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Upton-on-line September 15th

Upton-on-line September 15th

Commissioning Trouble

Now that a 42 cent dollar has become normal and post-colonial theory part of every day conversation, we can turn our attention to other exotic flowerings that the Wellington hothouse has been nurturing. One of the strangest must be the Royal Commission of Inquiry on Genetic Modification.

While grafted onto impeccable root stock (in the shape of the Commissions of Inquiry Act 1908), this fast growing cultivar is widely tipped to exhibit sprawling and potentially invasive growth characteristics. While it is far too early to speculate on what sort of fruit we can expect from it, it is clear that this will be one to watch.

Already, seasoned observers are wryly noting that if the Government had been required to justify the risks of having a Commission in front of the Environmental Risk Management Authority, it would either have been rejected outright or only permitted to proceed in a tightly monitored, sealed compound!

Erecting Some Fences

In the circumstances, the Commission has been left to secure its own perimeter. Upton-on-line has recently perused the Commission's decision on applications for "interested person" status. It's a lengthy and carefully argued piece which closes, very thoughtfully, with the observation that "our decision may be open to Review proceedings through the Courts, and applicants considering pursuing that avenue may wish to obtain legal advice."

Needless to say, every man and his genetically modified dog wants a piece of the action so the Commission has had to go to great lengths to explain that the Act under which it is constituted only gives a right to be heard to those who are a party to the inquiry or those who can satisfy the Commission that they have "an interest in the inquiry apart from any interest in common with the public".

Try and figure that out. The Commission wrestles with it manfully, explaining that such an interest has to amount to a special interest (on the basis of In re the Royal Commission to inquire into and report upon State Services in New Zealand [1962] NZLR 96). But being specially interested isn't what people think it is. All those people who felt that the strength of their emotions and the depth of their interest made them very specially interested were in for a disappointment.
"Many people are 'interested' to differing degrees of intensity", the Commission observed, "but by itself, being concerned about genetic modification is not the kind of 'interest' envisaged by the legislation". That sort of 'interest' was an interest that was 'significantly greater' than the interests of others. But with terra firma almost in sight, the Commission hastened to add that "in using the word 'significantly' we do not mean to raise any formidable hurdle but simply make the point that the difference must be distinct more than insignificant".

And so, amidst a welter of inverted commas and significant distinctions, the Commission proceeded to operate the drafting gates. The result is about as illuminating as the fine-grained detail of some zoning schemes under the RMA. Try this, for instance. The Commission decided that organisations whose aim was the protection of the environment would qualify even though the nature of their interest was not materially different from the interest that their members held individually. This is how they put it:
"14.1 ...we proceed on the basis that responsible public interest groups representing a relevant aspect of the public interest have a strong case for standing where the outcome can be expected to have community impact. In other words, even where the aggregation comprises individuals whose only claim to standing could be as members of the public, a sufficient aggregation of such interests can be regarded as constituting a qualifying interest in its own right, notwithstanding that strict mathematical logic (ie 0+0=0) may indicate otherwise.”

In simple terms, you’re worth listening to if you represent a collectivity but not if you front to deliver exactly the same argument as an individual. Upton-on-line found this disturbing enough. But he was even more disturbed to find that a species of collectivity he belongs to – a political party – is regarded as unlikely to establish a special interest because “generally speaking it is in the nature of a political party that it represents some proportion of the general public”.

Re-reading par.14.1 (above) upton-on-line is bemused. It seems to him that if environmental groups can qualify notwithstanding the 0+0=0 problem, so can political parties. Arch jokes aside, parties are responsible public interest groups and they represent a relevant aspect of the public interest (like the application of a particular philosophy or ideology to the management of risks (like GMOs).

Even more concerning, though, was the artful distinction the Commission managed to draw in respect of the Green Party. Here it is:
“The applicant’s case was that its members were not the general public but a group of people committed to working together to represent green philosophies in their families and communities as well as in politics. The submission stated that the entry of Greens into Parliament was to obtain another place to raise the Green voice, but that politics was not the party’s primary aim.”

It’s game, set and match for the elites. The poor old general public’s parliamentary representatives don’t work together to represent their dowdy philosophies at home or at work. They’re just vote gathering machines that can be safely ignored. But because the Greens transcend politics, they’re different. I’m not quite sure who Sue Bradford and Nandor Tanczos were 'working' with in Melbourne earlier this week but it didn’t seem to be much of a family outing.

But the Commission has issued a challenge that Parliament’s more versatile performers will not be able to resist. Upton-on-line can just hear Winston Peters arguing that his dogged pursuit of the Wine Box had little or nothing to do with politics but was “a group of people committed to working together to represent grey philosophies…”.

The truth is that the Commissions of Inquiry Act and subsequent case law has driven the Royal Commission into inventing distinctions where they do not exist and unwittingly reinforced the idea that special interest groups count for more than broad, mainstream groups or well-informed individuals in the community.

Upton-on-line had hoped to compare the list of those accorded “interested person” status with those declined. But no list of the latter group exists. Enquiries made of the Commission were met with the argument that publishing the names of unsuccessful submitters would be meaningless if the names were separated from the reasons submitted in support of them. And those reasons, upton-on-line was informed, were private and could not be released without the permission of the person who had lodged them.

So we will never be able to assess whether the Commission drew defensible lines between those it allowed through and those it didn’t. But by its own admission, it accepted that an organisation called Rural Women qualified where the National Council of Women didn’t. No doubt a rural political party would have got through but we can’t be sure – these are distinctions which only very wise people can make. They’re surely beyond a mere representative of the general public.

So What’s to be Done?

Upton-on-line has considerable sympathy for the Commission. It is on a hiding to nothing and trying to stop the whole business degenerating into a circus will consume a large proportion of its emotional energy. From a political point of view, upton-on-line is pretty skeptical about the value of the Commission. We will not learn anything new. We will simply throw a spotlight on an issue that will ultimately be dealt with politically. The danger is that the Commission’s statutory mandate almost guarantees that the most self-important groups will hog the limelight.

It’s time the Act was overhauled (something that was, apparently, promised 20 years ago). Upton-on-line inclines to the view that these Commissions should be in complete control of who is heard and who isn’t – and they shouldn’t have to invent gossamer distinctions with one eye on the prospect of judicial review.

Parliamentary Select Committees work this way. They are not obliged to hear anyone in particular. They are not there to conduct an opinion poll or a referendum. They are there to get to the heart of the matter and they decide who can add value and who can’t. It’s not about having your day in court.

When a government appoints a Commission, it is effectively saying that it has confidence in the skills and discernment of the individual appointees to dissect the facts and form a judgement. That may – but will not necessarily – involve listening to witnesses. But to the extent that it does, they are as likely to be impassioned individuals as they are highly politicized public interest groups.

The Government handed Sir Thomas Eichelbaum and his colleagues a poisoned chalice. They have only a small chance of being the catalyst for a durable consensus. And even if such a thing were possible, the chances are that the Government will end up being forced into all sorts of unedifying compromises based on little more than crude political pressure. The Commission’s carefully erected fences will be swept away. But in the meantime, after all that cross examination, we will be even more polarized than we were at the outset! It seems a very expensive and very protracted way of digging ourselves a fresh hole.

The Royal Commission can be visited at

More Excitement from the Post-Colonial Academy

Upton-on-line knows how exhilarated many readers were by Ward Churchill’s challenging critique of colonialism described in the last two issues. We are pleased to report that there is material coming off the production line much closer to home that provides every bit as much cutting edge excitement. In reading work by some of those referred to by Tariana Turia’s circle, we have come across the work of Catherine Bray at Massey University.

A fascinating paper entitled Transnational Teaching and the Invention of Unity (available on the net at asks the question “How can I teach in Aotearoa as a white transnational?” Bray has a problem. She was born in Canada, “liberated by Frierean teaching” and came to New Zealand “as an exile from Albertan right-wing conservatism”. Despite these solid credentials, Bray worries that she may herself be the perpetrator of a new form of colonisation. Hence her self-accusing question.

Five strategies are considered. The first is bi-culturalism. This is rejected because she might too easily slip on the mantle of the Anglo-Celtic pakeha norm at the expense of non-Maori minority cultures. All of which might suggest the second strategy, multiculturalism. Except that multiculturalism has been appropriated by transnational capitalism as a way of conflating different cultural identities into a single mass of global consumers. Besides, Bray endorses Ranginui Walker’s diagnosis of
“an underlying subsidiary agenda of disempowering Maori by flooding the country with new immigrants from Asia and other countries”

The third strategy (derived from Spivak, a disciple of Foucault) is to let the subaltern speak. For Bray, this would mean “prioritising the voice of deprived, marginalised, persecuted and colonised peoples, including natives, people living in poverty, women, people with disabilities, homosexuals and potentially in the New Zealand context, Maori”. However this strategy seems to be discarded because it would label Maori and because as soon as a subaltern speaks she ceases to be voiceless.

Strategy four opens on a particularly promising note with Bray proposing that “because new immigrants dilute the voice of the tangata whenua, and because there is no such thing as a subaltern speaking in a university classroom, I should go home”. Having thoughtfully suggested that New Zealand should consider legislation “which gives preferential treatment to New Zealanders as a prophylactic against further educational globalisation”, Bray backs off. She is considering re-migrating (back to nasty right wing Alberta?) but will remain in the meantime.

Which leaves strategy five – inventing unity “beginning with stories of emerging dominants, recognising small failures in capitalism and incorporating the indigenous and the exotic.”

Upton-on-line leaves it to readers to traverse at their leisure this heroic option in which it is revealed (amongst other things) that “Maori intellectuals and leaders are a RE-emerging dominant”.

As part of a submerging remnant, upton-on-line has now twigged to why all those capitalist New Zealanders are heading to Australia. The Albertan government really does have much to answer for.

Emergency Antidote

In case you’re from Alberta or considering emigration, the following article by Hugh Laracy appeared recently in the Evening Post under the title 'Was Colonisation Really That Bad?' Laracy is an Associate Professor of History at the University of Auckland and specialises in Pacific colonisation. His contribution to the debate has provided a welcome note of balance and moderation. Upton-on-line thanks the Evening Post for allowing us to make the article available here.

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