Social Injunctions and an Unsuccessful Attempt at Chasing Fog

I. Introduction

Date: February 18, 2012

Time: 6.43 a.m.

Instruction: To chase fog from a neighboring farm.

Duration: 20 mins

Conditions: Jeans, t-shirt, jacket and running shoes, neighboring farm, late summer, early morning fog, s 3 Trespass Act 1980. ¹

Description: Late summer, one Sunday morning at 6.43 a.m., I jumped the fence of a neighboring farm and proceeded to chase fog. With an ascending sun and the logistical difficulties in achieving my aim, failure, in a physical sense was always anticipated. Sighting no obvious witnesses, for 20 minutes I negotiated an uneven pace over boggy terrain, accompanied only by the occasional crowing of an indignant pūkeko. ² This intervention – to propose to chase away pockets of fog – was an attempt to explore a sense of the physical and legal possibilities that can exist in a system of social and legal norms that it references. A proposed freeness, where the failure to adhere to social and legal rules that discourage trespassing onto privately owned land and running (aimlessly) at that hour of the morning, was offered as analogous resistance to the expected modes of behavior in this society.

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Figure 1.

An unsuccessful attempt at chasing fog, 2012, © Author.

This article examines how my art performance interventions in the public realm might operate as critical response to the social and legal norms regulating behavior in the everyday. As a Māori ³ /New Zealand-Pākehā, ⁴ female artist, with previous experience practicing and lecturing in law, I use this experiential and professional knowledge to carry out and document these interventions to invite action and discussion on how the Treaty of Waitangi (1840) ⁵ could continue to contribute to Aotearoa/New Zealand’s socio-legal and cultural makeup. Some of my art interventions to date have included mowing random Council-owned, neighborhood grass berms ⁶ in affluent suburbs in Auckland, drying my clothes on my neighbor’s washing line, and giving away air for free in the central city. This article explores the contribution that socio-legal artistic performance might make to reveal how the ongoing tensions between the (NZ) Crown and Māori that relate to the rights and obligations inherent in the 1840 Treaty of Waitangi are still evident in local and national conversation. How these tensions can be identified and exploited to create spaces for disagreement and injunction, providing new research across a number of fields – art, law and sociology – and a broadening of the discussion as to how the Treaty of Waitangi may continue to operate as a cultural and political force in Aotearoa/New Zealand today.

Following this introduction, the next two sections outline the cultural and legal frameworks informing the interventions referred to in this article. Section II – Treaty of Waitangi – introduces this socio-cultural agreement as underpinning the ideas leading the design and direction of the interventions. As a state and constitutional instrument that continues to facilitate spaces of cultural and legal unease, this article makes inquiry as to how the notion of kaitiakitangi ⁷ /guardianship, as it exists within a traditional and contemporary Māori world view, could be further used to consider “a new approach to the Treaty relationship” ⁸ and the laws of ownership and management of property and natural resources in Aotearoa/New Zealand.

The third section – Legal Spaces – identifies some of the relevant public law legislation and case decisions that inform the methods and actions I carry out in the public sphere. With a particular interest in the laws relating to freedom of expression and disorderly behavior, this section outlines how a knowledge of recent case decisions continues to provide me with a history of the actions involved, reminders of the defenses employed and the penalties determined. While not intending a critique of any particular legal instrument or instance of judicial reasoning, this section offers details of the legal handholds I have used to negotiate any ambiguities concerning current legal boundaries that these interventions have explored.

The fourth section – Performing Regulations – begins by acknowledging key socio-political and artistic histories guiding these public performances I carry out. French philosopher and sociologist Henri Lefebvre and political theorist Chantal Mouffe both make important observations about the need for disagreement as an integral component of any healthy democratic realm, with Mouffe challenging artists to engage in critical art as a form of social agonism in a multiplicity of public spaces as a way of resisting the relentless forces of capitalism. Since the 1990’s socially-engaged modes of art production have re-emerged as a contemporary form of art practice, with artists collaborating with the general public and experts from other disciplines to perform some kind of intervention and critique of the dominant hegemonies. This article presents documentation that contributes to ongoing criticism and discussion as to the artist’s role when engaging with non-artists and the relative function and aesthetic value of socially-engaged art within a contemporary art world and market. Arguing that variations of performance, co-operation and participation (including non-participation) can not only promote a sharing of authorial responsibility but also an undecidability as to mode or outcome, these interventions offer critique of this collaborative mode of social production, and the likelihood of new ethical considerations when encouraging the participation of any viewer or willing bystander.

Citing this research across cultural, legal and artistic frameworks, this article interrogates the potential role and continued performance the Treaty of Waitangi, as a living state document, might have in Aotearoa/New Zealand’s socio-cultural future. How and whether these interventions – as live socio-legal performance and invitations to participate – could be used to generate discussion and the testing of new socio-cultural and legal boundaries concerning the future management and availability of natural resources in Aotearoa/New Zealand.

II. Treaty of Waitangi

Date: February 6, 2012

Time: 12 noon

Instruction: To dry my washing on my neighbor’s washing line.

Duration: 9 mins

Conditions: Washing (jeans and t-shirt), 4 plastic pegs, stepladder, neighbor’s washing line, gentle breeze, s 3 Trespass Act 1980. ⁹

Description: On February 6, 2012, I jumped the neighboring fence to hang my washing on my neighbor’s clothesline. This action of social and neighborly transgression was to consider the nature of land ownership in Aotearoa/New Zealand and the rhetoric of disagreement that arises every year around Waitangi Day (February 6) and the Treaty of Waitangi. A day that commemorates the 1840 signing of this country’s only and living treaty; and an agreement that continues to draw debate as to its future significance to Aotearoa/New Zealand’s constitutional, legal and cultural frameworks. With no witnesses to claim offense or loss, this action was my participation in the ongoing debate as to the continued relevance of the Treaty of Waitangi to Aotearoa/New Zealand today.

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Figure 2.

Waitangi Day spin, 2012, © Author.

This section locates the legal and cultural histories related to the Treaty of Waitangi (1840) as central to the ideas informing the interventions I carry out in public spaces. As a former practitioner and lecturer in law, I have a continuing interest in the way the legal frameworks operate in our daily lives and in particular how this guides my artistic practice and performance in the public sphere. While my experience and knowledge of the law could help avoid specific liability, this section considers how my understanding of the legislative and case histories relating to the Treaty of Waitangi has provided inspiration for the design and execution of my public actions.

This section begins with a brief outline of the historical and often contested position the Treaty of Waitangi has occupied in Aotearoa/New Zealand to date, moving then to a 2011 Waitangi Tribunal Report ¹⁰ into claims concerning New Zealand law and policy affecting Māori culture and identity in the 21st century. This Tribunal report recommended a shift “in our view of the Treaty from that of a breached contract, which can be repaired in the moment, to that of an exchange of solemn promises made about our ongoing relationships.” ¹¹ Within the context of this Waitangi Tribunal claim, the report recommended that the Crown recognize mātauranga ¹² Māori or Māori knowledge, and in particular the provision of kaitiakitanga or guardianship, as relevant consideration with respect to legal, social and political policy. In light of this Tribunal report and a 2013 Supreme Court decision indicating new legal thresholds could be made as to whether Māori have any customary and legal proprietary rights to freshwater, this article and these interventions test new approaches to air and water collection and advocate an attitude of shared protection, management and mutual benefit for all.

The Treaty of Waitangi (1840) represents an agreement or partnership between Māori and the British Crown and was the first step, from the Crown’s perspective, in establishing a system of law and order that would govern both Māori and non-Māori in Aotearoa/New Zealand. The three Articles of the Treaty sought to address the notion of sovereignty as well as making the underlying and explicit promise that in return for British settlers being allowed to live in Aotearoa/New Zealand, the British Crown would actively protect the rights and property of indigenous Māori. Treaty promises that recognized existing Māori ownership and use of land, forests and treasured customary resources together with expectations of increased future trade between the (British) Crown and Māori. Presented in two versions, English and Māori, differences in translation and interpretation, together with subsequent systematic law changes to condone land confiscations and to encourage the easier facilitation of the sale of land from Māori willing to sell, has resulted in continued disagreement and legal action to address historic breaches by the Crown of their respective duties and obligations under the Treaty.

By itself, the Treaty of Waitangi as a socio-cultural agreement is unenforceable. This means that any aggrieved parties, wishing to seek any form of redress related to perceived breaches of the Treaty, must rely on legislation in which its principles of partnership, protection and participation have been interpreted and incorporated. As a state document ostensibly designed to allow people of different cultures to co-exist, the Treaty has always been subordinate to a culturally distinct and British legal system. This has required Māori to tactically employ mechanisms of the state system in order to enforce the rights contained within – and recognized prior to – the signing of the Treaty.

While the settlements to date have focused mainly on historic claims and the return of, or compensation related to, confiscated land, forests, and other places of cultural significance, a 2011 Waitangi Tribunal Report “Ko Aotearoa Tēnei” (‘‘This is Aotearoa’’ or ‘‘This is New Zealand’’) into the claim known as Wai 262, considered the place of mātauranga Māori in contemporary Aotearoa/New Zealand law, and government policy and practice. Identifying different and concurrent systems of legal, social and environmental management, this Tribunal report recommended that if the Crown–Māori relationship was going to develop and move away from being grievance and repair-based, then any future decisions the Crown may make regarding the cultural, political and legal welfare of Māori should honor this development with due consideration of cultural knowledge and practices such as kaitiakitangi alongside national laws where and when relevant. ¹³

The notion and practice of kaitiakitanga as a concept within Māori world view emphasizes relationships and obligations, while western law’s concept of ownership emphasizes rights and exclusivity. A kaitiaki or guardian can be entrusted to care for (and benefit from) a particular natural geographical feature or resource, a right of relationship with local Māori as guaranteed under the Treaty of Waitangi. ¹⁴ The Crown and Māori iwi or tribal groups, already co-own and manage significant landmarks in Aotearoa/New Zealand, in some instances as a condition of settlement and compensation for historic grievances. The suggestion of national and local co-operation therefore is not new nor is the concept of relationships and intentional communities culturally specific as evidenced by the co-operative styles of living, of mainly non-Māori, that emerged in Aotearoa/New Zealand in the 1970s.

With regards more recent legal decisions concerning the Treaty of Waitangi, a 2013 Supreme Court hearing considered an appeal of the New Zealand Māori Council’s claim to stop the Government’s proposal to sell 49% of its public shareholding in an electricity company on the Waikato River, arguing the sale could restrict the Crown’s ability to remedy any Treaty of Waitangi breach in respect of Māori interests in the river. ¹⁵ The Supreme Court ultimately rejected and dismissed this particular claim but signaled that the issue as to whether Māori may have proprietary claims to freshwater rights would still have to be addressed. ¹⁶ A legal benchmark affirming the Government’s right to sell the public shares in the electricity company, and a cultural and legal warning for all New Zealanders, as this judicial comment indicates future legal and public discussion on how it is that Māori and non-Māori could view the ownership, management and use of freshwater.

A recent request by local Māori has called for the New Zealand Government to continue discussions around the long-term and future management and sustainability of freshwater in Aotearoa/New Zealand. With the “Wai 262” Waitangi Tribunal report and the 2013 prompt from the Supreme Court, New Zealanders have been given the opportunity to demand input to the design and implementation of a regime of management that ensures quality water supplies are available for future generations to come. A system of guardianship that this article argues, renews and re-directs a bi-cultural relationship, calling for a re-consideration and implementation of new methods of harvest and distribution, and a prioritizing of the careful and managed use over and above its increasing recognition as a valuable commodity.

Date: August 2, 2014

Time: 1.30 p.m.

Instruction: To catch free rain by hanging 11 buckets on someone’s washing line.

Duration: 1 hour 38 mins

Conditions: 11 grey plastic buckets, 11 green plastic pegs, someone’s washing line,

s 3 Trespass Act 1980. ¹⁷

Description: South Auckland, an empty section located next to a main road and train line, with a clothesline in one corner. This intervention involved hanging 11 buckets on a clothesline and waiting for rain. Even though I was not aware of the actual owner of this section, or even whether it was going to rain, I accessed the section from the main road to hang and photograph the buckets on the line. While potentially an issue of trespass, and visible from the road and passing trains, this work was an invitation to consider different ways of harvesting rainwater, the potential ownership of same and furthermore to test a recent scientific and social hypothesis of mine: that no matter where you place a clothesline in the backyard it will always attract rain.

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Figure 3.

(Waiting for) Free Rain, 2014, © Author.

III. Legal Spaces

Participation in public spaces is governed and maintained according to a mix of social and legal rules. Mowing your front lawn and berm on a regular basis will ensure good neighborly relations: mow it at 3 a.m. and the police will be called. When I am planning an intervention I assess each element – site and action – for the social and legal consequences possible. For example, if I were to mow someone else’s front lawn and berm, when would be a socially and legally appropriate time? While the previous section made reference to the weight and force of cultural rules, this section outlines two of the legal regulations capable of enforcement at the time of the interventions. Knowledge of these rules guides any action I might carry out, allowing me to identify and test boundaries as well as reminding me of any sanctions or penalties, should my transgression and non-participation of the rules go too far.

My right to a freedom of expression in the public realm is included in the New Zealand Bill of Rights Act 1990; an Act that affirms and protects certain human rights in New Zealand. Section 14 states the following;

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

While my legal training and practice has made me aware this freedom of expression is not absolute or unlimited, these interventions allow me opportunities to test how far my actions can go before they might require and invite restriction. ¹⁸ One of the regulatory forces governing public behavior is the Summary Offences Act 1981. Registering at the lower end of the spectrum with regards criminal activity, the legislation identifies the necessary elements required for conviction. Section 4(1)(a) of the Act reads as follows:

4 Offensive behaviour or language

(1) Every person is liable to a fine not exceeding $1,000 who, —

(a) In or within view of any public place, behaves in an offensive or disorderly

manner; …

Keeping informed of current judicial thresholds as to performance and participation in the public sphere is crucial to issues of ongoing liability and development of my research. The 2010 Supreme Court decision of Valerie Morse v. The Police ¹⁹ provides the most recent authority of what constitutes offensive and disorderly behavior in a public place. Whereas in the earlier 2007 Supreme Court decision of Allistair Patrick Brooker v. The Police, ²⁰ offensive behavior alone, was capable of conviction under this section, the later 2010 decision of Morse v. Police insisted that for behavior to be disorderly it must offend and invoke behavior likely to disrupt social order. Morse v. Police makes clear that the meaning of s 4(1)(a) is to be ascertained from its text and purpose and consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. Meaning that the behavior, offensive or disorderly, if it is to interfere with, outweigh or even restrict any rights or freedoms, must be the type of public disruption that prevents any other person from a reasonable use of that public space.

For the Supreme Court hearing, the appellant, Valerie Morse, was appealing a conviction in the District Court and two unsuccessful appeals in the High Court and Court of Appeal under s 4(1)(a) of the Summary Offences Act 1981 of behaving in an offensive manner in a public place. At the time of the offense the appellant was situated in the grounds of the Law School of Victoria University in Wellington, where she proceeded to burn the New Zealand flag within view of the people assembled at the Wellington Cenotaph for the dawn service to commemorate Anzac ²¹ Day 2007. The protest actions ²² of Morse and her friends were directed against the presence of New Zealand military in Afghanistan and involvement in other foreign conflicts.

In making their decision, the Justices of the Supreme Court took into account the defendant’s protest was of short duration (she put out the small fire as soon as she was requested to do so by the Police); that there was no evidence offered indicating the public service had been interrupted or difficult to hear due to the protest; and that even though the appellant’s actions may have caused offense to the attending members of the public, they were still able to move about freely and experience the memorial service. Accordingly the majority of the judges of the Supreme Court decided the conviction in the lower court had not given full consideration to the meaning of the relevant text and overall purpose of this section, and that Morse’s actions as an expression of her opinion, were not offensive and/or capable of public disorder as defined by the Act and therefore her appeal to overturn the conviction was allowed.

The intervention Berm #14, 2010 (Figure 4), was a project where I mowed random grass berms in affluent suburbs of Auckland. This intervention was a form of social protest aimed at local government attempts to introduce a bylaw making it a legal obligation for homeowners or occupants to maintain the Council-owned grass berm. While carrying out this project, my understanding of the legal implications capable gave direction to the design and execution of the interventions but gave no guarantee as to any final outcome. While I recognized that mowing someone’s berm for free was unlikely to register as disorderly, for the duration of this project whenever I pulled up in my car and started mowing another berm, I was always conscious of what I would do if someone saw me, objected to what I was doing and even considered calling the police. This knowledge of the legal parameters – being in or within view of a public place and not disrupting public spaces – has therefore encouraged (and continues to encourage) actions of short duration, no permanent trace and a range of possible replies and defenses to any objections that may emerge along the way. While the decision in Morse v. Police reflected a 2010 understanding of what constituted disorderly behavior in the public realm, the number of appeals required to overturn this conviction revealed a stubborn yet certain undecidability, suggesting this threshold is capable of change depending on the social or cultural biases of the time.

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Figure 4.

Berm #14, 2010, © Author.

IV. Performing Regulations

Date: October 27, 2010

Time: 10.23 a.m.

Instruction: To mow random berms in Remuera, Orakei and Herne Bay, Auckland.

Duration: 20 mins

Conditions: Large garden broom, small domestic shovel and broom, all purpose black rubbish bags, red and black earmuffs, plastic safety glasses, plastic petrol container, lawnmower and grass berm, Bylaw No. 20 Public Places 2008. ²³

As a strip of under-used real estate, the grass berm is located between the legal, front-facing boundary lines of city and suburban properties, and the road. As public property, there is an unofficial requirement that the nearest homeowner or occupant maintains these Council-owned grass strips. While social rules of community living serve to ensure reasonable and regular compliance, proposed bylaws to allow enforcement of this social practice and therefore any relevant penalty, drew strong criticism and the temporary non-participation from members of the public likely to be affected and disadvantaged by this new legal rule. Responding in a form of social protest and solidarity, for the month of October, I packed my lawn mower, garden broom, protective eye and ear wear into the back of my car, and set out to mow random grass berms in affluent suburbs of Auckland.

As a producer within, and producing of the public and social space, the interventions I carry out both identify and reinforce the socio-cultural and legal norms I choose to question. Operating within and at the boundaries of these rules assists in avoiding liability but also allows for an element of undecidability to exist, regarding method and outcome of the social production. This section outlines the socio-political and the artistic frameworks that inform these performative art interventions; and how it is that a sharing of authorial positioning – and the tactical use of humor – encourages a productive instability that could operate as and generate public and artistic critique.

Philosopher and sociologist Henri Lefebvre refers to the social space as a social product where our participation in the public sphere is not only defined by but can also reinforce and help shape the multiple contexts and capitalist hegemony responsible for the social production of the space. ²⁴ A site of political conflict, for Lefebvre, space is understood not just as a combination of geographical or physical locations but is indicative of the political and legal intersections and tensions that frame the relations of capitalist production. A space that employs and reproduces itself and a space that provides the means for creative and artistic expression capable of producing counter-spaces as alternatives to existing forms of spatial organization and control. ²⁵ Chris Butler, a critical legal theorist, explores Lefebvre’s analysis of the state’s dominating role in the management and control of space, arguing that Lefebvre’s critical understanding could inform the re-evaluation and production of counter-spaces required to challenge dominant forms of spatial governance. ²⁶ The interventions referred to in this article take as a point of departure Lefebvre’s notion of the counter-space as artistic and revolutionary; and how it is that the activation of these spaces may allow for discussion as to the spatial ownership and management of freshwater rights in New Zealand.

Political theorist Chantal Mouffe refers to the social as the realm of everyday practices, which reveal their political contingency and serve to reinforce the current social and political order. In order to challenge these capitalistic domains Mouffe writes of the necessity for a radical plural democracy; one that actively promotes disagreement or dissensus as necessary counter-hegemonic interventions in the public sphere. ²⁷ Acknowledging the public sphere as the realm of temporary and contingent everyday practices, the undecidability of social relations allows for and necessitates this form of disagreement; a social agonism where the articulation of diverse groups would increase their potential to effect change to social structures and institutions. ²⁸ Mouffe, however, questions whether artistic practices are capable of playing a critical role in a society that has appropriated the deliberate counter-culture nature of artistic critique and production into its ever-increasing paradigms of normalcy and therefore conformity. Mouffe contends that if art is to successfully critique the dominant hegemonies of modern-day society it must broaden its field of intervention and enquiry, activating and engaging multiple social spaces in order to stimulate and foster dissensus and make visible what the dominant consensus tends to obscure and obliterate.

Within the art world socially-engaged modes of art production have re-emerged as a contemporary form of art practice, where artists collaborate with practitioners from multiple disciplines to critique the dominant hegemonies. This mode of production has drawn criticism and disagreement as to its relative function and aesthetic value within a contemporary art world and market, with art critics and authors Claire Bishop and Grant Kester taking different positions on the political nature of art that is socially-engaged. While Bishop argues for the autonomy of the artist as integral to the aesthetic and critical function of collaborative art, Kester believes the ethics of an equality of participation – in order to engage with non-art people – is what gives the collaborative nature of socially-engaged art production its political edge.

In Artificial Hells: Participatory Art and the Politics of Spectatorship, Claire Bishop refers to the increase and re-turn of the socially-engaged and participatory art practices employing methods of artistic engagement reminiscent of early avant-garde movements from the Russian Constructivists, the nihilistic Dadaists through to the post-war critique and artistic turnaround of capitalism carried out by Situationist International. ²⁹ Renouncing the consumption and spectatorship brought about by capitalism, participatory and collaborative artworks invite and activate the viewer to rethink traditional relationships to the art object, where its collective production challenges artistic authorship and provides an alternative process with different outcomes to the prevailing modernist aesthetic experience of art. Preferring the autonomy of the artist and art object as having political potency, Bishop is keen to question whether the counter-aesthetic and attention given to the process of socially-engaged, dialogic or discursive art practices, can adequately contribute to the discourse of contemporary art or even converse with other disciplines or paradigms in today’s societies.

Art historian and curator Grant Kester, in The Device Laid Bare: On Some Limitations in Current Art Criticism discusses a series of artists whose work is primarily performative and process-based with an emphasis on context rather than content. Workshops, discussions and other modes of co-production highlight the importance of dialogue as part of the artistic process and an aesthetic that questions and challenges traditional understandings of contemporary art and other systems of knowledge in the public sphere. In contrast to Bishop, Kester goes on to argue that the changes in conventional relationships between art and the social and the artist and viewer have allowed and fostered new relationships between artists and practitioners in other fields of knowledge production. New relationships, he believes, which require critics and historians to re-evaluate the methodologies used to critique contemporary art where new ways of thinking through action and participation point to the broader aesthetic experience offered by socially produced art. ³⁰

While the purpose of this article is not to align with either Bishop’s or Kester’s argument, I do believe that this state of disagreement provides space for further articulation and reflection on the primacy and nature of the artist as author, and whether it is necessary to measure the form and functionality of any socially-engaged art production. Furthermore, whether the tactical use of humor can be used to facilitate public engagement or is required to soothe disappointment and unfulfilled expectations. The participatory art projects that both Bishop and Kester write about emphasize the intention of the artist to engage with members of the public, where participation implies expectations of co-operation and an active engagement with the artistic processes. What then of non-participation? Or rather, art performance suggesting alternative methods of engagement, which not only challenge the promises and expectations associated with participatory art but also the modes of behavior of artistic production itself in the public realm.

Non-participation of the rules, as a form of participation and resistance, is a key consideration driving my interventions. I operate with an awareness of the rules, and with the use of humor try to court and exploit a certain ambiguity by playing out other subjectivities. As I choose to work in the public realm carrying out everyday actions, the people I talk with during the interventions don’t always realize that what I am doing is art. Sometimes I tell them something I have prepared; other times I have no idea how any conversation will unfold. The uncertainty of authorship, participation, and any possible laughter means that I am never able to fully anticipate what is going to happen nor able to gauge consistently, a final form or outcome. While I may make bold claims to be aware of current legal and cultural constraints and to like humor, this mode of production retains and relies upon the unexpected and undecided nature of a conversation or standup comedy to determine what kind of participation, under whose direction and for how long the intervention will last.

Humor provides a non-threatening way of unveiling something socially, culturally or politically contentious that could easily remain politely unsaid. ³¹ For these art interventions, the humorous and ambiguous use of text, object and action operate as means to encourage social participation with the work either as a co-participant in situ, or when viewing some form of related documentation. As these interventions solicit, promote and entertain disagreement, the use of humor in these works operate as both social agitation and subterfuge; offering a softer, social framework to consider contentious and alternative viewpoints or opinion. ³² While social and legal codes guide my words and gestures in public spaces I am not always aware of each humorous moment until it arrives (nor the consequences of its appearance for the work itself). While fueled by an interest in the incongruous ³³ and a certain postcolonial disposition, ³⁴ both of these positions, however, fail to fully articulate how humor operates in these works to reveal the unexpected and possibilities for change. As I cannot fully anticipate the outcome of a humorously timed response or activities contained within the artworks with friends or complete strangers in a public setting, it often leaves myself, while free to say what I like as the joke-teller, at risk of public embarrassment should no one else share my view. Preferring a low threshold, ³⁵ the use of humor in these works resists any particular theoretical strongholds and is instead presented here as social complaints ³⁶ advocating a certain freeness and academic undecidability.

Date: Various, December 2013

Time: Various times

Instruction: To give away to the public excuses for free.

Duration: 4 1-hour sessions

Conditions: The Excuse Agency, ³⁷ advertising chalkboard, free excuses, s 9 Fair Trading Act 1986. ³⁸

Description: Free Excuses, 2013, was part of Weakforce4, an international, collaborative, visual arts project at ST PAUL St Gallery, Auckland. This project explored how and why artists work together or collaborate and the notion of authorship within a collective and the process of art production in the public sphere. Free Excuses operated out of the Projects from the Caravan, ³⁹ and on certain days of the month-long exhibition members of The Excuse Agency were to give away excuses for free.* The idea was to explore the nature and relationship of ‘‘the excuse’’ as not only a social irritant but also one with significant force when interacting with other artists or members of the public.

*Free Excuses as an artwork however, did not quite go ahead as planned. Staff training – with a particular emphasis on ensuring compliance with the Fair Trading Act 1986 – occupied the majority of the scheduled public sessions. The Excuse Agency was therefore only able to offer its services for a limited time and on a select basis. Notwithstanding that there were conversations between Agency members and the public – and genuine requests for Free Excuses at other times during the exhibition – The Excuse Agency would like to apologize for any inconvenience caused as a result of Free Excuses – as a promised artwork – not being available during the scheduled and publicized times.

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Figure 5.

Free Excuses, 2013, © Author.

V. Conclusion

The Treaty of Waitangi (1840) evolved from and continues to generate disagreement between Māori and non-Māori in current day Aotearoa/New Zealand. A living document, that fosters a cultural energy and a legal weight successive governments have had to address over the last 150 years. While the Crown and tribal iwi have worked hard to resolve historic grievances, the Treaty has mainly been referenced when seeking to claim, apologize, and amend. The Waitangi Tribunal Report “Wai 262” makes a strong argument for the Crown–Māori partnership to move beyond a grievance-based relationship to consider how the Treaty of Waitangi could operate with regards the making of any future legal and political policy for all New Zealanders. While the Tribunal exercises recommendatory powers only, the detailed report outlines alternative methods of operation capable of implementation, and requiring a combined contribution and participation from the Crown and Māori that acknowledges an input – and possible disagreement – from different worldviews.

Political and legal decisions determining whether or not Māori have legal rights to fresh water, as pursuant to the Treaty, continue to be part of the national conversation. Access in Aotearoa/New Zealand to adequate and quality water supplies is sufficient at present to meet the needs of its current domestic population. Whether and for how long this trend continues, it is not easy to say. The signal given by the Supreme Court in New Zealand Maori Council v. the Attorney General provides an opportunity for the Crown, Māori and non-Māori to consider how to best re-ignite this Treaty relationship. Where any future legal determinations relating to fresh water may recognize a different set of rules, flexible coordinates and a system of management reflecting a contemporary bi-cultural partnership that can sustain and develop the availability of freshwater supplies for generations to come.

These interventions propose to critique the everyday social and legal rules that govern public behavior. Socio-legal performance that challenges prevailing modernist notions of the aesthetic experience of art and actions that invite a personal or collective participation that questions modes of co-operative art production. The extent as to whether or not these interventions, as a partnership of action, text and images, can actually provoke public engagement about the issues these works refer to, is an element of my research that remains unknown. While knowledge of the legal and cultural frameworks has provided me with certain tools to negotiate the public domain, I am aware that this is not everyone’s personal experience, and that I may get it wrong. Deciding how far to go regarding my own actions and how much to inform other participants of the laws and limits possible, raises ethical issues I have chosen not to address in this article, perhaps in part because I don’t know the answers yet and a personal preference to leaving this and other questions alive and open to interpretation. Does the undecidability and ambiguity of public art production that these interventions suggest, render it functionless, uninviting and therefore limiting as to possibilities for reflection and critical insight? While the works suggest a levity, that might facilitate social participation, could any whimsical moment have the disabling power of diluting the seriousness of the issue at stake? These are questions that will continue to accompany and help develop my work; how it is that I make sense of Aotearoa/New Zealand’s cultural and legal laws and how it is that these works could encourage a participation and freeness that’s hard to resist.

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Figure 6.

Free Air (Governor Fitzroy Place), 2014, © Author.

Date: August 23, 2014

Time: 11.10 a.m.

Instruction: To give away air for free in a public space.

Duration: 15 mins

Conditions: 1 large custom-made and inflated plastic pillow, sandwich board with Free Air written in white chalk, rock, Bylaw No. 20 Public Places 2008. ⁴⁰

Description: This intervention was carried out in Governor Fitzroy Place (formerly Lorne Street, Auckland Central). Once a public road, Governor Fitzroy Place now operates mostly as a public pedestrian plaza for staff, students and other members of the public wanting to cut through the university precinct. Keen to test the free public nature of this space, I secured a large plastic, pillow of air with a rock in the middle of the plaza. Located near the plastic pillow was a sandwich board with the words Free Air written in white chalk. I then waited to see if anyone would respond to my invitation/instruction. For the duration of the 15-minute intervention, passers-by ignored or expressed little interest in the large plastic structure located in the middle of the plaza, choosing to glance quickly or ignore completely as they walked past. Finally it was the actions of one young male student who proceeded to dislodge the rock by giving it a good kick, which allowed the inflated pillow of air to float away causing an impromptu squeal from a member of the public and leaving the sandwich board and its statement of Free Air as the only obvious trace of this intervention.