Upton-on-line - Edition 11 December 2002

In this issue

The briefest of reflections on the talibanic outpourings of Race Relations Conciliator Joris de Bres, a note (by way of contrast) on the carefully considered conclusions of Judges McGechan and Goddard in the Bleakley case and some cultural and end-of-year therapy in the form of four poems from a recently published book, Spirit in a Strange Land: A Selection of New Zealand Spiritual Verse.

But first an important announcement

After two years in the cyber-equivalent of a morgue, the arcadia website is back on line. From time to time people request back copies of upton-on-line and other articles. These are available at:

http://www.arcadia.co.nz

A new outbreak of Calvinism

Resident readers will have had more than enough of it but it may be that there are still some diasporan readers of upton-on-line unaware of the wave of angst that the new Race Relations Conciliator has managed to stir up. There are two approaches to being a race relations conciliator. One is to be wise, self-effacing and slightly unfathomable – always ready to pour oil on troubled waters and never able to be easily pigeon-holed. The alternative is to be stern, unflinching, and ever-ready for combat in the perpetual crusade against intolerance. Joris de Bres has come down decisively in favour of the second. His fearlessness in suggesting that New Zealanders should be moved by the Taliban’s destruction of the Bamiyan Buddhas in Afghanistan to reflect on the record of 19th century colonists had all the subtlety of a grim Calvinist on the rampage.

Others better qualified than upton-on-line have drawn attention to the inappropriateness of the comparison. The Buddhas were mutilated by the Islamic equivalent of rampaging Calvinists not to humiliate a living culture but to banish from the sight of fellow Afghans the graven images of a long-vanished civilisation that were deemed unacceptable in the eyes of Allah. As Michael King (amongst others) has pointed out, much of the artefactual heritage of pre-European Maori culture survives as a result of the antiquarian interest of Europeans. This doesn’t make the colonists saints but it suggests that history is often messier than the righteous would like it to be.

That applies to the eco-romanticism that the Conciliator served up:

The colonisation of New Zealand was a sorry litany of cultural vandalism … [which] was accompanied by environmental vandalism, and vast expanses of New Zealand's indigenous ecosystems were unnecessarily destroyed.

Well yes. But the arrival of the very first humans – Maori – was also accompanied by a wave of extinctions and the loss of significant forest cover, especially in the drier regions of the South Island. Strange to say, Maori – like Pakeha after them – didn’t have a particularly detailed understanding of the Gondwanan ecology into which they stumbled. Maori and Pakeha alike have displayed sterling qualities of human short-sightedness since their respective arrivals.

But no such rough symmetries exist in the purgatory Mr de Bres occupies. It ’s a question of looking squarely backwards whilst a new dose of punishment is administered. Those members of the congregation whose doubts extend to more than one article of faith are severely chastised: “[w]hen you combine the Treaty and the RMA, you have a powerful cocktail that can almost instantly reduce some public commentators to severe monocultural apoplexy” thunders the ‘Conciliator’.

Aside from the dubious wisdom of pointing fingers at unnamed ‘public commentators’ whom, one assumes, Mr de Bres may have to work with, the identification of the Treaty and the Resource Management Act strikes upton-on-line as one of the more extraterrestrial aspects of the speech. No-one in New Zealand these days denies the importance of the Treaty which, its ambiguities notwithstanding, remains short, to the point and unamended 162 years later. But you would have to be apoplectically charitable (to appropriate the Conciliator’s epithet) to find, as the Conciliator has, that the Resource Management Act finds itself pre-figured in the Treaty of Waitangi itself!

The Treaty was a statement of trust between two peoples. It was a very powerful but nonetheless simple document whose signatories could never have dreamt of the legalistic complexity and uncertainty that a future Parliament would unleash. For whatever its strengths (and upton-on-line believes there are many), the RMA did the Treaty of Waitangi few good turns. As upton-on-line was moved to comment in his valedictory speech from Parliament, the RMA is one of a number of legislative evasions that

“… have effectively passed to the courts, judgements that are inherently political. The Resource Management Act and the HSNO Act are just two examples which I was myself responsible for putting on the statute book. The uncertainty that treaty references therein have generated – and the prospect that they can only be determined by judicial means – is seriously corrosive of public confidence.”

In short, Parliament passed deliberately vague formulae that were left to organs of local government – and failing them, the courts – to make sense of. Furthermore, under statutes where there are no bars on legal standing, the question of who should be recognised as speaking for Maori was also left entirely open. Rather than allege monocultural apoplexy, perhaps the Conciliator should spend a little time trying to diagnose the source of people’s frustrations.

(It should be noted in passing that one of the good things about the Ngai Tahu settlement was the identification on the face of the statute of explicit sites of cultural and historical importance, thereby giving certainty to all parties in the event of contested resource uses).

Absolute tolerance v. tolerating the Absolute

Part and parcel of the Conciliator’s wrath is his insistence on tolerance as the antidote to ‘monocultural apoplexy’. Here he is, chapter and verse:

“But when it comes to the Treaty, or respect for Maori culture, people complain of Treaty fatigue or accuse Maori of holding the country or private landowners to ransom. There have been three recent examples — the taniwha and Transit New Zealand, the proposed replenishment of a beach on Auckland's North Shore with sand from the Coromandel, and the registration of a wahi tapu area over Kopukairoa Maunga at Welcome Bay. All of these have been greeted with political and media outrage.

Let me make my own personal position clear. Taniwha are not a part of my belief system. I have no spiritual objection to sand being taken from one beach to another. And there is nothing sacred to me personally about Kopukairoa Maunga. What I do believe in is respect for cultures other than my own. And if these issues have spiritual and cultural significance for Maori, why should I decry or deride that?

I suspect that sometimes when we profess to be tolerant we are only tolerant of people who by and large think and believe as we do. Real tolerance is much harder than that. It requires us to respect and engage with people who have different beliefs, who challenge us, and who have the right to live their own culture. If there is a conflict between cultures or beliefs, then we should not throw up our hands in horror or in mockery, but look for solutions and compromises.”

Who could disagree with that? Well the trouble is, that some spiritual and cultural beliefs tend to be all-consuming in their claims. There is no room for compromise because the claims they make are absolute. Theocratic societies run into this problem all the time. The history of religious conflict on the European continent is, in part, the history of a civilisation that struggled to come to terms with the competing claims of church and state. And these issues have, unwittingly, been raised again by the breadth of interests being claimed as taonga entitled to protection by statutes like the Hazardous Substances & New Organisms Act.

Readers interested in (one) leading edge of this debate could do worse than take away with their summer holiday reading a High Court decision of May 2001 – the Bleakley case (AP177/00). Upton-on-line cannot possibly do justice to the meticulous dissection of the issues by Judges McGechan and Goddard. But the case is instructive of why calls for more tolerance all round can’t solve every problem.

The case was an appeal from a determination of the Environmental Risk Management Authority that had decided to allow a field trial of genetically modified Friesian cows which would express a human protein in their milk. This was notwithstanding the objections of Ngati Wairere who claimed that the approval failed to take into account the relationship of Maori and their culture and traditions with their spiritual taonga (as required by section 6(d) of the Act.

This is not the place to debate the wisdom of such trials. The question boiled to how the courts should understand and take account of taonga. When the Act was passed (and the writer was responsible for placing it on the statute book), the necessity for this provision was explained to the relevant cabinet committees in terms of plants, birds and such like that were widely acknowledged to be important to Maori. It would be unacceptable, for instance, to introduce a species to New Zealand that risked knocking out valued native species – something of which the country has, sadly, too much bitter experience. The cabinet – and parliament – demurred.

But in the Bleakley case a much wider claim was mounted: namely, that taonga had to be understood in the widest conceivable terms, embracing both physical and spiritual dimensions. Now as a cultural assertion, that seems pretty unexceptional – and the Court had little difficulty in finding that

“There is no necessary or rational distinction between the tangible and the intangible so far as cultural and societal values are concerned, and that observation is as applicable to Maori as to any other.”

So far, so clear. The spiritual taonga called into question here were whakapapa (genealogical links to territory and all living things) and mauri (the life force possessed by all things). And Ngati Wairere’s argument was unambiguous: that the genetic manipulation proposed interfered with both whakapapa and mauri and that such an affront was simply unavoidable. That being the case, they argued, it was not possible to weigh the affront in the balance alongside the claimed benefits of the research. There was, effectively, no room for compromise.

The judgement usefully quotes extensively from the decision of the Authority which was meticulously sensitive to the arguments raised but equally clear about its doubts:

“The Majority accepts that the spiritual beliefs as expressed by Ngati Wairere are deeply held, as are the concerns regarding the consequences of the proposed research proceeding. However, the Majority have questions as to whether the interpretation of their traditional beliefs advanced by Ngati Wairere is widely held, given that those beliefs would have been developed well before human-kind had any appreciation of the evolution of species by genetic mutation and selection, or of the role, function and separability of genes, and the proteins they code for, or of the scientific possibility of transposing gene sequences between species. Matters of belief of course, can only be determined by the people who hold them…”

In the end, it had to face squarely the fact that the particular taonga in question had either to be accommodated or not. There was no middle way because the claim mounted was an absolute one. It decided not to accommodate it – a course endorsed by the High Court in these terms:

“The decision which the Authority in fact made was that spiritual beliefs are not amenable to protection in the same way – by the same methods – as tangible taonga. On the surface, that is true. One protects a faith by suppressing activity which debases it, often an ongoing and difficult process as the Spanish Inquisition found out. One protects a cathedral by building a wall around it. However, at a deeper level there is less validity in this statement: in both cases one meets an activity by adopting a means which prevents that activity from succeeding. The Authority was not, however, philosophising. The concern which it felt, and which it soon afterwards made explicit, was that in the circumstances which it faced there was no way in which these intangible beliefs could be protected except by refusing to allow the proposed activity. The Authority did not find that intangible beliefs were not owed a duty of active protection owed to tangible items, but was concerned at the consequences which the extension of protection inevitably would entail.

“With that in mind, the Authority and on good judicial Authority [specifically, the Privy Council in the Broadcasting Assets case] noted that the duty of active protection did not require Crown action beyond that which was reasonable in the prevailing circumstances. In the Authority’s view, treating the duty of active protection as a “determinant”- i.e. as prevailing over all other considerations – was unreasonable.”

That seems to upton-on-line an eminently sensible conclusion. But it highlights a worrying issue. That Parliament has placed on the statute book a provision that calls on decision-makers to grapple not just with things intangible, but things of an absolute nature. In a sense, Parliament erected a ground for concern in respect of which it would be impossible for ‘justice’ to be done. Either you give absolute weight to these spiritual matters – or you affront them.

A time for reflection

The fact is that the western philosophical and political tradition which informs New Zealand’s institutions has grown out of a painful, centuries-long struggle to come to terms with the fact that the assertion of absolute beliefs and unalterable identities does not sit comfortably in societies where those beliefs are not universally held. The question that some Maori must consider is how far they can assert particular rights to protection without causing the pluralistic society in which New Zealanders currently live to grind to a halt. It may be that an (intellectually-based) minority follow the assertion of such rights to their logical conclusion – separate sovereign arrangements where such values can be made universal. But the upheaval of that in such an integrated society would be truly bizarre – and it carries little popular support.

The alternative is to find a modus operandi which protects those things on which all New Zealanders can find relatively easy agreement and accept that there will be strongly held values that have to remain, if not in a strictly private sphere, beyond the reach of political and legal institutions. That modus operandi has to be one that is workable, uncontentious and explicable to the wider world with which we want to relate.

But Parliament’s work over the last two decades has been, unwittingly, to leave this frontier between the absolute and the workable undefined. In doing so, it has created new zones of potential conflict that must be addressed if a modicum of certainty – and sensitivity – is to be restored.

Perhaps people like Mr de Bres should think a little more deeply. Before descending into a fresh apoplexy of monocultural guilt (if one may modify the label), it may be worth their while reflecting on the very real concerns that are raised in the minds of ordinary people when laws like the RMA and HSNO venture where, literally, angels fear to tread.

And now a seasonal antidote

Upton-on-line is occasionally solicited to review books. One such that arrived during 2002 was Spirit in a Strange Land: A Selection of New Zealand Spiritual Verse, edited by Paul Morris, Harry Ricketts and Mike Grimshaw, and published by Random House. An excellent Christmas gift for those not in need of more things.

Mercifully free of any required dissection under the hazardous substances legislation, the volume is an excellent window in to the New Zealand mind and soul. Upton-on-line claims absolutely no qualifications to review such a volume but recommends it to his readership and reproduces below four poems that resonated with him. The first two, by Carl Stead and James K Baxter respectively, are reminders that the pakeha encounter with Maori has not been confined to the litany of iconoclasm detailed by the Race Relations Conciliator. The third, by Peter Cape, is pure kiwi Christmas. And the final poem, by Janet Frame, is almost Blakean in the edge it holds between naïve innocence and moral disquiet.

1820 The Missionary - C K Stead

1

Ten men to hold the wheel, children screaming,
our whole world shuddering, heaving, breaking –
how potent those words to calm us: ‘They that go down
to the sea in ships, that have business in great waters,
see the Work of the Lord and his Wonders in the deep.’

God who delivered us out of Leviathan’s jaws
has brought us here where welcoming thighs open
to the dark pathway. Better we had gone down
in that cold hell than in false paradise.
dreams and mosquitoes plague me in my tent.

Marsden’s lash, Kendall’s lusts of the flesh, -
where is our faith? Our half-drunk countrymen trade
muskets for women. The natives kill without rancour.
On still evenings I listen to small waves lapping
along the shoreline. It might be the language of God.

2

Our visitor put on green glasses and a wig.
We shouted ‘Atua!’ The natives ran from our table.
They say their recent dead go by this headland
on their way to Reinga. At night they hear them whistle.
I wonder, mocking their faith, do we mock our own.

For hillslope, riverflat and eastern bay was paid
fish-hooks, hoes, axes, blankets, trousers.
Also tobacco. The old chief made his mark –
eager to sell. Discreetly I asked him why.
He thought me mad. Had I never felt, he asked,

south wind around bare shoulders? Shaped a bone hook?
Felled trees and carved them with stone implements?
Tomorrow, next year, for ever, the land would be there.
We could not take it away. Why did we value so little
iron axes, fish-hooks, trousers, blankets of wool?

3

Today our first plough turned New Zealand soil.
I walked behind six bullocks. Dark loam rolled out
like a bow wave. I thought of what is to come
and wished this day might be remembered well.
How fortunate we first! God speed the plough!

This evening on the estuary, three canoes,
their chant preceeding them – hoea! Toia!
Over still green water. Soft voiced Hongi Ika
splendid in feathers, kai tangata, eater of men –
he paddles out of silence, and into the past.

I give this moment to my kin-of-place
now and for ever. The seed of your growing is here
in this Bay of Islands. Europe is in our books
and in our boxes. We will unpack them slowly.
God save this bright air, these untroubled waters.

- From: Voices (1990)

From Five Sestinas - James K Baxter

Winter in Jerusalem

The I Ching tells me T’ai, the sign of peace,
Is what I venture in. The pungas on the hill,
So lately loaded with snow, are green again
Though some branches were broken. Where many men gather
From need or friendship, truth begins to waken
As eels rise in the dark river./

If Heaven gives me this old house by a river,
It is not for myself, but for the purpose of peace,
As the thunder and rain of spring make green things waken,
A fence of poplar leaves between us and the hill
Who is our mother, or the chestnuts we gather
In autumn when the earth is warm again.

In our dreams it may happen the dead return again,
As if the earth spoke to us, because time is a river
On whose bank in ignorance the tribes gather
With emblems of battle, yet desiring peace.
The fathers instruct us from their holy hill
So that the warrior souls may waken.

In winter with a heavy mind I waken
And wait for the sun to lift the fogs again
That bind Jerusalem. Like a bridegroom above the hill
He touches with hands of fire the waves of the river
Like the body of a woman. Our words are words of peace
In this house where the wounded children gather.

We can go out with Maori kits to gather
Watercress, or some tough lads who waken
Early will break the veil of peace
With gunshots, combing the bush again
For young goats, or lift the eel-trap from the river
As fog shifts from the highest hill.

The times are like some rough and roadless hill
We have to climb. I do not hope to gather
Pears in winter, or halt the flow of the river
That buries in sludge the souls who begin to waken
And know themselves. Our peace can’t patch again
The canoe that is broken, yet all men value peace.

Peace is the language of the pungas on the hill
Not growing for any gain. These images I gather
As eels waken in the darkness of the river.

Nativity - Peter Cape

They were set for the home, but the horse went lame
And the rain came pelting out of the sky
Joe saw the hut and he went to look
And he said, ‘She’s old, but she’ll keep you dry’

So her kid was born in that roadman’s shack
By the light of a lamp that’d hardly burn
She wrapped him up in her hubby’s coat
And put him down on a bed of fern

Then they came riding out of the night
(And this is the thing that she’ll always swear)
As they took off their hats and came into the light
They knew they were going to find her there

Three old jokers in oilskin coats
Stood by the bunk in that leaking shack
One had a beard like a billygoat’s
And one was frail and one was black

She sat at the foot of the fernstalk bed
And she watched, but she didn’t understand
While they put these bundles at the baby’s head
And this river nugget into his hand

Gold is the power of a man with a man
And incense the power of man with God
But myrrh is the bitter taste of death
And the sour-sweet smell of the upturned sod

Then they went, while she watched through the open door
Weary as men who had ridden too far
And the rain eased off and the low cloud broke
And through a gap shone a single star

- From An Ordinary Joker: The Life & Songs of Peter Cape (2001)

Christmas - Janet Frame

In my country Christmas is
frangipani
jacaranda
pohutukawa

is the flotsam holiday court in residence;
the king of the golden river
in swimming trunks, rubbed with sun oil,
saving the stupid who would drown outside the flags.

In my country Christmas is sun
is riches that never were rags
is plenty on the plate
is nothing for hunger who came unseen

too soon or two late;
is holiday blossom beach sea
is from me to you
is from you to me

is giving giving
in a torture of anxiety
panic of pohutukawa
jacaranda that has lost all joy.

In my country the feast
of Christmas is free;
we pay our highest price
for the lost joy
of the jacaranda tree.

From The Pocket Mirror (1986)

And from upton-on-line, a joyous Christmas and an invigorating New Year.

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