No Ordinary Bill

Liberty Leading The People: The principle of equality has long been regarded as indispensible to the achievement of liberty. The Marine & Coastal Areas Bill, by establishing the new property right of "Customary Title", will enshrine in law a power that only Maori may exercise. By negating the principle of equality in this way, the National Government threatens the freedom of all New Zealanders.

THE GOVERNMENT’S DECISION to rush through the remaining stages of the Marine & Coastal Area Bill is as ill-considered as it is dangerous. For this is no ordinary piece of legislation, easily repealed by a newly-elected House of Representatives. It is a bill which confers upon Maori, by virtue of their indigeneity, a new kind of property right (Customary Title), along with a powerful new set of legal powers to enforce that right – powers which the legislation’s many critics believe will undermine the generally accepted principles of liberal democracy.

The formal equality of all citizens lies at the heart of the liberal-democratic state. Indeed, any state which invests one part of the population with more rights than another, or strips a minority of citizens of rights enjoyed by their neighbours, is quite rightly condemned for promoting inequality.

The historical path towards full political equality has been anything but smooth. Revolutions and civil wars have been fought to secure its full recognition.

The right to elect a government, for example, was originally restricted to high-status men of property. And even when the property qualification was abolished, women remained excluded from the franchise. In most colonial societies the indigenous population was denied any role at all in government.

The key point to acknowledge here is that, from the 18th to the 21st Century, the expansion of human rights has been a genuine progression: from privilege and exclusion – to equality and increasing participation.

Our own founding document, the Treaty of Waitangi, reflects the logic of this progression. The absorption of New Zealand into the British Empire (Article One) is followed by a clear description of how the transition (from tribal society to modern state) is to be managed (Article Two). The document is then concluded by the granting of formal equality to all of Queen Victoria’s new subjects (Article Three). By the standards of the time, this was an extraordinarily generous arrangement – a triumph of missionary zeal and the British Foreign and Colonial Office’s liberal optimism.

Until relatively recently, that liberal optimism did not appear to have been misplaced. Through much travail, and many injustices, the transition of the Maori people – from pre-modern tribalism to full citizenship in a modern state – seemed on the point of fulfilment.

In the 1970s, however, New Zealand intellectuals’ faith in this progressive vision faltered. The reality of economic inequality, coupled with the persistence and institutionalisation of racial prejudice, undermined their confidence in the assimilationist policies of successive New Zealand Governments. Maori intellectuals, in particular, rejected the liberal-democratic assumptions upon which assimilation was based. Maori, they insisted, possessed an indissoluble and separate identity, which could only be protected in and by Maori-controlled institutions. Article Two of the Treaty – which guaranteed tino rangatiratanga – was not a formula for transition, but a charter for the permanent preservation of tribal power and independence.

The extraordinary fact of the past forty years of our history is the manner in which this bold rejection of Captain Hobson’s famous declaration of 6 February 1840: he iwi ko tahi tatou (now we are one people) has become the official policy of the New Zealand State.

Not, I hasten to add, the policy of the New Zealand people – who have never been given the opportunity to formally endorse – or reject – the separatist "two nations in one state" orthodoxy which now prevails in our universities and throughout the public service. Though these latter groups celebrate "The Treaty Debate", the term is cruelly inappropriate. The only issue up for debate among New Zealand’s elite policy-makers is the speed at which our liberal-democratic institutions should be "adapted" to the new bi-cultural orthodoxy.

The Minister for Treaty Negotiations, Chris Finlayson, has unabashedly located himself alongside the Maori Party at the sharp end of this sham debate. His airy sanctioning of the abrupt curtailment of the Maori Select Committee’s consideration of the Marine & Coastal Areas Bill made a nonsense of his Government’s earlier promises of democratic accountability.

The overwhelming majority of submitters opposed the legislation (a situation which the Prime Minister, John Key, had previously reassured the electorate would cause the bill to be withdrawn). No matter. Mr Finlayson, like the leader-writer of The NZ Herald, clearly holds the view that there must be "a gradual acceptance that a post-colonial state cannot be governed simply by majority rule".

There’s simply no way Mr Finlayson and his Maori Party allies are about to let a few "clowns" prevent them from exploiting a wavering and wafer-thin majority in the House of Representatives to pass a piece of legislation inimical to the democratic beliefs – and rights – of all New Zealanders.

Dissatisfied Maori nationalists in Tamaki Makaurau are organising a hikoi of protest from the north against Mr Finlayson’s bill. Perhaps dissatisfied Pakeha democrats in the south should do the same?

This essay was originally published in The Press of Tuesday, 15 February 2011.

The Mouths of Sauron

The Mouth of Sauron? Attorney-General, Chris Finlayson, has very unwisely stepped from the sidelines of the dispute between Sir Peter Jackson and NZ Actors Equity to voice his support for the legal claims of Hollywood's Dark Lords.

"UNION" – it’s such a small word, and yet a person’s reaction to it can tell you so much about them. Indeed, to my mind there is no better test of character than the choices people make when confronted with an industrial dispute. The current stoush between the producers of The Hobbit and the union representing New Zealand’s actors has proved especially revealing in this regard.

Sir Peter Jackson’s response has been particularly disappointing. To most New Zealanders, Sir Peter is the epitome of Kiwi can-do-ism. He’s the man who did what no one believed could be done in the time-frame no one believed it could be done in. His hugely successful Lord of the Rings trilogy not only brought Tolkien’s magical prose to life on the cinema screen, it also presented New Zealand’s wild and unspoiled beauty to an astonished world.

So audacious was Sir Peter’s LOTR project that Kiwi actors, extras and technicians fell over themselves to help him. From the point of view of this country’s creative community (if not the trilogy’s hard-nosed Hollywood backers) LOTR was a demonstration of what New Zealanders could do. Sir Peter became the maestro of one vast, collective labour of love.

It made his name, and it made him a very considerable fortune – which none of us begrudged him. His success was our success.

And that’s what makes his response to NZ Actors Equity’s request for dialogue so very, very disappointing. Instead of siding with the people who helped to make him the movie mogul he is today, he’s sided with the Hollywood bosses.

Just imagine how much more New Zealanders would have loved and admired him if he had said to the industry big-wigs: "Look, guys, we were willing to under-sell ourselves once – just to show you what we could do. But now that we Kiwis have proved we’re the equal of film-makers anywhere, it’s time to pay us accordingly."

Sadly, what he actually did when push came to shove was become a union-buster.

The response has been fascinating.

The Attorney-General, Chris Finlayson, has weighed in on Hollywood’s behalf by asserting that any negotiations with "Independent Contractors" would constitute price-fixing under s30 of the Commerce Act.

This is extraordinary, but Mr Finlayson’s price-fixing argument is one with which the American trade unions would be all-too-familiar – going all the way back to the Sherman Act of 1890.

The Sherman Act was originally intended to combat the anti-competitive behaviour of monopolistic big-business "trusts" like Standard Oil, but was seized upon by anti-union employers as a way of preventing unions (which they characterised as "cartels" of workers) from acting as a "restraint of trade" by collectively "fixing" the price of their labour.

Section 30 of the Commerce Act outlaws any contract which sets out to, "or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining, of the price for goods or services". So, any attempt by a group of contractors (i.e. actors) to collectively establish a common price for their services would indeed be illegal.

Needless to say, Sir Peter and his Holywood mates have gone to considerable lengths to ensure that everybody who wishes to participate in their productions does so as an "Independent Contractor" – not as an employee.

There is, of course, nothing to prevent Sir Peter from hiring actors, extras and technicians as "fixed-term employees". Nothing, that is, except the obligation which he would then have to recognise their union, bargain with it in good faith, and afford its members all the rights enjoyed by other New Zealand workers.

The Attorney-General knows this, of course, but has entered the fray on the Employers’ side anyway. Unwisely, I would say, in light of the fact that since the mid-1980s Cabinet Ministers have sensibly elected to remain "on the sidelines" of industrial disputes to which the Crown is not a party.

But Sir Peter and Mr Finlayson are not the only people whose behaviour has given us cause for consternation over the past few days.

What should we make of the well-known media personality and (of all people) the film producer (!) who rolled up to the NZ Actors Equity union-meeting in Grey Lynn expecting to be admitted? How would these gentlemen react, I wonder, if Equity’s Frances Walsh appeared outside their production meetings expecting to join their discussions?

It’s sad really. The neoliberal model of industrial relations has been in place for so long that a whole generation has grown up without the faintest knowledge of what it means to stand together in unity, or to express solidarity with a group of workers under attack.

Since we’ve been discussing Tolkein’s works, let me close with a passage from Lord of the Rings. It concerns the messenger of the Dark Lord, Sauron.

Tolkien describes him thus:

The rider was robed all in black, and black was his lofty helm; yet this was no Ringwraith but a living man. The Lieutenant of the Tower of Barad-dur he was, and his name is remembered in no tale; for he himself had forgotten it, and he said: ‘I am the Mouth of Sauron.’

It is to be hoped that all the mouthpieces of Neoliberalism: all the men and women who long ago forgot what it means to stand in solidarity with their fellow New Zealanders; all the "industry people" who have spent the last few days doing everything they could to undermine the unity of NZ Actors Equity; suffer the same fate as Sauron’s evil messenger.

Putting Us In Our Places

No Friend of Dissent: Like many Pakeha politicians who have embraced the Maori Nationalist cause, Attorney General, and Treaty Negotiations Minister, Chris Finlayson, reserves his most deadly venom for those who dare to question the State's race relations policies.

AM I THE ONLY New Zealander feeling less than a respected citizen today? Or that the full and equal protection of the laws no longer applies to me? Am I alone in suspecting that, constitutionally-speaking, something important is about to take place – without the nation’s consent?

What set me to pondering these questions was an extraordinary interview broadcast by Radio New Zealand on Tuesday morning.

Morning Report’s Geoff Robinson was talking to Treaty Negotiations Minister, Chris Finlayson, about the agreement secured between National and the Maori Party over the repeal of the Foreshore & Seabed Act.

Preceding the interview listeners had heard reactions to that agreement from Dr Grant Morris, a law lecturer at Victoria University. Michael Barnett, CEO of the Auckland Chamber of Commerce. And Hugh Barr, spokesperson for the Coastal Coalition – a group devoted to preserving public access to New Zealand’s beaches.

All of these men had expressed critical views of the National-Maori Party deal and Finlayson had been asked to respond to their remarks.

What followed was extraordinary.

Rather than address the trio’s arguments, the Treaty Negotiations Minister immediately launched into a series of aggressive put-downs of his critics.

"I didn’t know that Grant Morris knew anything about this subject," sneered the Minister, "I thought his specialty was legal systems or feminist legal studies." Michael Barnett, according to Finlayson was "just sounding off because it’s Tuesday morning". Hugh Barr received a ministerial tongue-lashing for "writing some crummy article in The Dominion Post which contradicted everything I had told him."

Huffed Finlayson: "I can’t be bothered wasting my time with him."

But, oh, what a difference a change of ethnicity produced in the Minister. When Morning Report asked for his reaction to the Maori MP, Hone Harawira’s, charge that the whole consultation exercise surrounding the Foreshore & Seabed issue had been "bullshit", the Minister couldn’t have been sweeter:

"I’m a bit disappointed in Hone," crooned Finlayson, "because in my opinion he’s a first class chap, and he’s a fantastic MP for the Far North, with John Carter. But one of the things I picked up, from his rohe [tribal territory] actually, was the idea that folk didn’t want to have to go to court, or negotiate, to prove their mana. And I thought that was a fair enough point. So, we’ve added in the universal recognition order as a result of that. So, I think Hone’s a little unfair, with the greatest of respect to him, because I was listening and I was the one who was up on the road hearing what people were saying."

The contrast: in the Minister’s tone; in his careful choice of words; and most particularly in the extreme care he took not to give offence; was, to say the least, instructive.

The Minister’s Pakeha critics: the CEO of the Auckland Chamber of Commerce (an institution not noted for its hostility to National governments); a university lecturer whose comments were measured and utterly lacking in any kind of personal animus; and a champion of New Zealanders’ right to recreate themselves amidst this country’s spectacular natural beauty; were all the recipients of Finlayson’s disdain, and he expended no serious effort responding to their arguments or questions.

How different it was for the Te Tai Tokerau MP. The man who infamously referred to his fellow New Zealanders as "White Motherf***ers" was responded to with "the greatest of respect" because, in the assessment of the Treaty Negotiations Minister, he is "a first class chap" and, like his colleague, John Carter (the National MP who once impersonated a Maori dole-bludger on John Banks’ Radio Pacific talk-back show) is "a fantastic MP for the Far North".

The Minister’s Pakeha critics had dared to suggest that the interests of thousands of New Zealanders had been sidelined in the Government’s rush to reach an agreement with the Maori Party.

As Mr Barnett observed: "We still don‘t know what contact has been made with the recreational and conservation interests, the business interests, the local government interests. But we do know that Government has been dealing with Maori, and that it doesn’t seem to be the so-called ‘balanced’ conversation that they suggested that they were going to have."

Mr Harawira colourfully described this one-sided process as "pandering to the rednecks".

Would that it were so.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 18 June 2010.