Sparrowhawk/Kārearea

The marae and the long shadow.

Posted on November 28, 2017 by Sparrowhawk/Kārearea

The kuia and I trade calls, our voices wreathed in the morning mist. The house before me, rooted in the earth, pushes up against the grey sky, creating space for us. The group advances with me. We pause. I remember my mum — two years passed. Her throaty chuckle echoes in my mind. Tears fall, again. We move on across the marae ātea.

The last of the calls fade into the air, and we shuffle into the house to find our place, our seats, trying not to be seen but still wanting to see. We negotiate parking spaces; we sit. We watch our breath floating on the air, we listen to the heat pump on the back wall straining to warm the winter void between carvings, weavings, people.

They sit, in the darkened corner, the four of them. An old, lean man with a piece of paper in his hands; a younger, slightly rounder man, both on the front bench. On the back bench sits the silver-haired kuia, smiling at no one in particular. The blonde girl perches off to the side. Knees pointing to the direction she really wants to take, as if she has been press-ganged into these cultural duties — while she was on her way to work, to her mate’s place, to anywhere but here. Yet here she is.

Facing them, we sit. Our single speaker holds his smartphone in a tight grip; the words to his whaikōrero glaring from its tiny screen. Like me, he’s been practising in the car on the way up. Women sitting around me hold pieces of paper, creases bisecting the words to our single waiata. In this pōwhiri it seems okay not to know things off by heart. No shame, but also little quarter given. What must be done must still be done, depletions and dwindlings be damned.

Tikanga, the Correct Way to Behave, carried us along in our willing conformity. Above all, the house holding us within it cannot be left to speak for itself.

Each kaikōrero stands and speaks as they must. As we all need them to. They pay just the right deference to God and gods, to land, to water, to sky, to us and to all our dead. Words ebb and flow between us, some of them in English. When the time comes, we join to harirū, to “how-do-you-do”. Our 25 souls to their four. Us and our heavy footsteps on their marae and in their whare. Within the hour the four leave us, and we fill up their space with noise, chatter and our business.

In the two warmth-filled days I spent there it was hard to shake off the sense of foreboding I felt when I looked around me. It felt as if this place were under a shadow, ever-lengthening across our landscapes, falling over many of our marae.

More than 770 traditional marae complexes like this one, usually incorporating a wharenui or whare rūnanga (meeting house) and marae ātea (ritual space outside the house), are embedded across Aotearoa, at least 743 of them in the North Island. Dozens more pan-tribal complexes have grown in cities.

These documented structures don’t tell the full story of our marae-claimed lands. Many of the traditional complexes are likely to be still unknown to researchers, given that there are more than 1300 marae reserves registered under Te Ture Whenua Māori Act 1993.

Unsurprisingly, perhaps, these often tiny built spaces are increasingly vulnerable to demographic change. As kaikōrero and kaikaranga in remoter areas decline in numbers, some paepae, or speaker’s benches, simply empty. In some places, too, the karanga is no longer heard.

We have known about this danger for a long time. My awareness of the lengthening shadow has been further provoked in recent weeks by a worrying series of events. A month or so after I returned from the marae hui, Bruce Stewart died at his beloved Tapu Te Ranga marae in Island Bay, Wellington. An extraordinary man with a vision to match, Bruce left his people to remain as kaitiaki of an urban marae, hewn by hand out of recycled and scavenged materials, dug into the hillside.

Haere ki ōu mātua tipuna.
Haere, haere,
okioki ai . . .

That marae is also vulnerable, as a result of a fraught relationship with the Wellington City Council and with some in the community. Building-compliance demands hang heavy on this idiosyncratic, 10-storey structure, described by council spokesman Richard MacLean as a ‘death-trap’. Parts of the complex have been closed up and barricaded off from use.

Almost a year before Bruce’s death, his son Hirini acknowledged the shadow lying over their marae:

It’s the proverb he always told us — those who build the house are built by the house. And so all those people will come down with the house, if it comes down.

Well. We all have much to lose if our houses come down. The marae complex, no matter how plain, enables the iwi, hapū or urban collective to have a point of foundation in the world, by affirming the links of the people with ancestors, land, guardians and waters. The spaces of the marae ātea and the whare rūnanga make us cross thresholds: between the worlds of the living and the dead; between descendants and ancestors; between this world and other worlds. If such places can survive demolition, that is. For the very earth within which marae are embedded has been shifting and seething.

Rū ana te whenua.Whati ana te moana . . .

From 1 July 2017, every wharenui or whare rūnanga has been counted as a “building” under the newly amended Building Act 2004, unless it can show that it is a “building used wholly or primarily for residential purposes”. Arguably, most marae whare are not usually wholly or primarily places of residence, so will likely have no exemption under the amended legislation.

Exemption from what, you ask?

Local councils will need to determine whether such “buildings”, including marae complexes, are earthquake-prone. If they are, the councils will issue notices requiring seismic work to be done by a deadline of the council’s choosing. Given that at least 70 per cent of existing marae structures are estimated to be over 50 years old, the number of marae needing work done could be large indeed.

In brutal summary, marae deemed earthquake-prone will need to be upgraded or replaced, or face demolition. While marae complexes must be safe for all people, the potential financial, spiritual and emotional costs are likely to be huge, if not insurmountable, for poorer Māori communities.

In early 2016, the MP for Te Tai Tonga, Rino Tirikatene, unsuccessfully sought an exemption for marae under the Act, and tried to draw parliament’s attention to such complexes being more than mere buildings:

[In] te ao Māori a wharenui is more than just a building. It is representative of our tūpuna. If we look at all the various parts of a marae, they are the parts of the body of our tūpuna, so there is more than just a bare-boned, inanimate-type object that we are referring to in this legislation. I think that is what this legislation fails to do — it fails to address the extra spiritual meaning that is applied to buildings.

Other events have also prompted me to sense the shadow over our marae and their futures. During 2016 and 2017 there has been unprecedented coverage of the role of marae complexes as the providers of welfare and emergency assistance to anyone in need. Such media stars have included Takahanga marae, which helped people after the 2016 earthquakes in Kaikoura, and Rautahi marae in Kawerau, which opened its doors to flood victims after the April 2017 Edgecumbe floods, among others.

There were Te Puea and Manurewa marae, housing the homeless in 2016 and 2017 as an emergency extension of government services in response to the housing crisis in Auckland. Marae complexes have become, more publicly at least, centres of emergency welfare. These activities push the marae beyond their usual functions.

In something of a cruel irony, the new building laws may stretch further, to these marae, too. Councils will identify and prioritise “buildings” likely to be used for emergency accommodation. Such buildings are more likely to be assessed earlier. If they are found to be earthquake-prone, such marae will be required to have the remedial work done more rapidly. Marae such as those I have just named could well be “rewarded” for opening their doors to those in emergency need by being subjected to even greater scrutiny and earthquake compliance requirements than other buildings.

There was generous public praise of the marae which helped their communities in times of need. But praise is a fickle creature. During the same short passage of weeks in which Bruce Stewart passed and the new legislation was enacted, Awataha marae in Northcote, Auckland, became the focus of an unprecedented political attack. The attack showed not only how Māori institutions and people can easily become political pawns, but also how marae can end up out of sync with their own communities.

In the run-up to the 2017 general election, the Labour Party established a scheme to attract young people from overseas to buy return tickets to New Zealand, so that they could participate for three months in an internship scheme that would give them valuable electioneering experience.

The scheme got too big for its boots, and the decision to house the interns at Awataha, an urban marae not designed for housing such a large number over such a long period of time, caused an outcry. Marama Fox, Māori Party co-leader, compared the interns to “slaves”. Some media described the marae itself, and the temporary sleeping structures it put up, as “slum accommodation” and dubbed it “the sweatshop marae”.

Although subsequent reports downplayed the culpability of the marae, mud sticks — and filth sticks even longer. Awataha marae faced reputational ruin over a situation for which they were largely not responsible. It is a well-known axiom among Māori that any marae that abuses visitors will lose its own mana and become dusty from its own neglect:

Tangata takahi manuhiri, he marae puehu.

In fact, Awataha had already been the target of street protest weeks before the internship story broke. Some Māori, represented by Te Raki Paewhenua Māori Committee, felt excluded from the marae, which was designed to be used as an urban foundation point for local Māori communities.

They claimed that the marae was instead hiring itself out to other groups, severely limiting the use of the marae for tangihanga and other cultural celebrations and commemorations of local Māori.

While it is anyone’s guess how this long-simmering stoush will end, it is certainly true that a marae cannot, and perhaps should not, stand if the home people don’t support it.

The threat of disconnection between people and a marae leads me to yet another June 2017 event that forms part of the shadow in my mind’s eye.

This time, the story occurs in Greystanes, Sydney, Australia. Three organisations — Ngā Uri o Rāhiri Inc, Te Aranganui and the Sydney Marae Appeal — had the dream of establishing a marae complex on leased land at the Hyland Road Reserve in Greystanes. Like all attempts to realise dreams, it took a lot of time, energy and fundraising — and then, at the last hurdle, the local authority, the Cumberland Council, rejected the proposal, seemingly without a backward glance. In the sometimes cruel and bloodless language of power that erases years of hard work, it was simply:

Moved and declared carried by the Administrator that Council:
1. Abandon the current process relating to the proposed leasing of the subject land.

The main reasons given were (broadly speaking):

lack of sufficient cultural connection between the immediate area and the local Māori population
issues of due diligence
questions about the amalgamated groups’ ability to fund the project.

Those backing the project disagreed. For now, at least, that dream sleeps.

This was not the only marae project in Australia. There’s one in Melbourne, one in Western Australia, and probably others in the pipeline, too. It is hardly surprising, in a way, that such plans are afoot. From 2006 to 2011 the number of those recorded in the Australian Census as having Māori ancestry grew 38.2 per cent, from 92,912 to 128,434. Historian Paul Hamer reckons that Māori in Australia now comprise at least 18 per cent of all Māori.

Tā Mason Durie reckons that this kind of development was bound to happen. As he points out, there are already overseas marae. I presume that he is referring to places like Hinemihi in London, and the highly successful Aotearoa village at the Polynesian Cultural Center on Oahu in Hawai’i. It’s just the next step in what Tā Mason calls “sustaining the Māori Estate”.

Marae have been constructed in overseas countries where significant Māori communities now reside and as global travel increases, it is likely that overseas marae will be part of a world-wide network of marae, some based around hapū, others around communities of interest, and others still around global travellers who seek to retain a cultural anchor in an otherwise assimilating environment. — Ngā Tini Whetū: Navigating Māori futures

And certainly Māori have spread overseas. For example, Māori have had a couple of centuries of deep connection with Parramatta in New South Wales. In 1811, while staying with Reverend Samuel Marsden, Ruatara established a small farm near the banks of the Parramatta River (originally the territory of the Burramattagal clan of the Darug people).

Marsden, having purchased the land, used the area to set up (briefly) a Māori seminary, supported by other Northern Māori rangatira such as Kāwiti Tiitua and Hongi Hika. This area is known still as Rangihou. Tūpuna are reportedly buried there, and if there were to be a place with a strong claim for a marae, quite possibly this is it. Accordingly, those trying to establish the marae at Graystanes sought to show connection between that project and those historical roots at Rangihou, a mere 8 kilometres away.

And, surely, setting up a marae complex deep in overseas soil can make sense, right? Maybe. Except… it doesn’t quite feel right. In particular, I wonder about the cost to the indigenous peoples of Australia of Māori creating such permanent foundation points in that country.

I was astonished to find no mention in the Greystanes proposal’s heritage report of the original Darug peoples of the area. While the proposal had the oral support of David Williams (of the Holroyd City Council Aboriginal & Torres Strait Islander Consultative Committee), a Bundjalung man from a different tribal area to the north-east of the Darug in New South Wales, there were no publicly available accounts of other Darug support for the proposal.

This absence of a Darug voice troubled me. I know that my own knowledge is imperfect: perhaps those conversations never took place, perhaps they did. Regardless, the notion that marae complexes should be embedded in Australian soil disturbs me. When we dig into that soil to create places or points of belonging, no matter how well we think we have consulted with indigenous peoples, that soil is not ours and will never be ours.

When I raised a similar issue recently, one woman responded by saying, “Māori migrated to Aotearoa and built our marae there… never were we trees to plant ourselves in one spot. A marae is more than just the land it stands on.”

That’s true. And we know from the settlement process that long-standing claims and cross-claims to land and mana whenua are still being quarrelled over today. But I don’t think that history allows Māori or any other people to ignore and therefore to denigrate the peoples belonging to other lands that we would like to live on.

This doesn’t mean we can’t be Māori on that soil. How can we not be? We should guard and protect and develop our cultural expressions, even in little ways. But perhaps we should be careful to resist the tempting call to entitlement. Like birds drawn and fooled by the hunter, we might just end up in the pot.

E kore e rongo, he manu ka pakia pepetia.

The shadow that has troubled me over the past several weeks won’t be going anywhere anytime soon.

Some of our marae are cold, and some of our houses have been left to speak for themselves. More will now struggle under the threat of earthquakes and the financial, spiritual and emotional burden of compliance, and the changes to tikanga such compliance might require. Urban marae are increasingly agents for social change and yet also pawns in political point-scoring, and some run the risk of moving beyond the reach of their own whānau.

And sometimes our people overseas are caught in the no-man’s land between needing to be Māori, and needing to belong to overseas places, but being ever the manuhiri on the soil of others whom we should not supplant.

For many of us the carved gate, the barely glimpsed tekoteko or the peeling paint on the side of what looks like a shed barely warrant another glance. Perhaps the very word “marae” conjures up fond memories of a school visit in decades gone by. Perhaps these places only exist for us in the abstract, in the absence of an invitation across that threshold. For others of us, marae might re-ignite fears, memories of felt exclusion.

Regardless of our connections or otherwise, this marae-studded geocultural dimension of New Zealand society needs attention, protection, words and warmth. Like the language, marae may not survive as we currently know them, unless more of us tread them, sleep in them, call on them, fall in love in them, declaim and weep for them, and maybe even stump up our readies for them.

And thus, just maybe, we can push the shadow back.

This essay is extracted from The Journal of Urgent Writing 2017 edited by Simon Wilson, and published by Massey University Press, 2017 (RRP $39.99). Also published, with permission, at E-Tangata.

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Rā Maumahara…Just what are we really commemorating?

Posted on November 7, 2017 by Sparrowhawk/Kārearea

This post also features, in a slightly edited form, on E-Tangata.

I have a jaundiced memory of going to ANZAC day parades when I was an Air Training Corps cadet in 1980s Christchurch; events that were dreary, cold and ill-attended. Small crowds would attend, outnumbering the veterans, but not by very much. I remember a few more over the last couple of decades in Wellington as attendance at such services has swelled, and as solemnity has deepened. And always, my throat would tighten, and my vision would blur with unshed tears. There is something very powerful in these observances – perhaps it has been a deep sense of belonging to same old tapestry as everyone around me – a warp & weft stretching back innumerable generations. But then, I’m a sucker for solemnity and ritual that creates meaning, even if the meaning is not always true.

And I’m not the only one. This State-sponsored national identity-making now reaches an ever-increasing cross-cultural emotional crescendo at such times every year, even if only temporarily. In our secular society Anzac Day observance has surely replaced, for many, the public role once played by churches. On this day above all, commercials stop in the morning, we stop, we bow our heads, reflect, and sometimes we even pray. In a country where the bare majority no longer holds Easter Sunday or Good Friday sacred, ANZAC Day has become perhaps the national sacred day of the year.

This phenomenon seems to be a welcome antidote to the usual self-induced and frankly, deliberate, historical amnesia of the majority – that any New Zealand history becomes a focal point of civic ritual is good. On the other hand the strength of this relatively recent shiny narrative of togetherness has served to hide other less known and perhaps less palatable parts of our history. For longer than any of us now on the planet have been alive we have paid no national attention to the blood spilled and the stories dug into our own landscape and buried in our own shared genealogies from New Zealand Wars, that tumultuous and bloody period of civil war, hard on the heels of the Musket wars of the 1820s and 30s, that periodically convulsed large swathes of the North Island between 1845 and the mid 1870s.

Officially at least, that has now changed and the 28th of October this year marked the first official day of national commemoration of the New Zealand Wars, the new ‘Rā Maumahara’, the date also marks the anniversary of the signing of the Declaration of Independence in 1835. Conversations and advocacy only apparently began in 2010/2011 to expand local commemorations, such as for the Battle of Ōrākau, to a nationwide event. Such efforts concluded successfully when Leah Bell and Waimarama Anderson and 12,000 others presented a petition to Parliament seeking the establishment of a national day of commemoration of the the wars in 2015. While those efforts were successful, the wars are still not to be included as a compulsory subject in the school curriculum.

As a part of Rā Maumahara the Ōtaki community has the current opportunity to rewatch the 1998 New Zealand Wars documentary series over the course of several weeks at the Māoriland Hub. Watching this series again has reminded me that just as much as our ANZAC story, the land wars too gave rise to a powerful set of stories that has done much to eradicate or twist understanding of Māori history in this country beyond the truth.

Here’s one small example. The first episode of the series deals with the Northern War, comprising a series of battles, including Puketutu, Ōhaeawai, and Ruapekapeka, kicked off by Hone Heke felling the flagstaff four times at Kororāreka in 1844-5. the end result of which could not arguably be seen as a decisive and true Imperial/British victory over the Māori. What this war did do, was provide a petri dish for the development of colonial and Imperial propaganda. Governor Grey was able, after Ruapekapeka use new newspaper media to claim that he and the 1300 Imperial troops (aided by some 400 Māori allies) had brought peace and safety to the North. The reality was different. As the settler F. E. Manning put it in 1846:

“… anyone to read Despard’s despatches would think that we had thrashed the natives soundly whereas really they have had the best of us on several occasions. I really begin to think that it is perhaps all a mistake about us beating the French at Waterloo. I shall always for the rest of my life be caution how I believe an account of a battle.”

So should we all be. In the year 2017 when ‘fake news’ made Collins Dictionary’s Word of the Year, it pays to remember how quickly wars become as instruments of propaganda.

One aspect of the accounts of the Northern war is the extent to which this particular conflict was a war of symbolism. When Hone Heke was chopping down the flagstaff he was, as is obvious, attacking the flag itself as a symbol of British sovereignty. It therefore matters, when peace broke out, that the flagstaff was not re-erected by the colonial regime at all, as the missionary Henry Williams noted:

“The flagstaff in the Bay is still prostrate, and the natives here rule. These are humiliating facts to the proud Englishman, many of whom thought they could govern by a mere name.”

It wasn’t replaced until 1858 when Kāwiti’s son Maihi Paraone Kāwiti erected ‘Te Whakakotahitanga’ which stands still.

It also matters that Grey and the rest of the ‘government’ of the day didn’t punish the ‘rebels’ as was to happen with increasing ferocity in other land wars. Simply put, in the 1840s there probably wasn’t the kind of deep infrastructure and buy-in from Northern Māori that could enforce any such punishments. It took many decades to persuade Māori, eventually, of the relevance of new courts and other legal institutions, including Parliament, to Māori life, a project not complete arguably until the late 19th century, or even well beyond. The Northern wars reveal something of the mere beginning of that mission. Subsequent wars reveals even more.

***

There’s a scene at the end of the movie Utu that says something very profound about the nature of the conflict that those Wars conducted over law, including tikanga, that I never noticed in all the other times I have seen it. If you haven’t seen this film, by the way, find a way. Essential bloody viewing. Have a read of Danny Keenan’s excellent essay here on the way this movie tells the story of our ‘reel’ history as opposed to our ‘real’ history.

In summary, the story is set in the 1870s, at the tail end of the major conflicts of the New Zealand Wars. Te Wheke (Anzac Wallace), who had been fighting with colonial troops comes upon his home village, shortly after it’s been attacked by the Armed Constabulary. Te Wheke commences a campaign of destruction and murder of Pākehā settlers. The Armed Constabulary then pursues him assisted by Wiremu (played by Wi Kuki Kaa). Anyway…to the scene in question. Imagine, if you will….

Te Wheke faces a supposed court-martial at the very end of the film. He has been captured by the Constabulary. He is being ‘tried’ for his crimes. Proceedings take place by firelight, in the bush, in the back of beyond, in the wops. Five people are present who want to deliver justice upon Te Wheke, the prisoner.

First to step forward is Corporal Jones, the last ranking officer standing; the young man who believes he has, in 1870s New Zealand, the authority and might of The Law behind him. He believes that he, of everyone present, has the right to execute Te Wheke. Except…he doesn’t. Not out here. In this wild place he’s just a callow youth in a grubby uniform.

Matu (played by the extraordinary Merata Mita) then claims the right, by way of utu, to execute Te Wheke because he beat her cousin Kura to death. Then Williamson, the farmer (Bruno Lawrence), steps forward to claim the right to avenge the death of his wife caused by Te Wheke.

There is an impasse, so many competing claims to ‘rightness’ and due process of ‘law’. Until Wiremu steps forward, removes his cap and reveals himself to be the brother of Te Wheke; shocking all but Te Wheke himself. One by one he discounts the others’ spurious claims to authority. The corporal, he mused, was Kura’s lover, and thus has no standing, no impartiality and no privilege of position. So much for him. Matu’s claim is spurious, she’s not even a member of Te Wheke’s own tribe, and a woman to boot. Williamson, as the wronged husband similarly could be no bringer of justice to Te Wheke.

Instead the only person with a legal claim to execute Te Wheke was Wiremu himself. Te Wheke had created a circle of death that could not be resolved by Te Wheke alone, or any exercise of spurious colonial law. Only Wiremu could break the circle. Blood of Te Wheke’s blood, with no hatred or grudge, but with mana sufficient to see Te Wheke take the final journey of all spirits, only someone of Wiremu’s mana and bloodline could uphold his brother’s mana, and bring matters back to equilibrium and completion. The two hongi. Wiremu carries out the execution, as was tika, correct in law. Equilibrium returned for that moment; and credits roll.

This is one of the few scenes I can recall in any New Zealand movie that teases out so subtly and truly, the nature of the conflict of laws between Māori and Pākehā, albeit through the lens of a Pākehā director and scriptwriter. A conflict that was, as much as anything else, at the heart of the New Zealand wars.

***

So as we grow into our annual civic commemorations of the New Zealand Wars; what exactly is it that we will be commemorating? Whose understandings, which symbols, which meanings will rise to the top in this new civic project? I would hope that we could commemorate the Wars with a degree of understanding about the ambivalence and multi-layered complexity of these conflicts. There can be no safe and singular interpretation and we should resist the temptation to create one. These Wars were not a simple matter of good vs evil, our ancestors come from all sides of the blood shed.

Kia maumahara.

[image courtesy of Arteis]

What if the Crown is also Māori?

Posted on October 13, 2017 by Sparrowhawk/Kārearea

A slightly edited form of this post has also appeared on E-Tangata.

Symbols come in many forms, tangible and the intangible. They tell us stories we may not even be aware of.

Here’s one. I work in a beautiful building. It is a building that breathes and moves about me. Occasionally, as I walk down the halls or the stairway I feel surrounded by a soft golden glow, created by the sensory fusion of kauri finishings, scroll-shaped corbels, the curved window bays, and sombre carpeting. Mostly, I just feel harried and inadequate, so I forget to marvel at this hand-wrought architectural icon.

“Icon” is the right word because these Old Government Buildings in Wellington operate as a transportive symbol; walk through the doors, and whether or not you are aware of it, you are carried to an era of history that consolidated New Zealand as a colonial nation. Built in 1876, the year provincial governments were abolished and a central government established, this place was the seat of administrative power. This building tells a simple surface story of a young nation finding its way, but the deeper and truer story is of Pākehā power and claim surmounting the messy, contested, and uncertain history of several peoples.

So I walk the victors’ halls. As a law lecturer I now teach aspects of the legal system that upholds that deeper story, as those halls now comprise Victoria University’s law school. You will see no koru, no tukutuku, no whakairo. There are Māori and Pasifika spaces tucked away, if you know where to look, fragile and lovely, retrofitted exceptions to this narrative of solidity and permanence.

Most of us who work and study in this place don’t pay attention to this one-sided battle of stories, and fair enough too. We have our lives to get on with and futures to imagine. It’s our building, we use it, we inhabit it for a brief time (or maybe for a long time) on our way to somewhere else.

Let’s not overthink things, right?

In the pre-election maelstrom you might have missed a pretty insignificant story. I nearly did, bewitched as I was by Jacinda, Gareth & Marama et al (not always in that order).

It was a little item on the TV news (and in the Christchurch press) in mid-September about people lining up to see inside the new $300 million justice and emergency services precinct, including the police watch-house and cells.

Thousands jumped at the chance, with the queue stretching down Lichfield St all morning and into the afternoon. […]

“It’s quite unreal really, definitely a different experience,” one said. “The kids love it which is great.”

They’ll just be hoping this is the only visit they’ll have to make to the police cells.

Somehow this event pierced my election-induced fog. I paused, wondering if I had heard it correctly. I waited for the punchline, or the ironic comment. There was none. This little unimportant story symbolised something larger. Apparently in my hometown thousands of happy people queued for more than an hour to see the inside of a legal system they accepted was theirs but was not designed to hold them. To such people there is right, as well as rightness in the process and the outcome of law. Law is normal, formal, probably a bit absurd and creaky, but part of the natural order of things.

Five days later the almost exact opposite occurred, also at the symbolic level. In celebrating Māori language week a police car decked out in te reo Māori decals made its debut in Papakura, Auckland. The response was, shall we say, mixed:

“Been to Ngā Whare Wātea today and the kids were all over it. It was fantastic, they had a great time,” says police officer Ivan Tarlton (Ngāpuhi).

However, not everyone is smiling.

Khylee Quince, “Waitangi Tribunal earlier this year, only five months ago, makes recommendations about the Crown breach of Treaty relationships and Treaty duties, particularly active protection in relation to Māori and the terrible disproportionate rates of Māori offending. This is the first we see from the Police in response to that, so particularly poorly thought out strategy in my view.” […]

Julia Whaipooti of the youth-led rights organisation Just Speak is one who expressed concern.

“Putting a kupu Māori on a Police car doesn’t seem to form part of any strategy towards reducing the number of Māori we have entering and being processed in the system at disproportionate rates. It’s like having a pōhiri to come into prison. Putting a Māori name on a police car doesn’t do anything to address the issues.”

Similar feelings had been expressed months earlier when the Department of Corrections launched a new haka to find new recruits, in part as ‘a challenge for Maori to step up and accept the role of being a change agent working as a Corrections Officer’. Others saw such symbolic developments as ineffective bandaids to the vast problem of Māori hyper-incarceration.

The haka and the Māori design on the police car were symbolic, of a powerful story just as powerful as that represented by my workplace: Māori could only be subject to the legal system, never owners of it. Māori (most, not all) will never have unthinking ownership of Crown or government institutions. Most (not all) Pākehā New Zealanders, in comparison assume exactly such ownership.

An example from my own work-life I have blogged about before of daily and undramatic reality that underpins such symbolism. Every year I have a similar kind of student visit me, and we have a version of the following conversation:

‘I’m having trouble with my lectures. I just don’t get it.’

‘OK. What are you finding so hard?’

‘I don’t understand what the lecturer is saying. I write everything she says down. I read it, again and again, I highlight the words, and I write it out again and I still don’t get it.’

‘OK. Show me some of your notes. Right. Do you know what this is [pointing to ‘Cabinet Minister’]?

‘Not sure’.

‘What about this [pointing to the word ‘statute’]?

‘Not sure about that either.’

‘How about this [pointing to the word ‘Parliament’]?’

‘I know where it is, I just don’t know what it DOES.’

This student may have already struggled with the education system, but not necessarily. She may well be a B student in her other subjects, but the ideas behind words like ‘statute’, ‘Parliament’ and ‘Cabinet Minister’, for the moment at least, defeat her: she has never, in her life, come across them before in a way that enabled her to understand them. Perhaps she didn’t come from a family where politics or voting, or even the news, were discussed, where Western ‘law’ was ever really thought of as something beyond ‘what the police do’.

This student is Māori, but her lack of exposure to the most basic ideas of Western ‘law’ don’t stem just from ethnicity, as I have also had these conversations with Pākehā, although far more rarely. She merely falls on the difficult side of social and educational history: like many other Māori in tertiary study (including me and my brothers) she is the first of her family to study at Uni, the first to study law. She has no template to follow, and for whatever reason school did not prepare her by introducing her to the ideas underpinning our institutional structures. Right now she has absolutely no confidence that this will ever be her world or her tool; how can she? She cannot even describe it yet. Our general system, our Law in all its manifestations is alien and abnormal; an animal to study behind safety glass; a poisonous exotic.

Strangely enough for those who do have that sense of ownership of our general legal system, Māori law has become the alien; the museum exhibit, the quaint but useless curiosity.

And yet there are signs that this kind of rigid dualism in thinking is outliving its usefulness.

There is a sentence in the reo section of the Wai 262 Flora and Fauna report that hit me upside the head one day in 2010, and I have repeated it many times to myself ever since.

Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā, English-speaking, and distinct from Māori rather than representative of them. Increasingly, in the twenty-first century, the Crown is also Māori. If the nation is to move forward, this reality must be grasped.

The Crown is also Māori. This extraordinary statement is at once surely true and surely incapable of being true. When exactly does reality collapses into one possibility or the other, I wonder? Acceptance of the notion that the Crown is also Māori requires reaching beyond the idea of simply negotiating better Māori space, or better concessions for Māori, or a Māori seat at the table. Such a notion requires the development of unthinking assumption that the table is Māori to start with; that the Old Government Buildings are to be understood to be as much a Māori, as a Pākehā construct.

A few weeks ago I was one of the moot court judges for the internal Māori moot at Te Herenga Waka marae; a competition where Māori students put arguments before judges in a mock court setting. Of the six mooters, four of the students mooted in Māori. Each of them was able to move fluidly between an unconscious ownership of the legal system and of tikanga Māori, and a blistering critique of the same systems. Just one small symbolic and up-ending moment of something better. There are other such moments waiting to coalesce.

In truth I doubt the Old Government Buildings can ever really be understood to be as much a Māori space as a Pākehā construct, even if we did add whakairo and other symbols of Māori ownership to it. I’m looking for the day when more Māori can walk through the doors with their culture intact, and are indeed transported: not to an era of colonial power made manifest in which they are an exception to an unwritten rule, but simply to a place they own. Unthinkingly.

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Posted in New Zealand society, culture, politics and tagged Māori law, New Zealand Legal System, symbols, the Crown, Waitangi Tribunal. Bookmark the permalink.

Turning off the tap? Righting water wrongs

Posted on August 28, 2017 by Sparrowhawk/Kārearea

A lightly edited version of this post appears on E-Tangata.

One of the things I’m really enjoying about this election season is how many cats are being thrown among the pigeons. Not all of the cats are welcome, or wanted, but they are making things interesting. One of those cats (although he’ll hate this description, I’m sure) is ol’ Gareth Morgan, that Pākehā curmudgeon who doesn’t give two stuffs for anyone’s sensibilities.

Morgan asked a bloody good question during the recent party leaders debate on Māori Television. First of all he got everyone’s dander up for baldly stating that only kaupapa Māori parties should stand in the Māori seats. While Kelvin Davis was dealing with a mild case of apoplexy at this presumptuousness, Morgan then went on to illustrate why he thought the Māori MPs of major parties were inevitably compromised in their representation of Māori voters. He asked this of Labour’s deputy leader:

[Gareth Morgan, accompanied by pugnacious finger wagging]: “What are you gonna do…hey Sunshine! What are you gonna do over water?”

[cue applause.]

“This is actually really important…what is Labour, what is Kelvin Davis gonna do, when the Labour Party says nobody owns the water and WE all know MĀORI OWN THE WATER.”

[cue quite rapturous applause.]

[Kelvin Davis, only several minutes later when the furore had abated] “…we have said that Maori have interests in water, we agree with the Waitangi Tribunal and the Water Forum in that we need to sit down and work out what those interests are with Māori…”.

Sitting down and talking in the future about the extent of Māori rights to fresh water is something, I guess. But one senses all kinds of bets being hedged in that response.

Morgan is right to raise the issue of Māori ownership of water. For this election water really matters, and not just for Māori.

So much so, that one of the first things Jacinda Adern did as the new Labour leader was to announce a new policy: a Labour-led government will charge royalties on water taken for irrigation and bottling. Cue successive rounds of (a) pearl clutching or (b) airing of valid concerns (depending on your perspective) from farmers and commercial water bottlers. This policy taps into a growing sense of outrage throughout New Zealand that water bottlers are profiteering off the back of one of our prime natural resources, and been doing so quietly for years – fee free.

Māori have appeared cautiously welcoming of the policy, although the Māori Party has been somewhat cynical, warning of foreshore and seabed-style unilaterialism under Labour that will impact on Māori claims to water.

To be honest, Māori water rights do comprise a multi faceted and labyrinthine issue. If I start thinking about them too much my left temple starts throbbing. But I think it is worth illustrating that Māori, as might be expected , are subject to different kinds of injustice that require tailored political and legislative solutions that are simply absent, as yet. So bear with me, for this necessarily brief foray.

Let a single story stand in for the whole.

Such a story has been unfolding about 20 kilometres east of Whāngārei at the base of Whatitiri Maunga in Northland. It’s a story about water; the water of Porotī springs and its peoples, the hapū of Te Urioroi, Te Parawhau, and Te Māhurehure. This story has been in the making for many, many years.

The waters of Porotī are special. They have, according to their peoples, life-giving qualities; the waters are clean, they support important mahinga kai, such as watercress, kewai and tuna. These waters are also used to bless and purify those who need it, in times of trauma, illness, and spiritual need.

There is no dispute about the special nature or importance of these waters; nor as to whether Porotī Māori have retained sufficient connection with the water to have some degree of right to the water. In 2012, the Waitangi Tribunal has found for Porotī Māori (and other claimants to freshwater) that the Māori proprietary right in water guaranteed by the Treaty was ‘the exclusive right to control access to and use of the water while it was in their rohe’.

But that exclusive right has been of little comfort to Porotī Māori. So far, at least.

The ability of the hapū to manage and protect the Porotī springs has been stymied by many things, not the least of which has been the current government’s steadfast refusal to accept that any person, let alone any Māori, can own water. The famous Red Book puts it this way (at p103)

…the Crown acknowledges that Maori have traditionally viewed a river or lake as a single entity, and have not separated it into bed, banks and water. As a result, Maori consider that the river or lake as a whole can be owned by iwi or hapu, in the sense of having tribal authority over it. However, while under New Zealand law the banks and bed of a river can be legally owned, the water cannot. This reflects the common law position that water, until contained (for example, put in a tank or bottled), cannot be owned by anybody. For this reason, it is not possible for the Crown to offer claimant groups legal ownership of an entire river or lake – including the water – in a settlement.[emphasis added]

Chris Finlayson, the Attorney General is very fond of p 103, and the Supreme Court affirmed this position in 2013, accepting that the job of the Crown was not to reverse its position on the common law, but to recognise those rights albeit in a way that falls short of recognising true property ownership.

So no one owns water. Until you collect it, that is. We’ll see how this affects the people of Porotī shortly.

Another factor that has prevented Porotī hapū from being able to protect the springs includes the application of the Resource Management Act 1991. The RMA includes provisions that are supposed to provide recognition of Māori interests. Professor Jacinta Ruru gives a great account of such protections, along with other water governance issues here.

In short, when formulating district and regional plan rules and guidelines, and issuing resource consents, decision-makers have to take into account several matters to enable Māori interests to be protected. For example:

Section 6(e) says that all persons exercising functions and powers in relation to managing the use, development, and protection of natural and physical resources must recognise and provide for matters of national importance, including the relationship of Māori and their culture and traditions with water. This sounds great, but is just one factor of ‘national importance’ among many to be weighed up in making such decisions.
Under section 7(a) of the RMA all persons exercising functions and powers in relation to managing the use, development, and protection of natural and physical resources shall have particular regard to kaitiakitanga. Again, it is one of several factors that must be considered.
And then, under s8 all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi.

These provisions are supposed to create a set of protections for Māori, but in the case of Porotī Springs though, they have not amounted to much. The Porotī people cannot prevent the springs on land which they own from being tapped.

You see, they can only control access across their own land, where the springs reside.

That’s why in 1971 the Whangarei district council drilled into the aquifer only metres upstream, on the edge of the hapū land, to draw for town supply.

Subsequent decades saw the council sell the bore to a private company (New Zealand Spring Water, formerly known as Zodiac Holdings), who then set about plans to sell the bore and to establish a 3600sqm bottling factory. They received the necessary consents to take 3-5 million litres annually, by way of the bore, and there has been nothing, so far, that the Porotī hapū have been able to do about it, detailed in this report by Paul Hamer. As he observes:

In 1960 the hapū controlled access to the springwater through the trustees and the Maori Land Court, and local farmers and the school applied for the right to draw water. Today, by contrast, the entire ‘available resource’ – 19,000 m³ per day – has been allocated to others for the next three decades. The relationship of Porotī Māori with the springs is regarded as one of the best examples in the country of a Māori proprietary right to water, and the Waitangi Tribunal has upheld the basis of Māori claims to the ownership of freshwater. The consent authorities, however, have steadfastly refused to be influenced by such considerations.

In allocating water consents, decision-makers have consistently ignored or underplayed Porotī concerns, and the Porotī people cannot stop the water being taken because they don’t own it, and even in possession of a recognised exclusionary Treaty-based right they can do nothing because the water is simply taken beyond their hapū boundaries anyway.

Maybe the RMA is simply the wrong mechanism to protect water. Mind you, occasionally things can go right, such as in the past couple of weeks, when an application to take millions of litres of water from a South Waikato source has been put on hold. In that case the Waikato Regional Council said the local Raukawa iwi were “affected persons” under the RMA and required their consent for the operation to go ahead.

Some would say also that the pressures faced by Porotī are being replicated all over the country beyond only Māori communities. Solutions must, therefore, meet the needs of the most, not merely the needs of the few. Such a majoritarian pressure is increasingly intense.

But only Māori are subject to Treaty-based obligations, such as kaitiakitanga, required to be exercised over bodies of water such as rivers and springs which, like Porotī are taonga. Arguably, the loss of water in these circumstances and the loss of ability to enforce unrecognised rights create different and new degrees of grievance. Such loss and breach requires specific solutions.

Recent developments can offer some hope for the design of such solutions. For (a very brief) example, the RMA was amended this year to provide for new agreements, called Mana Whakahono-a-Rohe, as mechanisms for iwi participation in local government decisions. The Freshwater Iwi Leaders Group has endorsed these new agreements, and is continuing in discussions on water allocation models.

But the pressure on Labour, or National, to craft solutions to the problems of water taking and water rights that meet the needs of the many over the needs of the (relative) Māori few will remain intense.

And Gareth’s question should lose none of its bite for any Māori in government by the end of September.

Breaking Bad Law?

Posted on July 31, 2017 by Sparrowhawk/Kārearea

[An edited version of this post appears on E-Tangata.]

In the opening moments of the 1970s my father left my mother and followed his elusive business dreams to Australia. I have read several letters between the two of them, hurt and angry exchanges, and in all of them she asks him for financial assistance to raise their three children. He sent her a few payments, and eventually the letters and payments ceased. At some point my mother went on the new domestic purposes benefit for sole parents (well, new in 1973). She stayed on that benefit until I left school, and then she shifted to the DPB woman-alone benefit, and on to superannuation. She was a beneficiary for about 41 years.

During that whole time my mother remained alone. She had offers of marriage but turned them down in part because she did not want to be beholden to richer men. Ironically the State support represented independence for us, despite all the rhetoric about reliance on benefits creating soul-suckingly dependent beneficiaries. My mother taught me about fighting for independence precisely because she was a beneficiary. She did not have to find succour from, or be exploited by, other people, just to survive.

I grew up watching her account for every 1c and 2c piece in our household budget, writing in little notebooks that, over decades, grew to fill drawers in the wall unit in the smoke-yellowed dining room. (And yes she was a beneficiary that smoked, and drank, and we never went hungry, m’kay?) She earned extra money by taking in boarders.

Our mother was deeply concerned to ensure she never overstepped her earning boundaries, and that she never found out where our father had gone, after those early letters stopped coming, so she could honestly report on the benefit forms that she did not know where he was. I clearly remember her actually putting her hands over her ears at one point just so she could not hear us discussing where he was living. ‘Sydney somewhere’ was the most specific fact she allowed herself to learn about him.

In this current period of time, dominated as it is by partisan breast-beating over the speeches, actions and inactions of Metiria Turei, some people might be tempted to use my mother’s story of law-adherence as some kind of moral lesson and counterpoint to Metiria’s. Don’t. She was not a beneficiary saint or sinner. She just was who she was; she is no paragon or flag-bearer for anyone or anything. Her status as a beneficiary neither enhances nor degrades her moral character and more than her driver’s licence did.

She chose to adhere to the laws of benefit eligibility. And I wonder if it might have cost her dearly to stay alone, as she did, until her death in 2015. She was a gregarious person who shunned many relationships and became quite isolated in her later years. I’ll never know whether she might have been different had she not considered herself bound by such laws.

The only usefulness of her story in the public arena is maybe to prompt discussion about change. Her story is not an end in itself, and never should be. One one further thing: it highlights that the relevant laws in her case have, from their very inception, been doomed to be broken.

Well, to be honest, that is a pretty trite statement. All laws only exist because someone out there will want to break it and do the thing she’s not supposed to do, or fail to behave in the way she is supposed to.

But humour me…and forgive me if you have heard this one before. Instead of looking just at the end result of a given law, it helps to see why it is exists in the first place.

In our heavily targeted benefit system, widows’ benefits and domestic purposes benefits uphold the long-standing social presumption that a husband would, as the primary breadwinner, support his wife and children in the usual nuclear family formation. To be eligible to get a benefit under the Social Security Act 1964, therefore, an applicant must not also be receiving significant financial support from someone else standing in for the missing husband. Applicants must be effectively unsupported if the State is to provide that missing support and effectively ‘step into the shoes’ of the absent husband, or the person who should be providing such support.

The gender-based language has gone, but the absence of support requirement remains. Widows, single people formerly married people, formerly de facto people, must now all be in the same unsupported boat to be eligible for sole parent support (now under s20D of the ’64 Act, formerly known as the DPB sole parents benefit).

If these people do get into a new relationship they must not cross the line into emotional commitment and financial interdependence with another person. To do so would mean they are receiving support from that person. If they do, they must inform that the State of that change in circumstance, be income tested and accept the consequence, including the probable loss of the entire benefit.

And even if eligible, these people can lose some of their benefit if they fail to, or refuse to, name the other parent or to file for a child support assessment under the Child Support Act 1991. And if you thought that was some new neo-liberal rule, ah nope. It has been around since at least 1936, and even earlier, when some deserted wives were able to claim a widow’s benefit provided they could not find the husband who deserted them, and they filed for the earlier equivalent of child support.

Effectively these prohibitions uphold a general rule against resource-pooling designed to ensure that no-one is better off with State support than others would be without it.

In my view these rules shepherded or perhaps forced my mother into a solitary life that I don’t think she really wanted. In many ways she was acting against what we as humans usually do. Regardless of financial circumstances, people try and create bonds and relationships with others. We are social and we need each other. Yet compliance with the laws in this kind of case sets up a stark choice for the sole parent:

either live alone with no substantive contact with a romantic partner that crosses an imaginary line into emotional commitment and financial interdependence, and accept support from the State;
OR enter such a relationship and lie about its existence, accepting support from the State;
OR confess the relationship and lose eligibility.

***

It has amazed me, the extraordinary rhetoric that has swelled in the wake of Metiria Turei’s politically-driven account of her own circumstances in the early 1990s. In particular there has been a broad presumption in the public discourse that the laws that applied are either morally good or morally bad and that by breaching or adhering to such rules people like Metiria and my mother somehow reveal their moral character.

Sometimes morality and law does coincide and it is right that we should punish or promote certain behaviours as a society, if only to discourage others from doing bad things or to encourage others to do good things.

But let’s not fool ourselves that any law is a guide to the human heart.

I generally try not to kill people. That may reveal that I’m not a habitual murderer, but says nothing else about who I am. I regularly break other kinds of laws, or regulations. Over the years I have smoked and ingested drugs, I have trespassed, driven carelessly, assaulted people, sat on a kai table, used obscene language in a public place, walked over someone’s legs in a wharenui, and transgressed all sorts of lines of decency. I’m sure the list goes on and on. My mother used to get me to buy her alcohol and cigarettes after school. I’m pretty sure she wasn’t supposed to do that.

Not one of us leads a life in which we break no law.

By the same token there no point in pretending that any law is neutral. Laws are created in their cultural and political context. While the laws prohibiting resource-pooling appear gender neutral, they are enforced primarily against women and far more rarely against men. The benefit laws reflect a presumption that people live in nuclear families and can therefore struggle to deal with the notion of whāngai (Māori adoptions), for example. This context doesn’t make the laws moral or immoral, but can lead to consequences that enforce a particular societal structure or view of that structure.

Māori are well aware of the oppression of seemingly ordinary laws that undergird the structure of a society that was never designed with Māori in mind. We ought not forget that Māori survival and social progress in this country has depended in part, at least, on Māori flouting laws; such as pulling up survey pegs, or occupying land that laws said were no longer theirs, holding so-called illegal protests, and the like. We owe our law-breaking tūpuna a debt of gratitude, in many cases.

Nor am I drawing a false analogy between politically necessary lawbreaking by some in important parts of our history and the actions of genuine benefit fraudsters. I’m not a fan of benefit fraud (for example), and there are people who have been rightly punished for it. But there is merit in identifying where laws can set people up for inevitable failure, or have, with the passage of time, created social problems that can only be solved with sufficient political will.

I think our heavily targeted, morally directive welfare system is replete with laws that encourage failure, non-compliance and moral self-absolution. We need policies that will incentivise law keeping rather than law breaking.

And we don’t need to be distracted by the current storm of moral one-upmanship that helps no one and clarifies nothing.

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Posted in New Zealand society, culture, politics and tagged DPB, law-breaking, Metiria Turei, personal reflection, welfare law, welfare policy. Bookmark the permalink.

#IAmAmbivalent

Posted on July 19, 2017 by Sparrowhawk/Kārearea

I am ambivalent about the hashtag du jour (#IAmMetiria) and the issue that gave rise to it. In case you have been under a rock, this hashtag refers to the declaration by Metiria Turei a few days ago that she had over-reported her housing costs, thus claiming a greater degree of social assistance than she was entitled to during her time as a solo mum on the DPB. Metiria made this declaration in the context of the release of the Greens’ welfare policy. I’m ambivalent because there are thousands of people living in poverty in this country, and we need to talk about it; and there is no doubt that Metiria’s kōrero has struck a cord with many. But I am uneasy because many of us now engaged in the discourse created around her statements have found ourselves trapped, as I’ll explain in a moment.

I don’t know Metiria personally. I do love the fact she graduated from law school to become not only a solicitor but a doyenne of the McGillicuddy Serious Party. I have no reason to disbelieve these statements about her life prior to her entry into politics:

In three of those flats, I had extra flatmates, who paid rent, but I didn’t tell WINZ. I didn’t dare.

I knew that if I told the truth about how many people were living in the house my benefit would be cut.

And I knew that my baby and I could not get by on what was left.

This is what being on the benefit did to me – it made me poor and it made me lie.

It was a stressful, terrifying experience.

At any moment, WINZ could have caught me and cut off my benefit.

They could have charged me with fraud and made me a criminal as well.

Metiria told this story presumably to highlight the pressures that beneficiaries face in surviving life on a low income coupled with the intrusions of the State in the personal lives of all those who receive this kind of support. Not long after her speech, the IAmMetiria hashtag appeared and social media is replete with people feeding into one of two main narratives:

Metiria is a bad beneficiary, she rorted the system she should pay the money back, resign, or be sacked (and yes, they also have their own not-very-popular hashtag: #IAmNotMetiria)
Metira only did what she did to survive and look after her baby, she stands for us; for my mum, my family, she is a good beneficiary (#IAmMetiria)

My first point of unease is that there is no real dualism in this kind of issue yet we pretend there is. Beneficiaries are neither saints nor sinners. I resent any narrative that forces me to pick imaginary sides. Bugger off and leave me with my shades of grey and lack of certainty, please.

Further, we are turning the welfare debate yet again into competing salvos of personal stories that are deeply affecting and get us nowhere along the road to working out good solutions or even critiquing the Green Party’s policies in any depth. Stories are useful if they illustrate the issues of law and policy that need to be changed, but the resulting debate must be disinterested (in the sense of not being influenced by personal involvement in something or impartiality.). Public debate should not just consist of a rhetorical fight to the death between my personal interests and yours; or between degrees of disadvantage, or rely on prurient, even invasive, fascination with the most heart-wrenching accounts of poverty, disability, survival and difference.

I guess I also struggle with how easy it is for us to exploit our personal stories, and sometimes I wonder about the whiff of instrumental hypocrisy. Many of the people congratulating Metiria for her honesty and candidness no doubt also criticised John Key for using his ‘being raised in a state house’ narrative in the political arena, or Paula Bennett’s ‘struggling solo mother’ narrative being used for similarly political ends. Just because we might empathise more with either one of those individuals’ politics doesn’t make it consistent to have criticised the others for the same damn thing. I’m guilty of the same damn thing in the last week. I lashed out at ACT leader David Seymour for his statements that poor people should not have children if they can’t afford them, getting gratifying likes and retweets for doing so. But he was doing something very similar to Metiria; using carefully chosen words that tap into a deep reservoir of resentment among a particular group of people, inviting me to respond in a tribal manner. This I did, pointing to my own background as evidence of the rightness of my own position. What a sucker I can be.

I can’t be too hard on myself, or any of us really who retreat to our moral high grounds at such moments. We have pasts and they matter to us. We have extraordinary connection to the people, places and experiences that formed us. We all have lived lives that inform our decisions and influence our alliances, hell, fair enough. Our stories can inspire us to lead, too. And those stories are revealing.

In 1969 Carol Hanisch penned a famous paper called ‘The Personal is Political’. In her experience personal problems were important because they could reveal the structural and societal issues that created those problems in the first place.

I’ve been forced to take off the rose colored glasses and face the awful truth about how grim my life really is as a woman. I am getting a gut understanding of everything as opposed to the esoteric, intellectual understandings and noblesse oblige feelings I had in “other people’s” struggles.

And so that phrase ‘the personal is political’ developed a lot of momentum, and became a maxim. And like all maxims, it lost something in the repeat telling. Because Hanisch also said that we couldn’t rest on those personal laurels:

…personal problems are political problems. There are no personal solutions at this time. There is only collective action for a collective solution.

We have to take the leap from using our own personal experience to identify structural problems in our society to being able to consider collective political solutions that might be best for people different to ourselves. If we keep failing to take that leap, we head down the road to sterile tribalism, if we are not there already. And I think, for many of us, we already are.

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Posted in New Zealand society, culture, politics and tagged Carol Hanisch, DPB, IAmMetiria, Metirua Turei, welfare, welfare policy. Bookmark the permalink.

Mana wahine, the legal system & the search for better stories.

Posted on June 26, 2017 by Sparrowhawk/Kārearea

Let me tell you a short story about an old court case. This case is well known to those familiar with New Zealand legal history. It involves a woman called Waipapakura from the Ngāti Hineuru hapū of Te Āti Awa. One day in 1911 she used nets on poles to go fishing in the tidal waters of the Waitōtara River. History doesn’t tell us if the fish were biting that day., just that she stuck her poles in the bed and got to work. At some point, a fisheries officer came along, told her she wasn’t allowed to do what she was doing, and took her poles and nets away. Just one small story of Māori having their practices interrupted or obliterated by Those Who Knew Better. On this occasion the woman bit back and sued the officer for the return of her nets. Keep her story in mind. We’ll return to it shortly.

The stories that others tell about us can also come to define us; even when they are false, because they often hold pieces of truth that wound, like tiny unseen shards of broken glass.

Our legal system is the source of many stories about Māori in New Zealand society, including the broad and depressing story of how we have become, in the last 40 years, a hyper-incarcerated people, arrested, locked up, and more heavily punished for criminal behaviour than our population numbers warrant.

There are other older stories too; of how Maori have been excluded, ignored, discriminated against and plundered, by way of the legal system over the course of the past 175 years or so. We need little reminding of these bad and true stories; of the lands stolen, confiscated, and lost, often completely “legally”, of customary marriages and family relationships being ignored, or trampled, of the depletion of our language and cultural practices.

In this powerful story of exclusion and loss, the position of Māori women has often been unseen, because the New Zealand legal system has also long failed to recognise women and children anyway. The notion that Māori women could have specific rights, authority, cultural expressions, tikanga, or even opinions that required protection or attention was usually anathema to the New Zealand legal system in the the 19th and 20th centuries.

This exclusion of the voices and mana of wahine Māori began very early. In the 19th century Māori society important decisions were often made in hui rūnanga. Māori women were integral to such gatherings, as noted in one of the pro-government Māori newspapers of the time bemoaning such mana being afforded women’s voices:

…with the Maori Runanga, all must assemble together, the small and the great, the husband, the wife, the old man, the old woman and the children, the knowing and the foolish, the thoughtful and the presumptuous : these all obtain admittance to the Runanga Maori, with all their thoughts and speeches: this woman gets up and has her talk, and that youth gets up and has his…

Who ever arranged it that the (whole) village should turn-out for the settlement of disputes?…And who ever supposed that all the women and children should go and listen to the adulterous cases of bad men ?…The Pakeha’s plan in such a case is different. When a case of adultery is to be heard, neither women nor young people are allowed to hear the evidence; it is called out that they must all go outside…there are none left sitting in the Court-house on such occasions, but the male adults only. Let the Maories do likewise. Let them, by no means, allow the women and children to hear what is said about such an evil, lest they should understand all, and desire it themselves. (Te Manuhiri Tuarangi and Maori Intelligencer 10 (1 August 1861), p. 10)

The writer ultimately got his wish, and as the constitution developed over time, including the court system in New Zealand, the mana, needs and rights of Māori women became all but invisible.

Back to Waipapakura and her confiscated fishing nets. Here’s what happened. The Court said Waipapakura had no right to use her own nets as she did, even though she was a customary owner of the land on which the fishing took place. The Court found Māori had no right to sink fishing poles into the foreshore and seabed. Only Māori rights specifically affirmed by statute could be recognised in the New Zealand courts. Her rights were not affirmed in statute, so were ignored. (Waipapakura v Hempton (1914) 33 NZLR 1065 (SC))

Many would say, rightly, that this decision occurred because the legal system has always been institutionally racist, unable and unwilling to recognise Māori customs, values, tikanga and concepts, let alone the lives of Māori women. Would things be different today? There is now precedent for recognising Māori rights over and above the Treaty, and for recognising such rights outside the express terms of legislation.

But much depends on the storyteller. The story-tellers par excellence in the legal system are judges. Judges hear the stories brought to them in the courtroom, and in judging, construct a narrative that becomes law. The majority of judges writing the stories that flow out of our courtroom and into our law are still male and Pākehā. Those factors alone don’t preclude true justice being to those affected by their decisions, what does so are the values and beliefs that such judges inevitably bring to the task of judging.

By virtue of the cases handed down to us, we know that New Zealand judges, over the course of our legal history have rarely held values and beliefs that recognised let alone respected the particular needs and roles of Māori women, or Māori generally, for that matter. But we are not bound to repeat the blindness of the past.

A forthcoming book: Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope (Hart Publishing, 2017, editors: E McDonald, R Powell, M Stephens and R Hunter) shows how changing our stories can be possible. In an exercise of imagination, participants took 25 judgments from New Zealand legal history and rewrote them, as if each judgment author was one of the judges sitting at the time of the original decision. 19 of the judgments applied a feminist lens through which to view the exact same material as the original judge. The book also incorporates 6 judgments rewritten from the perspective of mana wahine; applying thinking and analysis that upholds the mana of Māori women and centralises Māori experiences and Māori world-views in the rewriting of such judgments.

So what happened when the Waipapakura decision was rewritten as a part of the Project? Well, the judge (Emma Gattey, in this case) decides that, as an exercise of a customary right, Waipapakura was entitled to fish (even if general fishing regulations don’t allow the use of her nets) especially because she is a customary owner of the land on which the fishing takes place. In making this decision, the Court declined to follow numerous doctrines of colonial law, finding them contrary to higher authority or principle. Waipapakura, in this alternative reality, got her nets back, and her story as a provider for her people was allowed to continue.

This rewritten judgment is not mere wish fulfilment. A mana wahine-based reading of the law was possible at that time, even within the strictures of the colonial legal system. It could have happened. So along with the other mana wahine judgments, and feminist rewritten judgments ranging between 1914 and 2015, these new (albeit fictional) stories of what could have been gives hope that the story of Māori women, and Māori generally and the legal system can change; can become different.

Time, as always, will tell her own story.

***

This post was originally published in the June/July issue of Mana Magazine.

Photo, Left to right: Julia Whaipooti, Mihiata Pirini, Jacinta Ruru Māmari Stephens, Lisa Yarwood, Emma Gattey. (Courtesy VUW Image Services)

An Australian marae – a dangerous dream?

Posted on June 26, 2017 by Sparrowhawk/Kārearea

This post was originally published on E-Tangata.

Our father died in 2012. He had been living in Australia for about 42 years. He had only rarely returned to his birthplace (Waihopo) and our ancestral tūrangawaewae in Ahipara. My 5 siblings and I, as children of the post-war urban migrations, were all raised in different landscapes, with different air and different light, but we have all, in our own ways, returned, and kept returning to that place, forming and reforming ourselves.

So when Dad died, we came together to hui. To decide what we would do. Bring him home to New Zealand (a possibility he had sometimes spoken of with wistfulness), or to bury him in Australia. We tried not to let cost drive our decision, and in the end we decided to bury him in Wamberal cemetary near Gosford, where whānau could be near him more often. It was the right call, we all felt it, and so we held a tangihanga for him at his Terrigal home. To do that we had to, as best we could, observe tikanga, with the separation of tapu and noa, the use of ritual, karakia, and manaakitanga, and we followed the direction of our oldest brother Tainui in what best to do. There was no obviously ritually bounded marae-ātea space outside the house, but visitors were called over the threshold and honoured with whaikōrero and hosted with kai, stories and laughter.

At that event, the nature of the house was irrelevant, our tikanga could weave around and through it, because we, the people, carried it, leaving no marks, no indentations in the soil.

I was reminded of those sad days recently when I heard that the dream to build a marae complex in Greystanes, western Sydney, had been dashed.

And I’m not sure I’m sorry about it. More on that later.

The dream was one cherished by three organisations, Ngā Uri o Rāhiri Inc, Te Aranganui and the Sydney Marae Appeal, to establish a marae on leased land at the Hyland Road Reserve in Greystanes.

From what I can tell this dream took a lot of time, energy and fundraising, and at the last hurdle the local authority, the Cumberland Council rejected the proposal. In the sometimes cruel and bloodless language of power that erases years of hard work, it was:

Moved and declared carried by the Administrator that Council:

1. Abandon the current process relating to the proposed leasing of the subject land

The grounds for rejecting the proposal? Well, you can burrow through this 500+ page report on the council proceedings, or just take my word for it. The main reasons given were (broadly speaking):

lack of sufficient cultural connection between the immediate area and the local Māori population;
issues of due diligence;
questions about the amalgamated groups’ ability to fund the project.

Those backing the project disagreed, of course, but for now at least, that dream sleeps.

But this was not the only marae project in Australia. There’s one in Melbourne, with a flash website here, one in Western Australia, and probably others in the pipeline too.

It is hardly surprising, in a way, that such plans are afoot. As Paul Hamer tells us, from 2006 to 2011 the Māori (ancestry) population recorded by the Australian census grew 38.2 per cent, from 92,912 to 128,434. In fact, Paul reckons, Māori in Australia are now at least 18 per cent of all Māori. As my Dad would say, “crikey”!

Ah, wake up, says Tā Mason Durie. this kind of development was bound to happen. As he points out, there are already overseas marae. I presume he is referring to places like the highly successful Aotearoa village at the Polynesian Cultural Centre on Oahu in Hawai`i. This overseas spread is just the next step in in what Tā Mason calls ‘sustaining the Māori Estate.‘

Marae have been constructed in overseas countries where significant Māori communities now reside and as global travel increases, it is likely that overseas marae will be part of a world-wide network of marae, some based around hapū, others around communities of interest, and others still around global travellers who seek to retain a cultural anchor in an otherwise assimilating environment.

And certainly Māori have had a couple of centuries of deep connection with Parramatta in New South Wales, which was celebrated in 2014. In 1811 Ruatara had established a small farm near the banks of the Parramatta River (originally the territory of the Burramattagal clan of the Darug people) while staying with Rev Samuel Marsden, and Marsden, having purchased the land, had used the area to set up a Māori Seminary, supported by other Northern Māori rangatira such as Kāwiti Tiitua and Hongi Hika. This area is known still as Rangihou. There are tūpuna buried there, and if there was to be a place with a strong claim for a marae, quite possibly, that was it. And those trying to establish the marae at Graystanes tried to show connection between that project and those historical roots at Rangihou, a mere 8 kilometres away.

So setting up a marae complex in overseas soil can make sense, right?

Maybe.

Except…

It doesn’t quite feel right.

Marae complexes, as built creations, are not just cultural centres. They are our cultural lifeboats; and they reach deep into the land on which they sit. As Te Rangihīroa put it, in 1930, in written conversation with his mate Apirana Ngata, while living in Hawai`i:

Kia mau ki te pupuri i nga Marae o koutou kainga. Ko tena te mauri hei paihere i to koutou maoritanga kei ngaro ki te kore. Ko o koutou whanaunga o nga Moutere e noho mai nei ahau, kua kore nga marae, a kua noho tautangata i roto i nga Iwi nunui o te Ao.”

Hold steadfast onto the Marae of your homes. That is the essence to which you bind your Maoritanga that nothing may be lost. Your kinsfolk in the Islands where I have lived have now no marae, and have become assimilated into the dominant nations of the world) Te Toa Takitini, 1st April 1930, p. 2029 (translation by Te Mātāhauariki)

The marae complex, including the whare nui and marae ātea certainly embody sacred space for Māori today. The complex provides us with an earth-connected foundation point in the world for whānau, hapū and iwi.

And I wonder about the cost to the Indigenous peoples of Māori creating such permanent foundation points in Australia.

Let me illustrate my concern.

In May 2014 Ngāti Toa, the Porirua City Council, the Blacktown City Council and the local Blacktown community celebrated the erection of two pou in the New Zealand South Pacific Garden in the Nurragingy Reserve. The Reserve is in Blacktown, west of Sydney (roughly 25 kilometres from Rangihou), and also part of the Darug people’s land. The pou were erected to commemorate the 30-year sister-city relationship between Blacktown and Porirua.

The lead-up to this event was a little fraught. Well-known Darug elder Aunty Sandra Lee left us in no doubt as to her opinion on what was assumed to be the original proposal to have the pou erected at the entrance to the whole reserve:

“Would the Maoris like me to go over to New Zealand and hang ring-tail possums all over the place? Or kangaroos? No they wouldn’t, I know they wouldn’t, so why are they doing it to us?” she said

Ms Lee said situating the poles at the front gate would diminish the Aboriginal symbolism of Nurragingy and continue the ongoing genocide of her people.

“I’ll stand there and I’ll burn them down if I have to,” she said. “They can put them anywhere inside, no worries – but not at the gate.”

The stoush was settled, insofar as the pou were eventually erected at the entrance to the New Zealand garden only (not at the entrance to whole reserve), and there they stand today. Māori wardens rose to the fore and helped ensure Darug people were involved in the opening and unveiling of the pou.

The opening ceremony was impressive. It included a wero, karanga, an ope of dignitaries that moved to what looked like a designated marae-ātea space, a smoking ceremony fire, a Welcome to Country from Darug Elder Aunty Edna Watson, karakia, whaikōrero, hongi & hariru. If most of those elements largely seem like the usual running of a pōwhiri to you, that’s pretty much what it looked like.

Now, there is no doubt that this event was supposed to affirm Māori identity as manuhiri, not at all as tangata whenua. But watch the ceremony and see for yourself. The overall impression (rightly or wrongly) is one whereby Māori hold the reins, control the narrative, and allow the Darug people to participate. Skip to 49′ 40″ on the video and you will see the council dignitaries, and a couple of the Darug representatives (Auntry Edna and her daughter) progressing along the hongi line and being greeted as if they were the manuhiri.

Tears started into my eyes at that point and I felt anger. I know huge effort went into this ceremony, and I know there was aroha present and the best of intentions, and as a viewer, I couldn’t see if the other Darug elders were still on the ‘tangata whenua’ side. So my information was limited. But when should it ever be tika (correct) that any Darug elder (upon whose shoulders Māori legitimacy of place lies, after all) have ever been expected to assume the status of a visitor in this visual narrative?

The answer is never.

This is the risk we run, as Māori, when we dig into Australian soil to create places or points of belonging, no matter how well we think we have consulted with indigenous peoples. That soil is not ours and will never be ours.

That doesn’t mean to say we can’t be Māori on that soil. How can we not be? We should guard and protect and develop our cultural expressions, why not have cultural clubs and centres?

We should protect our language, our rituals, our mourning and our celebrating, even in little ways as our whānau did for our Dad in 2012.

And there he lies, ever, ever, the manuhiri.

But we must be wary of transplanting our notions of being tangata whenua to the whenua of others, and risk wreaking yet another layer of colonisation upon those home peoples.

We must never forget who we are. And we must never forget who we are not.

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Euthanasia: in defence of the little moments of true life.

Posted on June 9, 2017 by Sparrowhawk/Kārearea

A post I wrote two years ago, that I am reposting in the wake of the End-of-Life-Choice Bill being drawn from the private members’ ballot.

The parallels between birth and death are so strong to me right now. Our family has welcomed a new baby in the last few days. At one hospital after months of anticipation and physical changes, the pains of birth began, the people began to gather, the moment of transition came eventually at a time no one could really predict. At another hospital across town, after a couple of years of preparation and physical change, the time of transition approached, the people gathered, and no-one knew when death will finally come, we waited, and we watched. At the first hospital a new little life, helpless, sentient, feeling, begins her journey. At the other hospital our Mum, just as helpless, sentient, but not always lucid, prepared, unknowingly, to end hers.

Our mother’s life drew to its end on Monday at the Bethesda Hospital in Christchurch, and I feel so fortunate to have been with her, I and my two brothers. There has been a lot of love and care expressed in word and deed between all of us involved in this process.

In those days leading up to 9.05am Monday 18 May I spent a fair bit of time ruminating about euthanasia. Mum was in favour; she was a paid up member of End of Life Choice and supported the ideas put forward in the End of Life Choice Bill promoted by Maryan Street. Many’s the time I remember her laying down the law to me that we were to ‘pull the plug’ if she couldn’t enjoy a smoke or a drink and had lost that venerated thing ‘quality of life’.

Well. We reached that point and then some. The person that she was would have been appalled that she still lived, but only a fraction of the life that she used to live. In her final weeks she existed in that liminal space between this world and the next, bed-bound and hand-fed, phasing in, and mainly out of consciousness as Morphine and cancer took away her lucidity. I would have looked from the outside in, once upon a time, and shuddered at the thought of ever ‘living’ like that.

But the person that she was before her death experienced tiny, intense joys that I would never have thought possible. I gave her a sip from a straw of her favourite Chateau-de-Cardboard 6 days ago when she was having an ‘awake’ period. Her eyes brightened and her eyebrows shot up and the delight on her face was transformative, just for an instant or two. An hour or so earlier she had gazed around at all of us gathered in her little room, and the pleasure she was experiencing, as we talked and laughed around and about her, was palpable, even if she could no longer follow the twists and turns of our words. “This is so good” she said, to no-one in particular. On Sunday night, as I whispered goodbye to her she smiled, said ‘See ya kiddo!’, and winked slyly at me before I kissed her cheek and stole from the room, the last words she said to me. Even then, she was still here and living a life of worth.

Our mother could never have exercised her right to choose to end her life; her cancer-related dementia and the morphine stole her ability to choose months before. And I have to admit a relief at that. There is a scene in the book Still Alice that reminds me of our own situation. Alice, a woman living with Alzheimers, a highly successful professor and professional woman, and member of a small family, decides early on in the progression of her disease that she would kill herself when the time came, once she had lost enough of her faculties that the life she had lived was gone forever. She put some pills in a little black bottle at the back of the drawer in her bedside cabinet. With it she placed an explanatory letter (her own ‘end-of-life directive’) setting out the reasons to her future self why she needs to take the pills and end everything before it’s too late. As the Alzheimers progresses, we, the readers, know when Alice has passed that point. The thing is, she never knows it. At one point she comes across the pills and the letter, but can’t cohere her thoughts enough to understand the content of the letter or the import of the pills. To the relief of the reader (well, me at least) she eases past that point, going on to live still a life smaller and unacceptable to her former self, but one of worth and joy to her current self.

In my view, which is only a drop in the ocean of views, my mother’s end-of-life journey and the quality of her life is no more a rational reason to retain NZ’s current position on euthanasia that criminalises those who assist others to end their lives, than Lecretia Seale’s own personal story is a reason alone to change those laws. Equal and opposing stories can always be found that support one or another position. Indeed, the euthanasia debate should never, ever be about evaluating or quantifying the relative ‘worth’ or ‘value’ of any human life and the proponents of change to our laws are very careful to adhere to that stance; for example, by emphasising that this is a debate about ‘the right to choose’ to end one’s own life. After all; whose life is it? Those who seek to retain New Zealand’s current position, that assisted euthanasia remain illegal, and a criminal offence under ss 63 and 179 of the Crimes Act 1961, may seek to argue on grounds focusing on the dangers of misapplied euthanasia, and the intrinsic (and therefore immeasurable) value of every life, thereby also avoiding quantifying a ‘worthwhile’ life.

What has confirmed my own position is not so much principles and values affixed to rights and life, although my Christian faith can’t be extricated from the mix of my opinions. Rather, it has been my growing horrified realisation of how vulnerable people like my mother are. We have control over her money; no problem. I and my brothers made the decisions about where she lived, her possessions are ours to do with what we will in practical reality irrespective of legal niceties. I have learned a lot in recent months about the real power I had over my mother’s life. What frightened me is 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 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. In our family’s case I don’t think the ending would have been any different really, given our personalities and our mix of values and morals and faiths. I could never have carried out any such document myself. I could never have sought to end my mother’s life at any point. But that’s neither here nor there, when it comes to a law changes affecting all of us.

Most cases of euthanasia will occur with the old and terminally ill. And I have no doubt that there are many terminally ill, elderly and incapacitated patients in this country who would have agreed to their own termination but perhaps under duress from their families. Or they would have agreed with no duress whatsoever but may well continue to have moments of life worth living after competence had ended, but can no longer summon the words or thoughts to defend those little moments. And I have learned that those little moments still make a life, a little life, to be sure, but a life of real value nonetheless. Ultimately, even though we try to steer the euthanasia debate away from declarations of the worth of any one person’s life, and articulate the debate as a rights issue, (a right to life, a right to control over one’s life, a right to death..) in the day to day we who have the power to decide would have to make judgments of worth. In the implementation of decriminalisation of assisted euthanasia, will not someone, often not the dying person, have to measure the worth of a life in order to decide when to end it?

Are we really that confident in our own abilities to judge the subjective worth of the lives of others?

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What some bloody awful cartoons can tell us about ourselves.

Posted on May 29, 2017 by Sparrowhawk/Kārearea

(Please note: an edited version of this post has been published on E-Tangata.)

I don’t get personally offended easily. I learned a while ago not to buy too much into the fever-dreams of keyboard warriors, and most of the people around me who do say outrageous things are not loathsome people, so I don’t care to waste my energy in policing them. And, I’m lucky, I think, to have avoided some of the more obvious slings and arrows of racist misfortune in my life.

Except, I haven’t. Not really. I’m a child of the urban migrations and the lost WWII generation, before that, a descendent of colonial wars, and before that, of inter-tribal musket wars, and all the upheavals and trauma, political, demographic and spiritual, in between.  I am who I am because of the collective Te Rarawa and Māori experience of intergenerational losses; including the loss of language, place and space, tribal connection, knowledge, and sheer entitlement.  As an Anglican I’m also heir to the good and the bad of church history, particularly in the North and Waikato.  Of course, I am the sum of other things as well, my Irish and German forbears and their respective histories, but those things lie lightly on me.

Just because I have a pretty peaceable nature, it would be easy to mistake someone like me on face value as someone ‘balanced’ not likely to fly off the handle, someone who isn’t too ‘PC’. Probably so, but I carry the weight of Māori history, like any other ‘descendent of a New Zealand Māori’, to use that quaint phrase of legislative definition.

And for many of us from Māori families and communities, the historical losses don’t tell the whole story, compounded as it is, by the accumulation of many little and large unintentional slights, deliberate hurts, and omissions over years of racism and bigotry that can be forgiven, but can’t be wished  or washed away; or unfelt, unseen, or unheard.

Yet we are expected in the eyes of many (not all, of course) simply to be ‘good sports’. Come on, let the mispronunciation rest, let the accusation of theft pass, let the suspicious glance lie, live down to that low expectation, let the stereotype alone, oh, grow a sense of humour and just let the past be, don’t be so easily offended. No matter how that past calcifies around us like an oddly inefficient shell: porous enough to let the hurt through, and unyielding enough to last through generations.

So, as ‘good sports’ we know the engineering students’ bastard “haka” performed annually for 25 years, ending in ’79 was just a generation-long harmless joke; the deliberate & non-deliberate butchering of Māori names on our airwaves and in our classrooms is just something to be borne, don’t make a fuss; naked selfies on a sacred maunga are just awesome T & A photo ops; artists, academics and government officials alike can, like magpies, pinch the shiny bits of the language out of dictionaries for their signs, their academic papers, their artworks without ever being able to speak a complete sentence in the language, let alone know what it means; yes, we will sit for your portrait, we will die on your canvas, your tote bag, your tea-towel, we will be the noble savage of your dreams.

Hey, it’s OK. You’re welcome.

But a small thing is never just a small thing, right?

Of course Māori can never claim a monopoly on the experience of racism and bigotry, and grievance is not a state of grace we should seek to hold on to.  But just like the violent and heavy histories, the stories we tell and retell of small (and big) moments of everyday ignorance and racism are autochthonous; formed of this soil, and of this air, and in this land of shifting light. And sometimes, just for the purpose of release, those stories must be told and retold with fresh anger each time, as Amie Berghan Paulet shows by sharing some of the words on the tip of her tongue:

Racism is when you label my people ‘dole bludgers’.

Racism is when you tell my people to just ‘get over it, the past is the past’.

Racism is when you look at the ‘statistics’ and not the truth that is hiding behind the statistics.

Racism is when discussing history you expect my people to walk towards you for healing instead of you walking towards us.

Racism is when you take naked selfies on our sacred mountains and then label us as ‘prudes’ or pass over our offence as if it’s because we don’t understand freedom to self-expression.

It’s true that Māori are asked forgo much in order to preserve the sanctity of “freedom to self-expression”.  Up to the limit of the law, of course.

Right. So, what is the limit of the law? Al Nisbet can help us there.

Do you remember, from a few years back, his cartoon caricatures of waddling Māori bludgers with their smokes and their alcohol and the glint of greed in their beady, calculating eyes? The ones with the dull, bloated children with stunted futures and dubious parentage? Remember those cartoons? Well, unsurprisingly, some of us got upset when they were published back in 2013, and Louisa Wall and South Auckland youth group Warriors of Change took The Press and Marlborough Express newspapers to court. Well, more specifically, the Human Rights Review Tribunal.

A couple of weeks ago the decision came in: according to the Tribunal the cartoons, offensive as they are, did not breach the Human Rights Act 1993.

How does this happen?

First off, where does this right to freedom of expression come from anyway? This magic notion, that is as limitless as human thought and imagination, is set out in s14 of the New Zealand Bill of Rights Act, and let’s be clear; the right is not absolute, it has limits, including limits imposed by law.

Including this bit of law: s61(1) of the Human Rights Act 1993. According to this section it is unlawful for any person to publish or distribute written matter that is threatening, abusive or insulting; and likely to excite hostility against or bring into contempt any group of persons on [in this case] the basis of race.

It’s not hard to find those cartoons insulting towards Māori, and the Tribunal agreed. Those cartoons could indeed go straight to the top shelf of small and large things designed to add to the weight of everyday bigotry and racism. Straight to the poolroom, even.

It’s the last requirement that’s the hardest: it’s a causation test. Words (or images, as here) cannot merely be hurtful and degrading or insulting, they actually have to be likely to cause other people to become hostile against Māori on the basis of race.

To cut a long story short, the Tribunal said no. The cartoons did not reach that threshold. Case closed. And regardless of what I’m about to say below, in the main, I agree with the result. Simply to live in this society we have to allow those around us to say horrible things we don’t like, even if those things wound us; and they do. In turn we have the same ability to insult, wound, and offend. My Facebook feed is replete with people (often brown ones) gleefully taking up the opportunity to rip into others. This is part of our jostling co-existence and the cost to our own freedom to insult and offend and express whatever we want would be too great to close down the Al Nisbets of this world, even though his work adds to our burden of racist experiences.

But I did want to call your attention to something else in the Tribunal’s judgment.

In evaluating whether Nisbet’s cartoons were likely to incite hatred, the Tribunal, as directed by the Supreme Court in an earlier case, had to turn to that marvellous legal fiction, the ‘reasonable person‘. You see, how do we know if insulting words are likely to excite others to be hostile against Māori? Well that depends on someone who has never existed; the reasonable person, a kind of paragon of circumspect behaviour that just happens to be lurking around at the time when these published images hit the public arena. This sensible and sober person would have some knowledge, so would know that the cartoons show Māori people, would have some idea of the stereotypes in play, and would know about local conditions and community. Would that reasonable person, aware of the context and circumstances surrounding the use of the words, view them as exposing Māori to hatred among other people?

But here’s the thing. The ‘reasonable person’ is not allowed, in the context of the Human Rights Act 1993, to be Māori. Not in this case, and probably not ever. The focus is not on how greatly Māori were injured, but on how likely NON-Māori were to become hostile as a result. As the Tribunal said:

In the present case the cartoons were unquestionably about a subject of public interest; they were also provocative. That Māori and Pacifika were offended and insulted is not the point. Section 61 is directed not to the effect on them, but on the effect on non-Māori and non-Pacifika and the likelihood of their being excited to hostility against Māori and Pacifika or their holding Māori and Pacifika in contempt. In our view the cartoons were insulting but fell well short of bringing Māori and Pacifika into contempt.

See, I imagine a reasonable person that can be Māori, who can emerge out of the context within which Māori live, that can appreciate the weight of history and everyday bigotry on the hearts and minds of Māori people. I imagine a reasonable Māori person that can see that, and still value freedom of expression.

But the Tribunal couldn’t really explain to me why it is that the reasonable person in this case and in our general legal system is never Māori.

Perhaps we carry too much weight, too much hurt, you see, to ever be trusted to be truly reasonable. Or truly normal and ordinary.

Just maybe the Māori reasonable person, has no sense of humour.