upton-on-line

9^th August 2001

In this issue…

…upton-on-line takes a deep breath and tries to say something non-anaesthetic about the recently released report of the Royal Commission on Genetic Modification. But in case some readers feel their eyes glazing over at its mention, he offers two quick cameos as an intellectual anaesthetic (much in the way NZ newspaper editors do with their animal stories on page one…)

Missing anything?

Not a question upton-on-line has been asked, in truth, because New Zealanders (and the locust clouds of tourists who drink disconsolate Perriers in streetside cafés) seem to assume that Paris is just one long silk-scarf-of-a-spring-evening perfumed with the scent of lilac and Dior.

As temperatures hang around the 30 degree mark and ozone levels cause Paris’ new mayor Bertrand Delanoë to press for car-less days to alternate between odd and even numbered registration plates, upton-on-line can confirm that living conditions for those left in a half-deserted city resemble a Turkish bathhouse with the staff on strike. Wellington’s crisp, incisive winter weather of which he reads seems vastly more appealing. But the same fug settles on Auckland from time to time so it’s not a question of yearning for different climates. They come and go.

On the other hand, Parson’s Bookshop on Wellington’s Lambton Quay seems as civilised a place to while away elevenses as anywhere upton-on-line has discovered. The books, CDs, coffee and cheese or date scones are individually replicated in many places but nowhere do they come together with such comforting effect. Mind you, the Wellington criminal bar must be out of sorts since Parson’s culinary maestro, Lorraine Moore, has just been here in Paris where she was able to check out the competition.

Should your children learn French?

The answer is most definitely `yes’ if they are planning to study the documentary history of the 100 Years War, settle in remote non-touristique villages in La France Profonde or possibly consider a career as a missionary or mining company executive in West Africa. But for less exotic career options it is hard to make the case, so pervasive is English in this most ardently patriotic of countries.

Upton-on-line had the misfortune to study French in New Zealand schools for 9 years without, fatally, much recourse to audio-lingual facilities. So in fairness his preparation was severely limited. But, watching Asians and others trying to cope without the 55% overlap in words that assists English speakers, he wonders how on earth anyone gets past base one in a country that, particularly amongst its young people, considers it a point of honour to meet halting French with francophone English.

How different this is with upton-on-line’s first visit to Paris, 27 years ago, when virtually no-one would speak English (as a point of honour) and those who could understand it pretended not to. Today it is ubiquitous – its spread insidious. In New Zealand we would have issued a pest management strategy under the Biosecurity Act. The French seem to have thrown the towel in. The re-guilded dome of the Academie Francaise glitters for the tourists who slog past. But there’s no sign of life within.

The Royal Commission on Genetic Modification

There is no way that upton-on-line can do justice to the latest door stopper to issue from New Zealand’s tireless public policy machine. What follows are some quite unashamedly impressionistic notes that may inspire further investigation by readers. The full report can be down loaded from the Commission at www.gmcommission.govt.nz It is strongly recommended.

Why read it?

If you are part of the biotechnology industry or the vast risk management industry ranged variously against it you will already have devoured the report. But for the general reader, it is still an excellent read not so much for its conclusions (which were utterly predictable and unremarkable) as for the picture it paints of what New Zealand has become today. Diasporans who have been away for a long time may be disturbed that they don’t recognise the country they left. Residents might be surprised to know what has become orthodox in their homeland while they’ve been slaving away at the office, getting the kids through school, fixing the bach etc.

The overwhelming impression is that we have become a terrifically complicated little country. The Commission endorsed the Hazardous Substance & New Organisms Act of 1996 and the Environmental Risk Management Authority created under it as the appropriate regime for dealing with the risks that relate to GMOs. But it has proposed to thicken the alphabet soup with two new beasts - Toi te Taiao: the Bioethics Council, and a Parliamentary Commissioner on Biotechnology plus a new high-level strategy to be administered from another corner of the jungle by MORST.

Whom do we trust?

Leaving aside one’s view about genetic engineering, the rapid metastasis of organisations in this area is in itself a fascinating commentary on how in 2001 we deal with issues. Back in the 1960s there might have been a Royal Commission. But any policy change would have been taken in hand by the people in departments with number eight wire and the people at the Treasury with the wire strainers. Today that would be like nominating the Midwives Council to oversee the Maternity Benefit (there are those who rather unkindly believe they do).

The Royal Commission was established as a purely political device. It recommended nothing that would not have come out of a simple inter-departmental review. The arguments that it heard at incredible length added little to the sum of knowledge before it started. But the current government, when in opposition, had needed to differentiate itself from the former National government that, together with Labour, voted down a Bill calling for a statutory moratorium promoted by Green MPs with whom it is now in de facto partnership.

So the promise of a Royal Commission kicked the ball out of touch for 18 months. The Commission has now neatly kicked the ball back into touch. The essential architecture of what was there before survives – an independent, expert quasi-judicial body (ERMA) set up to remove decision-making from the eddies and currents of day-to-day politics. But ERMA now has blood on its hands – or, more appositely, perhaps one should say DNA on its lapels – having given the green light to various proposals (following equally exhaustive and exhausting hearings). And of course those who don’t like the thrust of those decisions now have a jaundiced view of its ‘independence’.

So the Royal Commission has ridden to the rescue with two new sources of ‘independent’ trustworthy advice – a Bioethics Council and a brand new Parliamentary Commissioner on Biotechnology. The first group will be wiser than ERMA, even wiser than commissioner judges and bishops and certainly wiser than elected parliamentarians. The new Parliamentary Commissioner will be even more trusted because, the Commission tells us, the Parliamentary Commissioner for the Environment and the Office of the Ombudsmen are offices that "are understood and accepted by, and have the confidence of, the New Zealand public.

This is all starting to feel like stacking Russian dolls. Is there any limit to the levels of oversight? And do we just elect MPs these days to appoint other people to apply their minds? Judging by the quality of Parliamentary scrutiny we’ve come to accept, one can understand a reluctance to rely on elected people to make debate issues seriously, but there is a risk that by appointing expert oversight we are going to encourage an even more meddlesome system than we had.

Has the Commission shed any light on the values debate?

Upton-on-line is not a qualified philosopher but he really wonders whether there is anything particularly compelling about Chapters 2 and 3 which lay out weighty pronouncements on things called values aided by diagrams. The Commission claims to have identified seven nationally shared goals that go "some way to ensure congruence between goals and strategies, and to enable different groups to see their own goals more broadly and in relationship to others."

Some do seem to fit the ordinary definition of a value. Freedom of choice is often argued to have value in itself, as is some measure of equality and the notion of democratic association. But upton-on-line was puzzled to find the (undoubted) uniqueness of New Zealand’s flora, fauna and ecosystems described as a "value". He would have described those as bio-geographical facts of our place of residence. And "being part of a global family" seemed more in the nature of an assertion that you might hear at a UN conference rather than something you could argue over in a Philosophy 101 seminar.

But that’s not the real worry. What is truly perplexing is the way the Commission believes that everything can ultimately be reconciled with everything else. It purports to outline a "case study" on transgenic animals (a term this reader had difficulty reconciling with what amounted to a 6 page narrative account of what different groups thought) concluding in deflationary tones that:

The idea seems to be that as long as you don’t leave anything out of the concrete-mixer, and you get the proportions and the mixing time right you can’t fail to get perfect concrete. On page 335 we are given a glimpse of the sunlit uplands in which all forms of agriculture – GM, conventional, integrated pest management and organic – can share the same Garden of Eden:

And just in case we have missed the recipe for this alchemy there is a diagram that has a happy resemblance to a flower in which everything intersects with everything else.

If everyone is happy with this who is upton-on-line to upset it like some grumpy fairy god-mother? He has no quarrel with the idea that finding workable compromises is the way to move forward – indeed, the entire report of the Commission is one big exercise in doing just that. But trying to root the possibility of all this in some purportedly shared values seems to upton-on-line just too tidy. The Commission, it seems, wanted to avoid dealing with the much knottier reality that exists in the world outside Royal Commissions: facing the fact that there values are frequently incommensurable, and that when they are, the choices that have to be made involve sacrifice, loss and – frequently – rancour. A recessive Hobbesianism in upton-on-line’s intellectual DNA bucks at the tidy meliorism with which the Commission seeks to empty its world of conflict.

New expanses for Treatyology

Nowhere is the desire for a magical squaring of the circle more apparent than in the voluminous sections on the Treaty and consultation with Maori. Chapters 3 and 11, and the third appendix devoted to describing the consultation process with Maori, are required reading, not to mention the patient detailing of arguments raised by Maori submitters throughout the Report. It is an extraordinary portrait of where the debate on the place of the Treaty in New Zealand society and how the Maori side of the Treaty industry now sees itself after 25 odd productive years in the trenches of the Tribunal, the Courts and elsewhere, has got to.

Pakeha New Zealanders reading the report may be surprised to learn just how different they are from the Maori of Aotearoa. Pakeha ethics arise contextually whereas for Maori ethics are located at the boundary of the natural and spiritual worlds. The Commission’s meliorist spirit keeps moving towards the possibility of totally different world views being able to co-exist:

The trouble is that the tone of Maori commentary cited throughout the report (with literally a handful of exceptions) posits a vast chasm and, what is more, one that may be unbridgeable. Bevan Tipene Matua is cited (also on p 30) as complaining that

The trouble is that plenty of testimony is cited in support of the fact that Maori knowledge is rooted in spiritual values that are simply inaccessible to outsiders, and that the knowledge in question is variously "shared in the deep hours of the night, on empty stomachs away from food" (p 18) or at unexpected moments (like in the car on the way to the supermarket (p 19) and is "not discussed easily, especially outside marae or by younger people".

As upton-on-line has previously commented, if Maori – or indeed New Zealanders as a whole dealing with this discourse – are so different that we become inexplicable to outsiders, then we are going to be a very cut-off little group. But there are grounds for wondering whether the Commission, like so many liberal listeners before it, is not unquestioningly accepting differences where there may not be any. We are told, for instance, that for Maori

We are told that Maori-decision making is characterised by consensus, that emotion is vented and tolerated especially when mana is challenged, and that when consensus and agreement aren’t forthcoming, then matters are left to lie upon the table and so on. Is this really so different from the way many people operate? Is the phenomenon of silence not necessarily indicating consent really something that belongs under a special description of Maori custom?

The observation is made that -

Where have these Commissioners been these last few years? Having sat through hundreds of tedious National Party meetings over the years upton-on-line can report endless decisions reached by consensus and a welcome extended to anyone in the district who could be bothered to turn up (the one who did were often the most lively contributors!). The minutes were more or less meticulous depending on who took them. But he has also been at meetings where Maori present felt the need to caucus separately just like other groups with matters of particular moment for them. This sort of egg-shell sensitive commentary is painful. Of course there are differences – they’re part of every day life and they don’t benefit from this sort of embarrassing anthropological notebook approach.

The currents of constitutional revolution

It is clear that the Commission ran head-long into a rapidly developing constitutionalist argument in its dialogue with Maoridom. The resolutions of the national hui recorded on page 152 make that very clear. So this has been another case of people being heard, treated enormously respectfully, and then by-passed.

Upton-on-line concurs completely with the Commission’s decision not to accept the argument that section 6 of the HSNO Act should be amended to require those exercising powers under the Act to "recognise and provide for" Maori values. In support of its decision the Commission said:

But that will not be the end of the matter. In the first place, Moana Jackson (always good for ensuring that no sugary compromise is being slipped through the door and a supporter of a robustly constitutional and separatist side of the argument) is cited in these decisive terms:

Now one might comment that that’s what happens when you say you have inaccessible knowledge that is beyond communication but that’s for another day. The key point to make here is that that is precisely what the Commission has done – by not acknowledging the constitutional claims being raised, it has treated Mr Jackson in exactly the way that he objects to. Maori have been listened to with exquisite politeness and cosmic tact – and then basically passed by. Like it or not, the Commission’s values concrete mixer and careful listening can’t get away from a fundamental chasm here.

It really is time Governments stopped asking arms length bodies to find ways round these problems and took direct responsibility for these debates. They’re not cultural – they’re deeply political and are all about the exercise of power in a bi-cultural state. Upton-on-line wonders how many more evasions will be tried before this blinding reality is faced up to…

If we’re going to go down this path then let’s get the debate out into the open

Because if we don’t, we’ll be taken down it anyway without realising it. That’s because courts and commissions (with a fair cross-pollination of membership) are taking us steadily down the path of a wholly novel treaty-based constitutionalism. It’s the comfortable assumptions along these lines that are the really important thread in this report. On p 298 the Commission blandly notes that

So there you have it. The courts are in the driving seat. True, there’s the odd government publication to refer to – but nothing that smacks of an engagement by Parliament or some sort of democratically based constitutional debate. And if some of this Commission’s other recommendations are followed – like up-grading section 8 of the HSNO Act to require those exercising powers under the Act to "give effect to the [as yet unknown and still developing] principles of the Treaty of Waitangi"- this cosy constitutional revolution by judges will continue.

A simpler, more liberal regime?

Space does not permit upton-on-line to go through some of the Commission’s other juicy recommendations. On the research side, some small recommended changes will make life easier. For the rest, it looks more complex. The idea that conditional releases is a liberating step – explicitly rejected after careful thought by the select committee in 1996 – can cut two ways. Certainly, it makes it likely that the regulatory jungle will expand – which may be no bad thing if it means things are allowed that would otherwise have been declined, but could also end up perpetuating opportunities for review and re-litigation long after they would otherwise have been dropped. The extra Maori engagement in the intellectual property process will almost certainly – in the absence of clear guidance – add more complexity and delay. And despite the exhortations by the Commission that the WAI 262 claim should be dealt with (it’s only a decade old so far) one could reasonably predict that the too-hard basket will grow heavier before it grows lighter.

A sting in the tail

The Commission thoughtfully felt that the Minister should exercise her call-in powers to deal with the very first application for general release. Upton-on-line knows how chuffed Marion Hobbes will be to play this role. She may be even more excited when she learns about the powers she has in the Act. Upton-on-line shepherded the HSNO legislation through the House a time when the Bolger Administration didn’t have a clear majority so the Act which passed onto the statute book represented some real select committee horse trading. The result is a level of potential risk aversion that is way beyond anything he had first envisaged when the Act was introduced – and in truth didn’t realise until after it was passed.

For interested students upton-on-line reprints here an extract from a speech he gave in Washington DC in 1999 to the American Association for the Advancement of Science on the subject of risk management and the environment. It received not a word of coverage in the New Zealand press but it covered many of the issues the Royal Commission grappled with. I expect the Commission was equally unaware of it but it spells out the

truly awesome opportunities for political manipulation that exist in the Act. If the Greens do their homework,  as I expect they will,  they will be working  busily  to achieve through the Minister's office what they failed to achieve through the Commission.

[Any reader wanting the full text of the speech from which the following extract is taken can request it by emailing Simon Upton at uptononline@noos.fr]

The following extract continues on from a detailed account of the illegal importation of the RCD virus: