Posts Tagged ‘Chris Finlayson’

Torpedoes?

datePosted on 12:21, March 25th, 2010 by Lew

Paula Bennett’s damn-the-torpedoes attitude toward the Attorney-General’s advice regarding the Bill of Rights Act — and Idiot/Savant’s observation that this is just the latest bit of policy in breach of that act — has me wondering. What happens if there are torpedoes?

What happens when a widower has his benefit cut by WINZ, having refused a work test which a woman in identical circumstances would not be required to undergo? Surely he has recourse to sue WINZ for that breach. If that’s so, and it seems like in a civil society governed by the rule of law it should be so, the government will surely open themselves up to considerable legal liability by implementing and enforcing this sort of policy (quite apart from the symbolic side of such cases getting hauled through the courts, and so on).

Can some of you lawyerin’ types out there in the internets give me a pub-argument explanation of the issues in this situation?

L

Brogressives and fauxgressives

datePosted on 14:51, June 27th, 2009 by Lew

Chris Trotter doesn’t want to debate, which is good, because there’s really no point to it – his arguments and mine are at cross purposes because we differ on a key point: whether support for independent self-determination for power minorities is necessary to call oneself a ‘progressive’. Chris doesn’t think so. As far as he’s concerned, Māori self-determination is a nice idea, so long as it doesn’t try to take a different line to the honkey Marxist agenda which he misdefines as ‘progressivism’. If that were the case, then this “well-meaning but misguided political naïf” would need to turn in his cloth cap. But progressivism hasn’t ever just been about the white working classes dictating the political agenda to other power minorities; it’s never held that the needs of all power minorities be crushed by the worker solidarity agenda. That’s why my previous post was directed at the “Marxist left”, not at the progressive movement. I’m ok with not being part of that clique – comfortable, as Danyl Mclauchlan said, having no ideological flaws that a few decades digging canals in Fiordland wouldn’t set straight.

The progressive movement has been about power minorities supporting each others’ political agendas against those who would keep political power in the hands of patrician elites. Diversity is a political strategy. You should support peoples’ right to make their own political decisions, even if you disagree with those decisions, because if you don’t you could find support for the right to make your own political decisions to be somewhat lacking. So while Chris is playing the No True Scotsman game, I can play, too: if you don’t support the rights of indigenous people to determine their own political destiny, you’re not a progressive. More in the nature of a slogan: if you’re not a brogressive, you’re a fauxgressive.*

Until we can come to some sort of sense on this matter there’s no point in continuing the discussion. Chris, by his repeated denial and denigration of indigenous rights to political self-determination, criticising the independence of the Greens from Labour, and in denying that women ought to be free from sexual predation as of right, seems well on his way to becoming one of those conservative baby-boomers which are the subject of his latest column. For shame.

Edit: I withdraw and apologise for the redacted paragraph above, as a response to Chris’ justified complaints about my conduct here. This wasn’t up to the KP standard, and I’m sorry for that. I’ve replied to Chris in the comments of his thread on the hope of more meaningful engagement.


Meanwhile, Relic and Imperial Zeppelin have posted good responses to my last post on this matter, which are worth responding to and which I think neatly illustrate the problems I have with this sell-out / kupapa / brown tories / haters & wreckers line of argument.

Imperial Zeppelin, first:

Where do the Maori and Labour Parties come into the equation? Both these political entities may well claim to advocate on class and/or race issues, but do they?
[…]
It would appear reasonable to expand on Marty Mars’ statement and contend simply that race and class issues (along with all the others) will not be resolved as long as you leave the resolution to others; never mind others who are beholden to interests inimical to class, race, gender and environmental interests.

I both agree and disagree, but this gets to the nub of the matter: power minorities need to drive their own political agendas. My view is that while neither the Labour party nor the māori party perfectly represent their nominal constituencies, they are nevertheless best-placed to advocate for those constituencies. Nobody else can do it for them; the degree of their success or failure will or ought to be be reflected in their electoral support.

Relic:

how about a quote from V.I. Lenin to back up the bus a little-“politics are the concentrated expression of economics”

This is precisely what’s wrong with the Marxist approach. Going back to a higher authority than Lenin, I consider politics to be the ‘master science’ – the discipline which governs which other disciplines are considered worthwhile. Far from being just economics, it encompasses religion, morality, ethics, war, epistemology, identity, history, actual science and more to boot. Politics is how people organise themselves in society. There are many referents of political identity, and it is for each individual to choose their own primary identity. Marxists who say it’s only economics tend to be those who, ironically, care mostly about money and the power which it brings.

The Maori Party is led by the likes of Prof. Winiata and embodies the hierarchical inclinations of certain tribal elites.

And the Labour party doesn’t embody the hierarchical inclinations of academic and public servant elites? Let’s not pretend that any party in parliament is actually a workers’ party – in the democratic systems we have, credible political vehicles are by necessity elite-dominated. So all you’re saying is that you prefer elites of one flavour to those of another.

The capitalists via their primary parliamentary representatives National/ACT recognise the need to embrace the large and growing Maori economic sector, unlikely to be sold off overseas at this stage, and needing to be diverted from potential co-operative (socialistic) forms asap. Yes, there is the parliamentary numbers game but it is not the main prize as I see it. Getting Maori to embrace the colonisers kaupapa-private property relations, is.

This is a much better point, but (like other criticisms of the māori party, it rests on two false premises: first, that Māori don’t know what’s best for Māori; and second, that Labour are substantially better.

Second issue first. With the Foreshore and Seabed Act, Labour did more damage to Māori access to resources, mana whenua status, equality before the law and collective resource control than any government of any colour had done for the better part of a century. The passage of that act was the most recent shot fired in the war of colonialism, which told Māori that they were not entitled to due process and redress in law, as other citizens were; that they had no right to even try to assert mana whenua rights to historic resources no matter how strong their claim; and that hapū-level ownership was not an option. And all this from their historic allies, whom Māori had supported without fail for generations.

It’s not that Labour had no choice, as they and their apologists claim – they had the choice of losing and retaining their principles and the loyalty of Māori, or winning without either. They chose the former, before the gauntlet was properly thrown down at Orewa, and subjugated tino rangatiratanga to political expedience, forcing Māori to once again lie back and think of Ingarangi in service of the ‘greater good’ which served the Pākehā majority. That was Labour’s decision to make, but the expectation that there would be no consequences was simply absurd, and speaks to the level of entitlement Labour felt it had to Māori loyalty. The māori party, more than anything else, was founded to demonstrate that government needs to earn the support of Māori, rather than enjoy it as of right, use it, and abuse it as convenience dicatates. So far it is doing that, though whether it will do so in the long term remains to be seen.

Many objections to the māori party decision to side with National focus solely on the losses, ignoring the possibility of gains or arguing that National have no intention of fulfilling any of their undertakings. It is true that National’s policies will probably inflict more acute economic harm on Māori in the short term, but there’s more to intergenerational indigenous politics than small-scale tactical gains and losses in economics, and the calculus is that short-term losses may be worth it for long-term gains.

The integrity of the tino rangatiratanga movement is just such a strategic gain. The first big test of the māori party’s strategy comes this Tuesday, when the Foreshore and Seabed Act review panel reports its recommendations to Chris Finlayson. Further tests will come in the next year as National and Labour begin to bid in earnest for the brown vote, supposing Labour begins to campaign at all. Even if the māori party is turfed out off parliament in 2011, if they have raised the importance and profile of kaupapa Māori politics such that no party in the future believes they can act as Labour did in 2004, they will have succeeded.

As for the argument that Labour policies help Māori because most Māori are working class and Labour policies help working class people, therefore all Māori should. This is simply a reverse ‘rising tide lifts all boats’ argument. The point is that Māori have different needs and, under the Treaty framework, different entitlements to the rest of the working class. A political movement which treats Māori simply as brown proles ignores this historical reality, and is an insult to all those who have fought for recognition and redress.

On to the first issue. After generations of relying on Pākehā elites to redress the abuses of the land wars and following, a group of Māori leaders have taken it upon themselves to develop a principled strategy to find redress by their own means. Some Māori have supported them, and if they fail to make progress toward that redress, or do so by sacrificing other, more important things (such as the kaupapa of collective ownership) then the party will (or should) lose that support. This is fundamentally the point: the decision as to whether the calculus described above is worthwhile for Māori is for Māori to make, not for “well-meaning but misguided” honkeys who want to co-opt the politics of tino rangatiratanga as part of their worker solidarity movement.

Self-determination is a fundamental component of liberty. If you approve of political self-determination only for those movements which serve your own political ends, you’re little better than the Iranian clerics, for whom any political candidate is acceptable, as long as they’re a Shi’a fundamentalist. Let a thousand political agendas bloom; that is the liberal way.

L

* With thanks to Melissa McEwan, whose blog is well and truly open for business again.

FSA review: strong panel, broad terms, quick

datePosted on 13:54, March 4th, 2009 by Lew

The government has appointed three very eminent and well-respected persons to the panel which will review the Foreshore and Seabed Act 2004, has granted them broad terms of reference, and has imposed a short deadline of 30 June by which they must report back to the Attorney-General. The press release, FAQ and linked ToR document is here.

This seems very positive. The three appointees – Justice Eddie Durie, Professor Richard Boast and Hana O’Regan – are highly-regarded, and none are enemies of tino rangatiratanga or friends of blanket expropriation. The terms of reference give this panel the authority to cover a wide scope of issues, including the prejudicial nature of the FSA (which scotched due process via the courts), to take new submissions, to hold hui and meetings on the matter, and to reconsider historical submissions to the FSA, and `other public documents’ which must surely include the report of UN Special Rapporteur on the Rights of Indigenous Peoples Dr Rodolfo Stavenhagen, which the Clark government dismissed with scorn.

I have two reservations: first, the short deadline, and second, the lack of commitment to following through on the recommendations of the panel. The short deadline is both a blessing and a curse – it will mean the issue doesn’t drag on, but this could be at the expense of full consultation. The second issue is more serious – there seems to be no indication that the government is under obligation to act on the recommendations, and that means we must take them on their word. The government response to the panel’s report will be a defining issue in NZ political history.

L

Ka ora!

datePosted on 23:27, February 18th, 2009 by Lew

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