Te Kohu Douglas
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.
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.
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?
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?
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
would the basic principles and rights found in the Treaty of Waitangi be applied
in an indigenous justice system?
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.
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.
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.
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.
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’.
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
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.
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.
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
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 of ‘a 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
participants, which generated lively and informed discussions,
what they payed particular attention to)
some provocative statements from the Minister for Social Services,
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.
the Distant Horizons
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.
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
the old people might have put it:
Ko te pae tawhiti, whaia,
Pursue the distant
horizons, (and also)
Ko te pae tata, whakamaua kia
the opportunities close-to-hand.
Agenda for Change and its Impact on Maori Over-Representation in the Justice
The Hon. Georgina Te Heuheu, Ngati Tuwharetoa,
Minster for Courts
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.
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.
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 -
te rourou, Naku te rourou, ka ora te iwi. - With your contribution and my
contribution, the people will flourish.
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.
the other important saying of our tupuna – Ahakoa te iti, he pounamu - no
matter how small your contribution is valued.
I am unable to make my contribution today because after my acceptance, the
Minister asked me to represent the New Zealand Government and people at the
Nations World Population Conference in New York where I am today.
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
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.
ora koutou katoa.