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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.

MaterGoodbye.jpg

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…

 

 

 

 

 

 

 

 

Good Friday, Narcissus and my social media experiment.

 

So here we are, it’s Good Friday. It also happens to be my 46th birthday, but I feel more melancholic than celebratory. Today, of all days, is an opportunity for me (and all the other millions of Christians) to reflect upon the crucifixion of Christ, and what that means in our lives; and we have just marked the close of Lent; the 40 day period of reflection and penitence. leading up to this Holy Week, including Good Friday and Easter Sunday with its celebration of the Resurrection. (And THAT’S the time for the chocolate eggs, yiya!!)

Many of us will have observed some small sacrifice in the past 6 weeks to mark and make a little bit more real this solemn period. We can interpret this “Lenten vow” as a promise made to deny ourselves something that we might suspect holds too much power over us in our daily lives; something that would actually cost us something to give up. When I think about it, that’s pretty counter-cultural. Denial of self is not popular. So..a couple of years ago I gave up sugar for my Lenten vow; last year I put myself through a rigorous period of daily reading and prayer simply because I’m pretty bad at spiritual self discipline. This year I gave up two things; red meat and my reliance on social media. The red meat I haven’t missed at all..not much of a sacrifice, then! What about the social media then? Ah..not so easy.

Why did I think this was a good “sacrifice” to make anyway? Overall Facebook, and to a lesser degree, Twitter, have improved my life, not stolen from it. Social media affords me a lot of pleasure, engagement and opportunity for reflection, and even tears. I keep in contact with family and old friends (almost all of whom I only rarely see in real life), I get exposed to article and opinions that actually help me to work out what I really think about the world and the people in it. Not infrequently, I find  out news through social media well before it appears in “The News”. I respond to personal messages on FB more quickly than on email and by phone.

Sure, most of us know there is no time-killer as effective as Facebook, and social media generally. (As if to underscore this point I have just sent 32 minutes Googling for the awesome cartoon I saw ages ago featuring the lone person on Facebook and the gargantuan gulf between that person and their hopes and dreams. I wish you could have seen it. Truly.) And then there is the bigotry and closed-mindedness even from people we love. And not to forget the insufferable smugness of those who claim moral and political high ground; the vapidity and frivolity of those seeking to shore themselves up by Facebook validation. Of course, it goes without saying that I myself don’t fit any of these categories. Not at all.

What a load of bollocks. Of course I do; I fit all of them. In fact my use of social media reflects back to me things about myself I would rather not acknowledge; moments I would rather keep secret. Those times when I have hovered over posts, waiting for likes, comments and shares. The times I have lovingly crafted seemingly casual put-downs of other people just to show my superiority. The times I have wrestled with someone I don’t know about something I know little about (and care less about) just to be RIGHT; or even worse; just to see my own post (thus hear the sound of my own voice). The moments I caught myself thinking in status updates.

None of these things are grave sins, and I am no different to other people I’m sure. But it’s instructive that people often refer to Facebook as ‘addictive’. Well, I’m not sure if it is the flow of information we develop addiction to. In fact I’m sure it’s not. The addiction might well be real, but it’s not to Facebook, or any other SM.

I realised I needed to make my SM use the subject of a Lenten vow because of one thing; I was putting myself at the centre of the world. Or perhaps to put it another way, I was becoming a kind of Narcissus, the beautiful young man of Greek myth who, catching sight of his own reflection in still waters, fell in love with his own image, believing it to be a nymph in the water watching him with love and desire. Every time he reached for the image it shimmered and broke apart,so he just sat and watched the image; enamoured. Ultimately he died; still rapt in the facsimile of himself and its false love.

john-w-kelley-greek-mythology-now-narcissus-i.jpg

By its nature social media gives us all the opportunity to present our ‘better selves’ to the world, and then to cultivate and groom that better self as if she actually existed.

This is not in itself a bad thing. Obviously any time we present ourselves to the world we edit what we show; when we walk out the door; on the bus, and in the group email at work. Self editing is necessary for good social intercourse. And for those of us who do want to blog or write or otherwise put our opinions and thoughts in the public sphere have to put ourselves at ease in putting our public self ‘out there’ or else not bother. We have to believe someone else is interested in what we have to say; and that what we have to say is worth saying. There is a fine line between having that necessary degree of confidence, and slipping into the kind of dangerous self-regard I was starting to see in myself. And of course, this shiny coin of attention is double sided. One side is the adulation we crave from others, the other is the hatred we might also attract.

The irony of writing a post bemoaning self-addiction by writing mainly about myself is not lost on me. Regardless, 6 weeks without seeking likes, and shares and comments have done me good. I hope I can return to social media with care. Perhaps the proof of that particular pudding will be in how often I find myself hovering on my stats page for this blog, seeking evidence of love and approval from the universe.

Mā te Atua koutou e manaaki i Te Aranga nei.

 

 

 

A moment of gratefulness…

A moment of gratefulness…

I heard the sad news last night that Kathy Ertel passed away a couple of days ago. Most Māori lawyers, or lawyers who have ever practised in Treaty jurisprudence, knew, or knew of, Kathy, and of her great commitment to her many Māori clients. I never knew her well enough to presume to attempt any kind of obituary here; but I know that she played an important part in recent Māori legal history, and that she was respected, and beloved of those close to her. Ka nui taku mihi aroha ki tōna whānau. Moe mai, e te wahine toa, hoki atu koe ki ōu tūpuna, okioki ai.

One of her early achievements was to act as junior counsel on the landmark NZ Māori Council ‘Lands’ case, sometimes known as the ‘SOE’ case. Justice Glazebrook has described the import of the Court of Appeal’s decision in the following way:

The Court of Appeal’s decision in the Maori Council case has been viewed by New Zealand historians as one of the crucial measures that helped facilitate Maori development and identity through propelling extensive social and political change in New Zealand. It has been argued that the decision, which has been seen as giving the Treaty of Waitangi an explicit place in New Zealand jurisprudence for the first time, was one of the catalysts for the creation of a general acceptance that the state has a responsibility actively to fund the promotion of Maori language and culture and language.

Kathy’s passing and remembering her achievements also sent my mind back to another important figure with whom she worked on the Lands case, and at Luckie Hain; the late Martin Dawson, who was also my old boss from my days in the Māori Legal team at Russell McVeagh. He passed away in 2003, a time etched in my mind, coming so close to the birth of my first child; whom Martin met in the last weeks of his own life, and the early weeks of my son’s.

An extraordinary person of chivalry and passion, with a wonderful family, Martin, perhaps more than any other person in my life, was the first to teach me something of what ‘rangatiratanga’ might look like. He had had a really firm vision of New Zealand as a Māori country, over which Māori exercised an enduring rangatiratanga, regardless of the existence of Crown sovereignty. I think, in my mind, I had always thought of this country as ‘New Zealand’ with ‘a few Māori bits here and there’. That was BM: Before Martin. Because of my all too brief time with Martin, the seeds were sown for me to eventually understand that different sovereignties can continue to exist in one place at the same time.

I feel today a moment of gratefulness for Pākehā lawyers who, for whatever reason, have caught hold of a genuine vision of justice for Māori and a better future for Māori in this land. In my time in law (and I feel still such a baby in law, after all) I have met a few such practitioners. The best of them never presume to speak for Māori unless asked; they listen; they learn. They know what they don’t know. They don’t seek to hold on to the reins; they seek, mentor and inspire young Māori to take up those reins instead.

He mihi nui ki a rātou katoa.

 

 

 

 

 

Aboriginality and the ‘assisted dying’ debate..

Aboriginality and the ‘assisted dying’ debate..

I have just read a post I thought was pretty important to share. While my last post was pretty much only a ‘call to enter the debate’ about assisted dying and Māori and Pasifika attitudes, this post by Paul Russell explores some of the issues for indigenous Australians; particularly in regards to the passage of the world’s first pro-euthanasia legislation: the Rights of the Terminally Ill Act 1995 (Northern Territory). This legislation was championed by Marshall Perron, the Chief Minister (in other words, the State Premier) of the Northern Territory. The Act had a very short effective life, as it was stymied by the (Federal) Euthanasia Laws Act 1997. But the debate around the Bill raised issues at the time about the perceived vulnerability of indigenous Australians in regards to euthanasia legislation, and what appears to have been a pretty charged debate. Here is an excerpt from the post:

Perron created a few broadsides himself. In his closing speech at the second reading he said: “The campaign by the AMA and Right to Life groups at least has been dishonest and, whoever told traditional Aboriginals that we would round up the sick people and put them down ought to be ashamed of themselves.”

That last comment is incredibly poignant and historically significant. There is no telling whether Perron’s recollection is verbatim or whether he is summarizing and synthesising a number of anecdotes, but there is no doubt that issues raised by Aboriginal people and concern for Aboriginal peoples, their fears, their laws and culture, remoteness, low life expectancy etc. was a significant part of the initial debate spilling over then into the Federal debate on the Euthanasia Laws Act through 1996 and 1997 and even gaining mentions in subsequent euthanasia debates in other states many years later.

I’m not about to presuppose that Māori and Pasifika views will cohere with indigenous Northern Territorians. But this post is at least a contribution. What do Māori and Pasifika think? Should there be assisted-dying legislation in New Zealand? If so; how can Māori and Pasifika contribute to ensuring that the legislation is effective and does not perpetuate ‘the vilest discrimination’? If not: what are the culturally informed thoughts that uphold such a position?

We all need to know.

 

 

On that sad height; Māori, Pasifika and the assisted dying debate.

This is a picture of a tin. A very important tin.

NanasTin

It looks like Nana’s biscuit tin, but is actually the tin from which ‘members’ bills’ are drawn ‘from the ballot’ every second Wednesday of the month in Parliament. If we were to see inside the tin on such a Wednesday we would see roughly 80 of the numbered plastic tiles in the photo above, each one identifying one MP’s private bill waiting to see the light of day. Many of them won’t.

Private members’ bills provide for some of our most important social reforms.Louisa Wall submitted her private member’s bill on same-sex marriage in May 2012; it was drawn in August 2012, enacted into law by April 2013. Legal and social history was made.

In October last year another tile went in the tin; David Seymour’s End of Life Choice Bill. And there it waits. It is the latest in a growing line of such tiles; last year Maryan Street’s End of Life Choice Bill was withdrawn after languishing for 18 months, and a lack of enthusiasm shown by Labour leader Andrew Little in 2013, an election year. Back in 2003 NZ First MP Peter Brown’s “Death with Dignity” bill was only narrowly defeated in a conscience vote 60-58 at its first reading. In 1995 Michael Laws also had a go; only to be defeated by a much wider margin (61-29 against).

Euthanasia is not a new issue, but it seems to me that medically-assisted dying, as one kind of euthanasia, has received a lot of positive media comment and profile recently.

  • Maryan Street’s submission of a petiton to Parliament seeking law change to allow assisted dying received good coverage here, here and here. In fact, the Health Select Committee has launched a Parliamentary inquiry as a result of the petition, for which submissions closed on 31 January.
  • Lawyer Lecretia Seales sought to have the Courts interpret the Crimes Act 1961 in such a way that her own doctor would not face prosecution for helping her to die. The Courts declined the opportunity just before her death, leaving any such reform to Parliament.
  • Trade unionist and former head of the CTU Helen Kelly, in coming to terms with her own terminal illness, has also sought the right to assisted dying.
  • Cases involving people seeking to end their own lives at a time of their choosing is being reported perhaps more favourably in the media as a prime example, Peter and Patricia Shaw who killed themselves in October last year).
  • There has been some considerable debate within mainstream media outlets about euthanasia. I know this because Stuff has a tab under its ‘National’ news page called ‘Euthanasia’, so it must be true.

In my view there is considerable work has been done that is preparing the ground for David Seymour’s Bill to be ushered into law should it be drawn. Of course politics being what it is, the Bill may not succeed anyway. Nevertheless the time is ripe now for Māori and Pacific peoples to be heard in what is developing into a nation-wide debate. Except I’m not hearing them. Well, that’s not entirely true. There are a few opinion pieces here and there, but nothing like the furious debate at the time of the Royal Commission on Genetic Modification (200 submissions were received by Royal Commission from Māori, for example), and the attention (rightly) given to Māori suicide prevention generally.

What might Māori and Pacific practices around death and dying have to reveal about assisted dying? What might tikanga reveal? While religious creed might uphold the sanctity of life, how might such creeds influence or cohere with tikanga Māori perceptions of the sanctity of life? In the scraps of material I have seen Māori and Pacific peoples are divided; there is no one view about euthanasia, including assisted dying. There are few signals coming from Māori politicians; the Māori Party is non-committal although ‘open to a debate’ while Marama Fox is unconvinced assisted-dying legislation is needed. Metiri Tūrei has voiced support for the current Parliamentary Inquiry, but little more.

To be fair, there may have been a plethora of Māori and Pacific voices included in the submissions to the inquiry that closed three weeks ago. I hope so, but I feel somewhat doubtful, given the lack of chatter about the issue detectable on social media at least. We’ll see once the inquiry progresses. The late Amster Reedy was cited by the Nathanial Centre in its own submission to the current Parliamentary inquiry:

“We bring people into this world, we care for them right from the time they are conceived, born, reared, in health, sickness and in death. The rituals still exist for every part of our lives – we just need to have faith in our ancestors. Euthanasia is foreign to Māori and has no place in our society.”

Penehe Patelehio (Tokelauan, Samoan, Cook Island) was cited in the same submission:

“When someone is ill or dying, the idea of assisted-suicide or euthanasia is entirely foreign to us. There is no word in our language for this concept and consequently it does not enter into our thinking. The opportunity to care for and look after someone who is ill or dying/suffering is seen as a blessing even though it may present significant financial and other challenges. At such times the extended family and community networks come to the fore – it is common for immediate and extended family and community members to visit, provide food, and massage and converse with the person who is ill.”

 

For me personally the debate is not really about the value of life vs the value of personal autonomy to choose to die. Both things are good and neither are absolute. I recognise that the value of life, or the right to life will not always win over other considerations (the ability in law to defend oneself to the death from attack is an example where the life of the attacker is not to be preserved at all costs). In my mind that debate is actually a little sterile, but important for those who want to contribute to it. I want to ask instead: how vulnerable might elderly or sick Māori and Pacific peoples be within a regime that allows assisted dying?

One of the oft-cited great risks of any assisted dying regime is that elderly people facing the end of their lives due to illness will seek to end their lives prematurely so as not to be a ‘burden’ on their families. Others might seek assisted dying, not so much at their own behest, but at the behest of others family members. In a society where 1 in 10 older persons (and proportionally more Māori) are reported to experience some kind of abuse especially connected to vulnerability and coercion, such risks must not be ignored.

To be honest, the idea of assisted dying frightens me. I am not really frightened of the idea of humanely ending the life of someone in terrible and terminal pain, although I cannot extricate my Christianity from my position that life is worth preserving. I can understand, though, why there appears to be so much public support for such a choice to be allowed. Many of those who voice such an opinion have watched their own friends and/or family die. Who am I to gainsay their experience?

Indeed my fear stems also stems from personal experience: from our mother dying from lung cancer last year. We were fortunate enough to have been with her over those last weeks and months of her life as her physical presence declined and her mind became incapable of lucid decisionmaking. I wrote a post on this blog about our experience at the time. Her death did not frighten me; it was the realisation of the power we had over her shrinking life. We had absolute control over her money. I, and my brothers made the decisions about where she lived and where she died. Her possessions became ours in practicality well before her will made that legally possible. I had real power over my mother’s life. What frightened me was the prospect that I should have had any power whatsoever over her death. My mother would have, without hesitation, signed any end-of-life directive (had that been available to her) to absolve medical staff of responsibility, or naming me or one of my brothers the decision-maker regarding termination in the event of her mental incapacity.

To be fair to David Seymour his Bill is careful to ensure some safeguards that will minimise at some of the risk that vulnerable people might face; and makes no provision for the kinds of advance directives that would have given us the power to end Mum’s life after she lost the capacity to decide for herself. But the Bill only goes so far; the initial medical professional who receives a request for assisted dying under clause 8(2)(h) must:

do his or her best to ensure that the person expresses his or her wish free from pressure from any other person.

Forgive me, if these few words seem oddly subjective and lacking in effectiveness. The medical practitioner is not charged with ‘ensuring’ the absence of coercion (and perhaps this is simply not possible), just doing his or her ‘best’ to ensure such. Whatever ‘his or her best’ might mean. If that clause is all that stands between a coercive and abusive family and an elderly person choosing to die as a result of that coercion, I am not yet reassured. Should the Bill be drawn, surely this clause will need one heck of a lot of work.

We all know the law and lived reality are two very different creatures. Make no mistake; today there are elderly people, at least some of them Māori or Pacific; who will likely be subject to some degree of coercion, if assisted dying becomes legal in a country already distinguished by high rates of Māori suicide, and growing rates of suicide among the elderly. Surely it is time for more Māori and Pasific speakers to step onto the marae ātea for this issue. In readiness for the time a certain tile comes out of Nana’s tin.

 

[Please note this post is available at E-Tangata in a slightly edited form.]

 

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