Kluwer Mediation Blog

“Across the great divide,
Just grab your hat and take that ride”

– The Band, 1969 (written by Robbie Robertson)

We have all had those conversations or exchanges after which we’ve wished we had thought of a further point to make, a rebuttal of the other’s claim we only later thought of, a way of indicating to the other that things were not as simple, as black and white – or even as historically or factually sound – as had been claimed. It’s the kind of conversation that can keep you awake at night; and which risks transforming the brief exchange into a grumpy characterisation of the others in that exchange or self-blame for the missed opportunities.

This blog is a brief reflection on one such conversation – or rather an ambushed conversation – that, as we later unpacked it, opened up a wealth of important historical, cultural and political points that were simply missed. How many mediators amongst us will wonder what might have been lost by way of such additional richness, despite the best process and skills in eliciting information?

The setting is this: we (my wife and I) recently returned from a wonderful two-week road trip, heading initially south to Coromandel township, to Cook’s Beach on the east coast of the Coromandel Peninsula; then north to the Bay of Islands and Russell (or, its original name, Kororareka, first permanent European settlement); to Waitangi, Mangonui, Cape Reinga, returning to Auckland via Omapere. This was a break between semesters and a time to gather ourselves following the passing of and funeral for my 105-year-old mother.

This is probably telling most of you something you already know, but I cannot recommend highly enough taking a road trip in your own land, especially if, like us, you can combine it with a good dose of history and more than a little excellent cuisine and New Zealand wine. You will also have seen in one of John Sturrock’s earlier entries that a road trip can be directed to specific conversational and community engagement purpose: the Better Conversations Bus.

The one mediation-related event that prompts this blog, and which led to ongoing reflections in ensuing days as to how we might have dealt differently with the encounter, is the conversation we fell into at Waitangi, in the Bay of Islands. The setting was this: Waitangi has a special significance in New Zealand’s political and bicultural history as the place where the Treaty of Waitangi was signed, in February 1840, between representatives of the British Crown and a number of Maori chiefs. The Treaty grounds, with a new museum, provide a wonderful location to mark that history and relationship, and now done in ways that do not gloss over the rocky road in the journey since that signing.

While we sat at a picnic table with our lunch, we fell into conversation with a Maori guide who was taking a break between tour parties. As matters of whakapapa or genealogy are especially important, we asked if his tribal affiliations were with the Ngapuhi iwi or tribe, which indeed they were; and we then asked which sub-tribe or hapū he affiliated with. For those of you who can recite your own genealogical origins, you’ll understand the picture this creates of the connections that link a person to his or her location turangawaewae or the place where you stand. For a wider view of such “sacred geography”, have a look at the work of Chinese-American geographer, Yi-Fu Tuan.

We were then joined by another couple who had been on a tour and who wanted to ask the guide a specific question about the Treaty grounds. They then stayed on as the guide continued to tell us about the history of first contact between Maori of the region and European adventurers, explorers, whalers and missionaries. Interestingly, and clearly thoughtfully, he commented on the mutual gains Maori might have seen in early encounters, in trade and technology (including weapons) – that is, the Maori as people already steeped in trade (and intertribal warfare) could see gains in the interaction. This perception of potential mutual gains made the eventual signing of the Treaty possible – though not universally accepted by all Maori tribes.

At that point the conversation went off the rails: the other couple who had joined us – and who had lived in New Zealand for about 20 years – offered the interpretation that this served to reinforce the conclusion that colonialism is good, followed with the observation that while Britain (and other colonising nations) practised “external” colonisation, their own country of origin was engaged in “internal” colonisation – both of which were unmitigated good, especially in strengthening the state and social order. Almost without a break, they pursued a sideways launch into the limits of democracy, the bureaucratic obstacles to progress posed by the Resource Management Act – our key environmental protection legislation – and the failures of governance in New Zealand in general.

Thus we had an immediate disjuncture between intention in the guide’s historical observation and the interpretation of the other visitors, each shaded by culture, experience and history. At first sight – and in the setting for this exchange – this looked like incommensurable conversational directions: one view of historical pragmatism and engagement was confronted by a competing view of the benefits of cultural domination.

One immediate consequence of this chasm in meaning was the retreat from engagement by the Maori guide who quietly and literally stepped back – perhaps out of courtesy to visitors [“manuhiri”] who would have been formally welcomed onto the meeting grounds earlier. When that couple moved on – with the conversation unresolved – he stepped back to the picnic table and simply raised an eyebrow, to suggest perhaps that he’d heard this all before.

This blog is hardly the place to try to encapsulate the brief but rich – and contentious – history of post-encounter cultural relations in Aotearoa/New Zealand; but, just as we unpacked our bags from the road trip, so we sought to unpack what could have been talked about and what – had we been on our toes – we might have raised. The challenge is that a passing conversation – more ambush than conversation, in reality – is a difficult place to address, without seeming precious or pedantic, the issues that really are at stake, legally, culturally, politically, and morally.

The hidden background to that conversation is not only the rich history of post-encounter relationships but also a substantial body of “Treaty jurisprudence”, including significant case law, countless theses (in law, political science, anthropology etc), conferences and university courses.

For those readers with an interest in enduring negotiations, bear in mind too that, since 1975, there has been an ongoing process of negotiation (and some inter- or intra-tribal mediations) between separate Maori tribes and the Crown to address historical claims arising from land confiscations in the 1860s, and to address the allocation of resources on “Treaty principles”, such as a share in hugely lucrative fisheries resources, and to affirm principles of Maori (indigenous) title and sovereignty.

Of immediate relevance to the guide with whom we spoke, there is a current – and unresolved – negotiation between his iwi, the Ngapuhi, and the Minister for Treaty Negotiations, turning on the difficult question of mandate and representation in those negotiations.

So, some immediate points by way of reflection and conclusion (and attempt to settle our own ruffled feathers after that conversation):
– passing conversations can rarely unpack and address complexity;
– in such settings, the risk is that conclusions and positions are traded (does that sound familiar?);
– statements are made rather than questions asked;
– cultural perspectives are tangled with statements of fact, belief, politics;
– the way in which we “miss” each other in conversation too readily lends itself to conclusions not about the substance but about the person;
– the foundations of and reasons for non-overlapping world views are not explored;
– what began as a question turned into a contentious conclusion about the benefits of colonialism;
– and the original observation by someone steeped in his own people’s history about the perceptions of original encounters gets lost.

And, if I think of the two key mediator resources in such situations, they must be hitting the “pause” button and asking questions. How hard is that?

“On the road again

Goin’ places that I’ve never been

Seein’ things that I may never see again

And I can’t wait to get on the road again”

– Canned Heat, (Lyrics, Willie Nelson)

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