A Kaupapa Maori analysis of Maori Overrepresentation in the New Zealand (Pakeha) Criminal Justice System How might equitable outcomes be improved for Maori? PDF

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This essay seeks to explore one of the major social issues Maori are facing in contemporary Aotearoa - overrepresentation in New Zealand’s criminal justice system. It analyses the disproportionally high levels of Maori offending through the lens of Kaupapa Maori theory (Marie, 2010). To note, my pos...

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A Kaupapa Maori analysis of Maori Overrepresentation in the New Zealand (Pakeha) Criminal Justice System How might equitable outcomes be improved for Maori? Monica Harris 300368954 Word Count: 3111

Monica Harris 300368954

INTRODUCTION The development landscape of Aotearoa New Zealand has been largely shaped by the arrival of European settlers in the early 1800s, which lead to the British colonisation of the nation in 1840. This ultimately saw the arrival of Western civilisation, which dramatically displaced indigenous Maori, their culture and values, creating the society we know today. While New Zealand has been acknowledged as politically bicultural since the 1980s, the equality between Pakeha and Maori in Aotearoa is far from being a reality, with a large majority of Maori continuing to struggle in many social and economic areas of living (Bell, 2006). This essay will seek to explore one of the major social issues Maori are facing in contemporary Aotearoa - overrepresentation in New Zealand’s criminal justice system. It will analyse the disproportionally high levels of Maori offending through the lens of Kaupapa Maori theory (Marie, 2010). To note, my positionality while using this theory is an outsider. I am not (to my knowledge) of Maori decent, and don’t identify with any iwi or hapu. I intend to respectfully and cautiously use Kaupapa Maori theory for the critical discussion of this essay, which I believe will provide unique insights to the issue that perhaps other approaches may not. I will use this theoretical framework to question the place of Maori tikanga structures in the existing Pakeha criminal justice system, to probe how self-reflection can inform future development decisions, and to question how the existing criminal justice system can be restructured for the benefit of Maori, their children and future generations.

CONTEXT Aotearoa New Zealand is home to many diverse cultures, races and ethnicities, predominantly those of European decent. Maori are Aotearoa’s indigenous people, arriving to the mainland from Polynesia around 1200 AD (Walker, Eketone & Gibbs, 2006). The current population of Aotearoa is upwards of 4.8 million, with Maori numbering close to 15 percent, having 598,600 living in the country at the time of the 2013 Census (Stats NZ, 2018; Stats NZ, 2013).

The arrival of European settlers to Aotearoa New Zealand in the early 1800s signalled the beginning of rapid social change and cultural neglect for indigenous Maori, who had previously dominated the mainland in rural, tribal societies for hundreds of years (Henry & Pene, 2001). Following the signing of the Treaty of Waitangi in 1840, a binding document between the British Crown and hundreds of Maori chiefs, Aotearoa 1

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saw a “systematic introduction” of Western governance, law and society, which consequently marginalised Maori in all aspects of life (Henry & Pene, 2001: 235). Instead of an equal power distribution with the European (or Pakeha) that had been anticipated, Maori essentially lost control over their land, resources and society. Their culture, language, values and practices were significantly diminished as a result of this colonisation, with the increasing arrival of European settlers rapidly transitioning the development landscape of Aotearoa over the course of a century, through means of exploitation and methods of western civilisation (Walker et al., 2006).1

One of the most challenging development issues for Maori that has emerged in Aotearoa’s postcolonial setting is the overrepresentation of Maori in the Pakeha criminal justice system. As of December 2017, the Department of Corrections reported that Maori made up 50.3 percent of New Zealand’s prison population, which is currently over 10,300 offenders (Department of Corrections, 2017). Of New Zealand’s youth offenders aged between 10-16, Maori accounted for 63 percent as of June 2017 (Ministry of Justice, 2017). Many scholars and academics from Maori research perspectives have attributed the disproportionally high levels of Maori offending to institutional racism and bias within Aotearoa New Zealand’s criminal justice system (Brittain & Tuffin, 2017; Department of Corrections, 2007; Webb, 2009; Tauri & Webb, 2012). The loss of tikanga, cultural identity and the emergence of a cultural hierarchy as a direct result of colonisation is also viewed to be a fundamental factor in Maori offending (Tauri & Webb, 2012; Brittain & Tuffin, 2017; Owen, 2001). Pakeha perspectives have commonly attributed Maori offending to socio-economic status, as well as many early life influences including family, education and health (Department of Corrections, 2007).

THEORETICAL LENS 1 Note: This is a very concise version of events regarding the colonisation of Aotearoa, to provide context to the development landscape. The oppression faced by Maori during the 20th century as a result of European settlement entails much more detail and weight, of which I could not embody in its entirety within this section but will continue to make reference to during the course of this essay.

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Kaupapa Maori theory has emerged as an indigenous, philosophical framework which locates itself within a Maori worldview (Pihama, 2010). While the theory of Kaupapa Maori emerged into the academic field in the 1980s, the body of knowledge of Kaupapa Maori is ancient, with origins deeply rooted in Maori culture, which is largely informed by cosmology, creation stories, and the metaphysical concepts of spiritual and life forces (Mahuika, 2008; Pihama, 2010; Henare, 2001; Kiddle, 2017). 2 This essentially means that understanding of the theory is only achievable through acknowledgement and understanding of Maori culture, language, values and practices (Pihama, 2010). Kaupapa Maori theory, therefore, is inherently central to Maori identity, providing Aotearoa’s indigenous people with theoretical space to express their production of knowledge, separate to Pakeha, to improve their path of development (Mahuika, 2008; Eketone, 2008; Pihama, 2010). The emergence of Kaupapa Maori theory has been shaped by the experiences and struggles of indigenous Maori central to colonisation (Pihama, 2010). As summarised by Smith’s 1995 work, Kaupapa Maori can be understood as “research by Maori, for Maori, and with Maori” (as cited in Henry & Pene, 2001: 236). This approach is vital for Maori in their process of decolonisation, and in reclaiming their cultural identity and maintaining tino rangatiratanga – a core Maori value loosely translating to self-determination and empowerment (Pihama, 2010; Mahuika, 2008; Henry & Pene, 2001). Smith’s summary of Kaupapa Maori theory anticipates how it will be analytically strong in exploring Maori overrepresentation in the New Zealand criminal justice system, as the transformative theory empowers Maori to take control of their development, through reflection of their worldviews and by drawing upon their lived experiences (Henry & Pene, 2001; Eketone, 2008). By reflecting on the past to inform the development future, Kaupapa Maori theory will provide an insightful lens on Maori values and social constructions, which may seek to answer how existing Pakeha structures of social organisation are affecting Maori development in Aotearoa New Zealand. QUESTION 1: Where in the Pakeha criminal justice system do structures of tikanga Maori belong? 2 Maori worldviews are heavily influenced by cosmology, creation stories, spiritual and life forces that connect them to the environment, a world system where everything living is interrelated and connected, dependent on each other to maintain an equilibrium.

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Aotearoa New Zealand’s justice system is inherently designed against the British Westminster model that sees the system as an integral part of the New Zealand government (Ministry of Justice, 2016). While Maori political determination since the 1970s has seen Maori inclusion in law and statues – such as the establishment of the Waitangi Tribunal in 1975 and in sections of the Resource Management Act 1991 – the criminal justice system in New Zealand remains largely Pakeha-designed and orientated, despite the large proportion of Maori offenders in the system (The Law Library of Congress, 2015).

In traditional Maori society, as discussed in Gallagher’s workings, social control was balanced through fluid forms of tikanga and its core, interconnected underpinnings, which ultimately governed Maori behaviour in all aspects of life (Gallagher, 2016). Tikanga is loosely translated in Williams’ 1998 paper to the appropriate “Maori way of doing things”, which informs Maori worldviews and the practice of Maori values (as cited in Gallagher, 2016, para. 5). Tikanga and its core underpinnings have been passed down through generations, adapted and exercised by iwi (tribes) in various forms (Gallagher, 2016).

It is important to note in this following section that there is never a clear-cut translation of Maori concepts in the English language, and that Maori concepts and terms tend to have multiple meanings.

Key underpinnings of Tikanga include Whanaungatanga, Whakapapa, Mana, and Manaakitanga, however this is not definitive – tikanga is multifaceted with many different values concerning all areas of being (Gallagher, 2016). Whanaungatanga is indicative of relationships, that being between people, the environment and the spiritual, expressing the notion that from a Maori worldview everything living is interconnected (Gallagher, 2016; NZ Law Commission, 2001). Whakapapa falls under whanaungatanga, as the ancestral and genealogical connections of relationships (Kiddle, 2017). Whakapapa is the source of identity, which defines individuals as a part “of a collective… through an individual’s relationships with others” (NZ Law Commission, 2001: 31; Kiddle, 2017). This key concept also sees the social organisation of Maori, in terms of iwi (tribes), hapu (sub-tribes) and whanau (family) (Pihama et al., 2004; Gallagher, 2016). Mana is attributed to the concepts of authority, power and control, which are central to Maori leadership (NZ Law Commission, 2001). Mana can be seen 4

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by Marsden (1975) to emerge from three foundations - the spiritual forces, ancestral connections and the self (as cited in NZ Law Commission, 2001). Lastly, Manaakitanga is the emotional dimension of Whanaungatanga encompassing the acts of compassion, caring and generosity toward others, therefore maintaining social relationships and social order (Durie & Hermansson, 1990; Kiddle, 2017).

British colonisation and Western governance of Aotearoa saw the erosion of tikanga Maori as a form of social control, resulting in the formation of the criminal justice system without Maori consultation (Tauri & Morris, 2003). The system has been criticised for targeting and trapping Maori through reproductive structures of institutional racism (Brittain & Tuffin, 2017). Within the past few decades however, tikanga Maori has been incorporated into rehabilitation programmes for offenders, but ultimately the system itself remains largely Pakeha (Department of Corrections, 2018).

Scholars offer insights suggesting that the re-incorporation of tikanga Maori structures such as whanau and whanaungatanga are central to the success of Maori prisoners within Aotearoa’s current justice system (Workman, 2014; Jackson, 1988 as cited in Tauri & Morris, 2003). In Tauri and Morris’ (2003) work, the duo critiques the criminal justice system for its heavy reliance on imprisonment and therefore separation of Maori from their whanau, trapping Maori in the system in a repetitive cycle. They also suggest the incorporation of the marae (meeting house) in the process of young offenders’ justice proceedings, which since the time of the research has been achieved, with the Youth Court of New Zealand confirming 14 marae sites for Maori youth offenders, strengthening the sense of community and whanau (as cited in Brittain & Tuffin, 2017). The Department of Corrections (2017b) report on reducing Maori re-offending also includes a weighted focus on the structure of whanau, the importance of this value to the success of Maori and the support those of whanau require for the development of Maori. Jackson’s 1988 paper on Maori and the criminal justice system calls for the separation of Maori justice to Pakeha (as cited in Tauri & Morris, 2003), a desirable notion in Maori and their process of decolonisation. This response hails from the understanding that Maori justice cannot be achieved within a non-Maori system, drawing upon Smith’s (1995) statement of “by Maori, for Maori, with Maori” (as cited in Henry & Pene, 2001: 236). While Aotearoa’s governments have historically rejected this notion, some Maori integration is beginning to emerge from institutions such as the Department of 5

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Corrections and the Ministry of Justice (Tauri & Morris, 2003).

QUESTION 2: How can we reflect on ourselves to inform the decisions we make on our development future? To inform the development future of Maori and their success in positive outcomes of criminal offending and representation in the justice system, it is vital for Maori to reflect on their past and experiences. What can be said for Maori, by Maori, as identified by Jackson (1988), is the implementation of British law by the state consequently diminished meaningful Maori practices in numerous Maori communities (as cited in Tauri & Webb, 2012). The Pakeha criminal justice system has been failing Maori development, primarily as a result of the system being created in a Western context, with the current inclusion of Maori intervention being controlled by what the state sees as acceptable (Tauri & Webb, 2012). While increasing numbers of Maori are being incorporated into the justice system’s front lines, and forms of tikanga Maori are emerging in rehabilitation, these are only operating at a surface level, not proving capable of reducing the numbers of Maori entering the criminal justice system (Te Puni Kokiri, 2011; Tauri & Webb, 2012; Department of Corrections, 2007; Whaipooti, 2018 as cited in Husband, 2018). New Zealand prison statistics are at an all-time high, with the population of offenders in state prisons exceeding 10,300 (Statistics NZ, 2018). Many scholars acknowledge the Pakeha criminal justice system to be ill-fitting and culturally insensitive for the development outcomes of Maori, signalling that improvement must be powered through Maori initiatives, driven by Maori (Te Puni Kokiri, 2011; Jackson, 1988 as cited in Tauri & Webb, 2012; Whaipooti, 2018 as cited in Husband, 2018).

QUESTION 3: What are the ways in which we can seek to improve or restructure our approach to the Pakeha criminal justice system for the benefit of positive outcomes, our children, and future generations? What is evident in the quest for improvement and in the revitalised approach of Maori to the Pakeha system is the need for strong and supported leadership in bringing about 6

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change, by Maori for Maori (Te Puni Kokiri, 2011). This needs to be implemented in the social and political aspects of Maori life, at the most fundamental areas of iwi, hapu and whanau, through to institutions and providers of Maori such as Te Puni Kokiri, and at a national level through representatives of Maori and Maori values such as the Green Party. Primarily, a reconnection of New Zealand Maori to their culture and identity is essential and can be achieved in numerous ways - such as Maori enrolling on the Maori electorate roll, and by tracing their whakapapa back to their iwi and marae, to reestablish the role of whanau and to identify their ancestral ties to both the community and the land.

With reference to Just Speak’s 2014 Unlocking Prisons Report, Maori through tino rangatiratanga, should seek to prevent and challenge the current course of the New Zealand justice system, in all areas such as apprehension, sentencing, rehabilitation and release. While previous governments have continued to reject the introduction of a separate justice system for Maori, the challenging and improving of the current delivery of justice in Aotearoa should be pursued (Tauri & Morris, 2003). Maori could improve their offending outcomes by creating and maintaining positive relationships with the New Zealand police force, through dynamic approaches of pre-sentence warnings, ultimately preventing the high levels of offenders becoming incarcerated or formally entering the criminal justice system (Just Speak, 2014). The role of community should be amplified by Maori, as the need for whanau-based support has been evident in many cases of Maori offending, particularly those of youth and children (Owen, 2001). Building on from this, quality and frequency of visitations of Maori offenders by their whanau and support networks should sought to be increased, to preserve and maintain vital family structures - especially in cases of offenders with children (Just Speak, 2014). Legislation is where the weight of change is often ensured, which is where Aotearoa’s Maori need to aim these improvements, achievable through strong and supported leadership and in sizeable numbers. Organisations such as Just Speak are continuing to carve this path in New Zealand’s political setting to ensure the rights and needs of Maori are being met, through positive change. RECOMMENDATIONS My recommendations for the success of Maori in the criminal justice system begin at the foundations of Maori culture. That being, Maori who are not in touch with their cultural foundations may benefit in many ways by reconnecting with tikanga and Maori knowledge, to bring cultural identity and a sense of place in Aotearoa’s transforming 7

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development landscape. Pakeha should also seek to inform themselves of Maori knowledges and practices in order to respect and support the aims of Maori development. Furthermore, I would recommend Maori to continue to demand the integration or establishment of their knowledge and preferred practices on their terms, to prevent the Pakeha selectivity of Maori inclusion in the criminal justice system and other areas of Aotearoa’s political landscape. Lastly, with the arrival of a centre-left government in New Zealand, with the Green Party in government for the first time, I would urge Maori lobby groups to put strong cases forward for the increase in funding for Maori development, especially in regards to Maori justice, to ensure the improvements and challenges mentioned above are implemented with weight and support.

CONCLUSION Maori overrepresentation in Aotearoa New Zealand’s criminal justice system is one of the major social issues faced by Maori in Aotearoa’s current development landscape. Since the arrival of European settlers in the early 1800s, Maori, Aotearoa New Zealand’s indigenous population, have experienced rapid social change and significant culture loss through oppression caused by colonisation and Western methods of civilisation (Henry & Pene, 2001; Walker et al., 2006). As of December 2017, New Zealand prison statistics totalled over 10,300 with Maori representing over fifty percent of the prison population (Department of Corrections, 2017). Through the lens of Kaupapa Maori theory, a philosophical framework informed through centuries-old Maori knowledge and values, it is understood how tikanga Maori values remain central to the social control and success of Maori offenders (Pihama, 2010; Mahuika, 2008; Eketone, 2008; Gallagher, 2016; NZ Law Commission, 2001; Tauri & Morris, 2003; Workman, 2014). It is also vital for Maori to reflect on past experiences, such as the shortcomings of the New Zealand criminal justice system, to inform a positive development future (Te Puni Kokiri, 2011; Department of Corrections, 2007). Empowered Maori should continue to challenge the existing justice system, in order to ensure their success in positive outcomes o...