Upton-on-line September 29th
Upton-on-line’s little announcement last week seems to have caught some of the Capital’s better-informed information
brokers/gossips by surprise. Upton-on-line has, in turn, been truly surprised by the amount of attention given to his
forthcoming evaporation from the political scene. Most of it has been quite unnecessarily nice. But one thing has jarred
– his nomination as “National’s resident intellectual”.
The most innocent explanation for this label is simply journalistic inexperience. The fact that he has wasted more time
in Parson’s Bookshop mooching through the CDs than any of his colleagues, is not in itself evidence of anything other
than hedonism. As upton-on-line keeps pointing out, there are three PhD’s in National’s caucus – Dr Lockwood Smith, Dr
Nick Smith and Dr Wayne Mapp – and none of them have been taunted in this way. They’re all regular New Zealanders.
But it’s not so much the team ostracism that upton-on-line fears. It’s the Paul Johnson factor. Johnson – a gifted and
opinionated writer whose political trajectory has tracked from being Editor of the New Statesman to resident
antediluvian at The Spectator – devoted a whole book to the subject, entitled (simply) Intellectuals (Weidenfeld & Nicholson, 1988). It does not make happy reading as Johnson hones in on the questionable personal morality of some of
the leading intellectuals of the last 200 years.
He describes the origin of the species in these terms:
“With the decline of clerical power in the eighteenth century, a new kind of mentor emerged to fill the vacuum and
capture the ear of society … For the first time in human history, and with growing confidence and audacity, men arose to
assert that they could diagnose the ills of society and cure them with their own unaided intellects: more, that they
could devise formulae whereby not merely the structure of society but the fundamental habits of human beings could be
transformed for the better. Unlike their sacerdotal predecessors, they were not servants and interpreters of the gods
They were, in Johnson’s estimation, people who believed they could refashion the rules of life out of their own heads
without regard for tradition. And who are the villains in this Pantheon? Johnson’s list includes Jean-Jacques Rousseau
(“What could your miseries have in common with mine? My situation is unique, unheard of since the beginning of time?…”);
Bertolt Brecht (the East German communist playwright and winner of the 1955 Stalin Peace Prize who, Johnson observes,
had an Austrian passport, East German Government backing, a West German publisher and a Swiss bank account); and
Jean-Paul Sartre whom Johnson quotes as explaining that “the essential problem is to reject the theory according to
which the left ought not to answer violence with violence.” Charming people.
Now every single one of Johnson’s intellectuals fits more or less comfortably on the political Left. So does this mean
upton-on-line has been viciously revealed as a closet leftist? Not so. Because upton-on-line believes there’s a brand of
right wing intellectualism that is equally imperious. While Leftish flights of fancy revolve around grand blueprints
dreamed up by intellectuals who never personally have to live with the consequences of what they prescribe for ordinary
mortals (and who don’t enjoy sabbaticals in which they can clear up their thinking), there are Rightist delusions of an
equally 'intellectual' nature.
These normally start from a rights-based view of the world which is discovered by the theoretician and erected as a
shield against any collective action that might coerce the primordially free, independent, rational soul (who has
apparently lost any tribal reflexes that were once triggered when being chased by mammoth elephants or hunted by
leopards on the forest margins of the veldt). Somehow, the view that civilization has been built up by both individual
and collective forces is too hum-drum a view for either camp.
New Zealanders have long been suspicious of intellectuals. People like Seddon and Massey, or Kirk and Muldoon didn’t
need the crutch of intellectual pretensions because they identified directly with the ordinary person who has, for over
a century, been the locus of political wisdom. So upton-on-line must instinctively resist being lumped with the small
cadre of real intellectuals who have made it past the ever-vigilant guard dogs on talk-back radio to make it into
Sir Geoffrey Palmer has to feature in this roll call, as does Margaret Wilson (they are both Professors). As an
international law expert, Dr Wayne Mapp comes perilously close to intellectual beatification. But as a man with an
account at Benchmark Building Supplies and a weed-eater, upton-on-line strenuously maintains his innocence.
Muldoon at the hands of an Intellectual
In short, Muldoon couldn’t stand them. But he still asked Barry Gustafson to embalm him for posterity. We now have the
headstone – all 545 pages of it. Upton-on-line has reviewed this sober tome for the Listener. Those who still subscribe
to this publication (“strictly, you understand, to read Jane Clifton”) will have seen it. But those who worry about
being seen buying an allegedly pinko publication at the newsstand can safely view the review at upton-on-line’s website
In his introduction, Gustafson claims that out of roughly 180 target interviewees for the book, only five declined. Bill
Rowling and Colin Moyle did so for reasonably obvious reasons. Ruth Richardson announced that she had “total contempt
for Muldoon. I disliked him and have no desire to contribute anything to his biography. He was a disaster for the party
and the country.” Bob Tizard announced that he was planning a two volume blockbuster of his own, tentatively entitled
Bastards I Have Known, the second volume of which would be devoted entirely to Muldoon. He declined to furnish a
competing author with the benefit of his own unique invective.
That leaves upton-on-line as the fifth and final stand-out who, apparently, also told Gustafson that he was planning a
book. This was probably true but, because upton-on-line subscribes to Enoch Powell’s view that political autobiography
habitually approached vomit, it may be a long time in coming.
The Treaty & the RMA
Back to serious stuff. Upton-on-line was interested to read an article this week in the Evening Post by Steven Price,
who is described as a lawyer, journalist, broadcaster and a Fulbright Scholar between 1995-98. In other words, a
dangerously likely candidate for branding as an intellectual.
It was interesting for two reasons. In the first place it was a classic specimen of bien pensant disdain for the sweaty
world of politics. Those (such as upton-on-line and National leader Jenny Shipley) who had dared suggest the Government
was entering new territory with its treaty clauses in social legislation were swatted away as mere agitators. “[Y]ou can
dismiss most of the rhetoric as politicking” advised the cool, lucid Mr Price.
It is a hallmark of the opining classes that they maintain a scrupulous hygienic barrier between themselves and
politics. We couldn’t possibly have politicians warning of anything serious could we?
But having erected a stout cordon sanitaire against any possible risk of being identified with (God help him)
politicians on the centre-right, Mr Price comes to the daring conclusion that since no-one’s clear about what the
principles of the Treaty of Waitangi are, we might as well “tell judges to interpret legislation consistently with the
spirit of Christmas”. So it’s now safe even in truly enlightened circles to doubt the efficacy of these clauses.
Not that Mr Price is at all worried by them – not a bit. It’s just that the health legislation does it so much better by
“mak[ing] a good fist of ensuring Maori representation and participation and targeting health disparities”.
But the more interesting point about the Price analysis is the casual and shallow way in which it deals with the tangle
that has ensured between the Treaty and the RMA. It’s worth quoting Price in full since myths and misunderstandings take
root so quickly these days:
“General references in laws to the “principles of the Treaty of Waitangi” rarely make much of a difference in court. I
found 24 such references in our statute books. Interestingly, 16 of them were put there under National governments,
including a much-litigated section in the Resource Management Act 1991 requiring people exercising resource-related
powers to “take into account” Treaty principles. Has that been interpreted to give Maori a veto over resource consents?
To trump the objective of sustainable management? To give them preference over recreational and commercial interest? No.
The courts have anxiously avoided becoming enmeshed in determining whether the Treaty provides rights to favourable
resource outcomes. Judges have restricted themselves to holding that the Treaty clause requires proper consultation with
affected Maori in appropriate cases. The wording in the proposed health law – “this Act is to be interpreted in a manner
that is consistent with the principles of the Treaty of Waitangi” – is even more innocuous than the Resource Management
It doesn’t make the Treaty into law. It can’t override the rest of the Act. It just means that where the Act is
ambiguous, the courts should favour an interpretation that’s consistent with the Treaty.”
There is much that is artfully glossed over here. In the first place, none of the 16 statutes Mr Price credits National
with passing is about the delivery of social services. That’s not an accident. Because the inclusion of treaty clauses
has until now been rooted in an acknowledgment that the Crown should not deal with assets (broadly defined) in a way
that might defeat claims under Article 2 of the Treaty.
The Resource Management Act clause is widely understood to provide some sort of legal back-stop for vast – and as yet
unresolved – claims to natural resources, pre-eminently water. The same reasoning applies to the Crown Minerals Act, the
Hazardous Substances & New Organisms Act and a constellation of others. It was, effectively, a policy of parking unfinished business by
putting Treaty clauses into legislation. Contrary to Mr Price’s view of things, there was nothing innocuous about the
They encapsulated a deal. The Crown could legislate to enable business-as-usual to proceed but claimants could activate
a judicial trip-wire if they believed their interests were threatened. This is where Mr Price’s view of things becomes
somewhat other-worldly. It’s not a question of what the courts have said or even how often recourse has been made to
them. It’s a question of the threat-power that has been quite consciously handed to Maori interests thereby enabling
them to exercise leverage far beyond the court room.
With hindsight, there will be many who regard that course as unwise. It was done in good faith because there was no
settled Crown view on the scope of Article 2 and it seemed fair to preserve the status quo ante while everyone’s
attention was focused on the big land claims. But there can be little doubt that the clauses have created extraordinary
opportunities for leverage. Mr Price reveals a breathtaking naivety when he claims that the only effect of the clauses
is that where an Act is ambiguous “the courts should favour an interpretation that’s consistent with the Treaty”.
Would that it were so simple. If he were to consider visiting the provinces and finding out what is happening in the
name of the Treaty in countless rural resource consent applications he would have to revise that view. The consultation
requirements he blandly refers to can, in some cases, simply make it not worth while even starting.
Where I live, in the Waikato, Tainui (who carefully excluded their claim to the Waikato River from the big raupatu
settlement) are able to exert very significant leverage without ever having to go to court. Only those with equally long
pockets (like the NZ Dairy Group) can afford to challenge them in front of the Environment Court.
Their senior legal counsel, Shane Solomon, told a panel discussion in which upton-on-line participated last year, that
in his ideal world the Waikato River would be taken out from under the Resource Management Act and Tainui would become
much more heavily involved in issuing consents. But in the meantime, the RMA has given the local iwi a hugely powerful
position in its dealings with the Waikato Regional Council.
Only the Government can sort this out. Between 1996 and 1999 it was impossible to gather a Parliamentary majority for
any sort of amendment that would clarify the place of the Treaty. NZ First MPs were very happy with the open-ended
provisions they had. If liberal spirits wonder why a centre-right government between 1990 and 1999 made no progress on
moving towards economically efficient resource allocation instruments like tradeable water rights, they need look no
further than the unresolved status of water under the Treaty. Property rights work fine. You just have to decide who
owns what – and how you make the initial allocation.
There is nothing innocuous about Treaty clauses. Calling them vague, symbolic and watered down is to misunderstand their
real potency. They are heavy-duty instruments that confer real advantages to those who can enlist them.
As a country we’re going to have problems enough sorting out how we deal with water and claims to the intellectual
property underlying native plants and animals. Why add new rafts of complexity to social relations?
Silly Old Scientists
One of the statutes with an 'innocuous' Treaty clause that is now causing mayhem is the Hazardous Substances & New Organisms Act. A recent decision by the Environmental Risk Management Authority to permit the insertion of human
genes into cows for medical purposes (reported in our July 27th edition of upton-on-line) is now being appealed to the
dismay of many.
That’s a long and involved matter. But upton-on-line thought readers would be interested in commentary provided by Maui
Solomon in the August/September issue of Mana magazine. Here’s what he had to say:
“But in many respects, science lags behind Maori knowledge of the environment and the natural world. A recent example is
the much publicised Human Genome project on which some of the world’s top genetic scientists have spent the last 10
years and tens of millions of dollars unraveling the structure of human DNA. One of the reported breakthroughs with this
research was the remarkable discovery that certain aspects of human DNA had similarities to plant and animal cellular
While this is celebrated within the scientific community as a major new discovery, it is old hat to Maori. They have
always known that there is a direct biological connection between humans and the natural world, including animals. This
is all explained within whakapapa, beginning with the Earth Mother, Papatuanuku, and the Sky Father, Ranginui, and their
children, Tanemahuta (God of the Forest), Tangaroa (God of the Sea) and the many other children from whom humans are
descended. It is, therefore, no surprise to Maori that we carry the same genetic material as plants and animals.”
What have our scientists been doing wasting all this money when a simple phone call to New Zealand could have clarified
everything? All peoples have their creation myths. But I know I would be laughed out of house and home if I claimed that
science is lagging behind the creation myth in Genesis. What’s so different about this one?