Category: identity

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It’s official*

* (As official as a 1,000-person phone poll can be, anyhow.)

Māori support for Phil Goff after “blue collars, red necks” is very low — 18% among all respondents, and 36% among Labour voters. That’s dire. (Full Digipoll results here.)

So, if these numbers are to be believed, (also with the proviso that this rot probably began before the Nationhood speech) the first part of my critique is borne out: Labour under Phil Goff will struggle for support among Māori, without serious and long-term remedial work. The two other points of my critique remain open: that it is philosophically unjustifiable for a progressive left party to betray a loyal support base and its quest for tino rangatiratanga in this manner; and that the corresponding long-term increase in support among the “social conservatives” in the working class, who were the targets of the strategy, will probably not make up for this loss (and the negative-sum effects of depressing Māori turnout). I’ll watch with interest.

What’s interesting is that Goff’s rhetoric has moderated substantially since December. Goff and Pagani seem to have lost their nerve. This is potentially the worst of all possible worlds for Labour’s electoral fortunes: they have rightly been tarred with the redneck brush, probably alienating Māori and social liberals in important numbers, but not sustained their narrative for long enough to turn the targets of their appeal away from National. Double loss in electoral terms; but I think something of a gain in strategic terms for the party.

Long may their nerve to continue this ugly business remain weak.

L

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“The many, not the few”

This is the theme of Phil Goff’s State of the Nation speech today, according to early coverage. And would you look at that: it’s even up on their website.

It’s a sound speech full of bread-and-butter Labour appeals, not too heavy on the wonkish details, and it doesn’t spare anyone who oughtn’t be spared, targeting a range of elites: Finance company sharks, big business shysters, benefit fraudsters, nearsighted property developers, the honours list, public sector CEOs. Also obligatory references to education, justice and community systems failing young people, which ties into a small serve for the māori party (not named) about the Foreshore and Seabed Act and Tino Rangatiratanga flag, although wisely appealing to Kelvin Davis’ mana rather than Phil’s own, which shows that while he still doesn’t really get tino rangatiratanga, he at least realises that it’s a topic to be treated carefully. Also the absence of a direct attack on the māori party or its principals themselves is a good sign for future reconciliation; an indication that Sharples’ hints of recent weeks that the two parties retain much in common have been understood.

It speaks to the continuing narrative that the government is coasting on a gradually improving economy which has turned out to be much less dire than predicted — a good choice given the same chord has been struck by people like Matthew Hooton in the past week, and playing into Key’s “relaxed” persona. This narrative will stick.

It’s a solid speech, but not a great one. I didn’t hear it, perhaps you had to be there, but this is largely pedestrian stuff, and while “the many, not the few” is an excellent platform for any social democratic leader, this needed to be a speech which burned bright, not one which smouldered. The biggest reason it didn’t, for me, was because it wasn’t clear about who its audience was.

The collective noun of choice, something over which important battles have been fought in recent years, was generally “all new Zealanders”; sometimes “(hard)working New Zealanders” or “working families”. I’ve argued before that the first (“all New Zealanders”) is too broad except as a rhetorical device, and this was an opportunity for Labour to drive home it’s “the many, not the few” focus by telling us who it stands for, to clearly frame of who “we” are to Labour, and to oppose it to who is meant by National’s “we”. You can’t win 100% of the electorate, and you shouldn’t try: if your position isn’t pissing a fair chunk of the polity off (your ideological enemies) then it’s probably not doing much for your friends, either. Mealy-mouthedness is the bane of effective political engagement.

If Labour represents “all New Zealanders” then, by definition, it represents the few as well as the many, and you can’t base a political appeal on that. You can’t represent both the interests of the minimum-wage workers and the stuggling middle classes and the disenfranchised urban poor and the sharks and speculators and fat cats you claim are leeching off them: you need to distinguish one from the other and say: “we work for you, not for those guys”.

This is implicit through the speech, but it must be explicit, and must be repeated over and over, forged as a bond of identity with a Labour party from whom the electorate feels disconnected. All the good policy initiatives in the world won’t save Labour unless it reconnects and re-engages its base, and it can’t do that until it sorts out who its base is, and lets them know. This speech could have done that, but it didn’t.

L

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A little sanity from Laws

I often find myself thinking of a saying which I’ve seen variously described as Arabian, African and Chinese, but which I’m pretty sure every culture has in its own version:

At the hearth: me against my brothers. In the house, me and my brothers against our cousins. In the village: me, my brothers and our cousins against our neighbors. Outside: me, my brothers, our cousins and our neighbors against the world.

Michael Laws and the formerly-divided Wanganui District Council have unanimously condemned the adoption by media (TVNZ, Radio NZ and other outsiders) of the standard Māori pronunciation of “Fonganui”, while quietly endorsing the new “Whanganui” spelling as an official alternative. In an expression of the last phrase of the proverb above, the council also resolved to “work with local Māori leaders to draw up a guideline for national media and organisations as to how the city should be pronounced.”

Quite apart from being an almost unprecedented — and very welcome — indication of goodwill from Laws and his settler-majority council toward tangata whenua, this also marks a subtle shift away from the bombastic demagoguery of the h debate to a sort of diplomacy, perhaps a realisation that civil society solutions to complex political identity problems come about by education and negotiation; they require change by consent. This was the fundamental difference between the pro-h and anti-h arguments in the great h debate of oh-nine: the anti-h position was presriptive, insisting that it had to be a “Wanganui” for everyone with no tolerance for dissent. The pro-h position was about recognition, insisting that “Whanganui” be acknowledged as having preeminence, but not enforcing this usage in an absolute fashion.

But ultimately (although Laws and the council may not have gotten this point) pronunciation is a different question. Pronunciation and dialect in Māori remains an expression of a speaker’s rangatiratanga. Māori was, and to a large extent remains a dialectic language where howyou say something provides important context about who you are and what you’re saying — a concept somewhat unfamiliar to many Pākehā New Zealanders who are used to a reasonably homogeneous accent, but one which will be very familiar to anyone familiar with the USA or the UK. This is why you’ll hear Māori from elsewhere in the country pronouncing it “Fonganui” without much objection from Whanganui Māori, and why you’ll hear Whanganui Māori pronouncing “Whakatane” as “Wakatane”, as well as “wānau” or “ware” or “wakarongo mai”, and while it may draw sniggers from speakers of other dialects, it is generally recognised as a manifestation of Whanganuitanga to speak this way. For their part the Whanganui (and Taranaki*) Māori are proud of their dialect much as Texans or Geordies are. Tariana Turia, in speeches, has described just such situations, such as when visiting relatives from the Tongariro region, the children teased her for poor pronunciation. Far from being ashamed by this, it was a small source of pride for her and a matter of her own mana and Whanganuitanga, a recognition of the small differences between relations which throw the much more important commonalities into sharp relief.

All this is a somewhat roundabout way of saying that, while it’s wonderful that Laws and the council have seen the need to ally with their cousins and neighbours against the world, and moreover have (apparently) seen the need to do so in a diplomatic and non-coercive manner, this is a battle they simply may not win because there is an important distinction between standing on your own mana and trying to force others to adopt your ways, requiring them to sacrifice their own mana in doing so.

L

* Māori Language Commissioner Ruakere Hond is leading the campaign to promote the Taranaki dialect.

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More flaggery

Interesting discussion about flags going on at John Ansell’s blog and Kiwiblog and elsewhere. Go and vote on your favourite fern flag. I’m all for a new flag, but these designs are too logo-ish for my taste. Flags seem to me like the sort of things which ought to be made up of geometric fundamentals. That having been said, I think Ansell’s design A is emblematically the strongest, but I don’t think solid black is an appropriate colour for a national flag. If pressed I would reluctantly choose E or C. Is there an obvious reason why green and black aren’t paired somehow?

Fun thought: would the monarchists and traditionalists and nationalists be claiming victory if the government decided to adopt a new national flag which crown agencies would use, with the proviso that other folks could use the old flag if they wanted?

L

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Bhadge

I’ve been very busy again this past week, and so the list of things I want to write about copiously exceeds my ability to write about them. My promised post about internecine disputes is in very early draft form but I’ll try and get it finished soon. I still have a post planned looking at the wider implications of the foreshore and seabed review, but I think that’ll have to wait until after I’ve painted the roof.

yep_im_a_redneck_button-p145980559379977550q37f_400I also wanted to write a lot about the final outcome of the h debate, but find that my views have already been pretty well encapsulated by Andrew Geddis and Idiot/Savant. You should also read Scott Hamilton’s latest on the wider topic of Pākehā separatism.

Given that the decision declares both ‘Wanganui’ and ‘Whanganui’ correct, but mandates crown usage of ‘Whanganui’, there’s as clear an implicit statement as can be that the latter is more correct than the former. This has been clearly understood by TVNZ and Radio NZ, who have adopted the latter usage as a matter of editorial policy. They are owned by the crown, after all, and both just happen to be in direct competition with Laws and his media employer. Permitting both spellings but making this declaration as to primacy was a move as shrewd as it was elegant by Maurice Williamson — similarly to John Key’s decision to permit the flying of a Māori flag if only Māori could agree on one. Michael Laws, Tariana Turia and Ken Mair have all claimed victory, so everyone with an actual stake is nominally happy. The Standardistas and the KBR are furious, which is a pretty good sign. It obviates the strongest symbolic position occupied by Laws, the idea that Wellington is coercing Wanganui into doing its PC bidding. Wellington need not — the rest of the country will do that, because the use of the no-h word will be an identity marker, a statement, like a badge; not quite “Yep, I’m a redneck” but something approaching it. The thing is that Laws and his rump of greying die-hards do not simply face a disorganised and discredited bunch of radical natives; they find themselves standing against the inexorable tide of civil society and its evolution, a youthful and browning population for whom biculturalism is the norm and separatism stopped being cool a generation ago (if it ever was).

Who knew that all Michael Laws wanted for his cause was an emasculating partial endorsement and a prolonged death sentence? He could have saved everyone (and his own reputation) a great deal of trouble by making this plain at the beginning. In other circumstances, I would be angry about everyone having been taken for a ride — but as it stands, I’m mostly just quietly pleased that civil society’s tendency toward self-correction will be left to do its thing.

L

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The flag: politics either way

It’s impossible to ignore the fact that every single one of those Māori I’ve heard speaking out against the tino rangatiratanga flag has a tribal axe to grind. Shane Jones, Kingi Taurua, Pita Paraone, Winston Peters — they’re all from the iwi of that group of rangatira who established the United Tribes of New Zealand confederation under Busby in 1835, in the Tai Tokerau. They, naturally enough, want the United Tribes flag flown instead of the one which represents the aspirations of wider Māori. The root of this claim is the belief among those groups that theirs was the ‘state of origin’, as it were — the first actual state in these lands. That’s a complex and disputed claim but regardless, the belief abides, and this sense of primacy is no small part of the reason that so many of this country’s Māori statesmen and women, great thinkers and inspirational leaders, come from the tail of Te Ika a Maui.

They say there’s an ulterior motive in the flying of the tino rangatiratanga flag on the part of the māori party, who have adopted it as their own, and I accept they have a case. They also have a case to argue that the United Tribes flag should be flown — especially at Waitangi Marae (Te Tii), where the choice belongs solely to mana whenua. But let’s not pretend there’s no ulterior political motive on their part: they have every reason to decry the flag as ‘separatist’ and ‘divisive’ in order to fly their own. Not only that, but the motive is no more unanimous among Ngāpuhi than among other Māori — the tino rangatiratanga flag is supported (obviously) by Hone Harawira, and was designed by Hiraina Marsden, the daughter of the Rev. Māori Marsden, one of the most important philosophical figures of that iwi, and a mentor to Shane Jones and many others. So the political motives in play are much more complex than they appear.

As for Winston Peters’ objection that the tino rangatiratanga flag is ‘political’ — was there ever a more ridiculous assertion? The whole purpose of such a flag is to symbolise and propagandise political identity, to provide it focus and expression. The United Tribes flag is no less political than the tino rangatiratanga flag — and so it becomes a matter of picking which symbolism is more appropriate.

On the one hand we have a long historical pedigree, and a flag which represents the early unity of the NZ proto-state and the formal beginnings of collaboration between tangata whenua and tau iwi, but which actually represents only a small subset of the Māori population and whose political cause (to establish a client state sympathetic to the English in their manouvres against the French) was superceded by the Treaty of Waitangi only a few years after its establishment.

On the other, we have a relatively new flag, one whose symbolism and history is exclusively Māori, rather than being part of a wider game between colonial powers; a modern flag representing modern, rather than historical aspirations but which has, to an extent, been hijacked by the radical movement.

For me, it comes down to the process enacted by the government: wisely, instead of deciding by fiat, John Key instructed Māori to decide, and decide they did, with more than 80% of the 1200 submissions in favour of the tino rangatiratanga flag. This is not to side with majoritarianism, but to say that choosing another flag would have been manifest politicking. Better from Key’s perspective to devolve the decision and allow an age-old struggle to re-emerge: he looks statesmanlike, and both his erstwhile political friends and his enemies get bogged down in internecine fighting. I had hoped it wouldn’t happen; and it might yet prove minor. But the issue won’t go away — nor should it.

L

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Back away slowly

Update: This post was a response to an attack on me by Chris Trotter. Since it was published, Chris has graciously apologised for writing it, and for the general bad blood between us. He has deleted the post from Bowalley Road, and I give him my hearty thanks for the reconsideration.

I have also been culpable in this rather nasty exchange, which stretches back almost a year. For that part in it I, too, must apologise. While I retain strenuous objections to Chris’ political positions (as I’m sure he does to mine) these needn’t have become personalised, and are better discussed calmly as befits reasonable adults. While they may yet prove intractable, it should be possible for people in a free society to hold irreconcilable differences and yet remain civil. Much heat, and too little light, has emerged from this meeting of political minds, but I think there is potential for future engagement between Chris and I based on some sort of goodwill and tolerance rather than upon vituperation and political posturing, and I will do what I can to cultivate it.

While Chris has deleted his post, I do not believe in tampering with the historical record in that way. While I might regret things I’ve said, I won’t pretend I didn’t say them. And so the content of my response remains below the fold. It should be read with the subsequent context and this apology (and pledge to more constructive engagement in the future) very firmly in mind. In fact, the most worthwhile thing by far to emerge from the dispute is an unexpectedly useful discussion led by commenter “Ag” on the nature of class consciousness and electorate rationality: I commend that discussion, rather than the post from which it emerged, to the KP readership.

L

Continue reading “Back away slowly”

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‘Blue collars, red necks’: triply flawed

To those who stick up for their identity, socialism sticks up two fingers!
To those who stick up for their identity, socialism sticks up two fingers!

In the coming years, core tenets of socialist and indigenist faith will be tested. Labour, with its recently-adopted ‘blue collars, red necks’ strategy, has struck out along a path which requires a large slice of its core constituency — Māori — to search their political souls and choose between the renewed Marxist orthodoxy which privileges class above all else; and the progressive social movements developed over the past three or four decades which have produced a society tolerant enough to permit their unprecedented cultural renaissance.

The strategy indicated by Phil Goff’s speech appears to be substantially based on the simple calculus, most forthrightly argued by Chris Trotter, that ‘social liberals’ are fewer in number than ‘social conservatives’ among the proletariat, and therefore an appeal to ‘social conservatism’ will deliver more votes than the equivalent appeal to ‘social liberalism’. This is couched as a return to the old values of the democratic socialist movement — class struggle, and anything else is a distraction. But because the new political strategy is founded upon an attack on Māori, it requires that working class solidarity wins out over indigenous solidarity and the desire for tino rangatiratanga in a head-to-head battle. Māori must choose to identify as proletarians first and tangata whenua second. Similarly, the māori party’s alignment with National and subsequent intransigence on issues such as the Emissions Trading Scheme asks Māori to privilege their indigeneity over material concerns.

An article of faith of both socialist and indigenist movements is that their referent of political identity trumps others: that all proletarians are proletarians first, and that all indigenous people are indigenous people above all else. In the coming years, unless Labour loses its bottle and recants, we will see a rare comparison as to which is genuinely the stronger. Much of the debate which has raged over this issue, and I concede some of my own contributions in this, has been people stating what they hope will occur as if it surely will. For this reason the test itself is a valuable thing, because it provides an actual observable data point upon which the argument can turn.

A spontaneous interlude: I write this on the train into Wellington, in a carriage full of squirming, shouting, eight and nine year-olds on a school trip to the city. In a (rare) moment of relative calm, a few bars of song carried from the next carriage, and the tune was taken up enthusiastically by the — mostly Pākehā — kids in my carriage.

Tūtira mai ngā iwi (aue!)
Tātou, tātou e.
(In English:
Line up together, people
All of us, all of us.)

Read into this what you wish; one of life’s little rorschach tests.**

Clearly, I don’t believe Māori will abandon the hard-won fruits of their renaissance for a socialist pragma which lumps them and their needs in with everyone else of a certain social class, which in the long term would erase the distinction between tangata whenua and tangata Tiriti. This distinction will fade with time, but that time is not yet come. For this reason I believe the strategy is folly at a practical level. Add to which, the appeal to more conservative social values was always going to be strong among Māori and Pasifika voters, so the left and right hands (as it were) of the socialist conservative resurgence seem unaware of what the other is doing: with the left hand, it beckons them closer, and with the right it pushes them away.

My main objection to the ‘blue collars, red necks’ strategy is not practical — although that would be a sufficient cause for opposing it. The main reason is because of principle, and this question turns on an assessment of the left in politics. Trotter and other old-school socialists (and presumably Pagani and Goff and the current leadership of the Labour party) believe that the left has been hijacked over the past generation by non-materialist concerns and has lost its way as a consequence. I believe that the wider social concern with non-material matters has saved socialism from its own dogma.

Largely discredited as an economic system and its legacy irretrievably tarnished by the catastrophic failure of practically every implementation, socialist-aligned parties on the left have been forced to diversify from a strict focus on what’s in the pockets of the proletariat to what’s in their heads — what they care about and who they are, their identity beyond being ‘the proletariat’. In doing so these movements have embraced liberalism, social equality movements, and environmentalism, and the resulting blend, termed ‘progressivism’ has become part of the political orthodoxy, such that the political right must now pay at least some mind to these considerations if it is to remain viable. This broadening, and the progressive movement’s redefinition of what is right by its general and gradual rejection of racism, sexism, sexual and religious discrimination, among others, has been hugely beneficial to society. For reasons of principle, it should not be discarded out of cynical political expedience.

Furthermore, maintenance of the social liberal programme has strategic, pragmatic value. It has enabled left political movements to broaden their support base and engage with groups often marginalised from politics, breaking the previously zero-sum rules. The modern Labour party has built its political church upon this rock of progressive inclusion, broadening its support base by forming strategic alliances with Rātana from the time of the First Labour Government and less formally with the KÄ«ngitanga and other Māori groups, to which the party owes a great deal of its political success. The progressive programme has broadened to include other groups historically marginalised by the conservative establishment. For Labour to shun its progressive history and return to some idealised socialist pragma of old by burning a century of goodwill in order to make cheap electoral gains by emulating their political opponents is the same transgression many on the economic left have repeatedly levelled against the māori party, and with some justification: selling out one’s principles for the sake of political expedience is a betrayal, and betrayals do not go unpunished. In this case, the betrayal is against the young, who will rapidly overtake the old socialist guard as the party’s future; and Māori, who will rapidly overtake the old Pākehā majority in this country’s future. The socialists might applaud, but Labour represents more than just the socialists, and it must continue to do so if it is to remain relevant.

So, for my analysis, the ‘blue collars, red necks’ strategy fails at the tactical level, because it asks Māori to choose their economic identity over their cultural identity; it fails at the level of principle, because it represents a resort to regressive politics, a movement away from what is ‘right’ to what is expedient; and it fails at the level of strategy, because by turning its back on progressivism the party publicly abandons its constituents, and particularly those who represent the future of NZ’s politics, who have grown up with the Labour party as a progressive movement. It is triply flawed, and the only silver lining from the whole sorry affair is that (again, if Goff and Pagani hold their nerve) we will see the dogmatic adherence to class tested and, hopefully once and for all, bested.

L

* Of course, Goff claims it is no such thing. But Trotter sees that it is and is thrilled, and John Pagani’s endorsement of Trotter’s analysis reveals rather more about the strategic direction than a politician’s public assurance.

** I see this as an expression of how normalised Māori-ness is among young people, and as much as can be said from the actions of nine-year-olds, an indicator of NZ’s political future.

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Legal Utu in a Colonial Court?

A little over two years ago the so-called ” anti-terrorism” raids were carried out by the Police against activists in Ruatoki, Wellington and Auckland. The media frenzy that immediately followed focused on reports of “paramilitary” training camps, where, according to Helen Clark, “napalm” bombs were being made, weapons training was ongoing and plots were being hatched against a  variety of political figures, among them George W. Bush. Police affidavits were leaked to the press that detailed the “evidence” collected by covert means, and profiles of the more flamboyant of the defendants were splashed over the tabloids, radio and television. Almost immediately, multiple charges were laid under the Firearms Act 1983, but a few weeks after the raid the Solicitor General decided against laying charges under the Terrorism Suppression Act (TSA) because he deemed the TSA to be “unworkable.” This was a blow to the government’s case because much of the surveillance done in the build-up to the raids was authorised under provisions of the TSA. Even so, the government pressed ahead and in the months that followed arrested 3 more people and (a year after the raids) charged five of the original defendants with the additional count of  “participation in a criminal gang” (Tame Iti, Rangi Kemara, Tuhoe Lambert, Emily Bailey and Urs Signer). What all of the defendants have in common is that they are well-known and often outspoken critics of the NZ state, the US and capitalism in general. Beyond that they are a mixture of anarchist, environmental and indigenous sovereignty advocates (and at least one unhinged individual) united by their common disdain of the status quo. For background on the events and immediate response to the raids, see the trilogy I wrote for Scoop in the weeks that followed: here, here, and here.

With no terrorism angle to report on, the media lost interest and the story died. But what has become of the Urewera 18? (2 of the arrested have been discharged without conviction or had charges dismissed). Here I shall provide a brief update and make note of some ironies.

The Urewera 18 are represented by 14 barristers and numerous solicitors, with Rodney Harrison QC (of Zaoui case fame) recognised as lead counsel and Annette Sykes given special status by the Court with respect to the tikanga of Tuhoe and implied license. Proceedings have dragged on for more than two years, and like the Zaoui case, it is likely that they will continue for at least another year (reports are that the first available trial date is in 2011). Given the numbers of defendants and legal counsel involved, this means that the taxpayer bill for the prosecution of the case will dwarf the NZ$2 million spent in the futile attempt to refuse Ahmed Zauoi political refuge. The cost for the defendants, emotional as well as material, is similarly high.

As for the substance of the case against the Urewera 18, let us begin with the charges. Other than the criminal gang accusation and a common charge of possession of restricted weapons (presumably related to incendiary devices), all else fall under the Firearms Act of 1983. After some legal wrangling, the charges have been bundled together as ‘representative’ charges so as to make the number of charges more manageable. In other words, in early depositions each defendant was charged with possession of each gun at each camp, resulting in hundreds of charges. That has now been amended to a single charge for possession at each camp (.i.e. each individual visit to the Ruatoki bush camp resulted in one firearms charge). As an example, when arrested one defendant originally faced 3 charges, then at depositions the number of charges  rose to 13, but now has returned to the original 3 charges. Even so, the number of individual charges is in the dozens.

With regard to bail. Remember that in their original statements the Police were opposed to bail for the accused, citing the imminent threat they posed to the community. That has all changed. The most onerous bail conditions have been lifted and travel restrictions relaxed although not completely removed. It is my understanding that Tame Iti will again travel to Europe this summer to perform more Shakespeare (Iti was allowed to travel abroad earlier this year in order to participate in theatrical productions in Europe) and Urs Singer has been allowed to visit his ailing parents in Europe as well (the irony of Tame Iti doing Shakespeare in European theaters–as a sort of cultural ambassador, if you will–while on trial in NZ is not lost on me, but I shall avoid mentioning that in my summation below simply because there are other ironies worth noting. But it does point to how serious a threat to the security of Aotearoa he is considered to be by the government).

Then there is the issue of the means by which the case was constructed, to wit, the human and electronic surveillance and wiretaps used to monitor the accused. The Solicitor General’s decision to not invoke the TSA proved to be problematic for the government’s case, since much of the means by which the activists were tracked and evidence gathered were only allowable under the TSA. With no TSA charges on the menu, the admissibility of the evidence collected under its provisions was open to legal challenge. That soon came.

In August, applications  were made by the defense that all search warrants, in-person covert surveillance (conducted by the Police Special Tactics Group) and stationary covert cameras were illegal. By and large, the defendants won that part of the argument. In September the presiding judge declared at least 6 of 9 warrants illegal, specifically declaring illegal all in-person covert surveillance and stationary cameras. The latter was deemed illegal because the police trespassed onto private land in order to install the cameras (it is not currently possible to get a warrant for surveillance cameras on private property in NZ). The Police Special Intelligence Group tried to justify its actions by claiming in retrospect that they sought judicial oversight in doing so (presumably with reference to the TSA). In reality, they knew at the time that they couldn’t get warrants for such activity without the TSA, but did so anyway. Now that evidence is inadmissible. Even so, the government won on excluding text messages, and it remains to be seen whether the defense will challenge that ruling in the Court of Appeal. (A good summary of the decision is available here).

 The second stage of this application was heard in September and a decision is still pending. Under Sec 30 of the Evidence Act, in order for evidence to be ruled inadmissable, it must be found to be both illegal and unreasonable. This differs greatly from the US where it follows quite logically that activity which is illegal is by nature unreasonable, but the police in NZ are given a much greater benefit of the doubt on this matter. This is an important distinction, because that means that even if the evidence is deemed to have been illegally obtained, it still can be ruled admissible in a NZ Court if it is deemed “reasonable.” QC Harrison has consequently made submissions about why inclusion of this evidence was unreasonable. The main thrust of his argument is that the police’s trespass was sustained, deliberate and knowing. It happened over a period of nearly a year on land that was clearly private property. The judgement is still pending on this part of the defense motion. Whoever loses is very likely to appeal because the case could well hinge on the disputed evidence.

In the last weeks  the defense has making an application for a stay of the proceedings based on pre-trial publicity. In essence, that the case has been so prejudiced that the Urewera 18 cannot get a fair trial. Interestingly, the most recent  precedent for such an application was made by the same two lawyers on behalf of the two suspected Mossad agents who
were arrested for attempting to procure false passports in 2005.

The defendants are next due to appear in court in Auckland in mid-December. For those interested, the hearings are open to the public but those attending should expect increased security measures and the possibility of Crown objections to their presence if it is considered injurious to their case (the Crown has already objected to filming of the hearings for documentary purposes).

So what are the ironies of the case so far? Well, for starters there is the parallel with the Zaoui case. In both instances the government began by throwing out unfounded accusations of “terrorism,” only to see their case for it crumble under legal scrutiny.  For all the talk of terrorism, it was the Police Special Tactics Group, not the counter-terrorism component of the NZSAS or the specifically-trained Counter Terrorism Tactical Assault Group (CTTAG) who conducted the surveillance and led the raids (which indicates that the government did not take the threat of terrorism seriously enough to justify use of the forces designated for that role). The money spent on the prosecution and legal defense of both cases is also on a par, if not more in the latter instance.

Another irony is that the arms dealer who (allegedly) supplied information to some of the defendants about how to construct silencers, on how to modify a starter’s pistol into a real weapon, and who allegedly provided instruction on how to convert flare grenade launchers into the real thing, has not been charged with a single offense (reportedly due to his being a Police informant).

For its part, rather than strengthen criminal law to deal with politically-motivated criminal conspiracies in light of the “unworkability” of the TSA (thereby avoiding the authoritarian penchant to create a different category of “political” crimes labeled as “terroristic”), National has re-introduced a Search and Surveillance Bill first proposed by Labour last year in which powers of search and surveillance would be expanded dramatically (to include warrantless searches, eavesdropping and tapping of computers and phones) by a broader range of government agencies–including local administrative authorities! The irony is that, rather than use the Urewera case as an example of how NOT to conduct a criminal investigation against political dissidents, the government has instead moved to relax legal restrictions governing covert monitoring of suspects, including on private property (i.e., the exact practices that were deemed illegal in September by the presiding judge in this case).

But the ultimate irony may be this. According to defendant Omar Hamed, “October 15 was a reminder that the state is not our friend. It is a violent, colonial, racist institution that serves the interests of the corporations and the ruling class. Well organised, anti-statist, defiant communities pose a threat to the state and colonial capitalism…” (taken from a passage included in the exhibition catalogue for the Arts auction “Explosive Expression” held to raise funds for the Urewera 18 on October 16, 2009 in Wellington). And yet it is this purported colonial, racist and corporate justice system that has allowed the Urewera 18 to formulate and fund a defense that has successfully challenged the case against them so far. It would seem that, at least in this case, utu  (as both justice and revenge) does in fact come in colonial garb.

My view is that by the end of the process a majority of the defendants will be acquitted and only a handful will be convicted of minor firearms violations. It will be left for the NZ public to decide whether the entire affair was worth the effort, and whether indeed, if ever, there were the makings of a terrorist plot percolating in the Ureweras.

PS: I have some inquiries out at the moment that might allow me to update the status of the case. If so, I shall do so post haste and append a notification at the end of this post.

PPS: This post has been updated to reflect my remembering of another irony regarding the government response to its failures in this case (see irony #3 above) as well some fine points regarding the charges.

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Foreshore and Seabed — indigenism, ‘One Nation’-ism, and internal division

In the first few days of July I began writing a post about the report of the Foreshore and Seabed Review Panel. Due to absurd busi-ness* I never got it finished. Since the government has this week responded to the review panel’s findings, two months after it undertook to do so, by kicking the issue to touch, I figure now is as good a time as any to examine the issue again.

First, let me begin by clarifying my position on the issue and the government’s handling of it. I have been vocal in my support of the māori party’s willingness to work with National in government, and their willingness to accept a range of lesser policy concessions in service of the repeal of the Foreshore and Seabed Act — not so much on the basis that it (the repeal) will necessarily result in a greater quantum of economic or social benefit than those other concessions might have, but on the basis that the decision is for Māori to make. The māori party, (it is often repeated, mostly by disgruntled Labour supporters) does not represent all Māori, and this is true — but inasmuch as it has kaupapa Māori foundations, it has a stronger philosophical claim to representat those māori who share that kaupapa basis than any other party in parliament; and on this issue in particular, a stronger mandate than the Labour party.

Indigenism

The striking thing about the review, and perhaps the reason for the tardy and incomplete response from the government, is that it is grounded in indigenist principles. It’s not the only indigenist policy document the government has kicked to touch in recent months: the NZGB recommendation that the spelling of Wanganui be corrected to Whanganui is another such thing. Indigenism, here used, is not so much ethnic nationalism (as it is usually given to mean) as a non-eurocentric philosophical basis; one which does not presuppose a Pākehā worldview or rules of engagement — a necessary quality in that sort of political action, but not in itself a sufficient quality. Linda Tuhiwai Smith’s book Decolonising Methodologies provides a clear explication of the practice of indigenist and indigenising research in the Aotearoa-New Zealand context.

The indigenist position derives largely from the choice of panellists (two of whom are Māori scholars) and from the scope of the inquiry, which explicitly gave the panel a mandate to assess the extent to which the FSA “effectively recognises and provides for customary or aboriginal title and public interests” in the foreshore and seabed. This accepted the facts of NZ’s constitutional and legal history and jurisprudence from the Treaty of Waitangi, the Native Land Court and more recently the Māori Land Court, the Waitangi Tribunal, and the Court of Appeal in the Ngāti Apa case: that there are customary rights; they are not a legal fiction or a ‘simple nullity’ as Prendergast had it. These were facts which Labour, claiming to be the natural party of Māori representation, needed a court to tell them — and they reached for the nuclear option of legislation when the court did so. This change is important because it lays the tracks for future legislative and legal events: because the review was conducted from an indigenist basis, the resultant action must necessarily take on an indigenist hue. This was the complaint levelled by all of the usual suspects when the panel was named — as if the job of assessing a dispute over historical rights and legal process could shomehow be neutrally conducted by those whose institutions were responsible for its ongoing rancour.

More than ‘One Nation’

The indigenist perspective embedded in the review process and its frame has resulted in the forthright rejection of “all New Zealanders” rhetoric and the homogenisation which that discourse implies. Diversity exists; different groups have different rights in custom and culture and in law; that reality needs to be carefully managed, not ignored or subsumed by a system which says “we all have the rights I think we should have, and not those which you value”. This is the central foundation on whcih the report and its recommendations stands. In the words of the panel:

the very real problem that arises from the populist notion of “one people” under one law is quite simply that it does not recognise – indeed denies – the fact of the ethnic, cultural and social diversity of our population, which we would argue considerably enriches rather than divides our society. […] We are acutely aware that the notion of “one people” is, in the main, rejected by Māori. Māori say that we are simply two peoples comprising one nation. They see the notion of “one people” emboldened within a western paradigm that is constructed upon those premises and values which underpin the majority culture, the effect of which is to deny their existence. Māori collective property rights have rarely been treated in law in the same way as have non-Māori property rights.

Indeed they haven’t. And there are different conceptions of property rights issues in play here — rights of heredity and customary usage. Submitter Edward Ellison on behalf of Te RÅ«nanga o Otakau:

What we’re talking about is the mana or rangatiratanga rather than what we might term title or ownership as in the narrow European concept. It just doesn’t do it justice and it can be easily turned against us.

It’s the same issue which resulted in widespread alienation of land in the half-century following the Treaty’s signature: Western legal paradigms of ownership didn’t recognise collective landholdings, so they assumed that lands were the possessions of a given rangatira (or just someone who claimed to be rangatira) to dispose of. The panel, again:

More importantly, throughout this country’s history Māori advocacy and claims have not been made on the basis of ethnicity but of inherited rights – just as non-Māori have made claims and had them met on the basis of inherited rights. Indeed, property and customary rights are not argued on the basis that people are ethnically Māori, but because they have historically inherited rights to specific areas and resources – in the same way as a non-Māori landowner is able to pass down his or her land and associated resources to their children, and so forth.”

This illustrates a point of framing which has shot clear through the discourse around the issue: most discussion is about entitlement or claims under the Treaty of Waitangi, underlined by the fact that tangata whenua have had to go cap-in-hand to the Crown and its authorities. This isn’t a matter of claims or entitlements: it’s about securing rights to resource access and exploitation which never lapsed. The ‘troughing modies’ argument simply ignores the fact that parts of the coast owned by private concerns can and frequently are passed undisturbed down through successive generations of landowners. Just because the resources in question have been handed down collectively in accordance with tikanga, and just because the holders of rights to those resources refuse to accept a Western paradigm of property rights, the claim should be no less valid. This is not to say, however, that the matter is strictly one of property rights. Fundamentally it’s a matter of adherence to the Treaty, which guaranteed tangata whenua the right to their cultural practices (part of ‘tāonga katoa’ from Article 2) which permit them to consider the issue in ways not limited to a strict property-rights interpretation imposed from without.

The excerpts above demonstrate a strong critique of the ‘one nation’ rhetoric, and the falsity of that discourse, in which a culture which is dominant both in terms of numbers and of power draws artificial and appropriative distinctions between transfer of rights and property which are deemed legitimate and those which are deemed illegitimate. This is the discourse which gave rise to Iwi/Kiwi and to the Foreshore and Seabed Act; they are cut from the same cloth. It is the discourse, and the self-serving assimilationism it represents against which the critique is levelled; not against the Pākehā establishment except inasmuch as the two are indistinguishable. Those Pākehā taking umbrage at the critique should, therefore, examine their own role in and allegiance to that discourse and the system which bred it; those who reject it and what it stands for have no cause for alarm from the review process.

Divisions within

But what’s curious is that indigenism, and indigeneity, were central to the review, and to the issue and its future solutions, but ethnicity was not itself a determinant of position among submitters to the review. The panel found that

It was not possible to categorise the submissions by ethnicity in a reliable manner. While provision was made for submitters to specify their ethnicity, this option was not always used, or people elected more than one ethnicity. In any case, ethnicity is not necessarily determinative of viewpoint; some Māori submitters tended towards what might be termed a “Pākehā world view”.

The Foreshore and Seabed dispute is not just a dispute between Māori and Pākehā, as Don Brash and Michael Laws and Chris Trotter would have you believe: the divisions are as much within Pākehā society and Māori society as between them. A ‘clash of civilisations’ paradigm here obscures what’s really happening, it does not illuminate it.

I’ll look more closely at this point, and its cultural and constitutional ramifications, in a future post (when I get time). To be continued.

L

* The same busi-ness which has rendered my posts rare and largely prevented me from participating in the frequently-excellent discussions which have emerged in response to them. Please read my absence as an interested ‘points noted’, and please don’t let my scarceness dissuade you from continuing as you have been.