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The Māori in the Room

The Māori in the Room

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

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

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

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

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

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

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

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

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

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

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

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

OK I’m back.]

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

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

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

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

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

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

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

 

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“‘Welcome O King;—welcome to Waikato.

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

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

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

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

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

Sound familiar?

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

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

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

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

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

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

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

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

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

This plan is in development, on the government side.

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

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

And I have a few warning bells in my mind.

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

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

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

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

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

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

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

 

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OK, not gonna bite. See above.

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

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

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

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

GraveTrain

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Long may it remain so.

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

Thank Heavens for Donald Sterling and other Lightning Rod Racists

Make no bones about it, Donald Sterling helps many of us sleep better in our beds at night. The owner of the LA Clippers gives form to the formless. Like a lightning rod he draws the ire and righteous anger of all of us who pride ourselves on our ability to tolerate difference. He ticks all the right boxes, powerful, super-rich, white, curiously formed (looking as if he has been carved out of aged Lucite), not to mention helpfully braying racist claptrap to his latest (wired-up?) lovely in the grip of his papery claws. (see http://www.tmz.com/2014/04/26/donald-sterling-clippers-owner-black-people-racist-audio-magic-johnson/) He is in the mould of the equally odd local multimillionaire Louis Crimp…remember him from a couple of years back? Old, bigoted, wealthy:

“All the white New Zealanders I’ve spoken to don’t like the Maoris, the way they are full of crime and welfare.” (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10806938).

There is a kind of functional purging that happens when such obvious bogeymen are exposed in this Western society. It reminds me a little of what Aristotle named ‘catharsis’; the ‘pity and fear’ an audience to a tragic play felt when the protagonist invariably fell from what had been a lofty height (Oedipus, Agamemnon and so on). Catharsis in that ancient context meant feeling pity for the plight of the doomed protagonist, and a kind of compassionate fear for ourselves lest we undergo a similar fate. Well. I don’t detect pity for Louis & Don, this kind of modern catharsis is a little different, we feel a kind of cleansing revulsion.

Yet underneath all that disgusted wrath perhaps we also feel a little bit of fear lest we are revealed to have similar bigotries within us. This fear is perhaps at the heart of our curiously formalistic approach to eradicating racist and sexist symbols from our language and our public actions. As Jeremy Clarkson has just discovered, uttering the N-word creates a moment of talismanic horror that he can atone for on the public altar of Twitter (http://www.stuff.co.nz/motoring/news/10000683/Jeremy-Clarkson-I-m-begging-your-forgiveness). Eradicating such obvious symbols from our overt actions and words saves us from having to examine what we really think and feel. Replacing these symbols with new ones can also be handy. Keen to be seen as a non-racist? Why, take a selfie with a banana in honour of Dani Alves’ pretty wonderful response to thuggish banana throwers in a football match at Villareal on Sunday. When the banana landed near him as the Brazilian was about to take a corner he picked it up, ate it and carried on. The fact that this was apparently a preplanned marketing campaign is overlooked in favour of the simple beauty of the new inclusive symbol, so right for t-shirts, now selling for 25 Euro each. https://uk.eurosport.yahoo.com/blogs/pitchside/anti-racism-banana-movement-revealed-cleverly-planned-marketing-104501574.html.

I’m not going to engage in a sociological examination (you’ll be relieved to know) of the dynamics and causes of racism, sexism or homophobia. I understand the analysis that tells me that racism (and other isms) is produced from ‘power dynamics’ in society. Those with power can exclude consciously, or otherwise, those without power, based on a denigration of the race, ethnicity, gender or sexuality of the excluded. I get that. What worries me about that analysis is that it (superficially) excuses us, if we ourselves fall into any one or more of the excluded groups, from examining ourselves. I can’t be racist, I’m Māori. Well, I’m less interested in whether an ‘ism’ can be attached to my outward language and behaviour. I’m more interested in the failure of imagination that I am definitely in danger of sharing with Louis and Don. We are all at risk of this kind of failure, regardless of the label we put upon it.

I have a young female relative in my large extended family whom I love dearly. She’s a teenager, a gorgeous, bright, talented girl. And she is ashamed of being Māori. She doesn’t acknowledge her own Māori name, she wonders why the only Māori women she sees (outside of her family) are fat and why the men are all criminals. She can’t yet imagine, you see, that there are other Māori realities, other Māori futures. Even when she sees Māori that don’t fit that mould she may not shift her thinking. Perhaps those ‘other Māori’ are just aberrations to her perceived truth. Like Don, Like Louis, she makes false deductions from limited information, and won’t or can’t (yet) imagine how things could be different. All is not lost for her, and I am ever a believer in the power of human imagination to create change. Eventually I think she will be able to imagine Māori differently. Louis & Don haven’t managed this leap of imagination, it appears, but I would wager that none of us is totally cured from this particular condition. Some people have more power to harm than the rest of us, based on their bigotries, which is why we need protective laws and actions designed to counter and prevent harms from racism, sexism and the like. But let’s not be fooled, Louis & Don are not strange or remote, they are in the room with us.

“Institutional racism”. Warning: label may smudge with over-use.

Today we heard, courtesy of Radio New Zealand, that a UN delegation visiting NZ prisons has urged our government to consider the extent to which our system creates systemic bias against Māori (http://www.radionz.co.nz/news/te-manu-korihi/240995/un-critical-over-maori-jail-numbers)

The problem with a phrase like ‘institutional racism’ (the term used most often to describe this notion of systemic bias) is that it creates a distance between people and the problem. The problem is well documented. We all know that Māori are over-represented at all stages of the criminal justice system, from arrests to court appearances, to sentencing, to prison population. http://aic.gov.au/publications/current%20series/tandi/421-440/tandi421.html .

 
Do these statistics really point to a systemic problem? Commentators tend to fall into two kinds of camps. There are those who point to the monolithic nature of the system, the racism of Pākehā, lack of Māori values evident in the system, the history of colonialism and the breakdown of Māori legal institutions, the displacement of Māori autonomy over their own lives and so on as setting the scene for, and justifying the name of, institutional racism. Māori have no investment in this system, and until they do there will be no substantive change. A kind of systemic revolution is necessary to roll back the stats (Moana Jackson is probably still the leading commentator in this camp, as discussed in the JustSpeak paper http://justspeak.enspiral.info/wp-content/uploads/2012/06/JustSpeak-Maori-and-the-Criminal-Justice-System-A-Youth-Perspective.pdf  )

The other camp tends to focus less on the racism and culpability of Pākehā, and the system itself, instead pointing to sociological/individual explanations that underpin Māori over representation. Māori over-representation occurs by and large because Māori offend more. Identify the drivers of Māori crime, address those, and the problem will sort itself out. The system is not to blame, as far as any system can be, the criminal justice system is neutral, and upholds and reflects the primary values of the community (including Māori) appropriately. Sure there could be changes to make the system more ‘Māori friendly’, but the solutions lie within Māori decisionmaking, Māori families, Māori individuals. Criminologist Greg Newbold represents this perspective to some degree, seen here in conversation with Moana Jackson on Native Affairs: https://www.facebook.com/justspeaknz/posts/515353868520154. Another quite strident view from this camp can be seen here: http://www.nzcpr.com/institutional-racism/

My own perspective falls somewhere in between the two camps. In my view the term ‘institutional racism’ has become a kind of label that cloaks the nature of what really goes on in the criminal justice system, and within society more generally. The nature of what really goes on cannot be divorced from the individuals that make up the system. This system is a human artifact and cannot be value free. The law is not neutral, we made it, and we infused it, and the system that upholds it, with values.

I remember hearing one of New Zealand’s high profile judges speaking frankly about the dilemmas he is confronted with when sitting on the bench when Māori offenders come before him. He acknowledged that a decision about giving bail, for example, could go differently depending on whether the offender before him was Māori or not, NOT because of ethnicity, but because almost inevitably the Māori offenders had less stable home circumstances and less support to help them keep to their bail conditions, were more likely to breach, and more likely to end up back in court for the breach. Therefore, such Māori offenders might be more likely to receive bail than their Pākehā counterparts who usually had more obvious home support and more stable home circumstances. What was he, as a judge, to do? Grant bail, and see that offender back in front of him for breach, almost inevitably, lengthening the already negative contact between that offender and the system (including the police), usually resulting in jail anyway, or refuse it, thereby expediting the CJ process but sending the offender to jail more quickly (if the court process ended up in a finding of guilt). Which values does he call upon in the making of that decision? As he observed (and I’m paraphrasing), “if these are the moments of discretionary power I have as a judge, what about all those other moments before the offender even gets to me?” Indeed. Social workers, case workers, teachers, parents, family members, police, probation officers, lawyers, all of them will have had moments of discretion they exercised that impact upon our theoretical Māori individual as she progresses through life, let alone the criminal justice system. All of the ‘discretionary moments’ intersect with the decisions made by this person; what are the nature of the choices she makes in her life? How might she have been ushered into making those decisions, some of which could see her enter into the system? 

Māori are agents, not just victims, and a term like ‘institutional racism’ does two things, it denies Māori agency, but it also points to the sum total of those discretionary moments exercised by all those who have decision-making power within the Criminal Justice System. Perhaps the first step to undermining the phenomenon of systemic or institutional racism, or just over-representation of Māori within that system, is to ask those individuals what decisions they made today. And those same questions should also be asked of the whānau and friends. Ultimately, I think we are all collectively responsible for Māori over-representation in the criminal justice system.

 As for a remedy? Well, I think Jackson is partly right. Māori must have decision-making power over Māori lives, and they must also see themselves reflected in the systems of this country in a way that normalises rather than demonises them. So structural change can achieve some of that. And the capacity of Māori to create and implement useful dispute resolution processes, perhaps using the marae more often, is exciting, and growing recognition of Māori customary law and processes offers fantastic room for growth. There are also international developments in sentencing law that New Zealand could look to in the recognition of culture and background in the sentencing process. We already have this capacity in NZ law (by virtue of ss8 and 27 of the Sentencing Act 2002), the Courts have basically declined to use it to address disproportionality in similar ways that have been done in Canada, for example. (see the Court of Appeal decision in the case of Mika v R, and some interesting commentary here: http://maorilawreview.co.nz/2014/01/criminal-law-sentencing-and-ethnicity-mika-v-r-sensible-or-superficial/.

But I also think that the focus on the institution cannot be at the expense of the focus we place upon ourselves. The battle to stop our young people going to jail starts at home in the everyday discretionary decisions we make as parents, whāea, mātua, tuakana, teina, and finally, as mokopuna ourselves, to live a life outside the criminal justice  institution and well away from any of its tatty labels.

Holly Walker

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