11th 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.
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
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
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
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
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
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
“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
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 naďve innocence and moral
1820 The Missionary
- C K Stead
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
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.
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
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?
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
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
1 Winter in Jerusalem
The I Ching tells me T’ai, the sign of
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
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
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
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
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
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
is the flotsam holiday court in
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
And from upton-on-line,
a joyous Christmas and an invigorating New Year
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