Maori and the Criminal Justice System in New Zealand

It seems to be a statistical trend that Maori are consistently overrepresented as offenders in our criminal justice system. There are certainly contextual factors that come into play: for example, those who are poor or come from single parent families tend to have a higher rates of criminal offending, and Maori are overrepresented in these categories. However, perhaps the most important factor of all is the imposition of a Western system of individualised on a very different indigenous, community-based legal system: whereas in tikanga, balance, reciprocity and mana are the focus, this is in stark contrast to the theories of retribution that seem to underlie our justice system.

To discuss the basic principles of tikanga, it is first necessary to consider the founding principles of Maori society. Maori society is based on the concept of whakapapa, that all Maori people are descended from the atua, the gods, and thus fundamentally connected with all parts of nature. This genealogical connection is strengthened by the idea of whanaungatanga, familial connection, from which the founding concept of community values prevailing over the individual is derived. Because Maori are so inextricably linked to nature and each other, any time someone does a harm, utu, reciprocity, must be called to restore balance in the world. It is from this that the ideas of crime and reparation come into play.

If one were to conceive of the Maori justice system as a formula, it would be something like this: a breach of tapu by committing a hara (an offence) affects mana which calls for utu to restore balance. The idea of tapu originates from the Maori myth of the birth of the world, where everything in the world, belonging to the atua, was reserved for special use and could not be touched without special protocol. Since humans are descended from the atua, they have inherent tapu, and an offence against the person is a hara itself. An example of tapu in a modern context is the imposition of a rahui, restricting people's gathering of shellfish for a period of time, during which if someone does collect shellfish, a hara is committed that affects that person's mana.

Mana is a fluid concept relating to reputation, charisma and prestige. It is derived in several ways: there is mana atua, which is derived from birthright and whakapapa; mana whenua, derived from the place you come from; and mana tangata, which derives from an individual's actions and deeds. By committing a hara, the individual does not only affect his own mana, but that of his whanau. Since raising one's mana is a central concept to the Maori way of life, it forms an essential part of tikanga. When a hara has been committed, the mana of both parties has been affected, leading to an imbalance which can only be restored by utu. It is also worth noting that while there is the European notion of mens rea, fault is not relevant as to whether a crime has been committed, because everything belongs to someone's scope of mana, so whomever it belongs to is responsible even if they have done no wrong. The fault element is only relevant in terms of how much reparation is required to restore balance.

In order to achieve the state of balance again, the disputes resolution process is rather different to the Western legal system. Instead of occurring at courts where a third party imposes his judgment on the offender as an individual, disputes resolution in tikanga occur between the two parties, with the rangatira and kaumatua playing a vital role in leading the proceedings. They will always take place at the marae, the centre of the community, giving mana to the process as well as representing the fact that disputes resolution is a community affair, not an individual one. Furthermore, unlike Pakeha trials where there is a fixed time and date for everything to be settled, since the focus is on reparation and making a compromise that is sustainable in the long run to restore balance, there is no limit on how long it takes for a dispute to be resolved. This is embodied in the phrase "ma te wa"; because Maori place a focus on genealogical link, even if conflicts are not resolved in one generation they can still be passed down and resolved for generations afterwards, so long as utu can eventually be attained.

As alluded to before, perhaps one of the most striking differences is the fact that even though an individual may have been the one who committed the offence, it is the community that is seen as the offender and the victim. Hence, often utu will be in the form of a compensation by resources of the community that do not belong to the offender himself. This is seen as a positive thing, since a community is more likely to have meaningful resources to pay back, as opposed to an individual who owns little; and in causing the community to lose its mana, the individual has whakama, which is a powerful deterrent from crime in the Maori community. Related to this is the idea that if no individual were to own up, someone else from that community would own up to the crime, since there is mana in doing so. This is indeed starkly different from Pakeha conceptions of responsibility for crime.

Since the imposition of a Pakeha legal system, all these basic tikangi principles have been slowly eroded by colonisation and urbanisation of Maori, to the extent that many Maori are now disenfranchised and have little link with their whanau, hapu and iwi. This loss could be seen as a process that causes what Emile Durkheim describes as "anomie", normlessness. The idea is that when social values change too rapidly, those who are used to traditional values often feel like they have lost their social foundation, leading to a normlessness where what is morally right and wrong is no longer certain. Perhaps this explains the high prevalence of Maori offending in our criminal justice system.

It is also perhaps that because this is slowly recognised as the root of the problem, leading to some reform efforts in our criminal justice system to accommodate these Maori principles in order to curb offending. For example, s 7 of the Sentencing Act 2002 states the principle that reparation must be considered as an option, emphasising the importance of restoration of balance between parties above all else. Furthermore, the Victims of Offences Act allows for victim impact statements to be read, so that the victim is actively involved in the offender's criminal proceedings in order to provide a sense of closure, another form of reparation. S 27 also allows cultural evidence to be adduced to explain reasons for offending, although this has been used by other cultures more than Maori.

In terms of actually integrating tikangi principles into the system, the two main developments are Family Group Conferencing and marae justice. Family Group Conferences were founded after a report by the Department of Social Welfare noting the benefits of diverting young offenders from the courts to an atmosphere where the entire family can gather together to discuss the offending and create long term solutions to fix the problem. This corresponds to the idea of whanaungatanga, and has proven effective; although there is still the problem that some Maori come from single parent families and often the whanau is not entirely present at these conferences. Marae justice allows the courts to divert selected cases from the courts to be dealt with by an appointed panel. The proceedings then take place at a marae, following Maori custom, also with an emphasis on solving the dispute between the parties rather than simply imposing retributive punishment. This has also been effective to a certain extent, since sometimes the strongest deterrent for an offender is the whakama they have caused to their whanau. However, as with Family Group Conferences, it has its limitations: with so many Maori disenfranchised and cut off from their whanau, hapu and iwi due to urbanisation, they may not even have a knowledge of Maori custom, and may simply see the marae as just another place where punishment is dealt, as opposed to being the heart of the community. This damages the mana of the marae.

Despite its limitations, these reform efforts do show a willingness of Pakeha to incorporate Maori custom in one legal system. Maori critics like Moana Jackson have said that this is not enough, that there should be a separate Maori jurisdiction as guaranteed by art 2 of the Treaty of Waitangi; but perhaps after almost 250 years of colonisation, separating society back into two groups that are dealt with under different legal customs when they all live in one community is not a sustainable idea. It seems much more beneficial to continue to encourage these reform efforts in order that Maori who do respect and value tikanga can make the best use of it, while maintaining the integrity of our society where "all are equal before the law".

Legal Perspectives on Property

The term 'property' as we have come to know it encompasses the intellectual organisation of the rights and relationships between a person and a thing; hence property rights are not absolute, but change from time to time and place to place. Society being built around property in its everyday functioning necessarily allows it to govern social order to some extent, and so different legal perspectives of viewing property can lead to drastically different outcomes.

In a European context, an important philosophy regarding property originated from 17th Century philosopher John Locke and his theories on property based on natural law. He argued that God gave the land to all men for the maintenance and comfort of their being, so in the beginning no one had property rights over any land. However, God did not intend for it to remain that way, as if property rights were not assigned no one would be able to make any use out of land. His fundamental argument, then, is that each man has a property in his own person, something that no one else can take away from him. Extending it further, one could say that his labour is also his property, and by annexing this property to the land through toil in the land, the fruits of his labour are necessarily his property as well, enclosing it from the commons as long as there is enough left for other men. The problem with Locke's argument as applied to a modern context is that scarcity plays a major role in society, meaning Locke's qualification applies and even those things to which we have annexed our labour no longer necessarily become our property.

Therefore, perhaps a critical legal perspective better explains how property law functions in a modern European context. Critical legal theory sees the law as reinforcing the status quo of those in power under the guise of legitimacy, and this is particularly prevalent in property law, which favours the monied, middle-class white man striving for success in the marketplace; these are the men of property. While previously property was defined by hard labours, now society has that labourers get a contracted wage for producing products, whereas shareholders get the bulk of the money earnt, and the labourers cannot just assume rights over what they produce as that would constitute theft. This not only illustrates that property law reinforces the rights of those with property and oppresses those who have annexed their labour to it, contrary to the natural law argument, but also that hegemonic consciousness infiltrates society, causing it to believe that favouring the propertied is an eternal part of the natural order, when it is simply reinforcing the interests of the dominant elite. An example that illustrates how these values about property, seen as immutable, are actually in flux is the contrast between property law in the 18th and 19th Century. while in the 18th Century, law tended to favour agrarian uses of land over industrial uses, based on the doctrine that a man cannot intrude upon another man's right to the quiet enjoyment of his land, in the 19th Century this doctrine was replaced by the doctrine of reasonable use. Judges now had the opportunity to decide which use of land was most beneficial for social development, and invariably they favoured industrial uses, causing the downfall of agrarian society, illustrating how law tends to favour those in the dominant majority of society at the time. Since agrarian society embodies Locke's theory of annexation of labour to land to create property, its downfall also marks the downfall of that concept and the evolution into modern property law. Hence modern property law ultimately embodies the critical legal belief that law reproduces the oppressive character of politics in society, and is not neutral to all - only those dominant and with property.

Both these European perspectives, however, operate within a European context and may clash with the laws of other cultures in a pluralist society. One example is Tikanga Maori in New Zealand. While natural law theorists following Locke's argument believed that land was only a person's property if labour had been annexed to it, for Maori, there was no concept of land ownership at all. In Tikanga, the Maori people are the people of the land, they come from the land, live harmoniously with the land and has a duty to sustain its life force, then returns back to the land in death; therefore rights over land are traced through whakapapa. This presents a problem when both the British and the Maori assert different property rights over the same land. From the British perspective, since Maori had not cultivated most of the land in New Zealand, even customary land could be considered wasteland as no one 'occupied' it. They thus demanded that all wasteland be vested in the Crown for the use of present and future settlers in order to develop the colony, infuriating the Maori who saw this as a violation of tikanga. All the land of a tribe is sacred to them and cannot be seized or sold; the Maori people are the kaitiaki and have a responsibility over all customary land with a duty to maintain its mauri and this right cannot be taken away by foreigners, even if it seemed like it was not being occupied or cultivated. For Maori, if this kaitiaki role is not fulfilled, they will not only lose their mana, but may incur harm in the whanau. The Crown eventually used its right of pre-emption to purchase all wastelands in New Zealand, but this imposition of Western law on Maori had devastating consequences leading to the breakdown of Maori community. Tribal authority was diminished, and Maori society became a true commons, where people competed to sell their natural resources as quickly as possible before their neighbour did, since if they did not the Crown would take it away anyway. Thus it can be seen that not only does the clash of property law between cultures affect the physical thing concerned, it also has grave consequences for the intellectual organisation of a society, as property is what society is primarily founded upon.

Therefore, while many of us take the concept of property for granted, it is actually subject to many different legal perspectives which can create very different views of how property law functions within society. While originally the ideal was that every man had an equal right to property provided that they annexed their own labour to it, as society has evolved, so has property law, and from critical and pluralist perspectives, it can be seen that property law, like politics, often oppresses those who do not fit the legal person that law favours: the middle-class, European man striving in the marketplace, thus keeping the status quo of the elite in society.