An Exquisite Politeness:
An Exquisite Politeness:
The Royal Commission on Genetic Modification and the Redefining of
the Treaty of Waitangi
By Moana Jackson , August 2001
Introduction:
There has been considerable reaction to the Report of the Royal Commission on
Genetic Modification.
However this Paper considers the Report solely in relation to its analysis of the
Treaty of Waitangi and the way that the Commission responded to the Maori
views placed before it. It concludes that the arguments it uses to deal with those
views are both flawed and damaging to any meaningful notion of a Treaty
relationship between our people and the Crown.
That it is also flawed and potentially damaging in its conclusions on the future of
GM in this country follows almost axiomatically.
Nga Whakaaro Maori:
The Report acknowledges predominant Maori opposition to genetic modification.
It states- “The submissions, both oral and written…were predominantly opposed
to genetic modification. However although a large part of that negativity stemmed
from the submitters’ views about the mixing of genes between species, a major
concern was also the abrogation of Maori rights under the Treaty of Waitangi, a
lack of information and time to make informed decisions…and concerns about
who will control genetic modification…and who will benefit from it”. (1)
It also noted the very real concerns of our people in relation to matters of
intellectual and cultural property, and in particular the long-running claim of six
Iwi to the Waitangi Tribunal on the protection of indigenous flora and fauna
perhaps the first voices raised in concern about the ramifications of GM. Indeed
the concerns of the claimants about both the proper protection of indigenous
species and the inappropriateness of assuming that plants and beings can be
owned and patented foreshadowed much of the current Maori opposition.
The Commission was thus very clear about the nature and scope of Maori views,
as indeed it was about much of the considered Pakeham opposition. However
the manner in which it dealt with Maori raises serious constitutional as well as
social and economic issues.
It would not be fair to characterise its stance on Maori concerns as cavalier, but
there is a certain truth in Simon Upton’s comment on the Report that“Maori have
been listened to with exquisite politeness and cosmic tact and then basically
passed by”. (2) The Treaty requires more than a “passing by,” but the grounds on
which it chose to do so are manifest throughout the Report.
The General Approach of the Report:
The basic thrust of the Report was to acknowledge the many concerns people
have about GM but to seek a “balance” between the worry and the possibilities,
the fears and the responsible constraints. Thus “Our major conclusion is that
New Zealand should keep its options open. It would be unwise to turn our backs
on the potential advantages on offer, but we should proceed carefully, minimising
and managing risk…The major theme of the Report is Preserving Opportunities”.
(3)
However it notes that in delivering its findings it gave “much thought to the values
New Zealanders hold”. Indeed there are substantial sections on the nature of
ethics, the source of values, and the fact that “the values held by Maori add
special emphasis to the ethical and cultural objections many people have to the
new technology”. (4)
Yet the Report concludes that even if the risks are presently unknown they can
be “minimised” through institutional and legislative means, including a new
Bioethics Council and a Parliamentary Commissioner on Biotechnology that will
function at the point of conjunction between values and specific GM applications.
Others have already commented on the shortcomings in this general approach,
and in the more specific recommendations such as the establishment of buffer
zones between GE and non-GE crops. In the view of many people such
recommendations carry the potential to close off options rather than keep them
open, and effectively dismiss the values “New Zealanders hold”. They certainly
close off the “special” Maori values.
The Report's Response to Nga Whakaaro Maori:
Almost all Maori submissions used the Treaty as a vehicle to argue for the
protection of the values that our people feel are endangered by the whole thrust
of GM. However they were also clear that the values themselves pre-date the
Treaty and are part of an intellectual tradition that has its own validity.
The relevance of both was outlined in the Ngati Kahungunu submission which
noted that Maori responses to GM have been complicated by the fact that the
issue is often clouded in mystery or the too-easily touted excuse of “commercial
sensitivity” as well as the fact that Crown agencies involved in genetic research
have had little awareness of, and in many cases an unwillingness to, abide by
their obligations under Te Tiriti o Waitangi. Non-Crown agencies have usually
seen it as irrelevant.
However the greatest difficulty has been created by the scientific community’s
own sense of self, and the notions of the scientific method that have evolved in
the European world since the Enlightenment. They have led to a particularly
confined understanding of knowledge, and science, and a consequent rejection
or demeaning of contesting views.
Thus even though there often seems to be a genuine respect for Maori
difference, and a willingness to share in the richness of Maori tradition, it is
usually framed in terms of “cultural sensitivity” rather than cultural reality.
Genuine efforts may be made by some to pronounce Maori names correctly, but
there is little recognition that the Maori world is anything other than a cultural
object noted for its spirituality and its music. In this view, everything from our
notions of political authority to an understanding of genetics is marginalised as
“cultural” rather than scientific or intellectual. That view was consistently placed
before the Commission, as when Professor David Penny on behalf of the
Association of Scientists submitted to the Commission that “ethical, theoretical,
spiritual, religious and cultural” objections to genetic modification had no firm
basis. There are a number of objections that could be raised to such a statement,
but two will suffice.
The first is the assumption implicit in Professor Penny’s view that the science and
technology involved in genetic modification are themselves not cultural
constructs. Yet of course they are, and they are shaped by the history and
circumstances within which the “scientific method” has evolved as part of the
equally culturally defined “Western civilisation”. To deny its cultural particularity is
to accept that science is “neutral and values-free” which implies the same
certainty of religious infallibility that was once claimed by the Christian church.
Indeed the Lakota Sioux jurist Professor Vine DeLoria has even noted that the
institutionalisation of science meant that “scientists would come to act like priests
and defer to doctrine and dogma when determining what truths would be
admitted (and) how they would be phrased”. (5) That process was a cultural one,
and for Professor Penny to dismiss “cultural” issues was in fact to dismiss the
validity of his own arguments.
However the second objection which goes to the heart of the difficulty that many
Maori have encountered in communicating concern about genetic modification is
that because the Maori consideration of many issues is reduced to a cultural
phenomenon the efficacy of the Maori intellectual tradition is itself denied. In its
place Maori are asked to offer a mere “perspective” which easily leads to
rejection on the grounds of unreasoned (if interesting) spirituality or
minimalisation as something that may be noted but ignored if more compelling
scientific or economic reasons can be discovered.
For a Maori analysis of genetic modification need not be a merely cultural
response based on esoteric lore but a considered scientific response as
measured in Maori intellectual terms. The Conservation Authority noted the
validity of that tradition in its Report on “Maori Customary Use Of Native Birds,
Plants, And Other Traditional Materials” when it specifically noted a “Maori
knowledge base” and concluded that Maori “have invaluable knowledge of
specific resources and the wider environment, much of which will go back over
many generations. Much of this information exists nowhere else. Much may be in
a form that is completely different from the conventional approach taken by
European science; much may be communicable only in te reo Maori”. (6)
That many people appearing before the Commission found this difficult to accept,
and a number of scientists continued to claim that Maori have no notion of
science, is profoundly offensive. It is also a denial of our right to exercise our tino
rangatiratanga as that necessarily involves our people defining issues of
importance to us in our way.
As a result of the scepticism about a valid Maori intellectual tradition that at least
would have grave reservations about the need to know about GM let alone its
ethical worth, there was often not just a rejection of Maori “values-laden”
arguments against it but a redefinition of our own tikanga. Thus the Life Sciences
Network presented a Maori “perspective” which argued in effect that genetic
modification is the same as the ancient horticultural practice of grafting to form
new cultivars of the same species. It is not of course, but that misapprehension
led to the statement that “Finding solutions to these sorts of problems are not
new problems for Maori folk…By way of one example all species of New Zealand
flax are cultivars introduced by early Maori settlers from other parts of Polynesia.
Maori have always crossbred species of flax to produce stronger and more
resilient varieties for purposes such as clothing and rope making”. (7)
The accepted creation of cultivars was then used to source both historic and
“culturally sensitive” approval for geneticmodification because our people appear
to have had a tradition of it. The evidence of our cosmogony was also used to
show that we were always willing to adapt, and that we can now adapt to the
more advanced technologies of contemporary genetic modification. There is no
doubt about the adaptability, but the leap from using grafting to accepting genetic
modification is an adaptability feat that goes too far. The fact that many scientists
were aware of the misunderstanding but nevertheless chose to use the analysis
to support their case was unconscionable.
That the Commission effectively adopted the same approach and rejected the
possibility of a Maori intellectual tradition is especially regrettable. For it redefined
all Maori submissions as values and culture-based and then used the Treaty to
effectively dismiss them on the grounds that although the Crown had an
obligation to heed such values through consultation “It would be contrary to the
spirit and principles of the Treaty were the spiritual and cultural values of either
Treaty partner given pre-emptive standing”. (8) It did not seem to occur to the
Commission that the consequence of its approach was to actually give “preemptive” standing to those who sought to belittle Maori concerns.
Unfortunately that conclusion was inevitable because of the Treaty discourse
actually accepted by the Commission.
The Commission and The Treaty:
The Commission did not go as far as saying that the Treaty permitted genetic
modification, but in its Treaty-based redefinition of Maori concerns and the
jurisprudential base upon which it constructed its Treaty discourse the effect was
much the same. As so often happens, the Treaty was used to acknowledge
contesting views then with equal facility used to dismiss those of our people in
favour of those of the Crown.
There is an irony as well as a sad familiarity in its approach.
The irony began with its response to the first Maori concerns raised about its
process and the fact that our people were effectively excluded from developing
its terms of reference and its membership. The Commission assumed that this
opposition stemmed from its possible standing as part of “the Crown” and sought
advice from the Crown Law Office on whether it was a “Crown agent” bound in
some way by the Treaty. The Office advised that a Crown agency requires work
that comes within the province of government and a degree of government
control over it and concluded that the “independence” of the Commission
removed it from effective government oversight. It was therefore not a Crown
agent bound to meet Treaty obligations in relation to process etc.
There is the same inconsistency in this approach as that adopted by successive
governments when Maori have sought to hold local government bodies
accountable in Treaty terms. For in that case they have argued that because the
Treaty is only between the Crown and Maori, local bodies are excluded from its
reach. However local government gets its powers delegated to it from the Crown,
and it seems a strange arrangement where power is delegated but not the
obligations that go with it. In a similar way, Royal Commissions are the product of
legislation, the powers they have are delegated by the Crown, and therefore the
Treaty obligations should reside there as well. However the Commission
accepted the Crown Law Office advice and then concluded anyway that even if it
had been a Crown agent “it more than fulfilled the requirements of reasonable
consultation”.(9)
The rest of the Commission’s Treaty discourse was sourced in the Crown
obligation to consult as outlined in various Court decisions since the 1987 Maori
Council case. In that decision the Court held that the Crown had to consult in
good faith but that it was not an unlimited or absolute obligation which would
necessarily be binding. Indeed the views of Maori, while important, could not
hamper the right of the government to govern nor outweigh the wider public
interest. The Commission therefore proceeded on the same basis as one
submission which argued that Maori were really only a “community of interest”
rather than a sovereign Treaty party (which is what Treaty signatories are) and
that having regard to them in legislative terms is not something that arises under
the Treaty but is rather a “mechanism” invented by the Crown to “take into
account the views and aspirations of a sector of the New Zealand population”.
(10)
That stance of course comes from the still contested view that our people ceded
sovereignty in the Treaty and granted absolute authority to the Crown, subject to
certain obligations that the Crown has since defined. Its effect on the
deliberations of the Commission was not just to marginalise the views of Maori in
the light of majority interests but to limit future Maori involvement in the
institutional structures it recommended to monitor GM issues.
Thus it rejected what many Maori would have seen as an equitable Treaty-based
representation of at least half the members on the Bioethics Council in favour of
“a fully consultative approach to achieve an effective partnership”. (11)
Experience teaches our people that Maori membership will be so numerically
small it will be effectively marginalised.
The same restrictive view of the Treaty was followed in the Commission’s
references to the Hazardous Substances and New Organism Act 1996 which
established the Environmental Risk Authority. At the moment the one structural
mechanism that might offer some safeguard to Maori in the current ERMA
process is Nga Kaihautu, a Maori advisory group. The Commission did not
directly address its role and therefore resiled from possibility that a meaningful
Treaty discourse would at least have broadened the role of Nga Kaihautu to that
of a runanga with power to “call-in” particular issues of concern to Maori or even
a trigger mechanism that allowed it to facilitate a Treaty-based negotiation
process between any applicants under the Act and Iwi. That is a signal failure
because a Treaty relationship is surely much more than one party simply being
able to advise another.
Instead the Commission recommended that s8 of the Act be amended to add
“significant cultural, ethical and spiritual issues” to the grounds under which the
Minister of the Environment might “call-in” a particularly complex issue for
Ministerial decision in place of a determination by ERMA. Under this regime, the
power of call-in is restricted to one party.
Section 8 also states that “All persons exercising power under this Act shall take
into account the principles of the Treaty,” but the notion of “taking into account”
has always been problematic because it has too often in the past merely meant
listening to Maori concerns “in good faith” and then rejecting them like the
obligation to consult it has a very low threshold of accountability. It was therefore
suggested by many Maori submitters that the Act be amended to provide that
“effect is to be given to the principles of the Treaty of Waitangi,” a requirement
with a higher standard of accountability. (12) The Commission accepted that
submission, and while that is a movement within the current Treaty discourse it
continues to source the nature of the Treaty obligations in a set of principles that
the Crown defines.
In relation to matters of intellectual property and Wai 262 the Commission simply
urged the parties to “work to resolve” the issues as soon as possible. The Iwi
claimants have been attempting to do this for over a decade in the face of often
quite obvious prevarication by the Crown and the rapid reduction of the plant
base that underpinned the initial claim. Now funding restrictions on the Tribunal
itself hinder progress even more, a fact pointed out to the Commission. (13) That
the Commission did not see these issues in themselves as Treaty breaches and
recommend both increased funding to facilitate the claim and urgent Crown cooperation is regrettable.
Its response in relation to intellectual property and indeed Wai 262 does not
address the fundamental Maori concerns about GM, in spite of the predictable
recommendations for a “Maori Consultative Committee” at the Intellectual
Property Office. However it does consolidate the current skewed notion of a
Treaty relationship that restricts the Maori “partner” to a place decided by the
Crown. In a very real sense it further demeans the constitutional nature of the
Treaty.
For what the Commission has done is use the Treaty to reduce our people to just
another voice in the community that expressed “predominant” opposition to GM.
In the Ngati Kahungunu submission it was argued that a Maori intellectual
approach that saw little need for GM did not suggest that Western science is
inherently bad, but rather as Mae-Wan Ho recognises “there can be bad science
that ill-serves humanity”. (14)
It can be reasonably argued that the Commission’s Treaty discourse ill-serves
our people, not just in its general approach and recommendations but in the quite
specific effect it may have on the whole issue of intellectual and cultural property
rights that our people have been presenting to the Waitangi Tribunal in Wai 262
for several years now.
Summary:
The Report also ill-serves New Zealand as a whole.
Its basic assumption that there can be a safe compatibility between say GE and
organic crops appears scientifically unwise as well as geographically untenable.
Its middle course does not even seem to be based on a rudimentary
“precautionary principle” but rather more a desire that we not be left behind in the
possible economic benefits of a genetic gold rush. Its professed recognition of
“ethics” in the end seems more of a “value-added” rather than a “values-based”
concern.
It is heartening that the many people who gave submissions raising concerns
about GE still seem committed to carry on that struggle. Some Maori are even
considering further claims to the Waitangi Tribunal should the government accept
the Commission’s recommendations, as well as the possibility of using the
Optional Protocols in various international human rights conventions.
For the issue is not just about the potential and unknown risks of GE but also the
nature of the constitutional relationship that the Treaty sought to establish
between our people and the Crown. On a matter that holds so many risks for
what Maori submitters called the “ira tangata”, it is not enough that we be heard
with “exquisite politeness” and then marginalised. Our mokopuna deserve better
and our rights demand more.
References:
1. Commission Report, Appendix 3, p153.
2. “Royal Commission on Genetic Modification”, Upton-on-Line, 9/9/01.
3. &nbspReport, Report and Recommendations. P2.
4. &nbspIbid, p3.
5. &nbspdeLoria, Vine, “Red Earth, White Lies Native Americans and the Myth of
Scientific Fact,” Scribner, 1995, p17.
6. &nbspNZ Conservation Authority Discussion Paper, May 1994, p7.
7. &nbspQuoted in Ngati Kahungunu submission to Commission, p11.
8. &nbspReport, Report and Recommendations, p308.
9. &nbspIbid, p300.
10. &nbspSubmission of A2 Corporation to Commission.
11. &nbspReport, Report and Recommendations, p346.
12. &nbspReport, Report and Recommendations, p309.
13. &nbspReport, Report and Recommendations, p291.
14. &nbspHo, Mae Wan, “Genetic Engineering, Dream or Nightmare,” Third
World Network, 1998, p6.