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

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12.2 Criminal Justice in New Zealand particular meeting. It is considered better to take time and space to fashion a consensus-based solution or series of solutions for the long-term, which are more likely to be adhered to, than to rush the process, only to have an inevitable breakdown within a short time. If all parties have had an opportunity to be heard and have input into decisions about responsibility and punishment, these decisions should be respected and upheld. Secondly, the idea that our ancestors and descendants are always with us supports the concept of inter-generational collective responsibility for disputes, both as offenders and victims. Therefore, if current disputants are unable or unwilling to resolve their dispute, the dispute remains active until dealt with in the future. The collective nature of Maori society meant that the whanau, hapu, or iwi of the actors were also affected by the offending, as an imbalance in an individual affected that person’s ability to contribute to the collective. Thus, the diminution of mana of a female victim in consequence of offending against her detrimentally affected her ability to fulfil her roles as mother, spouse, carer, food provider, nurturer. Similarly, the loss of mana of a male victim meant the community loss of a warrior, father, spouse, community worker and protector. In a relatively small tribally based society, this imbalance could potentially lead to increased conflict or threaten the economic survival of the group. Because the consequences of criminal offending had significant impact upon the relevant community or communities, in tikanga Maori it was a collective group that was identified as the victim and a collective group that was deemed responsible as the offender. For example, an insult by a person from one hapu directed at a person from another hapu, is viewed as an offence by the first hapu as offender, against the second hapu, as victim. This aspect of collective responsibility is advantageous when compared with individual culpability, as payment or performance of a penalty may be more likely when spread among a group, with access to more resources than an individual. A collective group might agree to the settlement of a dispute by the passing of property, or by the performance of a service to the victim group. Neither of these outcomes would necessarily require the individual responsible for the offending to own the property concerned or to take part in the service agreed upon. There were consequences for the individual responsible for the commission of hara, with whakama or shame being the primary personal repercussion. The fact that punishment for offending would be met by a person’s whanau, hapu, or iwi, was a powerful deterrent to breaching tapu, and shame was a natural and appropriate response to that eventuality. A Maori system of punishment is largely forward-looking — aimed at repairing relationships, while accounting for past wrongs. In a worldview predicated upon a norm of balance and harmony, reparation was of far greater import than punishment. In such a system, the process of facilitating reparation, and mediating a settlement is as important as the outcome itself. The inclusion of the victim in this process is imperative in order to forge a binding and durable outcome. This is not to say that tikanga relating to justice was necessarily a soft option. The appropriate utu or payment for any given hara could include death, loss of group treasures or resources, and at the very least, involved public shame and humiliation. The emphasis on the future, however, prioritises a desire to reintegrate offenders into communities, heal victims, and maintain a balance between the acknowledgment of past behaviour and moving on. Tikanga Maori is a system that is followed and enforced from the ground up — there is no state machinery, no lawyers, no Courts, no formal burdens of proof or laws of 8
Chapter 12: Maori and the criminal justice system in New Zealand 12.2 evidence. It is law based on principle, enforced by the community, under threat of sanction. The system is best summed up by Moana Jackson: 30 The rights of individuals, or the hurts they may suffer when their rights were abused, were indivisible from the welfare of the whanau, the hapu, the iwi. Each had reciprocal obligations found in a shared genealogy, and a set of behavioural precedents established by common tipuna. They were based too on the specific belief that all people had an inherent tapu that must not be abused, and on the general perception that society could only function if all things, physical and spiritual, were held in balance. 12.2.2 Colonisation, the imposition of the common law and the undermining of tikanga The colonisation of Aotearoa by the British heralded the change from what Maori call Te Ao Kohatu — the Old World, to Te Ao Hurihuri — the Changing World. This process has had a devastating impact on the Maori way of life, including beliefs and laws and the ways of dealing with offending. The signing of the Treaty of Waitangi between Maori and the Crown in 1840 allowed for the permanent settlement of pakeha in New Zealand, while guaranteeing Maori undisturbed control over various resources and treasures. 31 The initial priority for the colonisers was the acquisition of land and resources, which was achieved by way of negotiation, crooked dealings, warfare, and confiscation. Once the land was acquired, it was imperative for the new government to bring Maori under the legal control of the new colony. 32 The common law legal system imposed many concepts that were foreign to Maori — including its materialistic focus, notions of atomised individual (as opposed to collective) responsibility for wrongs done, separate civil and criminal jurisdictions, the notion that people were not responsible for harm that was unintended, the alienation of the victim from the justice process, the idea that the state was the injured party in the dispute, the separation of the formal criminal process from the community, and the lack of a focus on reparation. To Maori, the system seemed formal, inflexible and oriented towards retributive justice, which was damaging to the individual actors and their communities. It also provided for penalty options not known to Maori, such as imprisonment. Tikanga Maori was generally ignored by the colonial legal system, although early attempts were made to appoint Maori magistrates to oversee the administration of justice in Maori communities, and for the recognition of utu as a penalty for criminal offending, as a concession to Maori who at that time significantly outnumbered pakeha 30 M Jackson, “Criminality and the Exclusion of Maori” in N Cameron (ed) Essays on Criminal Law in New Zealand: Towards Reform Wellington, Victoria University Press, 1990, p 32. 31 For a translation of the Maori and English texts of the Te Tiriti o Waitangi /Treaty of Waitangi, see I H Kawharu (ed) Waitangi: Maori and Pakeha Perspectives Auckland, Oxford University Press, 1989, Appendix 316. 32 For a general history of this period see J Belich Making Peoples: A History of the New Zealanders to 1900 Auckland, Allen Lane Penguin, 1996. For a legal history of the early period of land dealings see D V Williams Te Kooti Tango Whenua: The Native Land Court 1864-1909 Auckland, Huia Publishers, 1999. 9
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