Monthly Archives: February 2009

Ka ora!

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Ka ora! (I live!) – the triumphant second part of the famous challenge in Te Rauparaha’s haka Ka Mate, composed after his narrow escape from seemingly-certain death. Ka mate is itself a symbol of life and vigour and indomitable spirit, a rowdy celebration of vitality, and one of the most vivid and tangible symbols of New Zealand culture, both for Māori and for Tau Iwi, and much-loved and admired by people the world over, so ubiquitous that many simply know it as the haka, as if there were none other.

Now the rights to this famous tāonga are to be vested in Te Rauparaha’s descendants, Ngāti Toa Rangatira. This is a sore spot for many people, who for the reasons above feel as if they have a stake in Ka Mate as well. Much of this hearkens back to the old `iwi/kiwi’ rhetoric of the 2005 election campaign, and in particular I’d like to point to one small exchange which I think illustrates that that rhetorical line no longer has quite the currency it did; then I’d like to engage with the actual matter of the issue: the meeting of intellectual property, identity and mātauranga Māori.

Backdown

haka13The Rod Emmerson cartoon at right appeared on the front page of the New Zealand Herald on 11 February 2009, the day the Letter of Agreement between Ngāti Toa Rangatira and the Crown was signed, and is the most direct reference to the old iwi/kiwi debate. The image was also attached to the online story. However, that day during Question Time, Minister for Treaty Negotiations Chris Finlayson harshly criticised the cartoon, saying it was “puerile and inaccurate […] highly offensive to Ngāti Toa. We are not talking about that kind of redress”. This position was reiterated by John Key, and was the subject of another article the following day. They’re absolutely right: as I will demonstrate below there is no merit whatsoever to the argument.

After Finlayson’s statement in Parliament, the cartoon was detached from the article – but it remains on the NZ Herald’s server, and that it was attached to the article is proven by google images. Tangentially, the cartoon appears to be one of a batch by Emmerson, including this one, very similarly composed. At least two other cartoons emphasised the financial issue – Mike Moreu’s and Tom Scott’s.

The importance of this very minor editorial backdown by the NZ Herald is huge. I’m not arguing that Finlayson’s statement in the House caused the Herald to take it down, but it was undoubtedly an influence: perhaps the Herald saw that the tide has turned. The very fact that a National Minister would so firmly repudiate such an allegation of graft among Māori business interests, against the editorial line of both our major press outlets, shows how far they have come since the bad old days of Don Brash’s populist point-scoring. It also shows that they’re in government and mean to stay there.

Rights

People talk about `intellectual property’ as if it’s unified by a central legal idea, or created from whole cloth. In fact the whole realm is a minefield of social, legal, technical, customary and common-law complexity from several intellectual traditions, dating back to the enlightenment, and very poorly updated to encompass things which have happened since. The S92 protests currently underway are an example of its deep and thorough dysfunction. It’s vastly more ugly and complicated than you might think: for an excellent critique of the whole system, I can recommend none better than Drahos and Braithwaite, Information Feudalism. Incidentally, like Richard Stallman, I abhor the term `intellectual property’ for this reason; though unlike him I don’t eschew its use when talking about the whole awful mess together.

When people talk about `intellectual property’, usually they mean `copyright’ but want to sound knowledgeable. Even when people talk about `copyright’ they are usually, in fact, mixing up two quite distinct parallel traditions: economic rights of copyright, and moral rights of the author. Simply; economic rights allow the copyright holder to extract a rent from a work, while moral rights afford other sorts of protection, such as the requirement of attribution. The two sets of rights can exist independently or apart; they need not necessarily go together, but can coexist happily if need be. The discourse inherent in the cartoons above, and in much of the news copy, is rooted in the supposition that economic rights are the only rights, and that Ngāti Toa Rangatira must therefore be looking to extract a rent from Ka Mate (even if only a piffling, `dollar dollar’ for the single most famous piece of Māori art in existence). This is also the foundation of Whale Oil’s rather smug argument that, since NZ copyright allows for a term of 50 years after the death of the author, copyright on Ka Mate lapsed in 1899 and it’s now in the public domain.

As is so often the case, the reality is quite different. The Letter of Agreement mentions nothing of the sort – no discussion of economic or moral rights, or of copyright, or even of that broadest of terms, `intellectual property’. No, the complete text in the LoA relating to Ka Mate is as follows:

– Ka Mate haka

The settlement legislation will also record the authorship and significance of the haka Ka Mate to Ngāti Toa and the Crown will work with Ngāti Toa to address their concerns with the haka in a way that balances their rights with those of the wider public.

The Crown does not expect that redress will result in royalties for the use of Ka Mate or provide Ngāti Toa with a veto on the performance of Ka Mate. Ngāti Toa’s primary objective is to prevent the misappropriation and culturally inappropriate use of the Ka Mate haka.

This stops well short of even the weakest copyright protection. It implies a subset of moral rights, and explicitly enjoins exercise of economic rights. The entire line of argument is therefore completely discredited, and if anything, Ngāti Toa Rangatira are faced with a hard task of staking a claim in any way other than the symbolic. If they choose – and there’s the big question nobody is asking.

Colonising Mātauranga Māori

Suppose Ngāti Toa Rangatira had been offered exclusive, authorial economic and moral rights to Ka Mate. Should they accept? Ultimately, of course, this is a matter of utility for that iwi, and them alone – but let me sketch a few of the issues in play. First, and most obviously, the adoption of Tau Iwi systems of knowledge ownership for mātauranga Māori (Māori knowledge) is a dangerous business. Those who have legitimate entitlement to the mātauranga might be prevented from exercising it by colonial IP laws; more importantly, the nature of the mātauranga itself is impacted upon by its presence within a framework, and the degree of codification and specification that requires. As M A Hemi said regarding the use of Māori terms in the Resource Management Act,

Māori concepts when treated in isolation are incapable of proper function and development. In fact, any concept when divorced from its cultural base is subject to dysfunction and cultural reinterpretation or hi-jack. (Quoted in Mason Durie, Te Mana, Te Kāwanatanga, p33.)

Nevertheless, there can be great utility in protecting these things by colonial means, in order to prevent their exploitation by colonial systems. This is the foundation for the WAI 262 claim, to my knowledge the longest-running and most complex claim ever brought to the Waitangi Tribunal, with enormous precedent value. And why shouldn’t they see any tangible economic benefits from their mātauranga now, given that for generations it has been exploited and co-opted and adapted without their consent or input, and to great commercial gain?

The question is a live one – ka ora.

L

Perspective

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The Standard and Kiwiblog last night, but not for the first time, crystallised what it is to be two sides of the same political coin. Both covered Health Minister Tony Ryall’s removal* of Richard Thomson from the Otago DHB chair using, respectively, the verbs to sack the old one and to appoint the new one. The difference in emphasis couldn’t be clearer.

For what it’s worth, DPF’s headline is more correct. Ryall didn’t actually fire Richard Thomson, he has been removed from the chair but will remain a DHB member (though the Herald article referenced in the Standard post also uses the `sack’ terminology). On the other hand, I think Tane’s analysis is more correct – Thompson has been removed from the post for political reasons more than for reasons of governance. However the governance failure was bad enough that Ryall was on safe ground in doing so – he’s got two birds with one stone here.

L

* see how hard it is to avoid partisan terminology?

[Edit: Silly me for believing the Herald – it’s spelt Richard Thomson – changed.]

National: cutting their way into the recession

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At Pundit Nicky Hager has an article up about National’s “spending” plans. Based on leaked material he shows that, having started to realise the gravity of the recession, English has increased capital expenditure by no more than an additional $250 million of capital spending a year: in terms of government spending that’s nearly nothing. As Hager concludes:

As the country heads into the worst recession of our lifetimes, John Key and Bill English have decided against any significant economic stimulus package. As other countries acknowledge the magnitude of the crisis and spend, our Cabinet will be putting their energy into finding places to cut.

At the same time the National cabinet is taking a knife to operational spending: 10% here, at least 500 jobs there, 30 more over here. These cuts of operational cuts will very quickly add up to $250 million, not to mention poorer services for all New Zealanders,

So National’s plans to get us out of the recession are… exactly what their plans always were: cut, cut and cut. Less service, less support, and what money there is will be redirected to the private sector labelled “infrastructure investment” and “improved competition”.

Ansell’s talents underemployed

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John Ansell, author of the famous and fabulously effective 2005 National party billboard campaign, has been blogging since September last year. As a political communication geek, I kept an eye on his site for the first month or so, but unfortunately neglected it before he published a lot of proofs of material – billboards, banners and newspaper ads for the ACT campaign, and a couple for National, many of which I’d not seen. His services were not in high demand for the 2008 election, but I think they should have been. Regardless of whether you agree with the policy positions these advocate, the point is to convey a message, and I think these do that job admirably. The parties currently outside government have a great deal to learn from those in government in this regard.

Click on this one, my nomination for Most Outrageous NZ Propaganda Image of 2008, for the whole lot. They’re worth it.

Just try to imagine the outcry if it had been hung from the Ghuznee St overpass.

L

Boliviarian or Stalinist?

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Victory in the constitutional referendum on removing term limits on Venezuelan presidents and National Assembly members has been heralded as a mandate for Hugo Chavez to continue the process of deepening his so-called “Boliviarian Revolution.”  His supporters see the open-ended election option as the best guarantee that the socialist and populist -inspired reforms implemented by Chavez during the last decade will continue for the next one. Opponents (who received 46 percent of the “No” vote to 54 percent in favour of the “Yes” vote in the referendum) believe that this event will entrench the slide towards Stalinism evident for the last few years (in which Chavez engineered constitutional reforms that allow him to stack the judiciary and parliament with his followers, and places the armed forces at the service of his “Bolivarian” ideals).  Given the heat generated on both sides, the question is whether Chavez is a a neo-Stalinist in disguise or a new form of democratic socialist responding to the exigencies of the 21st century Latin American context.

To be clear: Chavez has handily won every election he has contested, has survived a (US-backed) coup attempt and was restored by popular acclaim, has reduced poverty levels and increased literacy and health standards with massive funding  from state-controlled oil profits (and with Cuban technical assistance in the form of hundreds of doctors and teachers performing their “internationalist” missions–a Cuban version of the US Peace Corps, if you will), has provided developmental aid and low-cost petroleum to several Latin American neighbours as well as low-income communities in the US, has expanded Venezuela’s web of diplomatic and economic partners, and has served as a champion of the anti-imperialist cause in Latin American and elsewhere by pushing for more egalitarian trading blocs organised around “socialist” principles of fair exchange. He is the most popular Venezuelan leader since Simon Bolivar himself, and like Juan Peron in Argentina, Getulio Vargas in Brazil or Lazaro Cardenas in Mexico during the last century, his appeal to the working and lower classes is equalled by his hatred by the local elites and distrust by larger foreign powers.

On the other hand, Chavez has closed down opposition media and imposed a censorship regime on what his government deems to be “traitorous” commentary; he has armed citizen militias to ensure the “purity” of his “revolution” and to guard against traitors; he has replaced independent military commanders with personal cronies and embarked on a massive military spending spree in anticipation of a US attack that most security analysts believe is a figment of his imagination; he has failed to deal with the country’s escalating crime rate and deteriorating infrastructure; he has failed to invest in the oil industry to the point that production is now 25 percent below what it was ten years ago (although that was disguised by high oil prices up until this past year); he allocates public good provision based solely on partisan adherence to his Boliviarian Party, with the funding criteria being that no funding goes to agencies or individuals not affiliated with his Party. To that effect he has required state registration of all organised interests and collective actors, thereby marginalising those who refuse to register or register as independents or unaffiliated. He has embraced Iran, North Korea and Russia as diplomatic partners, and has threatened to nationalise foreign assets in Venezuela without market value compensation (or negotiation of value). He has been accused of funding and supplying weapons to guerrilla forces in Colombia and elsewhere in the region, as well as providing illegal cash payments to sympathetic politicians in other countries (the most prominent being a money-for-influence scandal involving president Kischner of Argentina). His government is accused of replacing the kleptocratic oligarchy of the Accion Democratica and COPEI governments in the past with red-clad slogan-spouting thieves in the present.

With oil prices in decline and demand slacking, lower anticipated revenues means budgetary shortfalls will hit hard this year, forcing Chavez to curtail some of his spending projects. Some argue that is why he pushed for the re-election referendum now, before the recession bottomed out, so that he could impose austerity and betray his campaign promises by force. There are signs of organised anti-semitism among Boliviarian militias and para-military squads, and there are reports that student activists as well as wealthy opposition figures have been the subject of intimidation, beatings and arbitrary arrest. Yet, the elections that Chavez wins, and the referenda that he holds, are inevitably characterised by impartial observers as fair and clean, so such acts would appear to be unecessary in any event. Since Chavez has a fair dose of political smarts, why would he authorise activities that were not needed given his popularity and ability to rule in a transparent fashion?

To be sure, being anti-imperialist does not mean that he is democratic. Engaging in popular redistribution programs does not mean he is democratic. Enjoying a large positive majority in public opinion polls does not mean that he is democratic. But what all of this does mean is that unlike the Latin American military dictators of the 1960s through the 1980s (all backed by the US), he can walk the streets of Caracas without fear of a riot–and not because his armed supporters surround him. Thus the question must be asked: even if he annoys Western powers, irritates neighbouring governments, buys favours at home and abroad and exhibits messianic and narcissistic traits that are at times both intemperate and intolerant, is it not for Venezuelans to decide what he is and  is not? Although he can continue to run for office, so long as elections remain free, fair and the standard for leadership selection, and even admitting the advantages that go to an incumbent such as he (where he can use the entire state machinery to mobilise his supporters), it is that mechanism–the institutionalised uncertainty of elections–that ultimately allows Venezuelans to decide whether Boliviarianism is a benefit or a curse. The combination of free elections, the need to address social problems in a non-partisan way, and the uncertain fortunes of a sclerotic  oil-dependent economy are the best hedge against further personalisation and authoritarian hardening of the Boliviarian dream.

Progressive bills and freedom of information

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No Right Turn is running a wiki for the development of Progressive bills, it’s a great opportunity to figure out some progressive possibilities and get them happening. So if there’s any way you’d like to make NZ more progressive, and you can imagine it being achieved through a private members bill this is the place for you! :)

I”m currently struggling with how to improve our freedom of information legislation, the Mexican model has some real possibilities, but it’s not as easy as one might hope.

My goal is two fold, firstly to extend the amount of information made available (extending it to Parliament and so on) and secondly to make it harder for agencies to game.

My experience with OIAs is that some agencies are lovely, when others require chasing, more chasing before they provide incomplete and overdue responses (at which point the Ombudsmen can sort it out), but it makes a mockery of the current rules, and is unreasonably time and energy intensive. I’m not sure whether legislative change would fix it, or whether a fundamental cultural change is required

The principle underpinning freedom of information is that it’s our information and our government; and that transparency increases justice, fairness and accountability, yet many agencies behave as if they have a right to secrecy and evasion. What would change the attitude?

What does at mean that they’re “one of us”?

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Over the last couple of weeks there’ve been a number of threads floating round blogs about what it means when “one of us” does something wrong.

Tane has a great post at The Standard about Bruce Emery’s conviction

Let’s not pretend for a second that Emery would have got off so lightly if he was an unemployed Maori and his victim a middle class Pakeha child, tagger or not.

Tim Selwyn and Deborah express similar sentiments. Being one of us has elicited public sympathy and a reduced sentence, as Deborah wrote

Being a white middle class man is a mitigating factor.

Luddite Journo takes the next step to look at the victim rather than the murderer, in a piece titled You can only be a victim if you own a house she writes

Much of New Zealand identifies with only one person in this case – and it’s not the boy who was killed. 

[As an update, Morgue has a great post in which he suggests that the issue is not the treatment of people-like-us, it’s our treatment of people who are not like us. Emery got appropriate empathy, but we don’t extend it to others]

On similar themes but different incidents Maia writes two posts about why we try to construct rapists as other, and all over the media and blogs people struggle with the way Paula Bennett is one of us but her grandchild’s father is not.

Why is it such a contentious issue? Because is all the bad things in the world are the fault of other people we can sit back and do nothing. This view is well illustrated by Stuart at StuRants:

I’ve now realised there are at least two New Zealands: the one I live in, and the one where all this stuff happens. As yet, the two have never intersected, but until they do (and may God spare me that misfortune!) I refuse to feel bad about it.

This is somewhat at odds with the prevailing politically correct argument that when a child is beaten to death or whatever we are all responsible. Sorry, but no. I can’t think of anything I could have done to cause these things, or anything I can do to stop it happening.

The reality is that people like us kill people, and those killings are just as wrong as the ones that are committed by criminals on benefits in state houses. The domestic violence, rapes and child abuse that is committed by the educated middle class is just as damaging as any other kind. It is only by accepting that these terrible things are done by people like us that we will learn to stop them.

Is New Zealand Unsafe?

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The Dutch travel advisory on New Zealand, which followed two violent assaults on Dutch tourists this summer, places Aotearoa alongside other destinations such as the Congo, Sri Lanka, Nepal and Brazil as places where tourists are targets of criminal, as opposed to political violence. Criminal targeting of tourists in New Zealand is neither new or surprising; in fact, it has  a rather long history. What is apparently new is the escalating violence of crime in New Zealand, not only against tourists but against the population at large. In fact, it is locals, not tourists who suffer the brunt of criminal violence in this country. That much is obvious.

But what are the causes for the upsurge in violence, and what can be done about it? This is one area where the Left are at a disadvantage, as Right anti-crime advocates can always use the issue of personal responsibility and the  “get tough” canard as their rallying cry (as ACT did this past election). To that the Left has a variety of responses, most centred on decreasing poverty rates, decriminalising various low-level offenses and focusing on rehabilitation rather than punishment of offenders. But then the media offers more stories about more rapes and murders, gang intimidation. bail violators, increasingly aggressive boy racers, thuggish taggers and their angry (and armed) detractors, home invasions, domestic violence, child abuse and murder, all seemingly nurtured in a climate of police ineptitude, indifference, bias and corruption. For the pubic at large, the news is bad on all fronts, and it spells one thing: the criminals are winning, and the Left have no response other than to wring their hands.  The last election clearly shows that the NZ public are not buying the Left approach to criminality, so new answers need to be formulated.

It is easy to point at alcohol and P as the cause of increased violent crime. It is easy to blame the vulgarisation of social discourse. It easy to blame failed families, the deleterious impact of the dole in creating generations of welfare addicts, the failings of the education system, bad role models in sports and pop culture, the influence of pernicious foreign music and video and their local imitators. It is easy to blame race or cultural factors. It is easy to push for tougher sentences and bigger prisons (even private ones). But is that really getting to the heart of the problem? Could it be that there is something at the heart of the NZ collective psyche at the beginning of the 21st century that has given foundation to the urge towards violence? Or is the issue structural?

Put another way. Could it be that in NZ the neoliberal-inspired, market darwinist experiments of the last 20 years have coupled with a pre-neoliberal bullying, raping, drinking, patriarchical and xenophobic culture to terminally erode notions of collective solidarity and empathy and replace them with an over-exalted hyper individualist ethos in an environment of ostentatious material wealth, shallow celebrity culture, over-the-top conspicuous consumption and increasing income inequality? (Now THAT was a mouthful!) Under such conditions, where the gap between the haves and the have-nots grows exponentially while the dominant socioeconomic themes  are for individuals to maximize their opportunities regardless of consequence, could it not be that this offers a social sub-text that extends past the “greed is good” mantra of radical libertarians and into the rationalisations of the criminally minded? Could it be that there is an ugliness inside the NZ collective psyche that was raised to the surface by two decades of market-driven prescriptions and the material dislocations they brought to both traditional and new members of the local underclass–an underclass that now finds emulators throughout the social spectrum? Could it be that a culture that produced Ed Hillary and Willie Apiata produces them only as exceptions to a general rule of selfishness and latent rage that takes just a minor provocation or enticement to be unleashed? Could that be the root of the problem?

Of course, issues of police competence, individual responsibility, generational dysfunctionality, and punishment versus rehabilitation need to be addressed by the Left in a way that does not cede the floor to the Right when it comes to tackling the issue. But where the Left has its best argument is in the socioeconomic bases of increasingly violent criminality in NZ, and it is in that argument that the Left’s solutions to the issue may be found. One thing is for sure: tax cuts will not solve the problem, and until then New Zealand has become a country that for  locals and tourists alike is alarmingly unsafe. I am no criminologist, so must defer to those who are when it comes to formulating a comprehensive remedy for the problem of increasingly violent crime in NZ. But I can say this: Above all other issues of domestic policy, it is this issue that the Left needs to confront if it is to regain political credibility in the eyes of the (scared) electorate.