Monthly Archives: November 2009

Insensitive and hypersensitive

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In the Insensitivity and hypersensitivity paper I referred to previously, Raymond Nairn and Timothy McCreanor studied submissions to the Human Rights Commission in response to the Haka Party Incident in which He Taua, including one Hone Harawira, broke up an offensive Auckland University engineering school mock-haka (this is poorly documented on the internets, but see here). They found that Pākehā responded by conceding that while the students may have been insensitive, He Taua were hypersensitive. This was and remains the default mode of rationalising race relations incidents in NZ: no matter whether it’s having their haka mocked or their Foreshore and Seabed nationalised, those Māoris are always complaining about something.

The insensitive-hypersensitive contrasting pair is a victim-blaming technique: the assertion that while we may have been insensitive, they are hypersensitive. This is presented as a concession but is in fact an attack which minimises the ‘insensitive’ party’s wrongdoing and magnifies the other party’s ‘hypersensitivity’ as a character flaw:

The term ‘hypersensitive’ carries a psychological load for which there is no parallel in ‘insensitivity’. Insensitivity is represented as deriving from ignorance; as such it can be dispelled by information. It is to be regarded as transitory, incidental, and non-deliberate. From a state of insensitivity an individual can act in ways similar or identical to those who are malevolent but is less culpable because a plea of ignorance can be made in mitigation.
[…]
In contrast, hypersensitivity is represented as deriving from emotional sources and is thus internally mediated. Such psychological phenomena are seen as part of the person’s nature and are not easily accessible to adjustment. Hypersensitivity is thus regarded in the same way as aggression, introversion and other personal characteristics. […] The association of hypersensitivity with emotion and indeed with extremes of emotion facilitates the marginalising of the actions and beliefs of people so labelled in ways which removes them from serious contention in social debate.

… and it’s ‘Warrior Gene’ all over again. Moreover, the common lexical root of the terms produces a false equivalence which amplifies this imbalance:

Blaming both sides, albeit one more than the other appeals to readers’ commonsense lore. […] It doesn’t matter that the unequal weighting of the ideas of hypersensitivity and insensitivity prejudices the judgement.

The sweet irony of this device is that, where there is a genuine imbalance of offence perpetrated by one group against another, it requires the offending group to be both insensitive to their own actions, and hypersensitive to the response of the group against whom the major offence was given. So it is with Hone Harawira’s deeply foolish, divisive and unhelpful comments of late: Pākehā New Zealand took hypersensitive umbrage at the terminology while insensitively ignoring the much greater offence caused by the repeated injustices visited upon Māori. I do not defend Harawira; the purpose is only to illustrate that this remains very much the standard means of reasoning around such incidents.

And so it is with Phil Goff, who played the insensitive/hypersensitive Pākehā role to the hilt in his response to Harawira, and has compounded that ill-considered reactionary stance by extending the narrative to the Foreshore and Seabed and the māori party’s decision to coalesce with National. This implies that Labour still thinks that Māori were unreasonable to object to the mass nationalisation of resources to which they had a legitimate claim in law, and that by cutting loose and forming another party they had somehow given greater offence to Labour than the original nationalisation had justified.

The message from Goff’s Labour party is loud and clear: we make no apologies for the decisions taken while being chased by the Brash Iwi/Kiwi monster, and are now prepared to do it all again if need be. This is a damned shame for the country, and for the party. Labour had a great opportunity to mend its bridges with Māori, as the māori party is burdened with an appalling ETS and its more and more fraught partnership with National — and instead of doing so they set another charge and detonated it. The Māori electorate will not support a Labour party which has declared itself the party of blue-collar Pākehā rednecks who are sick of ‘those Māoris’ and their complaining about things which happened the century before last. Where will they go? What will Labour do without them?

L

Goff is the new Brash

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Perhaps this speech is an attempt by Phil Goff to reclaim the term and concept of “Nationhood” from the clutches of rampant colonialism. If so, it is an abject failure. It compounds Labour’s cynical appeasement of National’s race-war stance in 2003 with a reactionary, resentful re-assertion of the same principles before which Labour cowered in 2004. It is the very epitome of what Raymond Nairn and Timothy McCreanor called “insensitivity and hypersensitivity“. More on this here

I had an incandescent rant underway, but I’ve said it all before. If you refer to the tag archive under the terms “Chris Trotter” and “Michael Laws” you can read most of it — which should give you an idea of the company Goff’s speech deserves to keep. And in the mean time, Idiot/Savant has summed up my thoughts in several thousand fewer words than I would have. I can do no better than to quote him (and please excuse the transitory obscenity in this instance):

This is the same cynical attempt to whip up racism so memorably used by Don Brash at Orewa. I despised it then and despise it now. Goff knows better, just as much as Brash did. But he’s willing to pander to racists to get a short-term boost in the polls, and bugger the long-term damage such pandering does to racial harmony.
Well, fuck him. Racism has no place in our society, and a proper left-wing party would be fighting against it, not engendering and exploiting it for political gain.
[…]
Despite Labour’s dear wishes, the Maori Party is not going to go away. Instead, it looks likely to be a permanent feature of our political landscape. More importantly, it looks to be setting itself up as the swing bloc which makes or breaks governments. That’s certainly likely to be the case at the next election, unless the government really screws up.
What this means is that if Labour wants to regain power, it will have to sit across the table from and work with the Maori Party. And that will simply be impossible if they are running on a racist platform. By following Brash’s path of cheap racism, Labour is alienating the party it desperately needs to win over. And the result may see it locked out of government for far longer than if it had kept its hands clean.

I’m trying very hard to find an image of that “white is the new black” All Whites poster/shirt with which to adorn this post — because that’s what Goff is driving at here: what you thought was colonial paternalism wasn’t, and what you thought was self-determination isn’t. It’s a disgrace.

L

Death is not the end

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A curious post from Marty G at The Standard, who asks: “as newspapers die?” This is part of a wider debate about the future of the media, which I’d like to expand beyond just newspapers. As a caution to those who would conflate ‘newspapers are dying’ with ‘the media is dying’, I would suggest that the demise of the mainstream media is, in words incorrectly attributed to Mark Twain, greatly exaggerated. Fundamentally this comes down to the following:

1. If people care about it, it can likely be profitably monetised.
2. If it can be profitably monetised, big business will eventually come to dominate it.
3. The existing newsgathering infrastructure, brand authority, networks, subscriber bases and institutional expertise are still held almost exclusively by big business.

Big business may not be good at innovating, but it is very good indeed at buying innovation and covering the last mile. That’s what it’ll do, and in some cases, what it’s doing already.

There will be changes — in terms of how content is created and distributed, to the revenue model and in particular to the specific media consumed — but fundamentally the mainstream news media will continue to do what they do, which is tell people what they need to know.

The media do not predominantly provide consumers with a good — news or information or something to wrap fish and chips in or something to watch while eating dinner) — rather, they provide a service — a filtering system which sieves out and highlights the things which people need to know to function in their social and professional and ideological worlds. There’s already more news and information out there than anyone can possible pay attention to. We all have our preferred filtering systems — The Standard and Kiwipolitico are two; who you choose to follow on Twitter is another; whether you wake up to Morning Report as I do or Marcus Lush or The Rock or Southern Star, you’re relying on those sources to give you the information you need to function competently in your world that day, and in the days to come. This is the Ralph’s Pretty Good Grocery principle: “If you can’t find it at Ralph’s, you can probably get along (pretty good) without it”. At present, mainstream media filtering models are more advanced than they’ve ever been — but extremely crude by comparison to the sorts of models employed in new media.

Adopting the filtration models which are being developed in new media will require media companies to adopt some of those media forms, and abandoning the old forms. To take one thing (there are plenty of others) which newspapers, radio and television don’t really do at all: interactivity. So we’re going to see things become more interactive, and that interactivity become part of the filtration system. This is how Google’s advertising functions: your usage choices are a source of data about you, and that data is a pretty good predictor of what you’ll click next. That’s good for advertisers, because it offers them a chance to sell you stuff you might want, and it’s good for you, because of all the zillions of pieces of media out there in the world, it allows a media provider to better determine which are more likely of interest to you.

We’ll also see much more device integration, and in particular the development of e-reader hardware which acts and behaves like paper, and the development of news products which use that hardware to mimic newspapers in function — providing the visual grammar of headlines, columns and images on a broadsheet or tabloid page, a form which is very highly developed and so well-understood as to barely be considered a semantic form any more (like continuity editing, or 4/4 time) — but which is almost entirely absent from existing internet news media. I understand that Apple Computer has on order a couple of million high-resolution low-power 10-inch touchscreen LCDs to make a next-generation reader device for market in the next 12 months or so.

But these things are largely cosmetic. Overall, the fundamental nature of the media market will not change. Some of the big companies might die or fall apart, but they’ll be replaced. It won’t be independents and startups for ever, and there will never be a persistent community-of-knowledge citizen-journalists-ruling-the-roost utopia such as many in the blogosphere so desperately wish for (because it would allow them to quit their jobs and get paid for doing this full-time). The main reason for this is that news costs money, whereas opinion (i.e, 90% or more of bloggery) is mostly free but is reliant on news. The money for the news machine comes from the interesting fact that, in the commercial media industry, the ‘product’ and ‘consumer’ are the reverse of what most people think they are. The ‘product’ is not programmes or articles or news (that’s a service); and the ‘consumer’ is not the person reading, watching or listening. That person — you, and me, and everyone else who consumers the media — is the product, and the consumer of commercial media services is the advertiser whose products you also consume. The media, by functioning as an effective filtering system, serves you up content you want and serves up your eyeballs, earholes, networks and ultimately your wallets to advertisers who pay the media handsomely for doing so. Everyone wins — or at least, everyone goes away thinking they’ve gotten a good deal. This model, at a fundamental level, is not under threat, because there is no other ready means of monetising news. That’s not to say it will always be so. It’s possible that a media business model will emerge which doesn’t rely on advertising, but one way or the other, someone is paying, and if it’s not the advertisers paying for you, then in all likelihood it will be you paying for yourself. How much would you pay? Would that be enough? These are real questions, because talk might be cheap, but news ain’t.

L

Plagarism and Double Standards.

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I was not going to post on the Witi Ihimaera plagarism scandal, having commented under my own name on another blog that covered the matter. But as I compare my summary dismissal for writing a rude email to an unqualified and underperforming student with the lack of even a cursory reprimand for his theft of intellectual property, and then find out that apparently it is not the first time that Mr. Ihimaera has appropriated someone else’s work as his own, I find myself wondering if indeed there is a double standard at play when it comes to our respective treatment by my former employer. Let me explain why, but first point to the one consistency in the handling of both cases.

The University has, as part of its collective contract with the union representing academic staff, a series of procedures and regulations that have to be followed before an academic staff member can be dismissed for serious misconduct. This includes receiving a formal complaint detailing the misconduct, attempting to mediate the matter using the offices of the Ombudsman, handling the matter within the department, issuing two formal written warnings before dismissal is sought…the requirements are pretty detailed and in fact were made even more so after my dismissal precisely because of the controversy surrounding it. Perhaps Mr. Ihimaera is not a member of the union so other procedures were followed, but that usually mitigates against favorable resolution for the employee.

In my case none of the internal procedures were honoured other than as a facade. No formal written complaint was ever made against me, but without getting my side of the story the Ombuds(person) immediately brought the issue to the attention of my department HOD, who without saying a word to me passed it on to the Dean, who after consulting with the student as to what should be done held a series of brief meetings with me and a union rep in which he shrugged off my apologies and assurances, ignored the fact I had no prior formal warnings, and sent me packing. In fact, he and his HR advisors attempted to use a couple of unrelated events from the past (an argument with a former HOD about managerial practices and an email disagreement with a colleague about a grad student who failed to attend a class) to argue that prior warnings had been given. Those were later found to be irrelevant by the ERA.

In Mr. Ihimaera’s case it appears that, upon hearing that news of the plagarism was about to go public, the University rapidly pushed through an “investigation” of the matter apparently involving his HOD, the new Dean of Arts (who was not the Dean the fired me) and Mr. Ihimaera. No disciplinary board with colleagues outside of the HoD and Dean was apparently convened. Mr. Itimaera  gave apologies and assurances, and the case was closed.

What is consistent in both cases is that the lengthy rules and procedures for handling discipline cases involving academics were circumvented, in his case favourably to him and in my case not. This galls me not because I think that Mr. Ihimaera should be fired–I do not, and think that both of us should have received a final written reprimand about our respective transgressions–but because the University argued that I was fired because of the damage I did to its reputation. This line of argument continued after the dismissal was found to be unjustified, then into the settlement agreement by which formal reinstatement meant no actual reinstatement. But what about my reputation? Not only did the leaked email wind up on the front page of the national newspaper and then went global, but the University did nothing to prevent its release or demand its withdrawal when a student newspaper under its authority first published it (even though leaking the email was a violation of the email policy under which I was ostensibly fired). Moreover, the University knew well what the impact of the dismissal would be. As the Dean who fired me said to the ERA, “in a reputation-based business like academia, summary dismissal essentially means the end of a career.” In my case that seems to be proving true, and perhaps it was that knowledge that made for lighter treatment for Mr. Ihimaera–but I suspect not, simply because his association with academia was one of mutual convenience rather than professional necessity.

My major question is, if what I did was so injurious to the University reputation, what about Mr. Ihimaera’s plagarism? Plagarism is the single worst thing that an academic can do. Working in a genre such as historical fiction does not excuse the lifting of other’s words. Plus, being housed within an academic institution means adhering to its requirements on original work, so he was, in fact, more duty bound than independent writers in that regard. Students get failed and often expelled for plagarism. Academic staff get demoted or fired for plagarism. And Mr Ihimaera did not even merit a reprimand? Now, it seems that the case gets worse, as others have come forth to claim that Mr. Ihimaera has plagarised in his previous work. If so, and if the University knew about those previous incidents, then its absolution of the latest episode is even more alarming.

The University and Mr. Ihimaera say that his plagarism was “inadvertent” and thus excusable. Even if that were true–and it stretches credulity to think that a famous author would not know the difference between his own words and sentence structure and those of others– standard guidelines on plagarism, including those specifically used and distributed by the University to students and staff, state that inadvertent or unknowing plagarism is no excuse for it. It is the author’s responsibility to ensure his/her work is original and properly cited, and the crosses all academic fields and intellectual genres.

Some have claimed that because Mr. Ihimaera is Maori, famous and gay, he got off lightly. I initially thought that was ludicrous and that there were other mitigating circumstances at play. But the more I learn about the case and think about the differences in our treatment, the more I wonder as to why those differences. Certainly universal institutional standards need to be upheld over and above the specific identity and interests of any individual. That is what the University claimed in my case. Yet, was what I did worse than plagarism? Did my email to an individual student cause more damage to the University than the discovery by a book reviewer in a national magazine of the as of then unattributed passages in Mr. Ihimaera’s latest book? How can he not even receive a reprimand, and how can the University claim that in both cases its standard rules and procedures were followed to the letter?

The real shame is that it is not my actions or Mr. Ihimaera’s that have tainted the reputation of the University. Instead, it is playing loose with the rules and attempts to “spin” both stories in a way that gives the illusion of procedures being properly followed that sullies the brand. That has a negative impact not only on the managerial cadre that are the perpetrators of the double standard but also the staff, alumni, current and prospective students who share association with the University name. Yet, instead of being ashamed and contrite, University managers continue to obfuscate and bluster, refusing to reveal how their “investigation” of the Ihimaera case was conducted citing privacy concerns (concerns they were not so concerned about when my email went public).  It appears that management are blissfully unaware that the ship is sinking beneath them or else are confident that no matter what they do, they will not be held to account by anyone other than themselves. Since the taxpayers ultimately pay the salaries of all involved, that should be a matter of public interest.

Is NZ the least corrupt place on earth?

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Transparency International has come out with its latest rankings on state corruption and found New Zealand to be the least corrupt state on earth, scoring 9.4/10 (10 being perfection, defined as zero corruption). The SE Asian country I live in came out 3rd (at 9.2), which I found very surprising in that it is a one party authoritarian state in which an oligarchical few dominate the party, which in turn has its fingers in virtually every aspect of economic life in the country (for example, the largest state holding company happens to have as a CEO the spouse of the PM, who in turn is the son of the founder of the Party and first PM of the state; similarly, all of the military high command are members of the Party and retire to become high level officials in the civil service, by-passing careerists in the process). There may be little street-level graft by low-level officials, but influence-peddling and patronage networks abound.

I also am not sure about NZ’s ranking, given the Philip Field affair, Winston Peter’s shennanigans, a variety of Labour Party rorts and misconduct, the Immigration scandals and influence-buying by well-heeled foreigners, lack of accountability and transparency in government agencies (such as the SIS), and problems with procurement processes in situations such as the MoD/NZDF acquisition of the LAVs, MP housing and travel allowance excesses, etc. Nor do I think that National is any “cleaner” than Labour. So how did TI come up with its ranking?

It turns out that the ranking is based on reputational status, which in turn is based on perceptions  of monetary corruption when doing business in a given country. In other words, the rankings are based on image and anecdotal evidence rather than time-lagged, objectively measurable universal variables or, dare I say it, reality. Ignoring non-monetary corruption ignores the reality of things such as patronage and influence-peddling, or of exploitation of privileged position for personal, non-remunerated gain. Things like discreet insider trading, subtle cooking of statistics, preferential treatment in securing housing in desirable areas–all of those are excluded by definition by TI. It seems that the rankings avoid institutionalised “high end” corruption while concentrating on perceptions of the lower end.

I would therefore argue that we should take the rankings with a grain of salt because, although it may accurately capture corruption realities towards the bottom of the scale where corruption is vulgar and obvious (say in places like Haiti, Nigeria or Pakistan), it is not suited to reflect the subtle genius of corruption in sophisticated societies where it simply is not necessary to pay individual bribes to get business done.

But then again, perhaps I am asking too much of TI and NZ deserves its award because the world is, after all, a very flawed place.

The SIS wants us to help do its job.

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The SIS has asked for the cooperation of private industry and academia in reporting potentially suspicious activities that could be related to the pursuit of weapons of mass destruction (WMD).  To that end it sent out a pamphlet to universities and business where potential WMD materials are used outlining how to identify the misuse of said materials along with SIS contact numbers to report to. The main academic union, TEU has protested what it sees as an intrusion into academic freedom, arguing that such requests turn academics into “snitches” and can lead to ethnic profiling. The problem with the TEU position is that the SIS request is akin to the Police asking for community cooperation in reporting suspected criminal activity–it is a request made on citizens as part of their social responsibilities rather than a request to them as academics per se.

What is interesting is that this request comes a bit too late and acutely demonstrates SIS inadequacies in fulfilling its main responsibilities. It also demonstrates how misguided market-driven policies can come back to bite the country in the (security) posterior.

The main reason why the SIS is now asking for public help in locating potential WMD training in NZ is due to the lack of security vetting of business and student visas. Under the 5th Labour government, agreements were signed that allow for the entrance of 1000 Pakistani and 350 Saudi and UAE students to study at NZ universities. The areas of study included chemistry, biochemistry, physics, agronomy, biology, and several engineering subfields (but not political science, surprisingly enough). In none of these agreements are their provisions of security vetting of students either before or after they enroll. Given that Pakistan is jihad central and that Saudi Arabia is the source of the human cannon fodder that carried out 9/11 and numerous other terrorist attacks that is surprising, to say the least, and reckless, dangerous and irresponsible to say the worst. But Labour was intent on making NZ an educational niche market for foreign fees paying students at a time when exactly such security vetting was increasingly being required by other English language countries. Seeing a moment of profit opportunity, and disregarding the glaring security implications of the move, Labour stepped in to fill that niche.

At the time the Pakistani and Middle Eastern student visa agreements were made, I made several public statements and private enquiries of my former employer about the problems of that decision. The Labour government dismissed me as a right wing fear-mongerer and the University ignored my concerns. Now, apparently, the SIS has decided that those concerns had some basis, but lacking in the resources and personnel to monitor every business and lab where potential WMD materials and training can be obtained, have decided to ask the public involved in those industries for help. I applaud the move even though I think that SIS Director Tucker would also be advised to re-orient his troops away from  monitoring domestic environmental, Maori and anti-capitalist activists and concentrate on the very real, state and non-state foreign-connected threats that impact on NZ.

This is not to say that a NZ citizen could not join a university chemistry or physics department out of something more than a love of the discipline. What it does say is that when students, owners or employees display an unhealthy interest in anthax, radioactive and biological waste, medical isotopes, epidemiological causes and morbidity, then it would be socially responsible to advise authorities of that fact. The profiling would not be on the ethnicity of the individual but on his/her behaviour.

Until the NZ government tightens up its visa programme to include security vetting of prospective arrivals, the burden rests on after-entry detection. As it stands, business visas are issued to people with money to invest without questions asked about their past; the same lack of scrutiny is true for students. Thus, mainland Chinese and Taiwanese  students are believed to be a source of triad penetration into NZ. Business visas are believed to be conduits for money laundering from both Asia and the South Pacific. Latin American students are suspected of links with drug traffickers.

Conversely, Middle Eastern and Central Asian students and investors may be completely circumspect and “clean” in their background and intent when arriving on NZ shores. Political refugees from conflict zones like Afghanistan, Iraq, Iran, Pakistan, Somalia and the Sudan may want to start over in an safe place, and from what has been seen so far, most do. But as Ronald Reagan said, it is best to trust, then verify. Since the market-driven logic of the Labour government overshadowed the security logic of most counter-terrorism practitioners, security vetting of visa applicants can not happen before or upon entry (and to be fair, much of that is due to NZ distrust of the reliability of information coming from easily bribed or influenced local security authorities in the countries of origin). It therefore has to be an ex post exercise.

That is what the SIS is asking the public to do, as a form of community service.

The trouble is that the SIS reputation is so throughly tarnished by its past excesses and ineptitude, many if not most Kiwis have no interest in helping it to do its job. That makes for a potential double-bite on the security rear.

On the Strategic Utility of Terrorism.

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In a previous life I worked in and with the US security apparatus on matter of Latin American regional policy, to include subjects ranging from civil-military relations to counter-insurgency. In the latter capacity I spend a fair bit of time interacting with the Special Operations and Low Intensity Conflict (SOLIC) community who are  primarily responsible for US anti-terrorism operations, and who include elements from intelligence agencies and domestic security agencies as well as the military. Politically controlled by the Office of the Secretary of Defense (OSD) via the Joint Chiefs of Staff (JCS) and headquartered at the Special Operations Command at McDill Air Force base outside of Tampa, the SOLIC community has analytic and operational wings that are regional, issue and event specific. At a tactical level (i.e. in the field) the community deploys assets as part of Joint Task Forces (JTFs), of which there are a number currently working abroad (the precise number is classified but there is more than one in Afghanistan alone).

One of the best pearls of wisdom imparted to me by an old SOLIC hand is that “terrorism is the last desperate gasp of a dying man. The cause is lost, its ideological appeal is on the wane, and thus the zealots respond by desperate acts of wanton mayhem in a last ditch effort to rattle the nerves of the subject and erode his will to continue to push his agenda to completion.” I believe this to be true, and that it applies to Islamic extremists confronted with the inexorable progress of Western (and Eastern) secularism riding the wave of globalisation of production, consumption and exchange. But there is more to the issue than that.

Terrorism is an irregular (or unconventional) warfare tactic. It is not a strategy in and of itself, but is a means employed to a strategic end. As such, terrorism has a subject, an object and a target, and they are not the same. Although it appears to be an offensive strategy and has been used offensively at a tactical level, it is by and large a defensive strategy. The object(ive) is to get the subject to desist in what it is doing that is inimical to the terrorist interest. The subject is dual in nature: the adversary and its popular support base, on the one hand (e.g. the US government and citizenry), and the terrorist support base, on the other (e.g. Islamicists and the larger Muslim community). The target is, of course, the hapless victims of an act of politically motivated violence whose purpose is more symbolic than military. Terrorism is used against highly symbolic targets in order to erode the will of the adversary to pursue a given course of action while steeling the conviction of the terrorist support base. Terrorism can also be used as part of a moderate-militant strategy in order to create space and provide leverage for negotiated compromises. This was seen with the IRA campaign in Northern Ireland and may in fact turn out to be the strategy employed by non-jihadist Taliban in Afghanistan today. In practice, though, the outcome is often the reverse of what is intended; Israel is a case in point, although it must also be noted that it was the PLO military campaign (in which terrorism was an integral component) that eventually brought Israel to recognise it as a legitimate political actor (Israel, for its part, owes its existence to the terror campaign of some of its founding fathers organised in groups such as the Irgun).

Terrorism can occur in two circumstances and comes in three different guises. The circumstances are terrorism during war and terrorism in peacetime. The guises are state terrorism, state-sponsored terrorism (where terrorists act as proxies for militarily inferior states), and non-state terrorism (such as today’s jihadis). If acts of terror are not committed for political purposes, they are not genuine terrorism but criminality taken to extremes (say, Mafia firebombing or assassination campaigns). This may seem like a semantic distinction but it is important because terrorism is effective only in pursuit of an ideological project, in pursuit of an alternative conception of the “proper” social order, as opposed to the more immediate and material objectives of criminals or psychopaths.

Terrorism in warfare is designed to erode the morale of the enemy. It can be used against military targets to erode the morale of the fighting element and to show the steadfastness, resolve and determination of the perpetrator (such as the Kamikaze attacks, or suicide bombings against military targets in Pakistan, Iraq and Afghanistan). Terrorism can also be used in wartime against civilian populations to erode the will of the support base of a given regime. The nuclear bombings of Hiroshima and Nagasaki as well as the fire bombings of Tokyo and Dresden are classic instances in this regard (as were the V2 bombings of London), in which the psychological impact on the subject far outweighed the military-strategic importance of the targets. That brings up an important point in this age of the so-called “war on terrorism:” generally speaking, the state has been the primary terrorist organisation throughout history. In fact, most instances of state terrorism are directed at their own people, in what is known as “enforcement terrorism” whereby the state imposes its ideological project by force on an unwilling citizenry. The reason why state terrorism is so prevalent in history is that it works. Its purpose is to infantilise and atomise the body politic so people feel powerless and unable to control their own destinies (think of a child’s nightmare). Under such conditions the main recourse for the subject population is a retreat into the private sphere, the disruption of horizontal solidarity and resistance networks, and generalised acquiescence to the cruel powers that be. Under such conditions dictatorial regimes can implement their ideological projects free from the interference of civil society: Chile under Pinochet is a case in point, as are the USSR under Stalin or Cambodia under Pol Pot (the examples are many and not limited to either side of the ideological divide).

State-sponsored terrorism is most often directed at the enemy support base. The Lockerbie aircraft bombing is a case in point, as is Iranian sponsorship of Hezbollah and Hamas  attacks on civilian targets in places as disparate as Lebanon, Israel and Argentina (Iran denies any connection to the military campaigns of Hamas and Hezbollah, and specifically refutes the claim that it was involved in anti-jewish bombings in Argentina in the 1990s. The Argentine government believes otherwise). Reported Pakistan support for Kashmiri separatists and Lashkar- e-Taiba (LET) is another example of state-sponsorship of terrorist organisations. Here the objective is to place enough distance between the sponsor and the perpetrator so as to allow for “plausible deniability” that forces the targeted adversary to either escalate out of proportion to the event or acquiesce (if not respond in kind).

Non-state terrorism has two forms: 1) in its insurrectionary form it is used to advance a group’s political project within a country as part of a counter-hegemonic project (for example, the use of selective terrorism by revolutionary groups seeking to overthrow status quo regimes). Because the group wants to cultivate popular support for its ideological project, the use of terrorism in such instances tends to be more selective and focused on military targets or symbols (and members) of the regime elite. 2) the transnational grievance form is used to thwart homogenising international projects and processes that are deemed inimical to existing social mores and constructions (which can include unwanted immigration from ethnic “others” as well as political or corporate interventions) . Whether secular or ethno-religious, such terrorist groups can be self-identified as anti-imperialist or more localised in scope. The al-Qaeda project is an example of the former, whereas the janjaweed anti-African campaign in Darfur is couched in localised terms (although there is an underlying resource motive clearly at play).

The chances of success of the non-state, transnational grievance form rest not on much on their own capacity to wreak symbolic political violence in pursuit of their objectives but on the nature of the regimes that are the subjects of their activities. Strong authoritarian and democratic regimes, defined as those with majority support and the political will and military-intelligence capability to defeat irregular warfare groups that practice terrorism, will always prevail in such contests. The combination of mass support, military capability and willpower is the decisive part of the asymmetric equation. Russia is a good example of a strong authoritarian regime confronting terrorists; China is(or will be)  another. Strong democracies have similar strengths. Israel again is emblematic, but the UK response to the IRA irregular warfare campaign is also illustrative. In fact, all of Europe and Turkey have the requisite combination of will, capability and support to defeat jihadism in all of its forms (fears about the Islamicisation of Europe notwithstanding).

Conversely, weak authoritarian and democratic regimes are highly susceptible to politically-motivated terrorism, be it state-sponsored or non-state in nature. Weakness is here defined as a lack of majority support and/or leadership will to defeat the terrorist project, whether or not there is a military-intelligence capacity to do so. Under such circumstances even allied assistance may be insufficient to defeat a well-organised terrorist campaign. The will to do so has to come from within, and it must be come from the majority. That is what makes Egypt, Iran, Algeria, a number of Sub-Saharan African states, and perhaps even Saudi Arabia itself more vulnerable to terrorism. The question is not so much one of counter-terrorism capabilities as it is of support and will.

That is the crux of the matter when it comes to judging the strategic utility of terrorism in the contemporary context. Weak regimes like Afghanistan and Pakistan are examples of highly vulnerable subjects of terrorism. To a lesser but still significant degree, weak democracies such as Indonesia, Malaysia and the Philippines are also vulnerable to destabilisation by a well-organised terrorist campaign. Conversely, virtually all of the East Asian regimes, authoritarian or democratic, have the necessary ingredients to defeat non-state terrorists, be they sponsored or self-organised. They same can be said for the Antipodes, even if Australia and New Zealand differ significantly in their approaches to the current counter-terrorist campaigns. Latin America has also managed to combine the requisites for a successful counter-terrorism strategy (especially if the threat is Islamicist, which is culturally alien to the region), although there remain in the region a small number of indigenous irregular groups that continue to practice isolated acts of terrorism in spite of their lack of popular appeal. Thus, in terms of probabilities of success, terrorists today are confronted with a strategic landscape that, outside of Central Asia and the Middle East, appears to doom them to defeat. That might explain the move to highly decentralised and often individual attacks (such as that at Fort Hood), the increasingly “indiscriminate” nature of attacks in places like Iraq and Pakistan (in which potentially sympathetic elements of the local population are targeted), as well as the increasing success in uncovering plots before they are executed (which is a function of good intelligence in a supportive community).

That raises the question of the US. Given the culture wars and ideological polarisation that divide the country, coupled with popular lack of interest in, or commitment to foreign wars, it is increasingly an open question as to whether the US has the popular staying power and committed political leadership to defeat its irregular adversaries at home and abroad. It is that variable that is the jihadis best hope of long-term success, but it is not only Islamicists who see opportunity in perceived US weakness. That could well be a matter of strategic concern down the road, and is what makes the US approach to counter-terrorism a matter of global import. There lies the rub, because counter-terrorism and counter-insurgency is as much an issue of cultural understanding as it is of will, support and capability.

There is more to the issue but in the confines of a blog post this is enough. Former students might recognise some of the above from the “Revolutions and Insurgencies” courses taught in NZ and the US, although this is an updated brief on those long-gone but still relevant course materials.

Crumbling Walls and Simultaneous Transitions.

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Among the celebrations and self-congratulations marking the 20th anniversary of the fall of the Berlin Wall, perhaps it is worth mentioning the process involved as opposed to the event. Contrary to what some may think, this was not exactly a full triumph of freedom orchestrated by a Ronald Reagan-led US in the space of ten years. Instead, it culminated a long process of decay within the Stalinist camp that was the result of internal contradictions that analysts of regime change have seen in other forms of authoritarianism. Not to belabor the point, but authoritarian regimes tend to fall for the same reasons even if their specific ideologies may differ. Defeat in war is one such reason, but where the regime is long-lived and institutionalised, the source of decay is from within the regime itself. Institutional sclerosis and lack of responsiveness are to key measures of authoritarian regime decline. Short of war, the role of external agents in authoritarian demise is marginal, at best serving as an accelerant for long-standing trends. That was clearly evident in the Soviet bloc, and once the repressive apparatus decided not to increase its support for Stalinist regimes in the face of rising socio-economic unrest, it was only a matter of time before they fell. Yet, interestingly enough, none of the Sovietologists in Western academia or intelligence agencies foresaw the inevitable until events were already unfolding (something that reflects the nature of their training, which is now evident in US approaches to MIddle Eastern and Chinese studies. To put it bluntly: studying countries from an adversarial viewpoint often leaves analysts unawares of both the broad and narrow nuances that make or break a given form of rule).

Be that as it may, it is not the subject I wish to address here. Instead, I simply wish to note that the post-collapse era in the former Eastern bloc has been a mixed blessing rather than an unqualified triumph for democracy or capitalism, and that is largely due to the nature of the regime transitions themselves.

Students of regime change note that the transition to capitalist democracy from socialist authoritarianism occurs in one of two general ways involving three specific processes. The first two processes of change  are called sequential transitions, where either change in the economic structure is followed by change in the political structure or vice versa. For example, China is undergoing a long transition whereby its economic bases have moved from socialist to capitalistic, yet it retains one-party rule while the transition is ongoing. Here structural change precedes political change. With some variances, this is what Cuba and Vietnam are doing today, and was also the case in Chile in the period 1973-1990, where the market-oriented economic base was cemented under dictatorial rule, which was followed by a period of authoritarian regime liberalisation leading to the restoration of democracy.  More broadly, the sequence holds true for a number of countries: e.g. South Korea, South Africa, the Philippines and Taiwan all fostered capitalism before they embraced democracy. It is important to note that political liberalisation leading to democracy is not often the stated intention of the liberalising authoritarian elite, but becomes an increasingly possible outcome once command economies are dismantled simply because of the proliferation of private actors and decentralisation of economic decision-making that ensues. At that point the genie is pretty much out of the bottle–but not always.

Conversely, political change towards democracy can precede economic change towards capitalism, although it is generally believed that such a sequence is more difficult to achieve because democratic politics allows subordinate groups to organise electoral resistance to economic dislocations caused by a shift to market-oriented macro-economic policy. This was seen in Argentina in the 1990s and Mexico in the early  2000’s. Generally speaking, students of regime change agree that economic change ideally should precede political change simply because the latter occur after populations have gotten used to the new economic facts of life. That counsels for so-called “top-down” transitions where authoritarians control the timing and tempo of sequential economic and political changes leading to democracy. Put differently, once the new (diminished) threshold of economic consent has been established, elections can be held. This is in contrast to “bottom-up” regime change whereby the masses rise against the authoritarians before the latter are  able to schedule an orderly transition sequence, often leading to political conflict and economic stagnation. Although there are (semi) peaceful forms of bottom-up change (such as Argentina after the Falklands War or the People’s “revolution” in the Philippines), social revolutions are the most intense form of “bottom-up” change, and it should be noted that in most modern instances they result in the imposition of a new form of authoritarianism rather than democracy.

That brings up the second general transition path: simultaneous transitions. Analysts concur that, due to the myriad complexities involved, simultaneous transitions from socialist authoritarianism to democracy and capitalism are the least likely to succeed. In some sense, they are directly contradictory in that they involve the opening of the political franchise while at the same time narrowing social redistribution networks, pubic goods and other socialist “entitlements” (noting here that the trade off in authoritarian socialism was supposed to be diminished political voice in exchange for increased social egalitarianism and welfare). The general line is that a country can do one sequence or the other with some chance of success, but in trying to do both at the same time it is almost guaranteed to do neither. That, however, was something that Western political elites ignored or did not care about in their headlong push to “open” these former Stalinist societies to Western economic and political influence.

Ergo, the Fall of the Wall. Never mind that  Polish dockworkers began the slow crumbling of European Stalinism with their strikes in 1980, that Glasnost and Perestroika accelerated it, and that the Berlin Wall came at the end rather than the beginning of the process of Stalinist decline. Or that the fall of communism in Romania was violent and resulted in a different Stalinist cadre taking over. Or that the result of the implosion of Yugoslavia was genocide at the hands of Serbians that required repeated NATO military interventions. Instead, let us note that the entire Soviet bloc, from Central Europe through the Balkans to the Caucuses and into Central Asia, endured simultaneous transitions with very mixed results. Some countries–the Czech Republic, Hungary,Estonia, Latvia, Slovakia and Slovenia, for example–managed to weather the transition process and are now doing remarkably well as market-oriented democracies. Others–Georgia, the Ukraine, Bulgaria, and all of the Central Asian “stans,” are governed by mixtures of elected authoritarians and oligarchs, to which can be added the centre piece, Russia. In many of these countries the transition to market capitalism has also been thwarted, and instead has turned into variations of crony-capitalism, mafia-capitalism, oligarchical control and/or state capitalism in strategic industries (especially energy resource extraction). In fact, in most of the former Stalinist world there is neither democracy or markets at play in the lives of the average citizen. In many countries pre-Soviet ethnic-religious divisions have come back to the fore, and in some of these countries conditions are worse than they were before (Chechnya). Ultra-nationalist movements have gained ground in many former Soviet republics, and in response Communists have started to regroup.

The broader reasons for this are multiple and deeply rooted in social, political and economic authoritarian legacies that cannot be changed or dismantled in a generation, much less overnight. But the precipitating reason lies in the simultaneity of the transitions themselves: absent a historically rooted culture of democracy, social tolerance and market exchange, most of the former Soviet bloc became a field of play for economic opportunists and demagogues rather than democrats and entrepreneurs. What is most striking is that, once having realised the difficulties in simultaneously pursuing democracy and market economics in post-Soviet contexts, both Western as well as local elites have apparently made the decision to support markets (even in their quasi-capitalistic versions) rather than democracy in most of that world. Whether by choice or chance, there is no elective affinity between democracy and market economics in these contexts.

Thus, we should view the 20th anniversary celebrations of the fall of the Berlin Wall with a jaundiced eye. On the one hand, it marked the death of European Stalinism and liberated millions of people from that scourge. On the other hand, for many it did not deliver on its promise of freedom and prosperity, and is still far from doing so in many parts of the non-European former Soviet bloc. More generally, authoritarian regime transitions may be a universal good, but only if they lead to something better. That has not always been the case in the Post-Cold War world. Less self-congratulation and more reflection would therefore seem to be in order.

Legal Utu in a Colonial Court?

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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.

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

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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.