Given that in 20 months’ time, we’ll be able to watch the All Blacks get thrashed on four different free-to-air channels simultaneously, why can’t we watch the All Whites get thrashed by Mexico on even one channel today?

L

The Sharks Sex Saga continues. Tania Boyd, the victim’s former workmate says the victim bragged about “bedding” players, and goes on:

It was definitely consensual, absolutely.
She is saying she is still traumatised etcetera, well she wasn’t for five days, or four days at least, after that affair.
I can’t work out what’s happened. Does it take five days for it to sink in?

Tania Boyd, having not been there, can’t know whether consent was given – only if Clare – the victim – implied (to her, after the fact) that consent was given. She can’t know the truth of the situation since the victim may well have implied to her that there was consent when there wasn’t. The question of consent is a complicated one, as well – Clare might well have agreed to some sort of sexual contact, but at each escalation consent needed to be renewed, and according to her it wasn’t. There’s a good discussion of this involving our Anita at The Hand Mirror.

Ms Boyd has begged the question of consent by assuming that a woman having been raped by a lot of powerful, famous men would act in a way which someone who hadn’t had such an experience would consider rational – that is, by immediately calling a halt, or immediately reporting the events, or whatever. But trauma, especially sexual trauma, especially when it involves power imbalance, is a complicated thing, and it does screwy things to one’s sense of reason. Incidents like this can have many responses which might seem rational to the traumatised person at the time but utterly irrational to others. Bragging about the event could be seen as a form of post-purchase rationalisation; that is, Clare may have thought it started off as a good experience and perhaps even initiated it, and tried to mask the fact that it turned nasty (to herself as much as anyone) by bragging about the event. This could also be seen as a call for attention; an invitation to workmates, friends or family to offer support. Cognitive dissonance is a powerful thing.

As to the second statement, if Clare genuinely is traumatised now, then it follows that she was traumatised in the initial four days, it just wasn’t apparent to Tania Boyd, which isn’t really surprising at all given that her response was not one of support but of disgust. Not that that wasn’t a reasonable response – I have no idea how close these people were or what the nature of the workplace was, and bragging about one’s sexual exploits is pretty polarising.

As to the third statement, the answer to Ms Boyd’s question is – yes, these things do take time to sink in. According to a family member with extensive professional experience in this field, the median period of time between incidence and reporting of rape is eighteen and three-quarter years; viewed in this light four days seems very rapid indeed.

This story is being deployed without qualification in apologia for the men in this incident, whereas articles advocating Clare’s perspective are strongly hedged so as to make clear that the facts of the case haven’t really been established. The headline goes beyond euphemistically describing the events as `group sex’ and calls it a `romp’, for goodness’ sakes.

L

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

The 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

That’s a question, not an imperative.

It’s impossible to ignore the impact of the Clark-Cullen legacy on NZ’s political orthodoxy. Their government – like Thatcher’s and like Lange’s – moved the political mainstream, requiring incoming governments to appeal to it in order to win support. John Key’s ability to learn from some of the mistakes of his predecessors in both major parties, but not others, has been considered in plenty of different ways, and some of those give more than a moment’s thought to his future. At least now people agree that he has one which doesn’t involve being rolled by Bill English.

But what of Labour? I see two broad possibilities, which I’ll characterise as the Crusaders Game and the Hurricanes Game. Despite being a Hurricanes supporter, by that I don’t mean to privilege one over the other.

The Crusaders Game

Labour recognises that the political agenda is no longer theirs, and concentrates on their core stuff: defence, set-piece, taking advantage of their opposition’s mistakes and infringing at the ruck (but not so much as to seem a cheat).

This means a retrenchment of sorts. Goff is the ideal leader for this game: steady, capable, etc. but they will probably have to alienate the Greens, and if the māori party and its constituency gets what it needs from being part of the National-led government Labour may find themselves friendless. Whatever the case, this strategy will mean ceding the political field to National and starting again in three or six or nine years from within someone else’s political agenda – as National are doing now. This relies on fairly orthodox two-party-plus-hangers-on political thinking – the idea that occupying the centre is the route to success.

The Hurricanes Game

Labour sees in Key’s concessions to the Clark-Cullen agenda an opportunity, and maximises it by relying on gut instinct, team spirit, inspirational leadership, raw opportunism, personal brilliance and complaining about Key’s infringing at the ruck (but not so much as to appear a whinger).

This strategy will require three things: first, new leadership; second, a much closer relationship with the Greens; third, intense and sustained energy. Labour will have to learn to live lean, to rehabilitate itself with the wider left, and ultimately to normalise the idea of the Green New Deal among skeptical NZ voters. This relies upon a quite unorthodox political strategy – the idea that a party or bloc of parties can and should cooperate to move the centre in order to more easily occupy it in their common interest. The danger is that they run out of puff in getting there, and find themselves in three or six or nine years having to adopt the Crusaders Game anyway.

There are other possibilities, of course, but these seem most plausible and simple dichotomies are nice.

So, four questions: what should Labour do (in your humble opinion) and what will Labour do? How, and why?

L

Parliament is sitting today, and the 2009 session rightly opened with a unanimous motion of support for those affected by the Victoria bushfires. The events themselves have been very thoroughly covered on NZ media and internationally, but what I’m interested in is the way in which our politicians have been speaking about them. So, a quick look at each party’s contribution to the debate of the motion this afternoon.

John Key, National: Emphasised close cultural, economic and military relationship – “like no other”, and history of mutual support in times of need. Strong sporting rivalry means strong cultural ties. Firefighters as heroes who care not for borders and are an example to us all. Top-level links between himself and Rudd. Closed with “kia kaha”. Focused on the magnitude of the events on Australia, though a questionable choice of words with “the enormity of what is happening has burned into our consciousness”. Strongly-worded, statesmanlike, decisive.

Phil Goff, Labour: Spoke for “all New Zealanders”, focusing on impact on families of victims and the “human tragedy” and loss of property. Used family and sport metaphors for the strength of the relationship, like Key. The offer of 100 firefighters “was a good first step”. Generally somewhat procedural, lacked the bite of Key’s speech.

Russel Norman, Green: Very brief. Ticks off main points re support for the motion and assistance, and “respectfully note” the debate on climate change in Australia – but perhaps wisely doesn’t make too much of this.

Rodney Hide, ACT: “All New Zealanders” and “brothers and sisters”, again. Moved quickly to Rudd’s “hell on earth”, then to the possible criminal element behind the fires, hoping that those who committed the “evil” of the arson receive their “just desserts”. He’s angry, first and foremost.

Tariana Turia, māori party: Expressed sympathies in the first place to “the Australian Prime Minister Kevin Rudd” and then to those “families and communities” who have suffered – formally, she’s speaking as ariki ki te ariki, I think. Rather than using family as a metaphor, highlighted the fact that many New Zealanders actually have relatives in Victoria. Fire is “merciless”, families are “scarred’. Said her party would “support the role that this government and this country will play” as if she’s not involved or hasn’t been consulted about it.

Jim Anderton, Progressive: “Brothers and sisters” again, emphasising global and historical magnitude of the fires. NZ being “compelled to share [victims'] grief”. Focused on rebuilding and the resilience and “Aussie dauntlessness”. Firefighters as heroes. Amazingly, he compared the fires to September 11 2001, rationalising it on the basis that the same proportion of population have supposedly been killed. Irony of flooding in Queensland at the same time. Generally a strong speech, but – September 11, WTF! At least he didn’t refer to the supposed arsonists as “terrorists”.

Peter Dunne, United Future: “Kith and kin”. Enormity of the events – “Australia’s worst peacetime tragedy”, which is rhetoric reminiscent of post-9/11. Warns that life will take a long time to return to normal. Talks about media imagery a lot. Encourages people to be “as generous with their resources as they are with their sentiments”.

I see a few true colours there, I think.

L