Not opt-in, whereby parents or guardians request in writing that children ‘sign up’ for such instruction.

Ah. You see; this system also applies to religious observation, not just instruction. And that is where we have to look more closely at what karakia may, or may not, be. Because if karakia count as religious observation under s78 then schools need to ‘close’ during the day in order to facilitate such observation, and parents have to notify their schools in writing if they wish their children not to participate in karakia. And if a case such as McClintock’s succeeds in prompting law change, for example changing opt out to opt in, then religious observation would be included, and parents and guardians would need to write in for their children to be able to participate in religious observation; IF karakia can indeed be called that. To say that such a change would threaten a chilling effect on cultural practices at the very least would not , to my mind, be scaremongering. A ban would not be technically correct, but it wouldn’t have to be.

So we have to grapple with this question: what the heck are karakia anyway? There is no doubt that sometimes prayers occur in New Zealand primary schools that are Christian in nature, but that called karakia (and sometimes called īnoi). As alluded to above, we have been down this track before. Three years ago, some staff at a Christchurch primary school were unhappy about prayer being used during school hours.

Children from the Avondale primary school’s Maori bilingual unit lead pupils and staff in daily prayer, a tradition stretching back two decades in a school that is a melting pot of race and creed.

Principal Heather Bell says beginning the day this way brings a sense of grounding to the school and creates a sense of belonging.

Translated, the brief Maori prayer penned by the school’s kaiarahi reo or Maori language assistant, says: “Lord look after us, guide us with your work today, in your holy name.”

Some, perhaps many Māori will say such prayers are not, in fact, karakia at all. Ngaire McCarthy is a keen proponent of the view that karakia have been co-opted by Christianity, and that at their traditional core, karakia are in no way religious:

The traditional karakia that is used to open and close ceremonies is not a Christian prayer, it is a ritual chant, a set form of words to state or make effective a ritual activity. Karakia are recited rapidly using traditional language, symbols and structures.

The early missionaries saw Maori traditions through a Biblical framework and believed that karakia was always a prayer, so they took the word and reinterpreted it to mean Christian prayer. The word karakia then became just another tool of colonization.

If the few kaumatua (elderly Maori) who articulate the karakia, are Christian, they will continue to misrepresent our customary karakia. This puts them into direct conflict with our pre-colonization customary traditions.

According to 19th century sources; karakia were used to ensure correctness of process, to mark transitions, to ensure safety (among many other things). Te Mātāpunenga defines karakia in the following way:

Karakia. A set form of words to state, confirm or make effective the intent of a ritual activity, and the reciting of these words, thus often translated by terms such as “incantation”, “charm”, or “spell”. In modern usage the term has been extended to include Christian and other religious services (for example, a church is often referred to as a whare karakia). In traditional ritual activity strict adherence to the proper the form of the karakia was essential; hesitation, mispronunciation or omissions in its recitation could negate or reverse its intended effects and bring harm to those involved. The word is Proto-Tahitic in origin, with similar meanings in Tuamotuan, Rarotongan and Mäori.

On one view then, karakia are cultural ritual without religion, and ought to be entirely safe for use within the primary school environment. On this view culturally bastardised prayers are masquerading as karakia, and fall foul of the law.

I really question this dualistic approach to understanding karakia. For one thing, the moment any traditional karakia envisages, propitiates, or acknowledges any power or entity outside of the human experience; that karakia takes on a spiritual dimension, and it becomes a matter of definitional point-scoring in determining when matters spiritual shade into matters religious.

Further, the presumption that Māori traditionally had no religion sometimes stemmed from ethnologists and writers of the 19th and 20th centuries (a great collection of such attitudes are listed and traversed in detail in Elsdon Best’s Māori Religion and Mythology) who assumed that Māori practices lacking temples, and in most cases, reference to a supreme being, could not comprise “true religion”. This attitude smacks of a similar insistence that Māori law could not comprise “true law” because there were no courts or Parliament. The extent to which Māori religion remains in modern New Zealand, as with law, is an open and fascinating question.

The courts in New Zealand, and Canada have all had to consider what counts as ‘religion’ as Fiona Wright identified in 2007:

Australian and New Zealand courts have said that religion involves belief in a supernatural being, thing or principle as well as canons of conduct that give effect to that belief…Canadian courts have described religion as a “particular and comprehensive system of faith and worship” combined with “belief in a divine, superhuman or controlling power” [..] In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

So depending on your definition of religion karakia can be defined as religious observations for the purposes of the Education Act 1964.  Or depending on your definition of religion, karakia are not religious and won’t count for the purposes of the Act.

On either reading, karakia are still cultural practices. This is arguably the line skated in Te Aho Matua (the curriculum followed by Kura Kaupapa)  which ascribes a special place to karakia:

5.2 Ko te tino painga o te karakia he mea whakatau i te wairua, whakawatea i te whatumanawa me te hinengaro, whakarata i te ngakau, whakataka i ngā raru, kia ngawari ai te whakauru atu ki te mahi kua whakaritea hei mahi.

[Kura kaupapa Māori] practise karakia as a means of settling the spirit, clearing the mind and releasing tension so that concentration on the task at hand is facilitated.

 

But there will be times when merely ‘settling the spirit’ involves invocation of a deity or deities, and the cultural thus arguably includes the religious.

So if the McClintock case ever does get argued, and if restrictions do end up being  placed on religious instruction in primary schools, in order to protect secular education, and to uphold the right to freedom of thought, conscience and religion (in NZBORA, s13), Māori cultural rights (protected under s20 of the BORA) will most definitely be under threat.

And I wonder (with my tongue in my cheek..but only just) about implementation. Who will put their hand up for the job of karakia police, patrolling schools and kura, watching and listening for karakia and those code words in Māori that sound suspiciously religious (depending which official is defining ‘religion’ that day), and must face strict control, rather than those that sound merely ‘cultural’, that can be left alone. How would any kind of regulation not involve cultural interference?

After all that, I think I’m back to my old gut instinct with which I started this piece: “Oh no, you bloody don’t!”

 

[Please note: this post is an updated version of the original posted on E-Tangata http://e-tangata.co.nz/news/if-we-ban-the-bible-from-schools-will-karakia-be-next]

 

 

 

“A most unfortunate incident.” The death of a child and the monsters among us.

It was one of those distressingly familiar moments, watching TV3 news tonight. The people who [man]slaughtered three year old Moko Rangitoheriri appeared on the screen, blank faces and hunched shoulders. Outside the court one of the defence lawyers identified that the death of the wee boy was a ‘most unfortunate incident’. I know he was trying to keep his language careful and neutral. Nevertheless I cringed to hear this lexicographical sleight-of-hand. His clients killed a little boy in an orgy of violent self-indulgence. Just because they did not intend his death has not absolved them in the eyes of the law, and of the public.

[and here I am about to call on an earlier post I wrote some time ago on a similar topic, forgive me.]

So here we have yet another Māori child killed in a case that will have the families and the public searching for meaning and explanation for the terrible crimes that have been committed.  The internet may well brim again with discussions about culture, disadvantage and dispossession. There is a growing body of academic and government research that explore linkages between the Māori experience of colonisation and child abuse rates (see an example here), some of which will be pored over again and debated.

But in some ways this kind of analysis feels incomplete… Rather than Victor Frankenstein as the creator of the monster, the creator is colonisation and its absolute plundering of Māori social structures and cohesiveness.

We crave explanation. We need motive, we need cause, we need rationale as if human monsters are the product of some fiendishly screwed up recipe that went horribly wrong. If only we could just find the gene, or the step-father or the poverty-stricken background that could enable us to see the perfect formation of the causal chain. Of course, mental illness, racism, violence culture, misogyny, alienation, social and cultural disenfranchisement, lost moral compasses, can all explain in some part why people do bad things. But at the end of the day sociological or psychiatric explanations can only take us so far. This is because at the heart of all these kinds of events something evil has happened. In New Zealand’s secular society the notion of evil is unfashionable and a sign of a bygone and more credulous age. Evil, as an explanation for bad things, is now only really permissible in movies and books. Respectable commentators and analysts rarely speak of evil. But every so often the narrative of human experience of evil breaks through the strictures with which we have attempted to eradicate it.

I remember something one of the witnesses said at Mauha Fawcett’s trial for the murder of Mellory Manning:

“I could hear the crackling of tarpaulin or plastic,” he told the jury. “It was made to be done really slowly, you know what I mean, it wasn’t rushed, or hurried.”

A splash followed and was “pretty loud”, the witness said.

“I said it ‘aint Canadian geese or ducks or anything like that,” he told the court. “I couldn’t hear anyone talking, I couldn’t see anyone.

 “I actually ducked under a canopy, some trees, to see if I could see any silhouettes moved.”

But before the man could see anyone he was stopped “dead cold” in his tracks by a feeling he described as horrible and cold.

“It was quite freaky, it was a lot of fear; I knew something was not right, I retreated rather rapidly to where [my partner] was.” 

I don’t think what that witness felt would be unusual in such circumstances, and those feelings are what has kept Stephen King in clover all these years.

I wonder if anyone connected to the the house in those days before Moko Rangitoheriri’s death, felt such a wrongness but pushed it aside. Or had the frequency of the abuse meted out and the ‘culture of violence’ made the abuse so banal that wrongness was no longer a factor? I don’t know.

At any rate, it’s tempting to think that David Haerewa  and his co-offender Tania Shaile are true monsters, or ‘mad’ or any other label that separates them out from us. In truth though, they are extraordinary only in the degree of harm they have caused. True, these perpetrators had, between them, created something evil, something greater than the sum of its parts. But in order to do so, they probably felt entitled to follow the only yardstick that mattered to them (for whatever reason): their feelings at that time. David believed he was entitled to do what he did because  as Haerewa told police, ‘he “didn’t like [Moko’s] ways” and that he was “angry at him for taking us for granted”. Nothing, no moral strictures, no societal restraints, no physical restraints seemed to have stood in the way between these perpetrators and what they felt they needed or wanted to do. Above all people, they alone were entitled to do what they saw fit to this little boy who had annoyed them.

That willingness to ignore from what is right to instead give in to our desires, (‘sin’ as some of us might see it) was not externally imposed, not purely the result of external factors such as poverty, or abuse, or loneliness. Of course our willingness to, in the words of Depeche Mode ‘give in to sin’ can be informed by all those things and other factors that make up our complicated selves. But the capacity to commit evil simply by being unrestrained in doing what we feel like is within us all.

And in this nothing really separates us from the more obvious human monsters that make the news and create such “unfortunate incidents”

Just how free is your will, truly? Criminal law & the free thinker.

A few years ago two people made comments to me independently about children; comments that broke my heart. In one, the sister of a friend of mine who had adopted a baby from a troubled background asked me if I had met ‘the criminal’s baby’ yet. I did a double-take; this was the first conversation I had ever had with this woman, but surely she must have been joking. She wasn’t. She waited for my answer. I stammered out something about what gorgeous and happy boy he was, and left; under no illusions about what she saw in that child’s past and his future. At about the same time, another friend of mine was parenting a child from  troubled background. Hmm. Such a quaint phrase ‘troubled background’..makes me think of a William Turner painting, like The 5th Plague of Egypt:

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This child was a bit older, and he had been playing up at school. Really playing up, and my friend was, understandably, tearing her hair out. “My kid is totally fucked up,” she said, in a tone of utter finality. My heart bled for her; but also for her boy, happily (on that day, at least) playing on the computer in the next room. The sense I had garnered from both conversations (and the first was a short one, I’ll grant you) was that each child was followed by a terrible Doom. In the case of the second child (Māori) he was rapidly becoming, for a host of complicated reasons, the Troubled Māori Boy at his school. Now this child had a pretty good chance of beating his Doom, he had a well intentioned  & hardworking Mum, and a bunch of supports in place around him. In fact, both children did, and I can only hope that these two kids continue to outpace the expectations of others that they will fail; that the choices they will make will not fulfil the prophecies being made by others on their behalf.

A couple of weeks ago I happened to be in my first week of law teaching for the year, introducing my classes to the concept of mens rea, or ‘the guilty mind’ that prosecutors must prove exists if defendants are to be held liable  for the actus reus, or ‘guilty conduct’ that comprise serious offences in this in this country’s criminal law (many offences don’t require mens rea these days, but that’s a story for another day).

So in my classes we had to discuss some basics before we even got what it means to choose an action, and to carry it out with a specific frame of mind like intent or recklessness. At the very heart of our criminal legal system is the notion of the freely choosing individual. The person who, faced with a choice of courses of action is capable of choosing one of those courses of action. This presumption that individuals must have free will in order to be at fault is extraordinarily powerful and optimistic. Thousands of years of philosophical and religious thought have also upheld this idea, particularly in the West,  that humans can choose obedience to a deity or a principle, or a moral.  This idea is in direct tension with another powerful idea; determinism,  which understands humans to be little more than flotsam and jetsam on tides of their own fate. We are the sum of our physiology, our psychology, our physicality, our environment, and we are bound to act as we do; our whole lives have brought us to this moment; and true choice is but an illusion.

At the same time as teaching these classes, I read ab0ut the successful appeal by one of the young boys who killed Mr Arun Kumar, a loved and respected man who was stabbed to death in his Auckland dairy in June, 2014. This is one case that challenges the role we presume free will plays in our behaviour. The appellant was 13 at the time of the killing, who had suffered terrible head trauma at the age of 8; married with many of the other markers of disadvantage that other young offenders carry; lack of family support, lack of engagement with the medical establishment; abysmal schooling experiences, and so on. The following quote from the article interested me:

A medical report available to the courts outlined the effect the injury had on the teenager’s reasoning on the day of the killing: “although knowing right from wrong, [P] was significantly reduced in his capacity to choose right from wrong, due to his lasting brain injury impairments.

“He could not use his knowledge normally to control his actions on the day and in the situation in the dairy. He had less control than another person his age would have had in the same circumstances due to his brain damage.”

In other words, this offender’s capacity to exercise free will was compromised. It was not eradicated; he was found guilty of manslaughter after all; he was not acting as an automaton; he still met the mens rea for manslaughter; just not for murder, because the jury found he had formed intent for committing serious bodily harm, without intending, or knowing that death could result (s168, Crimes Act 1961). The Court of Appeal said that the sentencing judge had not taken enough account of the Defendant’s reduced mental faculty in sentencing. This case highlighted how fragile our cherished concept of free will can be.  Why make this young person criminally liable for something he most probably could not have chosen to do differently in that moment? Well, there are many reasons, and one of them is simply that our system of criminal liability simply cannot take account well of hard cases.

I asked my classes who among them felt they were indeed in control of their own destinies; and who felt at the mercy of some kind of fate over which they had no kind of control. Funnily enough, many of the same people who thought themselves in control, also saw themselves carried along on tides over which they had no control whatsoever. Somewhere between these two poles exist real people struggling with their unvarnished lives. Muddiness of real life to one side; politics, religion, and law would all look very different in this country if the notion of individual free will did not have such ascendance.

I can only trust that the two children I mentioned above are both able and enabled to make the kinds of decisions that dispel the Dooms that might otherwise sweep them up.

 

[Postscript: just saw this article about 30 seconds ago..seems, according to this experiment at least,  that a goodly degree of our quote-unquote free choices are actually retrofitted. Well, a scientific study rarely quells debate, does it.]

 

 

 

 

‘Trumping’, Hosking & the Waitangi Tribunal. It’s a thing.

So my brief this week was to write a post on the Waitangi Tribunal. Now, I often need to feel a bit het up in order to write (or at least write something vaguely meaningful). My usual gauge is the Shower Test. Do I stand in my morning shower, stock-still, with hot water levels merrily depleting while I stare into middle distance ruminating about some issue? If so, that usually means I can write about that issue with some vim & vigour.

And unfortunately, despite being a legal academic, the judicial and quasi-judicial institutions of our legal system don’t usually pass my Shower Test.

And then Mike Hosking came to the rescue with his latest column, much of which was a critique of the Waitangi Tribunal.

Now. To be fair – confessional, even, I don’t mind opinionated middle-aged Pākehā men sounding off. I don’t have a well developed outrage nerve, and the opinions of people I don’t know don’t often to get on it. Rodney Hide, Paul Henry, Jamie Whyte, Duncan Garner, John Roughan, Brian Rudman, Cameron Slater, Martyn Bradbury et al can say what they want; I’m responsible for my own responses to what they say. They too usually fail my Shower Test. But I did find myself thinking about some of the statements in Mike’s column. That is unusual.

I should note that the last time Mike interviewed me on Newstalk ZB he got my name wrong, my gender wrong and my job title wrong, so I know he can be Trumpish on detail, but let’s look at what he said anyway about the Waitangi Tribunal.

The Waitangi Tribunal is having a busy old time of it at the moment. One might have thought that when the whole concept was dreamed up they would’ve given some thought to how long it was going to be around for, given it had a specific mandate which was by and large to deal with Treaty grievances.

You know, there is a great little legislative time machine we can use at this point, it’s known as the ‘New Zealand Acts As Enacted’ collection hosted by the New Zealand Legal Information Institute (NZLII). The beauty of this collection is that you can go back to any year an Act was passed and see What it Was Like Back In the Day. So have a look at the Treaty of Waitangi Act 1975, if you feel like it.

Actually, Mike’s not entirely wrong here. The Tribunal was set up with a specific mandate, and part of that mandate was to hear claims. Inevitably, those claims were to involve grievance. We don’t make claims when all is right with the world. The fact that one of the other parts of the mandate remains to examine draft legislation referred to it for compliance with Treaty principles. for example, has escaped Mike’s notice.

That he says ‘ One might have thought … they would’ve given some thought to how long it was going to be around for’ reveals that he has probably not ever looked at the Treaty of Waitangi Act 1975, or else he wouldn’t have written that. Let’s look at the opening words of the Act (and yes, they remain the opening words of the Act, 41 years after original enactment):

WHEREAS on the 6th day of February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand: And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language: And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles […] [emphasis added]

Clearly, as it was conceived originally, the Tribunal was always intended to stick around to facilitate this notion of ‘practical application of the principles of the Treaty of Waitangi’. Of course, this was all a little ill-defined, because back then we hadn’t really begun the process of articulating what those principles are (a process that has never ended, by the way).

For another thing the Tribunal was established as a permanent commission of inquiry. Now, ‘permanent’ means different things to different people, but I think we all understand the notion of permanence as opposed to temporary-ence.

And at that point historical claims were not part of its brief, Māori individuals (alone or as part of a group) could only bring  claims against the Crown if she, or the group, was being prejudiced (at that time, or was likely to be prejudiced at some time in the future)  by actions of the Crown, including by way or Act, regulation, policy, etc), where such behaviour was contrary to those principles of the Treaty.

By the way, its status as a permanent commission of Inquiry is WHY its recommendations  are not binding (with one exception, the power of resumption under Treaty of Waitangi Act 1975, ss 8A-8HJ, but we need not go into that here).

Given the scope in 1975 (to hear claims for wrongs now, or at some time on the future), let’s face it, the Tribunal was never intended to have an expiry date. The addition, in 1985, to the Tribunals’ jurisdiction, to enable it to hear claims before 1975 made not one iota of difference to that.

But let’s dip our toe back into the murky world of Mike’s Tribunal Tribulations:

Sadly no such luck. If you ever want an example of “build it and they will come”, or of an organisation that expands its brief to ensure survival, then the tribunal is your one-stop shop.

OK, not gonna bite. See above.

Next, Mike alludes to the urgency claim filed against the TPPA. Harrumph, he reckons:

What can the tribunal do, to assuage the concerns? Answer? … nothing. Nothing it does is binding. And in highlighting the example we highlight what this has become – a gravy train. Everyone on the tribunal is getting paid, everyone presenting the cases is getting paid, and you know full well who’s footing the bill.

Um. Kind of true, but not in a way that means anything.  Nothing in the jurisdiction of the Tribunal allows it to “do anything” about the TPPA. That wasn’t what it set up for (see above). Nevertheless there are a good many Māori who would say that the Crown’s signing of the TPPA could well cause prejudice to Māori, being inconsistent with the principles of the Treaty. I’m not about to enter into the TPPA debate, others articulate those concerns far more effectively than I can. But this is exactly the kind of claim the Tribunal was set up for in 1975. What is Mike suggesting? That this forum just be cancelled because he happens to agree with the TPPA? I need more than that to give his opinion any weight.

As for the ‘Gravy Train’…oh I don’t know. I don’t even know what a bloody gravy train is. I looked it up, and I’m still none the wiser. As far as I can see it is just a phrase people trot out for when they think people are getting money for things they don’t like. Like “fat cats”. And “On the pig’s back’, and ‘snouts in the trough’ and ‘sucking on the teat of the taxpayer’ or any other silly phrase that gives us permission to stop thinking. Apparently, there is a “Gravy Train” dog-food in the states. So here’s my antidote:

GraveTrain

Then Mike takes aim at the recently accepted claim in urgency against  Corrections, concerning the Crown’s alleged failure to make a high level commitment to improve the disproportionate number of Māori in prison. He would like the Tribunal to conclude that there is no real problem, Māori just have to stop committing crimes:

It would be refreshing to hear this conclusion from the tribunal, but I’ll bet you a week’s wages you won’t because that wouldn’t serve its purpose.

Having dealt with the vast majority of Treaty grievances just what is its purpose? At what point does a government say, “You know what? We’re done.”

Once again. It’s not the tribunal’s purpose to tell Māori people how to behave so as to stop having negative experiences. That might be how Judge Judy does it but the tribunal’s job is to determine if the Crown has acted in such a way (inconsistent with the TOW principles, once again) that Māori experience prejudice under the Act.

And that’s about as deep as Mike’s analysis gets. The Tribunal allows Māori to say things he doesn’t like about “rats and mice issues of no real importance whatsoever”, and it should just wrap itself up. End of.

But enough of Mike. The Donald would have been proud of the lack of facts or thought in that column. And you know what? I give up. I agree. I, too, cannot WAIT for the Waitangi Tribunal to fade from existence due to irrelevance. Why? Because that would mean the Crown had stopped breaching the principles of the Treaty. Let’s see some opinionated columns in the mainstream media about how the Crown might do that!

To return to earth for a moment, there are genuine grounds to be concerned about the role and efficacy of the Tribunal.

For one thing, as the settlement process began in earnest, it has been argued that it was intended the Tribunal be an integral part of the process, as is still evident if only because the Office of Treaty Settlements still requires claimants to have registered a claim with the Tribunal before they can enter into direct negotiations for settlement with the Crown.

The fact is, despite registering claims many claimants go straight to direct negotiations with the Crown; and they don’t go to the Waitangi Tribunal at all. If this is the case, has the Tribunal lost something of its moral suasion if Māori are not using it to actually be heard and to get a report written about their historical claims?

And what kind of pressures have claimants been subject to in the direct negotiations process that might have been eased with the buffer of such a report?

Well, Māori are continuing to use the Tribunal, particularly for the kinds of contemporary issues it was originally set up to hear. The bigger question is really whether the Tribunal recommendations make a difference. In many cases one could argue no. For the Tribunal’s recommendations to succeed, the Crown needs to buy in, and often it simply doesn’t. But sometimes it does..in a round about kind of way.

Here’s an example. in 2011 the Wai 262 recommendations were released along with the gargantuan report Ko Aotearoa Tēnei. Have a read of my colleague Carwyn Jones’ summary, on his own blog, of the big job the Tribunal had to do on this first whole-of-government inquiry.

Ultimately, the Tribunal wanted to see Māori intellectual property rights in mātauranga Māori protected within the New Zealand legal system by way of a special regime. Well, as of March 2016 the Crown has not responded to the recommendations. Or at least, if they have, I have missed it.

Is it strictly true to say that the recommendations have been ignored? In the main, probably. But in 2014 the Ka Mate Attribution Act was passed; in part to enact the provisions contained in the Ngāti Toa Rangatira Deed of Settlement dealing with the haka Ka Mate The Attorney General Chris Finlayson said that the time that the issue of protecting Ka Mate went beyond Ngāti Toa.

What we have here is, I believe, exciting legislation. It is the very first tentative step by the Crown towards recognition of traditional cultural expressions

And maybe it is. It could be argued that the Act was, in part, a response to the issues set out with regard to Ka Mate in the Wai 262 report. This is the kind of impact that is hard to measure, because it is indirect, partial, and incomplete.

One other point I would make about the Tribunal; it is sometimes described as ‘a safety valve’ (Matiu Rata is said to have described the Tribunal thus), or even as a kind of ‘truth and reconciliation commission‘. I would agree with that; much pain and many tears have been shed before the Tribunal, and the weight of that Māori participation in this mechanism must not be undervalued.

Actually, this public participation aspect has, in recent years, been under threat, in regards to those historical claims. As the Tribunal has become more formal, efficient, and court-like over the years, its emphasis has greatly shifted, it has been argued, from providing that necessary public safety valve to helping claimants do better in highly bureaucratic settlement negotiations. This is worrying to me.

Therefore, an important saving grace of contemporary claims, such as the hearings on the TPPA and Corrections, may well be that the Māori public voice within the public square is getting louder, once more.

Long may it remain so.

[Please note: a very slightly different version of this post was first published a couple of days ago  on E-Tangata]

Woop woop!! Social Security Act rewrite!

I am all a-jitter. Seriously, I am. I am having a cup of coffee to calm down. I may need a nap. The thing I have been waiting for has finally happened, and to be honest, I just don’t know how I feel about it. Well, it is a bloody doorstop (440 pages), so that ambivalence will on for a while yet. Yes indeed, the Social Security Act 1964 has finally undergone the first full draft of its rewrite. The Rewrite bill (OK, proper name: Social Security Legislation Rewrite Bill)is now available here.

Actually, in all honesty I am shamefully late to post about this. I have been buried up to my neck in other writing and wilfully ignoring all sorts of things (like emails, and children), so it makes me blush to say this was released on 17 March. For crying out loud..I am WRITING  BOOK ON SOCIAL SECURITY LAW. You’d think I’d have caught up with this little earthquake a little sooner.

Cos make no mistake, here there be earthquakes and tigers. I don’t have time today to engage in a full analysis (you are very welcome). But legislative reform of social security in this country has often been about trumpeting much and delivering little; or alternatively trumpeting very little and delivering knockout blows. When I am teaching my welfare law classes I often have to point out a kind of now-you-see it, now-you-don’t magic trick that passes for legislative reform in this area, whereby new provisions are jammed into the old Act but closer inspection reveals there has just simply been a shuffling around of old provisions that might conflate existing tests, but really, the status quo continues to a large degree.

When the government crowed about its streamlining of 7 benefits down to 3, they neglect to mention that often the same tests for eligibility are simply picked up and plonked somewhere else in the Act. So while the DPB (sole parent) was repackaged as sole parent support, the same eligibility tests were applied. The DPB carer’s benefit was also renamed and shifted to the supported living payment. Same tests. Sickness benefit was picked up and dumped into jobseeker support, with the same eligibility tests. Now, obviously there were changes in the application of work-tests and harsher requirements for reapplications, and implementation of other provisions and policies that have made such benefits harder to get; but in many respects the law has trundled on as it always has, really. The only benefits really to disappear in recent years have been widows’ and women alone benefits (both replaced by jobseeker support) most other reform has involved shuffling, reshaping, rebranding, and tightening of obligation.

Which is what makes this rewrite kind of exciting, and freaking scary. The Social Security Act 1964 has become a hot mess. But those of us who work with it recognise some phrases in the legislation like we would recognise old family members; in many cases those phrases were written before most of us were born. There are many things I’ll be looking for..here are a couple:

  1. what has happened to the level of administrative discretion in the Bill? Has it depleted? Is it roughly the same? Where are there any changes?
  2. I know the Emergency benefit is to be replaced with the exceptional circumstances benefit. How different is it? At first glance, not much, but I need a bit more time to cogitate.
  3. where are the bodies hidden? One of the problems of the current Act is the connections between different parts of the Act that the hapless reader may not know about. How well crafted is the roadmap of this Act?

OK, I can’t answer that all right now. But one benefit I have taught many times, the unsupported child’s benefit has, I’m told, been ‘gotten rid of’ along with the orphan’s benefit in this Bill: A quick look reveals that the new benefit ‘supported child’s benefit’ does actually streamline two benefits (orphan’s benefit and unsupported child’s benefit) that existed for pretty much the same reason: the child or children had no parents to look after them. In the old Unsupported Child’s benefit in s29 there is a requirement that there be a family breakdown in the child’s family which has meant that no parent is available to look after the child. Then a non-parent can be granted the payment for looking after the child. The practical implication of the ‘breakdown’ requirement was that children being looked after by way of the whāngai process (sometimes called informal adoptions) didn’t reach this threshold usually; there is not usually a family breakdown when children are looked after as whāngai; although the family member looking after the whāngai will be doing exactly the same thing as in other situations without whāngai. So NOW; the ‘breakdown’ requirement has been excised. Does this mean whāngai carers will now be eligible? Perhaps. There has to be no parent ‘willing and able’ to take care of the child. That requires consideration, but the deletion of the ‘breakdown’ requirement is, I think, a good thing.

But no mistake. that is a substantive change, and not merely cosmetic one. Time to identify the rest.

After my nap, maybe…

 

 

 

 

 

 

 

 

Holly Walker

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