Saturday, January 31, 2004

Don Brash and the Politics of Equality in New Zealand

For people active in politics, there comes a point at which you stop focusing on changing other people’s minds, and concentrate instead on building a community of people who share your principles. Think of it as a sign of maturity. Arguing about politics with people who don’t share your values can be a frustrating experience. Working with people who do can be very rewarding. The big advantage is that you don’t have to spend all your energy arguing back to your first principles every time you embark on a political project.

But every once in a while a political event irrupts into your daily life. It’s the kind of event that gets you off your couch and back into the business of arguing with other people. Maybe it's because you feel that an important principle is at stake. Or else you realise that the buck stops with you. Nobody else is stepping up to the plate. Either way, you feel compelled to respond.

Such an event for me was the recent speech given in Orewa by Don Brash trashing the politics of justice and reconciliation between Pakeha and Maori. It’s not because I think that Brash made a particularly powerful speech. As John Armstrong noted in his Herald column, Brash’s efforts lacked “the fear factor.” I think it was the lack of the fear factor that started to get me worried. It was the sense that there was a very large and receptive audience for the things that he was saying that worried me. In a sense, he was just saying what was politically obvious. And as Armstrong says, easy.

The speech, as we all know, attacked Labour’s so-called policies of “racial separatism” in the context of the foreshore and seabed debate. By attacking Maori rights, Brash was effectively moving the perimeter of his political community to the right. It’s a pretty crowded part of the spectrum here in New Zealand, so many observers who found his comments politically obnoxious sought comfort in the fact that Brash is taking National away from the powerful political centre.

But Brash’s speech also criticised New Zealand’s feeble attempts at justice and reconciliation towards Maori. And to the extent that this kind of criticism forms part of the milieu of common sense in New Zealand, I think that it is important for people who support the rights of tangata whenua to now clearly articulate what the project of justice and reconciliation is all about.

Reconciliation and the Gesture

In his speech, Brash attempted to acknowledge historical injustice to Maori. But in doing so he attacked the Waitangi Tribunal, one of this country’s chief institutions for redressing this injustice. Although he acknowledged that there had been things done to Maori "that should not have happened" he also argued that the only legitimate answer to such injustice was what he called the gesture at recompense.

“Let me be quite clear. Many things happened to the Maori people that should not have happened. There were injustices, and the Treaty process is an attempt to acknowledge that, and to make a gesture at recompense. But it is only that. It can be no more than that.”

It’s a very clever use of the word gesture. Because in a sense, all justice operates at the level of the gesture. Anyone who has ever been the victim of a crime knows that no judgement or punishment ever fully restores what has been lost. There is no restitution that can restore an inequity caused by injustice.

So what, then, do our attempts at justice seek to achieve? On one level, justice is concerned with equality. Justice cannot be satisfied with punishment. It must seek restitution. But in addition justice must seek to alter conditions which cause injustice. In so doing, justice knows that it cannot alter the past, but that it has the capacity to open up the possibility of a future free of injustice.

This is the real meaning of the phrase gesture at recompense. It is a gesture towards the future. But this is not what Brash means by the gesture when he claims that there is "a limit to how much any generation can apologise for the sins of its great-grandparents". Not only does Brash telescope a complex and ongoing history of injustice into a single moment which has passed irredeemably into history, for the leader of the National Party there is no possibility of a future of equality. By denying responsibility for injustice we close the possibility of a futural justice. And although this assignment of responsibility for injustice towards Maori appears to be related to the sins of the past, in reality it is more complicated.

No matter how much the political right tries to spin it, the gesture at recompense that is at the heart of processes of justice and reconciliation like that provided for in the Waitangi Tribunal is not about finding contemporary Pakeha personally responsible for the "sins of our grandparents". Instead, it is about acknowledging that contemporary Pakeha are the beneficiaries of a history of injustice directed towards Maori. To the extent that we fail to redress this imbalance, we become personally responsible for the perpetuation of this injustice in the present day and into the future.

Denial, Reconciliation and the Future

In his essay Denial, Acknowledgement and Peace Building Through Reconciliatory Justice, Robert Joseph points to the way in which a process aimed at redressing the injustices of the past must work toward securing reconciliation and a just future; i.e., a future in which two communities live together in equality and justice:

“Reconciliatory justice focuses on the building of appropriate relationships by recognising and addressing past grievances and exploring future relationships at the post-settlement governance and grass roots levels.”

This is exactly the framework envisaged by the Waitangi Tribunal, though some might argue that its efforts are hampered by a lack of real power to enforce its decisions. For the Tribunal, the gesture toward justice is inherently a gesture toward the future:

“The Waitangi Tribunal's vision is that, having reconciled ourselves with the past and possessing a full understanding of the Treaty of Waitangi, Mâori and non-Mâori New Zealanders will be equipped to create a future for two peoples as one nation.”

For Joseph, the first step in achieving a just future of equality and reconciliation involves acknowledging the injustice of the past. Cultural differences are one thing. But it is critical to recognise the very real inequity that exists between two communities has its roots in an historical injustice. So there is a quality of denial when Brash maintains that there is no real difference between Maori poverty the poverty of other groups:

“It is the bottom 25 per cent of Maori, most of them on welfare, who are conspicuously poor. They are no different to Pacific Islanders or other non-Maori on welfare; it's just that there is a higher percentage of them in that category.

But this denial goes further. It turns into a denial of the Treaty as a treaty, that is, as an agreement between two peoples. As John Armstrong writes in the Herald, Brash’s view is that Maori “…have no special status as descendants of precolonial occupants who made a treaty with the British Crown, accepting its government in return for its protection of their territory, treasures and tribal mana. Dr Brash believes the Maori signatories at Waitangi gave up exclusive legal rights and became, in the words of Hobson, "one people" with Pakeha.”

Brash cites a statement spoken in “the halting Maori” of Governor Hobson as evidence for this view. But if it is true that Hobson spoke in a halting voice, it is equally true that Hobson had a halting understanding of what iwi meant when they signed the Treaty of Waitangi. Brash is unable to recognise that there may be differences of interpretation over the meaning of the Treaty because from his point of view we have ceased to be two peoples living together in agreement. So politically, the statement "we are all one people" must always be read as an abrogation of the Treaty, which is an agreement between two peoples.

John Armstrong worries that Brash shows an inability to comprehend that others may hold a different view of the document. But should Brash ever be in a position of power in regards to the Treaty, he will have to contend with the fact that international jurisprudence has recognised that it is the indigenous interpretation of a treaty that takes precedence.

From the recognition of past injustice and its repercussions into the present day, Joseph outlines several key principles that should guide a process aimed at justice and reconciliation between New Zealand’s two communities. It’s clear that we have a long way to go:

Recognition - truth finding and telling of the injustices;

Responsibility and remorse - acknowledgement and apology for the injustices;

Restitution - of Maori land and power to determine its use;

Reparation - for injustices in financial terms recognising that ethnocidal and genocidal harms are really incompensible in this way;

Redesign - of state political-legal institutions and processes to empower Maori to participate in their own governance and the government of the state."

Spinning to Win

Obviously, the project of justice and reconciliation is an ambitious one. And in the face of a growing culture of xenophobia in this country, you can understand that politically, it's a messy pot to put on the front burner. Even though New Zealanders put great store in the myth of racial harmony, it's easy to see that huge tensions exist. So how do we advance a programme of justice and reconciliation in a cultural context of jealousy and fear?

I think that the belief in the myth of racial harmony, misguided as it is, shows that there is some desire for reconciliation between Maori and Pakeha. The problem is that it won't be easy. There cannot be reconciliation without justice, which means that there are going to be some hard decisions to make. Any party that wants to tackle reconciliation seriously has to deal with the fact that for Pakeha the demand for justice appears as an assignment of personal responsibility for the sins of the past. That is how the right has spun it, and it's been easy for them because justice for Maori does indeed call upon Pakeha to bear responsibility.

But, and this is critical, the project of justice calls us to be responsible for a future, not for the past. It is this futural element, a promise of reconciliation, justice and freedom, that contains the language necessary for securing the goodwill and support of the Pakeha community.

Tuesday, January 27, 2004

The Herald, Dogville and the problem of the Gift

It’s old hat here to criticise the New Zealand Herald. So old hat that it’s rarely done. In addition to the infantile puns that question the sexuality of certain Labour politicians, there is the poor coverage of international politics, the unlovely editorials and the small-minded letters to the editor. But even worse are the pages dedicated to the arts. We all know about New Zealand’s anti-intellectualism. But why is The Herald so content to merely reflect this country’s lack of interest in culture?

Why am I saying this? A few weeks ago I went to see Lars Von Trier’s Dogville in a packed cinema here in Auckland. Dogville is a disturbing work that is also a wonderful film. My partner and I couldn’t stop talking about Dogville, and later in the evening we decided to read some reviews online to get a better idea of what other people had thought about the movie. By some freak accident, we happened to read The Herald’s review. It was pretty depressing.

Culturally, The Herald shares in the Pakeha colonial abhorrence for anything Continental. The worst thing in the world is to appear "post-modern" in New Zealand. It's like saying you think that Helen Clark might actually be a decent human being. Unfortunately, reviewer Peter Calder seems to be enmeshed in this cultural miasma, if his writing on Dogville is anything to go by. And that disdain has made the ethical heart of Dogville completely invisible to him.

In his review, Calder claims that the film is evidence of Von Trier's "desiccated misanthropy" and tries to situate the problematic of the film on the same level as Golding's Lord of the Flies:

Readers of Lord of the Flies will find nothing new here. The film, drenched with unsubtle symbolism, is interesting more for its stagey form than its rather melodramatic content, and its characters are more cyphers than identifiable individuals.

It's striking that Dogville's moral content should be so invisible to so many people. But to me at least, the whole mode of the film signals that its primary content is entirely ethical. A few moments later, I found a post from an anonymous writer on Wikipedia. Surveying several possible interpretive responses to the film, the writer ends with a suggestion that there may be a conflict between ethics and economics, giving and the expectation of return.

Some have called Dogville an anti-American movie because it seems to imply that America does not care for the weakest members of its society and worse, that they are exploited whenever people think they can get away with it. The images of homeless Americans of different eras flashing over the screen during the credits, accompanied by the song Young Americans by David Bowie, have done little to dispel that interpretation.

A more extreme view is that von Trier advocates the use of violence to punish those who do not help others. That interpretation is called into question by the fact that Grace, at the end of the film, has become as monstrous as those who mistreated her, ordering to kill even children and a baby in front of the eyes of their mother.

A perhaps more likely explanation is that von Trier wants the viewer to understand the use of violence by those who are oppressed and exploited, and offers as the only salvation true altruism without the expectation of a return on investment. In effect, the film portrays quid pro quo arguments as a slippery slope that leads directly to slavery and sexual exploitation.

What is a Gift?

In light of Calder's comments about Von Trier's misanthropy, it's interesting to note that the film begins with an urgent ethical problem. The character of Tom Edison believes that the townspeople of Dogville need to better understand how to receive. If, as many critics have claimed, Dogville is an anti-American tirade, then it seems curious that the “Americans” in the film have a problem with receiving. After all, as the global superpower and the foremost economy in the world, how difficult can it be for citizens in the United States to receive? Isn’t the problem actually one of giving, or even of receiving too much?

Dogville is obviously more than just an allegory about the United States. Instead, the film explores the structure of giving. In this, the film explores the work of such writers as Marcel Mauss, Emmanuel Levinas and Jacques Derrida. All three writers locate the act of giving and the gift as one the most important features of humanity's moral life. Mauss's analysis revealed that gift giving in most societies constituted a sophisticated network of economic and social exchange, while both Levinas and Derrida analysed the gift as part of the ethical relationship to the other. Critically, many observers have noted that the peculiar thing about the act of giving is the sense in which it creates a situation of indebtedness on the part of the receiver. But if the act of giving creates an obligation of return, how then is it possible to give a 'free' gift?

Reading this stuff you begin to realise that there is a funny and terribly problematic relationship between economics, ethics and the meaning of the gift. Alan D. Schrift, in his book The Logic of the Gift expresses the structural points of similarity and difference between gift giving and economic transaction perfectly, beginning with a quote by the anthropologist C.A. Gregory:

"Commodity exchange establishes objective, quantitative relationships between the objects transacted, while gift exchange establishes personal qualitative relationships between the subjects transacting"

Schrift then adds that:

"Where commodity exchange is focused on a transfer in which objects of equivalent exchange value are reciprocally transacted, gift exchange seeks to establish a relationship between subjects in which the actual objects transferred are incedental to the value of the relationship established."

I'd suggest that the citizens of Dogville resent the gift of Nicole Kidman's character; they resent the gift of her time because they feel indebted to her. And in an effort to relieve themselves of this debt, they misrecognise her gift as their gift, and subject her to a series of economic transactions in order to free themselves of the sense of moral indebtedness that her arrival in Dogville creates.

Ethics and Film Form

Many people are used to reading films as a structure of contrived symbols. But can we read the stripped-down style of Dogville merely as a rigid allegory studded with symbolism? I think that Dogville is doing something a little different, something that recalls an earlier mode of stoytelling. The clue for me is established at the beginning of the film, when the central problem is located on the terrain of ethics: the problem of receiving. If it is true that the film is concerned with ethics and moral knowledge, then I think that the film’s structure looks to a completely different kind of aesthetic construction, a kind of structure pioneered by the Soviet film maker Andrei Tarkovsky: the parable.

A parable is a mode of moral instruction; instead of proceeding primarily through symbol, the work of the parable is achieved through example. A parable should communicate a moral truth.

Tarkovsky's style of filmmaking was highly personal and deeply evocative. His concern was humanity’s relationship with God, a relationship that Tarkovsky felt was an ethical one. If cinema was to address ethics in a meaningful way, i.e., in a way that contained the possibility of spiritual redemption, it had to leave behind the didacticism that underlay the more usual approaches to cinema. For Tarkovsky there was a parallel between a subject’s moral life that unfolded through time and the cinema, an art form that he likened to “sculpting in time.” Cinema could create an experience that allowed for a personal relationship with a profound moral reality.

Contemporary theories of montage and image placed too much emphasis on the pre-given meaning of film. The experience of cinema became circumscribed by the use of carefully constructed symbols. For Tarkovsky, this kind of symbolic construction work risked plunging film into tendentiousness. A rigid symbolic order in a work of cinema abandoned the capacity of cinema to create spiritual understanding through the possibility of multiple readings. “The aim of art” said Tarkovsky, “is to prepare a person for death, to plough and harrow his soul, rendering it capable of turning to good.” You don’t have to be religious to appreciate his project of opening up the experience of cinema to the possibility of broader, multiple truths:

An image cannot be a symbol… Whenever an image is turned into a symbol, the thought becomes walled in so to speak, it can be fully deciphered. That's not what image is. A symbol is not yet an image. Although image cannot be explained, it expresses truth to the end... Its meaning remains unknown. … [A]ny time I attempt to explain, I notice everything loses its meaning, it acquires a completely different sense than intended, moves away from its rightful place. I could only say a bird would not come to an evil man but that's not good enough. A true image is an abstraction, it cannot be explained, it only transmits truth and one can only comprehend it in one's own heart. Because of that it's impossible to analyse a work of art by utilising its intellectual significance.

Saturday, January 17, 2004

What's Wrong With Indymedia Aotearoa?

Indymedia Aotearoa (AIM) has to be one of the more depressing indymedia projects in the entire world. Too often it’s the preserve of the loony left, arguing about Starhawk or the opression of bicycle helmets. Sometimes you can even shiver in the terrible language of the cold war when some comrade from an unreconstructed communist group climbs aboard.

I don’t spend an awful lot of time over there, but from time to time, I find myself going through the postings looking for the semblance of a political discussion. Why? Well, I need to go somewhere. At heart I’m a left social democrat. In my native environment, I almost flourished. Here in New Zealand, the social democratic project seemed to die as a result of the reforms in the mid-80’s. All that’s left are creepy people who roam the internet with the bitterness of those who lack a political home.

I go on sneaking about, looking for what sustenance I can find. Often you have to pick through some rather distasteful stuff. A good example is some pretty disgusting anti-semitism that was posted on Indymedia Aotearoa recently. Although AIM is alleged to be one of New Zealand’s most popular political websites, these anti-semitic comments passed almost without criticism. For me, it calls into question the entire ethos of the Indymedia project, an ethos that both recalls the circumstances of the project’s birth and the conditions of the internet at the time. Writing in the anarchist webjournal Infoshop News, a guy named ChuckO puts it like this:

It was a great idea when the Independent Media Center opened up its first website for the Seattle anti-WTO protests in December 1999. The first IMC website came out of years of alternative and grassroots media activism. By a strange quirk of fate, the Seattle IMC also included something called the "open newswire," an experiment that allowed every reader to be a reporter, if they wanted to get involved in DIY, participatory media production.

Think about this. It was five years ago. The internet was a very different place. Broadband hardly existed. People still relied, by and large, on the corporate media. So the idea of an independent network of sites devoted to community activism sprang out of a condition of media scarcity, a time when the culture of D.I.Y. was relegated to comics and cassette tapes. It was only natural, then, that the pioneers who staked out this part of the web were a little doctrinaire about the right of free speech. Everyone who had been denied the right to speak were now given access. Indymedia wasn’t just a site. It was a movement.

The insistence on the right to free speech meant that the indymedia sites became subjected to harrasment from the right wing, and as access to the internet grew, from the fringes of loonieville. Racism, particularly anti-semitism, began to find a place on the indymedia network. It became normalised. ChuckO watched as the activist spirit of the indymedia project ran headlong into the abstract demand for the right to free speech:

…the inability of the IMC network to take aggresive action against racist and anti-semitic posts further damaged the Indymedia's reputation with Jewish people and people of color. We understand that some pro-Israel extremists think that any criticism of Israel is anti-semitic, but the IMC network became a hotbed of just plain anti-Jewish articles, opinions, and comments. Part of the problem within the IMC network is that most activists refused to stand up to the free speech totalitarians within the network, who argued that everything posted should stay visible to the public.

The growth of these kinds of posts led to struggles within the indymedia network between people who wanted to preserve free speech and those who wanted to ‘moderate’ hate speech on the indymedia sites. The proliferation of anti-semitic posts resulted in the discrediting of the entire indymedia project. Fights over hate speech led to the disintegration of several indymedia collectives, most recently in San Francisco.

What these ‘free speech totalitarians’ didn’t understand was that the internet in just a few short years became a very, very big place. When the indymedia project began, weblogs hardly existed. Only a small, hard core of computer-savvy geeks participated in usenet discussions. Five years later, and it’s a different virtual world. And because that world has changed, it’s vital to change the ethos of the indymedia movement. What is important now is to support left-wing and progressive politics in the welter of the internet, now no longer a new place, but just as corporate and as commercial as any other media environment. I think this is especially critical in New Zealand.

I call it editing, some call it moderation, while others call it just plain censorship.

Sunday, January 04, 2004

Muddled Thinking on Fiji Announcement

Either Deputy P.M. Cullen doesn’t know what he is talking about, or he is signaling a profound change in New Zealand’s policy toward Maori peoples and their right to aboriginal title and (gasp) self government. I wish it were the latter, but I suspect it is probably the former. Cullen was responding to a recent announcement by the government of Fiji giving indigenous peoples ownership rights to particular coastal areas. According to the Weekend Herald,

...Dr Cullen backed the Government's duty minister, Annette King, in distancing New Zealand from the Fijian plan. He said Australia and Canada were more likely overseas models for this country over issues of indigenous people's rights.

Now I don't know much about the situation in Australia, but I do know a little about the situation in Canada. Let's just say that if New Zealand were to follow Canadians in their approach to aboriginal title, people here would be in for a very big shock.

To begin with, it's important to note that unlike New Zealand, the public ownership of the seabed and foreshore is an established fact. It has been for years. And further, private exclusive title to areas adjacent to coastal lands cannot include any rights to the seabed and foreshore. Those rights belong to the Crown, either with the federal government or with the various provinces. Development of coastal areas and resources is carried out through the granting of leases and licences. Public bodies such as management boards oversee the granting of such instruments, and they often are comprised of several levels of government, including the First Nations.

So what about aboriginal rights to the seabeds and foreshores? First, we need to look at the kinds of aboriginal rights that are at play in the Canadian context. They include both the right to title and to self government.

To begin with, in Canada the courts and legislatures have determined that aboriginal title cannot be arbitrarily extinguished by the Crown. And in 1997, the Delgamuukw case decided that aboriginal title was both more than fee simple ownership and more than hunting and fishing:

...Aboriginal title, the Supreme Court of Canada said, was not a right similar to "an inalienable fee simple" (the term that describes full ownership at common law). Neither was it, as the Crown had argued, simply a bundle of aboriginal rights to use land for traditional purposes. "Aboriginal title", the Supreme Court said, "is a right in land and, as such, is more than the right to engage in specific activities which may themselves be aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies".

So not only does aboriginal title preexist the common law, it is also not confined to the customary uses practised at the time of contact: the courts recognised that traditional cultures had the right to change and develop over time while exercising control over their resources.

Finally, the right of First Nations to self government was enshrined in Section 35 of the Canadian Constitution in 1982.
Bear in mind that the text of the Constitution does not create either the inherent right of title or of self government; rather, it explicitly recognises both as prior rights already given in law. The recognition of self government given in the Constitution has provided the basis for both federal and provincial policy:

The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. It recognizes, as well, that the inherent right may find expression in treaties, and in the context of the Crown's relationship with treaty First Nations. Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.

The Canadian courts have repeatedly urged the various levels of government to settle issues of aboriginal rights and titles through negotiation, rather than litigation. The result has been uneven. In some jurisdictions, particularly in the far north and in British Columbia, settler governments have responded to the new environment by negotiating far reaching agreements that have resulted in the creation of entirely new levels
of government. In other jurisdictions, negotiations have stalled, forcing aboriginal groups back to the courts to have their rights affirmed.

But do these rights extend to the seabeds and foreshores? Some light was shed on aboriginal rights to coastal areas and resources in Marshall vs. Canada 1999. A member of the Mi'kmaq First Nation,

...Marshall was acquited of fishing without a license out of season and the Court gave the opinion that Mi’kmaq Indians in eastern Canada have the right of fishing at any time, even forcommercial purposes. While these rights were later interpreted by the Court to be subject to government fishing regulations, the scope for dispute... still exists.

There have been as yet no firm court decisions on the full extent of aboriginal title in regards to seabeds and foreshores. But in the light of the Marshall decision, and with rights of aboriginal title and self government recognised in both the Constitution and in law, the trend has been towards the negotiation of robust, participative co-management regimes over coastal resources.

With the Foreshore and Seabed proposal on offer from Labour, I don't think that Cullen has any of this in mind. It's too bad. He and Clark could have taken this opportunity to save New Zealanders from decades of expensive litigation and ill-will as Maori fight the illegal and arbitrary denial of their rights.