Re-forming Justice: The Potential of Maori Processes

AuthorJuan Tauri,Allison Morris
DOI10.1177/000486589703000203
Publication Date01 August 1997
SubjectArticles
Re-forming Justice: The Potential
of Maori Processes'
Juan Taurlt
and
Allison Morris!
There have been a number
of
calls for the implementation
of
a separate
Maori justice system. Thispaper examines these calls
and
the practicalities
of
moving in this direction by drawing from two pieces
of
research: first, an
exploratory study
of
the views
of
more than 50 Maori elders on how Maori
communities dealt with offenders in the recent
past
and
how
Maori justice
practices might work in the modern context; and, second, an examination
of
the philosophy
and
practice
of
family group conferences. The paper
concludes that Maori justice processes have the potential
not
only to provide
solutions to the over-representation
of
Maori in the criminaljustice system,
but also to re-form conventional justice systems. It advocates a
reconciliation
of
Maori
and
Pakeha justice systems.
Setting the scene
Indigenous peoples in a range of countries are over-represented in crime, court
and prison statistics and Maori in New Zealand are no exception.1For the year
ended June 30 1996, 37% of offenders apprehended by New Zealand police
were described as Maori (Police National Headquarters 1996).1 According to
the 1995 Prison Census, 50% of male prisoners and 56% of female prisoners
in New Zealand identified themselves as Maori (Ministry of Justice 1996).
Maori make up around 13% of the New Zealand population (Statistics New
Zealand 1996).
It has not always been like this for Maori. Historically, far from the
stereotype of a lawless people, Maori were viewed by colonists in the early to
mid 19th century as relatively law-abiding in contrast to the influx of
European whalers, seamen and the like (Pratt 1992).This gradually changed:
for example, in 1910, Maori made up 5% of the population and 12% of the
prison population and by 1950 Maori made up 6% of the population and 18%
of the prison population (Pratt 1992). This increase is generally associated
with urbanisation. It is more complicated than that, however.'
There was another sense in which Maori were not law-less. Maori did
possess recognisable legal structures. Maori society was governed by a set of
rules by which the community was expected to live, and a system existed
which was employed when these rules were broken (Jackson 1988). Tikanga
o nga hara, for example, translates broadly into the law of wrongdoing and
many Maori hapu (sub-tribes or collections of families) and iwi (tribes)
possessed runanga 0nga tura which translates broadly into a council of law or
court. These were headed by tohunga 0nga ture, experts in law, but also
*Received: 1 November 1996; accepted in revised form: 18 February 1997.
tBA, M Phil (Criminology), Lecturer, Institute of Criminology, Victoria University of
Wellington, PO Box 600, Wellington, New Zealand.
:I:
LLB, LLM, Dip Crim, PhD, Director, Institute of Criminology, Victoria University of
Wellington, PO Box 600, Wellington, New Zealand.
149
150 (1997) 30 The Australian and New Zealand Journal of Criminology
contained kaumatua or kuia (male and female elders), representatives from the
offender's family and representatives from the victim's family (see
Jackson 1988; Durie 1995; Olsen et al 1995 and Pratt 1992 for more
information).
It is the re-assertion of these traditional processes with which this paper is
concerned. Specifically, it explores whether or not it is possible to return to
these processes in a modem day context: in part, as a way of addressing the
over-representation of Maori in the criminal justice system, in part as a way
of contributing to New Zealand's ideal of biculturalism, but in part also as a
way of creating a system of justice which better meets the concerns and needs
of victims, Pakeha (New Zealander of European origin) and Maori alike, and
which better makes offenders, Pakeha and Maori alike, accountable for their
offending. In this sense, Maori justice processes could provide a prototype for
re-forming New Zealand criminal justice processes since victims would no
longer be literally excluded from that process (except when required to give
evidence as witnesses)" and offenders would no longer be passive observers in
the courtroom while the professionals play the key roles/'
Maori justice pre-colonisation
We need to say a little more about the practice of Maori justice in pre-colonial
times. This discussion is necessarily brief given the focus of this paper (for
more information, see Jackson (1988); Ward (1995) and Pratt (1992)), but,
essentially, Maori justice processes were based on notions that responsibility
was collective rather than individual and that redress was due not just to the
victim but also to the victim's family. Understanding why an individual had
offended was also linked to this notion of collective responsibility. The
reasons were felt to lie not in the individual but in a lack of balance in the
offender's social and family environment. The causes of this imbalance,
therefore, had to be addressed in a collective way and, in particular, the
imbalance between the offender and the victim's family had to be restored. For
example, the agreed outcome might have been the transfer of the offender's
goods to the victim or work by the offender for the victim (Durie 1995). The
role of the whanau (the family group which includes parents, children and
other close kin) and hapu were of paramount importance to the process. Most
decisions, whatever their nature, were customarily made by the whanau and
hapu depending on the importance and nature of the decision
(Consedine 1995).
Colonialism, however, all but destroyed indigenous systems of justice in all
parts of the British Empire, and New Zealand was no exception
(Brennan 1993; Fitzpatrick 1983; Griffiths 1986; Merry 1992; Pratt 1992). The
relationship between the State and Maoridom as set out in the Treaty of
Waitangi and signed by the Crown and some Maori chiefs in 1840 was
intended to be a partnership in which Maori sovereignty was preserved, but
this did not happen. The culture and values of Maori were not allowed to exist
alongside the culture and values of the colonisers. Dismantling these and the
subsequent enforced assimilation to 'the British way of life' was what Pratt
(1992) ironically calls the 'gift of civilisation'.
To be 'one people' required one set of laws and since the colonisers had the
power (first through weapons and later through increased numbers), it was

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