An Exquisite Politeness: The Royal Commission on Genetic Modification and the Redefining of the Treaty of Waitangi

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 Pakeha 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 genetic modification 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 �pre-emptive� 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 co-operation 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.

- Moana Jackson, August 2001.

References:

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