QUINCE, K "Māori and the Criminal Justice System in New Zealand"

12.3 Criminal Justice in New Zealand
settlers. 33 Similarly, in the twentieth century, central government delegated power to
Marae Committees and Maori Councils to deal with minor Maori offending in Maori
communities. 34 These initiatives could be viewed as token attempts at a pluralistic
legal system, although in reality they seem to be a response to the fact that most Maori
lived in communities beyond the reach or care of the machinery of the state. Other
than these token attempts at recognition of tikanga, it has been actively suppressed and
adjudged to have the status of native folklore. 35
While Maori remained largely rurally based in the latter decades of the nineteenth
century, the traditional Maori legal system operated for them much as it had since time
immemorial, so that in New Zealand we had a kind of “accidental pluralism”. 36 As
Maori became more urbanised in the latter half of the twentieth century, and thereby
came into more frequent contact with pakeha people and communities, the long arm of
the colonial legal system began to be comprehensively extended to Maori.
At the same time there was a breakdown of the traditional Maori legal system, partly
due to the laws, policies and land confiscations that alienated whanau and hapu from
their economic base. A shift to individualised land tenure meant that there was less
respect for traditional leadership and it became difficult to support collective familial
structures. These problems were compounded by mass urban migration after the 1939-
1945 War, so that while 75 per cent of Maori lived in rural areas in 1945, this had
reduced to 18 per cent by 1991. 37 Moving to urban centres and engaging in a more
“pakeha” lifestyle further weakened Maori ties to tribal lands, support networks, and
systems of social organisation.
Despite Crown assurances in the Treaty of Waitangi, within a century of its signing
Maori society had suffered incalculable damage. To Maori the most harmful breach
was that of the guarantee of Article Two — the promise of tino rangatiratanga or
sovereignty over Maori affairs, people and assets. It is this assurance that Maori turn to
in calls for reform in the modern era.
12.3 Explanations for Maori overrepresentation
as offenders
12.3.1 General risk factors and the link to colonisation
One outcome of the historical circumstances described above is the socioeconomic
disadvantage Maori experience. The Native Schooling system that operated for a
33 A Ward A Show of Justice: Racial Amalgamation’ in Nineteenth Century New Zealand,
Second edition, Auckland, Auckland University Press, 1995, p 66.
34 R Walker Ka Whawhai Tonu Matou 2nd ed, Auckland, Penguin Books, 2004, pp 203-
209.
35 A Mikaere, “The Treaty of Waitangi and Recognition of Tikanga Maori” in M Belgrave,
M Kawharu and D V Williams (eds) Waitangi Revisited: Perspectives on the Treaty of
Waitangi Auckland, Oxford University Press, 2005, ch 18.
36 Dr Lindsay Robertson of the Faculty of Law at the University of Oklahoma uses this
term to describe the analogous nineteenth century situation in the US, where tribal
Indian law prevailed in areas where white settlers had no formal government and/or
law enforcement.
37 R Walker Ka Whawhai Tonu Matou 2nd ed, Auckland, Penguin Books, 2004, p 197.
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