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Taking Creative NZ to Court

Photo: Tingey Law Firm/Unsplash
Image: Danielle Curello/Unsplash.
A ground-breaking court case, the impact of the latest COVID Alert Level rise on the arts and another cultural sector governance departure - all the biggest sector news in the Lowdown.


Missing out on funding is a reality for so many in the creative world. 

It’s harsh, it’s confronting. For many it’s soul-crushing, for others it’s just another locked door, and it’s on to try the next one.

But Dance Aotearoa New Zealand (DANZ) has gone a different route - into unchartered territory in the arts in this country.  They’ve taken it to the High Court.

It’s been revealed publicly this week that DANZ is challenging Creative New Zealand’s decision to remove funding from the organisation in 2019 as unlawful, citing CNZ emails obtained under the Official Information Act that they allege show “interfering” with the moderation of the independent panel’s judgments, something CNZ denies.

DANZ refers to itself as “the peak body for dance in New Zealand and key service organisation for the sector” - a statement backed up by CNZ Chief Executive Stephen Wainwright on DANZ’s 20th Anniversary back in 2013.

However, the Dom Post article that covers the first day of the case states “the external panel noted that DANZ was not a peak body in developing international opportunities for the sector. Its proposal did not deliver on diversity, and lacked detail on how it would attract new audiences.”

DANZ has supplied affidavits to the Court from leading members of the dance community offering their support to the organisation. The Lowdown understands affidavits from senior CNZ staff including former Chair Michael Monaghan and Cath Cardiff have been included as evidence for the defence.

Whichever side of the fence you sit on, this is a groundbreaking case for the arts community. It’s understood to be the first time such a challenge on CNZ has reached the High Courts.

It should be noted that CNZ is under no obligation to fund an organisation based on the fact they have done in the past and nor does DANZ state that is the case - the hearing is to determine whether the process followed by NZ to make this decision was lawful or not.

With court proceedings still underway - due back in court on Monday (should COVID allow so) - CNZ has refrained from commenting in full on the issue.

Through a statement issued to The Big Idea, CNZ says “The Arts Council (CNZ’s governing body) respects DANZ’s right to challenge its decision-making processes. However, the Arts Council is confident that the process it followed was robust and stands by the decisions made.”

Arts Council Chair Caren Rangi adds “It is regrettable to be in the position of litigating with an arts organisation. However, we back our decision-making, and we are therefore compelled to defend the proceedings.”

Photo: Danielle Curello/Unsplash.

It’s probable the outcome of this case will determine whether DANZ’s 26-year existence continues beyond this year - which could make Aotearoa one of the few developed countries internationally without a peak dance body.

“Ultimately, DANZ is fighting for its survival,” DANZ Executive Director Sheryl Lowe has revealed to The Lowdown.  

“We made repeated attempts to raise its concerns with CNZ and with responsible Ministers and the Ministry for Culture and Heritage before taking legal action.  CNZ was unwilling to engage in a dialogue with DANZ, and the Minister and Ministry simply told DANZ to speak to CNZ.  

“DANZ has made numerous attempts to engage substantively with CNZ but CNZ has continuously dismissed DANZ’s concerns about the lawfulness of the process it followed when deciding to defund DANZ.  The legal action has been brought very much as a last resort.”

How did it come to this?

Let’s set the scene for this debate. 

Two years ago, DANZ was receiving $350,000 per annum from CNZ as a Toi Tōtara Haemata client - and requested that figure be doubled to $700,000 from 2020 with CNZ releasing a Request for Proposals for funding under their investment programmes. 

It came at a time that CNZ’s investment in the arts sector increased by $27 million. Lowe explains to TBI that after discussions with a CNZ advisor, the organisation decided to take the opportunity to submit what she called an ambitious funding proposal. “The decision by CNZ to instead remove all DANZ’s funding came as a shock, to say the least.”

After being told its proposal did not align with any of the funding criteria under CNZ’s new investment strategy, Lowe acknowledged that they were “cautious about biting the hand that feeds it” but felt backed into a corner, hence this drastic action.

“The defunding of DANZ means there will be no national body servicing the dance sector supported by recurrent government funding.  It is a retrograde step that is wholly inconsistent with the strong commitment the Government has declared for supporting the arts, recreation and community activities, and the work that contributes to improving creativity, health and wellbeing of the broader population.”

Since the decision was made to cut CNZ’s investment funding, Lowe says DANZ has been operating on skeleton staff and has found it “exceptionally difficult to secure funding from other sources despite strenuous efforts. CNZ also denied DANZ access to COVID-19 emergency response funding on the basis that we were being transitioned out of their investment funding programmes.” 

DANZ has opted against applying for project-based funding from CNZ as, in their view, it doesn’t provide the ongoing operational support they feel it requires. Lowe also says “the Ministry for Culture and Heritage has the ability to separately fund DANZ (as it does the likes of the New Zealand Music Commission) – even on an interim basis - in order to prevent DANZ’s demise and ensure the dance sector retains its peak body.  Despite strong support received from previous Prime Ministers and Ministers of Culture and Heritage, the Ministry has not taken any action to date."

While there is still much more to be played out in this battle, Lowe has quashed any concerns that the relationship between the two parties has been damaged beyond repair. 

“If DANZ is successful, it trusts that CNZ, as a government agency, will respect the Court’s decision. DANZ does not expect that CNZ would be biased against it simply because DANZ has exercised its legal right to have the lawfulness of CNZ’s conduct determined in the courts.”

Many others who have felt the cold shoulder of funding rejection - or even other creative sector governing bodies currently within the funding umbrella - will be watching with interest.

Capital + COVID = concern

As if CNZ didn’t have enough on its plate, they will also need to make a call on whether one of their annual cornerstone events is called off for another year.

Wellington’s unwelcome return to COVID Alert Level Two until Sunday has thrown many creative operations into chaos - which could well include CNZ’s sold-out annual arts conference Nui Te Kōrero due to be held at the currently closed Te Papa on Monday and Tuesday 28-29 June. 

CNZ is monitoring the situation and will be well prepared to take the event digital again much as they did during the “season of cancellations” in 2020 - but the physical event and networking opportunities was one of many of the big movers in the sector were eager to attend.

Another blow to public attendance of creative endeavours is the last thing the community needs, but one that no one is a stranger to anymore. The Sydney traveller’s artistically-minded itinerary is having a direct impact.

As one of several creative ‘locations of interest’ visited, Te Papa closed its doors on Wednesday and will do so again on Thursday - when they open again is a fluid conversation at the moment.

Te Papa staff checking on the Surrealist Art exhibition. Photo: Supplied.

In a statement, Te Papa says of the estimated 2000-2500 people who visited the cultural institution between 4.00pm and 5.45pm on Saturday 19 June, around 600 of them were at the Surrealist Art exhibition at the same time of the Sydney Traveller and are required to go into 14 days self-isolation as per Ministry of Health guidelines. There were also over 70 staff working at the time.

The Surrealist exhibition was “very crowded” according to one attendee Stuff spoke to, and after 68 days closure last year, will again take its toll on Te Papa - among many Wellington places and events.

Three other creative venues are considered places of interest - at this stage, including Victoria University’s Adam Art Gallery (closed until further notice) and the Weta Cave Shop.

Another is Unity Books Wellington. Staff have told The Lowdown they had to call off Wednesday’s event celebrating poet Harry Ricketts’ latest book Selected Poems, as well as postponing all other events through to this weekend, although they will remain open under Level 2 restrictions.

The impact obviously goes beyond just those with direct contact. Postponements are coming in thick and fast - including Drax Project and Mitch James’s two sold out shows laid down for this weekend at Shed 6.

RNZ has a comprehensive list of what’s affected - including Opera New Zealand cancelling the Wellington season of The Marriage of Figaro as well as Performances of Red! with Orchestra Wellington and local school children.

It’s even leading to shows in Auckland being put on ice. Auckland Philharmonia Orchestra has been forced to postpone tonight’s Baroque and Beyond: Joie de Vivre! in Parnell and Saturday’s Community Classics: Ao Tūroa in Manukau as Several members of the orchestra were in Wellington rehearsing as guest artists with the NZSO over the weekend.

Clean out continues

Now former Museums Aotearoa Executive Director Philipa Tocker (right). Photo: Supplied.

Today was shaping as a big one for Museums Aotearoa, with their Annual General Meeting set to focus on what’s going on at a governance level - given the board resigned en masse last month.

Now the woman at the centre of that controversy is gone as well. 

As The Lowdown covered at the time, sources told TBI the resignations were “over fundamental disagreements with Executive Director Phillipa Tocker. Museums Aotearoa is a membership organisation, funded almost entirely by museum and gallery members' membership fees, and the board is made up of diverse museum professionals - this naturally puts Tocker in a difficult situation.”

Too difficult, it now seems. Museums Aotearoa announced Tocker’s resignation on Friday after 16 years in the role. The timing, ahead of the AGM, can’t be overlooked.

The organisation is currently led by interim co-Chairs Tui Te Hau and Eloise Wallace, with the new board to be appointed at the AGM.

Victoria university museum and heritage studies professor Conal McCarthy told Stuff “The perception must be the sector can’t get its act together...It’s volatile, fractious and couldn’t be worse timing considering in the Budget there was very little for culture and heritage.”

There is also, alarmingly, indifference. Sources TBI spoke to suggest there hasn’t been much reaction from those within the industry to the news. If those who work in the sector don’t care what’s happening with the national professional association for museums, galleries and their employees - then the organisation is surely at a crossroads.

The Lorde giveth

Image from Lorde's new single Solar Power. Photo: Universal Music. 

New York, Los Angeles, Paris, London, Havelock North.

How many world tours of international chart-topping performers include the Hawke’s Bay suburb? To steal a line from another well-known musician - not many, if any.

Lorde could have launched her return to the limelight anywhere she wanted on the planet - racking up over 25 million streams on Spotify alone since releasing her comeback single Solar Power earlier this month is a testament to that. 

But the New Zealand songstress is again putting our country on the map as the first stops in her freshly released 2022 Solar Power tour itinerary that - before heading to North America and Europe over four months - will take in Electric Avenue Festival in Christchurch in February, Neudorf Vineyards in Upper Moutere, Wellington’s Days Bay, Black Barn Vineyards at the aforementioned Havelock North, Bowls of Brooklands in New Plymouth and Auckland’s Outerfields.

It’s clear she’s got NZ’s back - including featuring Aotearoa poetry star Tayi Tibble (whose new book Rangikura is among the best sellers in the country right now, reviewed here on RNZ and here on Newsroom) briefly in her Solar Power video.

"It's kind of an insane feeling having music out again," Lorde has stated. "I can feel people staring at me when I go places. I'm getting really good tables in restaurants all of a sudden. It's very amusing to me that to so many people I was dead, and now I'm alive!!!"

The NZ Herald write up also includes her environmentally friendly ‘music box’ for the album release, plastic-free with a download option to be sold in stores rather than traditional CD format.

Written by

The Big Idea Editor

24 Jun 2021

The Big Idea Editor