Upton-on-line September 8th

When upton-on-line was launched, nearly a year ago, it was envisaged that each week would bring fresh material to jaded palates. New Zealand politics was judged capable of delivering a post-modern kaleidoscope of effervescent excitement. There would be no need to dwell on anything since in an age of global ephemera, politics was reduced to a mildly exotic fetish on the margins of human gesturing...

Back to Earth with a Thud

The fact that upton-on-line is holed up studying Tariana Turia's pronouncements as though they were religious manuscripts proves two things.

First, there are still big, weighty, political issues out there that don't evaporate the morning after they've achieved notoriety. Like old continental remnants, they're impervious to the vapid subduction of contemporary chatter. Turia has caused a force 8 earthquake on a major fault line in New Zealand's political landscape. There are plenty of aftershocks still to come.

Secondly, the quality of analysis is so abysmal that most of the country hasn't yet got round to debating the central issues.

Wading into the Wrong Issues

In last week's upton-on-line we castigated commentators who claimed Turia had used extreme language carelessly or loosely. We argued, instead, that her words were carefully chosen and reflect a sophisticated critique of the process of colonisation.

Notwithstanding that, upton-on-line continued to encounter journalists who wanted to know how she could "tone it down". They just couldn't grasp the point that it's not a matter of tone - it's a matter of substance.

This has led to some apparently unfamiliar bedfellows. Helen Clark has been drafted into the 'inappropriate language' camp in issuing an edict (Dr Cullen's term) that the word 'Holocaust' is not to be used in connection with anything that has happened in New Zealand's past. Upton-on-line, on the other hand, finds himself squirmingly uncomfortable in having at least partial sympathy with Danny Keenan from Massey University who castigates the "insular and almost precious nature of New Zealand society that the use of this word should have raised the firestorm that it did" (NZ Herald 7th September).

Even to admit this is to invite misinterpretation. But the truth is that it is Turia's views about colonisation and the basis of government in New Zealand that are truly radical and deserving of debate. That's why Turia is able to claim that her comments were "misreported and misconstrued". It sounds like a lame excuse. But there's some truth in it. For while everyone from the Prime Minister down has been expressing shock and horror at the holocaust parallel, the substance of Turia's argument about colonisation has been largely ignored. But that’s the really big debate.

What Turia Did and Didn't Apologise For

Turia's apology was very precise. It was an unreserved apology to those who were offended by the use of the reference to the holocaust and to those whose homes had been broken in to: "I did not in my speech mean to belittle survivors of the World War Two holocaust or those whose houses have been invaded..."

What she did not apologise for was the substance of her comments. And that should be no surprise for as upton-on-line ventured last week, the substance of her argument was laid out in a most careful and calculated manner. And how could she have anyhow? You can't 'apologise' for something you believe in. You have either to assert it or to resile from it. And Turia has made it clear that she is not in the business of selling out. The great irony of all this is that by becoming hysterical about language, Turia's critics have relieved her of having to defend her argument.

So What is the Core Argument We Need to Engage With?

As upton-on-line explained last week, it was the approving reference to Ward Churchill's critique of colonisation that was the real time bomb in the speech. And so far, it hasn't gone off.

Last week's edition explained the links Churchill draws between the process of colonisation in Canada to this day and genocide as defined in the 1948 Genocide Convention. It is surely a devastating irony that just this week, Parliament completed the passage of the International Crimes and International Criminal Court Bill which enables us to sign up to the Statute of Rome under which all manner of war criminals can be apprehended and tried. (Under Ward Churchill's view of things, it could well be argued that the leaders of a good many former British colonies like Canada and New Zealand should be arraigned for genocide.) Here follows a typical excerpt from an interview with Churchill:

"… it is for the dominant population, the settler society, the "Canadians", as well for as the settler population anywhere in the world, to begin to obey the law. You hear a lot of rhetoric, especially conservative rhetoric in Canada, about law enforcement. Well then-obey the law. The big laws first. The big laws, like, Canada's relations with other nations; the legal compacts by which these are determined- the treaties, conceptualizations of Aboriginal rights. For the general public, an insistence upon law enforcement, beginning with the big laws first and the little laws second, and if the little laws can't be made to conform to the big laws, then the little laws don't count. And an understanding, I guess, first and foremost, that historical reality is not that there was Canada and then there was some Native people who showed up with some special interest petitions to the government to get particular privileges for themselves, but rather the other way around. That Canada exists on the basis of its relations with people who already owned the property, the geography, the territory, the resources, the assets- everything which is Canada now. That it owes its existence to the nature of the compacts , the legal relations that were established between the Crown of England and the Indigenous peoples on that land in the first place. And that that's an inherited responsibility and obligation to the entirety of the non-indigenous population to adhere to, to observe, and to live by. It's the rule of law that allowed "Canada" to come into being in the first place. Canadians pride themselves by and large, in my experience, on having a history of relationships with indigenous peoples that's different from that of the United States. They believe that in Canada it wasn't a case of the country being brought into being on the basis of wars of conquest. The "bloody" historical realities were south of the border. But there was a process by which Canada came into being. And that was by negotiation of relations for acquisition of the land with indigenous people. Concurrent to that is that those indigenous peoples are nations in their own right, entitled to full range, from self determining rights, to an identity completely separate from that of Canada; a relationship to Canada that they themselves define, in accordance with their own understandings of interest, economic, political and otherwise. And if the canadian public is not willing to adhere to that standard of conduct, than it is a conquering, colonizing, genocidal reality. And if that is acceptable to the canadian public, then it should just come right out and say so. It should come right out and say, "We are essentially a North American Reich. We are essentially Nazis, and we're proud of it." If they don't feel that way, than they should get about learning what the laws are, learning what the standards of comportment and relationship are, and go about adhering to those in a civilized, dignified manner that is smacking of integrity, rather than duplicity.

The parallels between Canada and New Zealand are obvious - and it is no surprise that Turia should have identified a resonance with the New Zealand colonial experience.

So What are the Real Questions Confronting the Government?

There are basically two. The first is one of policy congruence. Is Turia's view of colonisation as an on-going and oppressive function of contemporary government consistent with the Government's policy orientation? The tentative answer must be 'No'. Colin James summarised its position with singular clarity in his September 6th NZ Herald column when he described Helen Clark's approach to Maori policy:

"Trained in the leftist political analysis of the early 1970s, she instinctively talks of Maori issues as sociological (hence her Waitara mistake), fixable by a bit more liberal social democratic effort (Closing the Gaps). In this sort of thinking, Maori are a socio-economic underclass."

But as James points out they are also an ethnic group. In fact it's more than that. They're an ethnic group with a Treaty and a history of colonisation behind them. Which is where the analytical frame extends from a sociological one to a politico-legal one. One has only to look at some of Turia's other writing to get the flavour of this.

In a succession of short columns for the Wanganui Chronicle, Turia has spelt out, simply and directly, what drives her vision. "At the heart of the issue" she says "is the issue of power. It is in the end having the power to determine how one's world should be. In our society it is the power of the majority, such is the nature of democracy."(24th July).

The antidote to this is self governance - "models of Government that can define, regulate and protect the rights which are inherent in being mana whenua." The constitutional hui held earlier this year (see upton-on-line 8 April 2000) was, Turia says, "a beginning of tangata whenua and other New Zealanders talking together about the ramifications of such changes that could lead to self-government."

So what underlies Turia's commentary is a world view that challenges the existing distribution of constitutional power relationships. And the status quo denies Maori power in a way that effectively maintains a colonist/colonised relationship - or in Ward Churchill's words quoted above "a conquering, colonizing, genocidal reality." In fairness, we do not know whether Turia would use these words. But her willingness to nominate "the continuing oppressive effects of colonisation ... since predator [sic] came" is certainly congruent with Churchill's intellectual universe.

The question is whether it is congruent with the Government's. Upton-on-line suspects that while many in the Government (and outside it) would have little difficulty accepting that the negative consequences of colonisation are inter-generational, they might have quite a different view about whether the required solution is constitutional. More on this below.

Building a Constituency

The second question is simpler. Supposing that this critique of colonisation is compatible with government policy, is the way in which Turia has spoken of it likely to shore-up that policy in a way that promotes good race relations and positive nation building?

The answer to this question must surely be 'No'. If the Government wants to close the gaps sociologically, it must hold on to a popular mandate from the taxpaying and voting public at large. By any measure, closing gaps involves the significant redistribution of wealth. Results will be measured in timeframes of decades or even generations. It's not a policy that lends itself to a Rogernomics-style 'crash through' implementation in which the electorate's verdict can be delivered ex post facto. It demands on-going public confidence in the motives and aims of the policy. Talk of predators seems a strange way to win that.

Where Does This Leave the Two Main Parties

In difficult – but very different – positions. For Labour it is clear that there is a live, unresolved debate about the exercise of sovereign power under way. This goes much wider than closing the gaps (on which Labour MPs are united). It goes wider than Labour’s Maori caucus. A key player in this debate is treaty negotiations minister Margaret Wilson whose writing on this subject explores territory that is way out in front of the party and the public.

Anyone interested in the speculative edges of Wilson’s thinking is referred to her thoughtful 1997 essay "A Path to Constitutional Change" in Living Relationships - The Treaty of Waitangi in the New Millennium in which she argued that the time was favourable for constitutional change. The following passage presents the challenge as she sees it:

“An environment conducive to constitutional change, and an agreed model to progress a new constitution, will not of themselves produce a constitution that includes the agreement of the Crown and Maori on the Treaty. The primary constraint on the incorporation of the Treaty into a constitution is Article 2. It is this article that guarantees tino rangatiratanga – sovereignty, autonomy, or self-determination depending on your interpretation. The fundamental importance of this commitment for Maori means they are understandably reluctant to enter any negotiations that may dilute the mana of the Treaty and of this article in particular. For the Crown and its descendent successive governments, this article represents an attack on the core of the Parliamentary form of governance, namely, the possibility of more than one centre of constitutional authority. Parliament is the institution that represents the notion of uniformity and oneness that is seen as the essence of a stable parliamentary democratic system.
This apparent irreconcilable difference can be overcome only through the dominant culture acknowledging that its legitimacy to govern depends not only on the agreement it signed in the Treaty, but more fundamentally on the observance of the principles and values of constitutionalism that form the basis of our democratic system of government…” (pp 255-6)

From the ether (or, more accurately, from James Tully in Strange Multiplicity: Constitutionalism in an age of diversity, Cambridge University Press,1995) she plucks “the three conventions of mutual recognition, consent, and cultural continuity”.

Now upton-on-line has no idea whether Labour’s Maori caucus or indeed Maori sovereignty activists have endorsed Margaret Wilson’s constitutional musings. But it seems highly likely that talk of the possibility of “more than one centre of constitutional authority” has raised high expectations of change.

The difficulty for Helen Clark’s Government is that it is stuck with a mandate to keep a unitary system. Furthermore, even if it could persuade the electorate to buy into a new, Treaty-based constitutional arrangement, it would have to come up with a solution to fund the new arrangements.

What is the Basis of Redistribution in a New Constitution

The trouble for Labour’s constitutional activists is that if they are going to propose self-determination for, say, Maori, on what basis will the self-determining group be funded? To the best of upton-on-line’s knowledge, no-one has advocated an end to universal taxation as the basis for redistributing wealth on the basis of need. But can taxpayers be expected to tamely surrender resources that are transferred to programmes over which they have no control? What would be the justification for such a redistribution of wealth? Would it be compensation for the inter-generational damage Turia speaks of?
Labour can’t avoid a debate within its ranks about the exercise of sovereign power and the shape of our constitution. While the Prime Minister talks about 'Closing the Gaps' in the social arena, some of her members are talking about opening gaps in the constitutional fabric.

What About National

National has its own difficulties. Having doggedly stuck to a treaty settlement agenda that it commenced in 1990 (and which is now stalled in the new government’s hands) National now finds itself exposed to two tides running in different directions.

On the one hand the centre of debate in Maoridom has moved on from grievance settlement to new legal avenues in social legislation and the possibility of constitutional reform. On the other hand, much of Pakeha New Zealand is recoiling from engagement with the Treaty which it sees as a source of ever-expanding complexity and recrimination.

Support for National’s settlement initiatives was always contingent on some degree of finality. The new government’s activism has shattered an always fragile consensus.

Most importantly, while National had its head down negotiating deals, Margaret Wilson and others were inventing a whole new language of Treaty-based constitutionalism. National is behind the debate. It knows how to connect with the public. It doesn’t yet know how to join the intellectual battle. It has to master the debate and develop its own critique incredibly fast if it is to avoid a reactive position. Its recent decision to establish a Task Force to get inside this debate comes not a moment too soon.

A Verdict on Tariana & Some Ground Rules

Tariana Turia has made it inevitable that there will now be an on-going debate that goes far beyond Closing the Gaps. For the first time, a single-minded Maori MP within the Cabinet has challenged New Zealand’s constitutional arrangements at a fundamental level. There is no doubting her courage or her determination not to sell out. There is also no doubting the damage she has done to the Government’s hold on public support for its policies – and indeed its own internal cohesiveness. (Seeing MPs like Clayton Cosgrove and Janet Mackey express their concern publicly as a way of showing solidarity with their nervous constituents said it all).

This is a debate that has a long way to go. Some ground rules might include:

 Trying to avoid futile attempts either to deny or to reinterpret the past: what happened, happened and we can’t undo it. But what we do today is in our own hands.
 Avoiding evasive language. We have peppered our legislation with phrases that we don’t know the meaning of as a way of avoiding the debate. It’s time for parliamentarians – and more importantly the community at large – to own the solutions, not pass them to the courts.
 Only being prepared to consider positive sum solutions. Embitterment and emigration will be the signs that we’ve chosen negative sum solutions.
 Talking directly to one another. It’s amazing what it can do.

Helen Clark’s government has a much more fragile mandate than it had a month ago. Its ability to handle this issue in a practical rather than an academic fashion will determine its fate.

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