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Maori and the State: Crown-Māori relations in New Zealand/Aotearoa, 1950-2000

Abandoning ‘Judicial Separateness’

Abandoning ‘Judicial Separateness’

Most observers felt that, despite such problems, the tribunal system provided a good service for both the Maori communities which embraced it and the state. Later, in fact, it came to be seen as a model for general youth justice initiatives. But in the 1970s, the Maori courts were coming to be viewed increasingly sceptically in non-Maori as well as in some Maori circles. For a number of pakeha (including officials), their existence seemed even more problematic than that of the warden system. Maori courts were seen to embody a ‘discriminatory’ system of justice which might favour (or sometimes disfavour) some offenders on grounds of ethnicity. They ostensibly cut across the concept of ‘equality’ in one of its most hallowed ideological locations, the criminal justice system. As early as 1970, even the minister in charge of them described tribunals as ‘kangaroo courts’. Under increasing attack thereafter, their supporters fought back, some of them claiming that efficiency would be enhanced if the Maori courts and the official committees within which they were located were given even greater powers. But in 1978, the tribunal committees were criticised by the Royal Commission on the Courts for reasons which reflected their very raison d’etre and their past success in dealing with many potential or actual offenders – their separateness and their non-professionalism. Moreover, the many areas in which tribunals were now proving ineffective, especially among the ever increasing migrant population in the big cities, allowed the commissioners to declare that the system had come to lack moral authority among the Maori people.

Their report disagreed with a reportedly ‘strong feeling that Maori attitudes were not fully appreciated or catered for within the existing judicial system and that Maori Committees should be given greater involvement in dealing with minor offences’. The commission had been ‘informed that local Maori committees are anxious to play their full part in helping their own young people’, but believed that any development that might be construed as movingpage 135 in a separatist direction should be rejected in order to avoid ‘a divided society’. It ‘did not consider that the Maori people should be singled out as a class requiring special treatment under our system of justice’. The report suggested that Maori committees might mediate relations between offenders and the justice authorities, but it opposed ‘special courts for minority groups’.22

While critics of the report noted that its language and perspectives harked back to policy that was prevalent in the aftermath of the Hunn report, the days of the Maori judicial authorities were numbered. A comment by an expert on the historico-judicial interface between Crown and Maori provides an indication of official thought on such issues by the mid-1990s: ‘the devolution of minor judicial authority to marae or the recognition of a form of runanga in Maori-populated suburbs to take cognisance of disputes and delinquency, appear, in recent decades, still to be frowned upon by responsible ministers and officials as divisive of Maori and Pakeha, rather than received optimistically as a means of helping young Maori to develop a sense of belonging and confidence and of enabling older Maori both to develop improved social control and to enjoy a larger sense of responsibility in New Zealand society’.

The Maori court system had also been overtaken, however, because of developments within Maori as well as broader society, the voices of Maori detractors having grown ever louder in the 1970s. Urban-based radicals of the Maori Renaissance had tended to see the tribunals as part of the NZMC system’s complicity with the hegemonic aims and institutions of the dominant culture – as, in effect, Maori consenting to their own oppression. Increasing numbers of Maori of varied opinions and backgrounds came to see the court system as part of a state-dominated attempt to contain Maoridom and its autonomist aspirations by imposing western standards of behaviour and beliefs upon their people. At best, they regarded the tribunal committees as irrelevant to their lives. Even the NZMC itself decided, by the end of the 1970s, that the courts were increasingly anachronistic, emerging as they did from the imperatives and opportunities of the pre-renaissance period.

The council had come to believe, moreover, that the tribunals were impeding acceptance among pakeha of Maoridom and its aspirations, that they helped to further prevalent notions that Maori needed special measures because they were in many respects socially ‘backward’. As early as 1964, leaders from various sectors of Maoridom had formed a united front to portray their people as modern and adaptive. An Education Department booklet for schools, Ans Westra’s Washday at the Pa, had documented through text and photographs ‘the happy life of a rural Maori family with nine children’. The MWWL declared that the primitive conditions depicted might be seen by pakeha to typify Maoridom and demanded withdrawal of the publication. Other Maori leadership strata supported their stance that the booklet (in the NZMC’s words)page 136 ‘strengthens the out-of-date stereotype of the Maori’. Under such unified pressure, the Minister of Education withdrew the publication on grounds that it could be seen to have ‘degraded’ Maoridom and might hinder ‘trying to draw the Maori and Pakeha together’. Officials attempted to destroy all copies, although it was quickly republished privately with the support of those who noted that it presented an empathetic account of the life of a Maori family.

Another strand of criticism of the booklet, including from some pakeha, had been that since the family were portrayed as having been allocated an urban state house, Washday at the Pa was actively (and officially) promoting urbanisation and assimilation. After this controversy, debates on subjects relating to the place of Maori in wider society were even more intensive than in the past. Changing attitudes to Maori courts among Maori need to be seen in the context of such discourse. Influenced by and under pressure from the Maori Renaissance, Maori leaders were increasingly concerned that the tribunals served to promote an unfavourable impression of a separatist and enclosed Maori way of life, one in which Maori were seen to have rights and privileges denied to pakeha – a stigma less attached to the work of wardens, which was more visibly of benefit to pakeha as well as Maori. For some Maori, too, the rangatiratanga the tribunals may have once embodied had been compromised by the very officialness of their proceedings and functions. All in all, many Maori leaders came to see them as anachronisms. According to anthropologist-observer Fleras, the NZMC set out to ‘suppress [the Maori courts] in all but a few rural areas’. While some Maori communities persisted with ‘their’ courts, the institution was rapidly fading away among the plethora of new ways of asserting rangatiratanga which arose in the 1970s.23

22 Fleras, ‘Descriptive Analysis’, pp 204–5, p 280 (for ‘kangaroo courts’ quote); Lange, Maori Well-Being, p 48 (for ‘discriminatory’ quote); Stokes, Evelyn (ed), Nga Tumanako: National Conference of Maori Committees, Hamilton, 1978, p 44 (for ‘a strong feeling’ quote); Royal Commission on the Courts, p 122 (for ‘divided society’ and ‘did not consider’ quotes), p 176 (for ‘informed that local Maori’ quote), p 271 (for ‘special courts’ quote).

23 Ward, Alan, A Show of Justice, p 315 (for ‘the devolution of minor’ quote); Labrum, ‘The Essentials of Good Citizenship’, p 453; Harris, Hīkoi, pp 17, 20; Harris, ‘Dancing with the State’, pp 19–20; Brookes, Barbara, ‘Nostalgia for “Innocent Homely Pleasures”’, in Brookes, Barbara (ed), At Home in New Zealand: Houses, History, People, Wellington, 2000; Westra, Ans, Washday at the Pa (Castle Press ed, including ‘Publisher’s Note’), Christchurch, 1964; Fleras, ‘Descriptive Analysis’, p 205 (for ‘suppress’ quote).