Sunday, February 5, 2012

Blood, Politics and Special Educational Needs: My First Waitangi Day

Today was a NZ public holiday, to celebrate the nineteenth-century Maori-English Treaty of Waitangi that ended the Maori Wars: or to celebrate the twentieth-century New Zealand noticing that this treaty had been comprehensively ignored, and doing its best to rectify matters belatedly: or to celebrate the twenty-first-century New Zealand: or to protest against it all, depending on what newspaper article you read.

We watched the news the day before, where Maori protestors chased Prime Minister John Keys chased off a marae where he was due to meet with Maori leaders. Police and protestors clashed violently, and the camera showed one protestor with blood pouring down his head. "Oh, don't worry, I'm fine," he said to the camera, in a fine demonstration of the famous Kiwi laidback mentality: in Britain the protestor would have been pointing at the blood yelling "Look what this Tory/Labour/Fascist dictatorship has done to me!" Coming from England, where riots involve burning buildings and shootings, this all seemed too gentlemanly to be true. The police had no riot shields, and their method of crowd control seemed to be to hold hands in a field dotted sparsely with protestors, asking them if they would move back in the manner of a weary farmer trying to get tourists off his land before they disturbed the ubiquitous New Zealand sheep, whose field it undoubtedly was.

Laidback police and protestors may have been, but it's clear that feelings are running high about the Waitangi Treaty this year - mainly because the government are trying to sell off assets without including it. The Waitangi Treaty, I discovered this week to my astonishment and consternation, has no basis in law, and the Waitangi Tribunal's recommendations can be ignored if the government chooses. I could not believe it. The whole post-Waitangi-Tribunal settlement is built not on a legal foundation but on a sort of tacit consent to sort of, you know, do the right thing, square it all out somehow, as long as everyone goes on agreeing about it, OK? Is this a laidback Kiwi thing, that the Waitangi Treaty will work as long as, you know, we all keep agreeing that it's a good idea, and therefore we don't need to set it in law? To which the obvious rejoinder is, but what about the moment when someone decides that they don't need to abide by the Treaty, as seems to be happening with State asset and land sales, right now? It's like the police asking the protestors nicely if they might move back a bit and the protestors saying they won't, no one knows what to do and all of a sudden the Prime Minister's running away and someone's got whopped on the head. Causing no end of mental and emotional trauma to any watching sheep. (Will no one think of the sheep? It could be a bumper sticker for peace on Waitangi Day).

Seriously, this concerns me. I don't know much about Maori land rights, but it is very resonant of what I am increasingly realising is a worrying situation as regards educational Special Needs. We are pretty lucky as a family. Chances are that all of our children will cope in the school system whatever support we do or don't set up for them, NOT because they are intelligent, but because they are not so extreme in their behaviour that a school will struggle to manage them. But that isn't the case for a lot of children, and it seems that there is a yawning gulf in NZ between the low-functioning Special School-attending children (by all accounts, well-managed and well-run), the neurotypical and high-functioning children who can be managed with relatively small adjustments in a mainstream classroom, and the kids who are too bright for Special School, but too chaotic, distressed or disruptive to manage in mainstream without significant support. Funding is not decided on the needs of the child as such, but on whether the child fits a certain number of rather arbitrary and bureaucratic criteria. This is the opposite from England, where the law explicitly forbids blanket criteria for statementing (special needs provision process) and the local authorities have a duty in law to provide an appropriate education for every child, no matter what that appropriate education may cost. England's system ain't perfect, but it has a bedrock in law.

After only a few weeks in New Zealand I already know of kids who are struggling hugely, with inadequate support in school. Crucially, they have no legal framework within which they can appeal for that support to be provided. Don't get me wrong, the British system can be hideous, but it is built on a principle of right of access to an appropriate education that makes it possible for a parent to contest inadequate provision and hold local authorities to account. Here the system lacks legal teeth, just like the recommendations of the Waitangi Tribunal. I don't know much about the Maori land and financial compensation situation, but I can see that children are suffering - hugely - because the SN system does not have an absolute legally binding obligation to provide appropriate support. Is this a laidback Kiwi thing, or just a dreadful injustice thing? I am not sure. Maybe I should ask the sheep.

Or maybe I should do what I always do instinctively, compare here to South Africa post-apartheid, after the release of Nelson Mandela, an interim constitution needed to be drawn up in order for the first elections to take place. There were huge debates about the different forms of rights, privileges, etc, for different groups. Different groups demanded group rights be written into the consitution, that their national heritages be sufficiently protected. Eventually it was determined that actually, individual rights were the only important thing. If you made legal an individual right, everything else would happen automatically - your culture would be protected because you were, not the other way around. This satisfied all parties, from Pan-Africanists to right-wing Afrikaners, and enabled a common framework for elections. The doctrine of individual rights was a bit of a yapping sheepdog of an agreement, stopping the sheep drifting in different directions and herding the flock into the pen at the right time.

Now, perhaps I am just grouchy and overcritical here, but it feels to me as if here in New Zealand, the Waitangi Tribunal's non-legal status, and the Special Educational Needs minefield that is non-legally-binding provision, is doing the opposite of that. There's a sort of fuzzy commitment to group rights - helping children access support, making sure Maori land rights are protected - but somehow, it's not quite got the legal teeth that legal protection of the individual would have. I have no idea how this would work for Waitangi-Tribunal type stuff. I do however feel that something COULD be done to make appropriate education a right, not a privilege, so that the gorgeous, challenging SN children of this country could, like the Maori, get a fair deal. Because their parents are a bit too busy and tired to picket the Prime Minister. And if you leave these kids uneducated and their families un-supported, you really are risking some blood in their home or the streets.
Which would be bad for all New Zealanders and, as we all know, will be terribly traumatic for any watching sheep. So there's my revised bumper sticker. "Happy Waitangi Day. Legal rights for the kids. Oh, and will someone think of the sheep?" Cause you know, I always think that sheep, they are really REALLY underrated as a political force, I mean what if the SHEEP decided that they really owned New Zealand? They outnumber us humans four to one, what would happen then?


  1. My hazy recollection of this is that they took the case to the highest court in the land - which is the Privy Council in the UK. And they decided there was no case for it to be law. An argument perhaps for not using the Privy Council (does it still exist). But that's way way beyond my knowledge or ability to comment on.

    With the sheep though I can say with complete authority that any designs those wooly creatures might have on overlord-ship would be baad.

  2. (groan)

    Yes Mr Cumulus has just had a LOONG conversation with me about jurisprudence and the T of W. He thinks, and I have no reason to disbelieve him, that its quasi-legal status would make it very hard for a govt to go back on: but my feeling is that going back on agreements already made is slightly different from incorporating it into new legislation, as with the asset sales. But I am not a lawyer, so who knows?

  3. oh now that sounds like a fun conversation.

    Growing up in a household where my dad refused to let us even go on a picnic on Waitangi day (no celebrating of any kind until the treaty is honoured) and who believed that all the land should be given back, I would have to agree. However, I do think Richard is right. But then, on the other hand, I don't trust National politicians. Fully legal would be better.