Indigenous Peoples and Justice – A Foreword

 Edward Te Kohu Douglas


When this wananga was being planned, a number of questions were posed which would form the basis of the papers presented and to inform the ensuing discussion. These questions (listed below) and the papers reproduced in this volume, stimulated many further ideas and much debate. But the issue upper-most in every ones thoughts were the very evident imbalances that characterise the interactions between indigenous peoples and national justice systems. In the public mind, these are most often considered in terms of criminal offending and its consequences, sentencing, imprisonment and community probation.  

These questions were proposed for consideration through the panui which preceded the wananga. Some commentators have stepped back from these imbalances and have considered lifestyles that create risk and lead to offending. These lifestyles appear to be ‘over-populated by Maori’ in comparison with national frequencies for the whole population. Thus Maori are grossly over-represented in the negative statistics of the nation, poor housing, poor health, poor education and high un-employment.  This wananga was informed that similar imbalances exist in respect of aboriginal Canadians in the legal and justice systems of that country. 

The Questions Posed

How have present justice systems failed indigenous peoples? How can these systems be adapted to correct shortcomings? Do difficulties in adaptation lie in fundamental elements of the existing system such as the adversarial nature of the process including the methods of assessing credibility, or the emphasis on punishment as opposed to healing and the concepts of guilt and innocence? Or do the difficulties lie instead with the administrative aspects of the existing system such as policing, the correctional system, bail, the attitudes of workers in the system?

Would the process of adaptation of the existing system involve reforms beneficial to society as a whole – such as greater emphasis placed on restitution, reconciliation and rehabilitation, or on sections of society - such as the poor, women and cultural minorities?


If the present system cannot be adapted to correct shortcomings, should one or more separate justice systems be established? How would indigenous justice systems readily relate to the existing system? Would an indigenous justice system(s) have jurisdiction over some crimes or all crimes? On what basis would the jurisdiction of indigenous justice system(s) be invoked? Would the decisions of an indigenous justice system be made subject to a higher court in the existing system?


How would the basic principles and rights found in the Treaty of Waitangi be applied in an indigenous justice system?

 The range of papers presented and the subsequent questions and debates, resulted in a multi-faceted wananga, where the variety of approaches, interests and outcomes could be viewed and measured in many different ways.

 The Wananga Responses

Firstly, this wananga on justice and indigenous peoples was noteworthy because it has brought together people with a range of different backgrounds and ideas. There were academics, officials, politicians, practitioners, former prisoners and iwi/hapu trustees, all participating in the debate. All have their own ideas about the lack of symmetry in the interface between indigenous peoples and justice and each has his or her own story to tell, and each has their own propositions for remedy. This is not to suggest that the wananga was characterised by disagreement. Indeed, almost all those present held much in common and agreed on even more. That the current situation needed remedy was a universal position. What was up for debate was ‘how’, and ‘when’ and ‘in what priority order’ should the many issues of an imbalanced justice system be tackled.

Every twenty years or so, governments of New Zealand have reviewed the criminal justice system. These periodic reviews have considered what was working and what was not, and what could be done to improve system efficiencies and desired outcomes. The last major review was an inquiry headed by Justice Roper, made public in 1989. The ‘Roper Report’ placed great emphasis on what has come to be referred to as ‘restorative’ justice rather than ‘retributive’ justice. Among Roper’s recommendations was a plan for numerous Habilitation Centres. These centres, located outside prison walls would operate as halfway houses for prisoners nearing their release date. In them, prisoners would have individually designed and applied re-habilitation programmes. When finally released (usually to parole), they would be better prepared for integration back into their home communities as law-abiding people. Roper offered Habilitation Centres with their intensive re-education programmes followed by a period of parole, as a remedial approach to crime and as an alternative to increasing criminal offending and recidivism. In the decade that has lapsed since Roper reported, only two or three modest habilitation programmes have been piloted, not the whole-scale provision of them as was proposed.

Habilitation Centres were only part of Roper’s recommendations. Restorative justice and its promotion in our current corrections policies was another theme of the Roper report, and equally an important theme of this wananga. Whether relating prisoner habilitation to state institutions or to marae-based supervision, the theme was addressed frequently in the various papers presented by John Pratt, Colin Keating, James Rota, June Jackson, Jim Consedine, Helen Bowen and Rawiri Rangitauira. Each had a distinctive thrust, whether that was because their swords of delivery had been forged in the various crucibles of academia, justice administration, or community affairs.

What was a widely, if not universally, expressed view at the wananga was that our prisons and our corrections policies and practises are unsatisfactory. Prisons are crowded with people who are seemingly being punished rather than rehabilitated. Also accepted was recognition of growing community opinion that our streets, businesses and homes are considered unsafe, and our lives and beings at risk. A major contributor to this belief was that violent prisoners were being treated ‘softly’ in prison and being released ‘too soon’.

Public opinion has since been expressed in a voters referendum at the 1999 election which attracted overwhelming support for longer sentences and harsher treatment for criminals. The New Zealand public appears to favour punishment over rehabilitation and government has responded with reforms that appear to move away from rehabilitation. On a pro rata basis, Maori are grossly over-represented in courtroom docks, on remand, and in prisons, usually by a factor of between x3 and x4.  Further consequences or correlates of this perspective are that because Maori are so grossly over-represented amongst ‘the criminal class’ then ‘all Maori have a tendency to criminality’. This theme was re-visited by Paul Chartrand in respect of indigenous Canadians. He spoke of similar expressions from Canadian public opinion. Furthermore, according to a significant sector of the public, this belief in an ‘innate criminality’ is expressed and encouraged by the way successive governments in Aotearoa and Canada ‘appease indigenous peoples on all matters, including their claims to systematic prejudice, discrimination and unfairness’.

Similar themes appear in the academic literature and in the mass media. At this wananga these themes were addressed by academics and officials alike, including John Pratt, Leon Bakker and Kristen Maynard, Helen Bowen and Mason Durie. An example of mass media response was a short article called Hoosegow Economics written by Daniel Seligman in Fortune magazine (Nov.11,1996).  In his article, Seligman argues (rather tongue-in-cheek, I think) that in the United States of America, a prison population of 1.1 million is considered too low, and that the US could do with a 23% increase in prison facilities. He notes that many Americans hold to the logic that 

‘malefactors still abound in  the streets’  . . . and that at least

‘the thug in prison can’t shoot your sister’.

The more humane alternative view held by the American Council for Civil Liberties and many other US citizens’ lobby-groups is that ‘huge inmate totals are a national disgrace’ and ‘locking up more people has no impact on crime rates’. Seligman quotes from a short-term study of crime rates in 12 states that once had high levels of imprisonment but were forced by court orders to cut back. Data from the 12 states plainly show that lower levels of imprisonment meant higher levels of crime.

‘The typical guy in prison has committed 15 serious crimes a year. Putting away an extra 1000 bad guys for a year reduces the expected number of murders by 4, rapes by 53, assaults by 1200, robberies by 1100, burglaries by 2600 and auto thefts by 700, and other larcenies by 9200’ According to Seligman, the economics of putting people away are attractive. ‘Incarceration costs $33,000 per year while estimates of the monetary and quality of life costs of crime –admittedly tougher to calculate – average around $60,000.  We need more prisons.’

 Besides questioning the Government’s current plans to build three or five more prisons to accommodate a growing number of prisoners, there were other themes considered at this wananga on Justice and Indigenous Peoples. We had the advantage of a special guest speaker from aboriginal Canada, Professor Paul Chartrand. Paul drew on his experience as an academic and community lawyer, and as an advocate for his own people (the Metis of Manitoba and surrounding provinces). His contribution to the wananga was in two parts. Initially he entered the debate on legal pluralism and the inclusion of aboriginal common law into Canadian jurisprudence.  Later, drawing on his experience as a member of the Canadian Government’s recent Royal Commission on Aboriginal Peoples, he cast a critical eye on the uneven hand of Canadian law on its many and varied Aboriginal peoples. Paul discussed the great diversity of these interactions between aboriginal Canadians and European invaders and settlers, the first of which began in Atlantic Canada more than 350 years ago, and the most recent in Western and Arctic Canada early in the twentieth century. He showed us that Canada’s indigenous peoples too are grossly over-represented in their national courts, prisons and rehabilitation programmes   Likewise, white Canadians often consider that indigenous/ first nations’ peoples are criminally inclined and dangerous to life and property. Further they should be locked up for longer sentences and treated more harshly.

 Paul discussed a range of approaches that sought to incorporate aboriginal mores, values, ways and customary laws in Canadian jurisprudence. Many of the examples he has drawn on resonated with wananga participants. Without wanting to promote them as solutions for Aotearoa, and recognising the differences in our legal jurisdictions, his papers suggested that many of the approaches made in Canada might have relevance here in Aotearoa.

 Mason Durie discusses five themes related to the interface between Maori and the justice system and in so doing covered much of the common ground which we share with other indigenous peoples in similar circumstances and raised by Paul Chartrand in respect of Canadian jurisdictions. He raised some very provocative findings from findings of  ‘Te Hoe Nuku Roa’ a longtitudinal national study of the health and well-being of Maori being directed from massey University.

 The contributions made by politicians were of particular importance, given that 1999 was an election year, and all of the major political parties were invited to contribute to the wananga. In the end, only the National/NZ First coalition government, and the Labour opposition were represented. In the time that has elapsed since holding the wananga and the appearance of this volume, both public opinion and political fortunes have turned.  National party ministers who contributed official government positions were Roger Sowry, and Georgina te Heuheu. These two aforementioned have since moved onto the opposition benches, Tau Henare from NZ First is no longer in parliament, and Phil Goff, who was at the wananga as the Labour opposition spokesman for Justice has assumed that ministerial responsibility himself. Their ideas and pronouncements take on different hues inside government than outside, and vice versa.  

 Their papers and speeches can be examined for continuity and consistency with more recent statements. Phil Goff as the current Minister of Justice has recently announced changes in prosecution and sentencing policy. These changes will result in longer sentences for perpetrators of abhorrent crimes, they introduce the concept of ‘degrees of murder’ which will permit and attract variable sentences. Pending changes will increase sentences for convicted murderers, rapists and brutal assailants, parole will not be automatic after a portion of a prison term has been served, instead each prisoner will have to apply for parole. Those prisoners that demonstrate changes in their attitudes towards rehabilitation will be rewarded with earlier parole, and parole will be withheld for prisoners who do not demonstrate any appreciable attitudinal and behaviour changes.

 Participants were appraised of some interesting, contemporary and recent research findings and heard about some ‘on-trial’ and ‘experimental’ programmes in policing, sentencing, punishing and rehabilitating aspects of our criminal justice system.  Many of them ‘have at least a genesis’ in Maori thought and tikanga, and a ‘recognition’, however preliminary or restrictive, of official responses to tikanga.    There were discussions too, on giving more recognition to indigenous peoples’ custom and law in national jurisprudence here and in Canada. There were insights into a notion ofa justice which is not perfect, but nor is it impervious’. It is not inherently or philosophically unfair, but the bases are loaded and greater balance is recognised by those in the sector as both needed and possible. What may be ‘at issue’ is more substantial than ‘a tissue’.

 The wananga attracted considerable media interest. Such interest focused on three aspects of the wananga:

            ·           the range of topics covered in papers presented,


·         the varied backgrounds, qualifications and experiences of presenters and      

other participants, which generated lively and informed discussions,               

(and what they payed particular attention to)

            ·         some provocative statements from the Minister for Social Services,

Hon.Roger Sowry, giving a breakfast address for conference participants.

 Quoting from the text of his address, the newspapers and broadcast media characterised Mr Sowry both in word and caricature, as an intolerant, hard-hearted and indignant member of the elite, berating members of the Maori under-class.  

What right did they have to try to blank out their unhealthy and menial existence with excessive gambling, smoking, television watching and general all-round sloth’, he asked.

 Pursuing the Distant Horizons

 Finally, this wananga on justice and indigenous people does not stand alone, but is part of a wider planning strategy called Ngai Tatou 2020. This is an educational strategy whereby Maori will be able to propose, discuss and agree on a suitable pathway to the future, Ngai Tatou 2020 looks towards the year 2020 and makes plans for how Aotearoa/New Zealand will be for our mokopuna (descendants) to inherit. Ngai Tatou 2020 is not solely a Maori strategy, but rather a Maori-led strategy, which involves all of us, all New Zealanders, Maori and Pakeha, present and future, who can be informed by valued historic and contemporary Maori perspectives. Papers and participants were carefully chosen to bring a wide range of perspectives and responsibilities to debate. Several of the presenters whose papers are reproduced herein, speak about what is happening now on the social political and organisational fronts, and how these moves (or lack of moves) are likely to affect our lives over the next twenty years.

 Maori leaders Sir Graham Latimer, Sir John Turei and Justice Eddie Durie are looking beyond 2020. At Waitangi this year, they broached a longer term planning strategy Rua Rautau, looking towards the year 2040 when all of this nation will be celebrating our bi-centenary. The Rua Rautau strategy is Maori-led. It will involve long-term visionary planning with five-yearly assessments related to the regular census enumerations. The first population census of this century/millennium will be conducted in 2001. That is the first benchmark.  NGAI TATOU 2020 looks towards the mid-point of that Rua Rautau  - 40 year plan.

 As the old people might have put it:

       Ko te pae tawhiti, whaia,                       Pursue the distant horizons, (and also)

       Ko te pae tata, whakamaua kia tina.      Grasp the opportunities close-to-hand.











The Agenda for Change and its Impact on Maori Over-Representation in the Justice System


The Hon. Georgina Te Heuheu, Ngati Tuwharetoa, Minster for Courts


I deeply regret that I cannot be with you today at the Tangata Whenua I Roto I Te Tika, Indigenous People and Justice, the first wananga of the Ngai Tatou 2020 series of Nga Kaitaunaki Rangahau Iwi Tuatahi Puta i te Ao - the Foundation for Indigenous Research in Society and Technology.


When I accepted the Foundation’s invitation to give the opening address, The Agenda for Change, I did so with great delight. The reasons for my acceptance were many, but the major reason was that this would be a forum where indigenous people and others will engage in discussions surrounding the existing imbalances in the justice system.  This is whether these imbalances are in the jurisprudence and practice of the law, imbalances in the populations in practitioners, professionals those charged those convicted or their victims.


A wananga where we can look at ways to make a difference. A wananga where we can find out where the present justice system may have failed our people, and if so how these systems can be adapted to correct any shortcomings. Although I know that I would have had something to contribute, I was encouraged by one of my colleagues who said “try to remember the saying of our tupuna -           


Nau te rourou, Naku te rourou, ka ora te iwi. - With your contribution and my contribution, the people will flourish.



It is your challenge today to determine where the difficulties of adaptation lie in the basic elements of our existing systems and how the principles and rights inherent in the Treaty of Waitangi can be applied in an indigenous justice system. I want to urge you all to take an active part in this wananga, you all have something to contribute.


Remember the other important saying of our tupuna – Ahakoa te iti, he pounamu - no matter how small your contribution is valued.


Regrettably I am unable to make my contribution today because after my acceptance, the

Prime Minister asked me to represent the New Zealand Government and people at the

United Nations World Population Conference in New York where I am today.


In my absence, I am still sure that ALL of you here today have a great part to play in The Agenda for Change and its Impact on Maori Over-representation in the Justice System.

I seek your indulgence for my absence in the line of duty and I wish you well in your deliberation over the next two days and in your work beyond that time.


Kia ora koutou katoa.