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Salient. Victoria University Student Newspaper. Vol. 37, No. 6. April 10, 1974

Institutional racism in Law and Justice—Some Examples

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Institutional racism in Law and Justice—Some Examples

The submissions of the Maori Organisation on Human Rights to the Education Development Conference

The submissions of the Maori Organisation on Human Rights to the Education Development Conference

Part IV: Continued from issue 5.

1) Franchise:

New Zealand's first Constitution, under the Act of 1852, conferred the franchise "without distinction of race" And when NZ's first Parliament met in Auckland in mid-1854 the (Pakeha) Acting Governor congratulated its members (all Pakehas) on their power to exercise a measure of representative self government "without distinction of race".

How come then that Maoris were reduced to a situation where they received no protection from existing laws and could take no part in the making of new laws? Harold Miller (Race Conflict in NZ pp xxii-xxiv) has also documented the process—for example:

"In 1847 Sir George Grey advised the British Secretary of State against restricting the franchise to Europeans because "it must he borne in mind that the great majority of the native population can read and write their own language fluently; that they are a people quite equal in natural sense and ability to the mass of the European population; that they are jealous and suspicious: that they own many vessels, horses, and cattle ..." and in 1849" .....that they are well armed and equal to any European troops, etc" (p. 159)

But in 1850 "It is now proposed to get over the difficulty ...by only constituting certain electoral districts in those portions of the province densely inhabited by Europeans, and in those districts a common rate of franchise is fixed for all races, while Europeans or natives who may reside without such districts are equally disfranchised." (p. 164-165)

So in 1852 the British Parliament was told that whenever a native was residing within such districts with the same property qualifications as the European settlers entitled to vote "he should be regarded as a British subject and should be as free to exercise the franchise as any of his European neighbours." (p. 165)

"If the qualification be enforced on each individual native applicant I have no fear of any inconvenience" wrote William Fox, who in 1851 had referred to the Maori as a 'nation of Helots' (See Sutch, p. 59) and, as principal agent of the New Zealand Company, was noted for his anti-Maori views (See Sinclair, pp 213 214)

In 1856 nevertheless, fear "of a scheme to swap the Europeans at the next elections" and that the Vote Clerk for the Otaki District "Intended to place some hundred natives on the Electoral Rolls" was expressed by the Superintendent of the Province of Wellington (Mr Featherston). (p. 166)

In 1856 Sir T. Gore Browne informed the British Colonial Secretary—"I find (the Maoris) contribute 51,000 out of 112,000 pounds sterling to the customs and that three-quarters of the whole land-fund (excluding Canterbury) is admitted to be profit gained by the legislature on the purchase of waste (Maori) land." p. 158

By 1859 Law Officers of the Crown had ruled that native land titles did not entitle natives to a vote. Only land "held under Title derived from the Crown" would qualify them to become voters.

This would generally mean buying back at a higher price land bought cheaply by the Crown. 2) Land:

Article 2 of the Treaty of Waitangi was never allowed to protect Maori rights. The amalgamation of the Land Purchase Department with the Department of Native Affairs helped them even less.

In 1862 Mr Mantell said "he had himself assisted in the purchase of 20,000,000 acres for.. about a farthing an acre.... As a Commissioner for the extinguishment of native titles... he soon perceived that it was a very dirty, business, which he would never have entered upon had he known the natives beforehand and which was at the bottom of all our unfriendly relations with the natives.." (Miller,)

In 1862 the Crown's exclusive right to purchase Maori land was abolished. Although written into the Treaty as an intended guarantee of fair land prices for the Maori, it had often been waived and its spirit never enforced The Native Rights Act 1865 was declared by the Supreme Court to be of no effect—"Transactions with the natives for the cession of the title to the Crown are Acts of State and cannot be examined in any Court." Judgement of Pendergast and Richmond in Wi Parata v. the Bishop of Wellington, 1878. (Miller, p 167, 124).

The act setting up Native Land Courts in 1865 gave its sanction to grave injustices; the administrators were often corrupt, and in any case it left natives standing on a pure native title without any rights at all against the Colonial Government or its officials. (Miller, p 125)

In 1963 the Court of Appeal case re Ninety Mile Beach showed no great change in this situation. Mr Justice North's summing up stated that "Queen Victoria. . . . had an absolute right to disregard the native title to any lands in New Zealand"—this despite Queen Victoria's express assurances to Maori Chiefs in 1846 concerning her regard for Native Land Rights and for the Treaty of Waitangi which "should be most scrupulously and religiously observed" (See Rusden, History of NZ); and despite Queen Elizabeth ll's assurance to Sir Turi Carroll at Waitangi in 1963 that "the obligations entered into at Waitangi go far deeper than any legal provision in any formal document".

Photo of a group of Maori prisoners during the New Zealand wars

To this day New Zealand lawyers can graduate without any study of NZ Native Land legislation or the manner in which the recognised owners of 66 million acres have been reduced to ownership of little more than 3,000,000 acres.

To this day too many New Zealanders do not understand the importance attached by Maoris to the Treaty, of Waitangi and its promises of equal rights and status to Maoris. Utter contempt for the Treaty was expressed (again, as many times before) in the Parliament which on July 14 1880 heard the Maori Prisoners Bill legalising detention of Maoris without trial. And courts of law for nearly a century ruled that "the Treaty had no validity in international law because the Maoris were not a nation and could not make it legally binding."

But today international jurists see this reasoning as "a typical piece of 19th century arrogance—absurd and morally reprehensible" in its reflection on the good faith of colonial governments as well as the capacity of native chiefs. (Prof D.P. O'Connell, quoted Dr Warwick MeKean, Victoria University Seminar on the Treaty of Waitangi, February 1972).

Since the passing of the latest "Land Grab" legislation in the teeth of Maori opposition (the Maori Affairs Amendment Act 1967 providing for the final Europeanisation of remnant Maori lands) the government has condoned infringements of the Act by "Maori" incorporations set up by the Crown in line with its policy of Crown development of Maori land outlined in the Hunn Report 1960.

But more Maoris in the cities are able to avail themselves of legal help. And with a Maori Minister of Maori Affairs since December 1972, the picture in this respect may be changing significantly. All New Zealanders should appreciate the significance of Maori initiative and Maori understanding in such matters. Without Maori initiative and understanding the sores in out body politic will continue to fester.

3) The significance of Maori Initiative:

We need quote only a few recent examples which have already impressed increasing numbers of the NZ public.

a) The dramatic reduction in the Maori imprisonment and conviction rate in the report Justice and Race by the Belson Race Relations Action group headed by the Chairman and Secretary of the Nelson Maori Committee; the continuing efforts of Nga Tamatoa Tuarua to secure legal representation for young Maoris are recommended in the Hunn Report 1960:

"Although Maoris nowadays start off off with a 15.9 per cent of arrests, they get 17.8 per cent of the convictions and end up with 23.3 per cent of the imprisonments...

"This special problem of representation by counsel has lately been taken up with Police, Justice and Child Welfare... The Magistrates and Probation Officers asserted strongly that there was no problem, and if welfare officers, for example were detailed to appear in Court on page break behalf of offenders, it would be resented as a reflection on the competence of the Bench to see that accused persons received fair trial. This left the matter in a somewhat uneasy state, but it has since been discussed with the Crown Prosecutor and he supports the idea of retaining counsel in Auckland and Wellington, for an experimental period, to appear for Maoris in Court (fees to be recovered from them or their parents if possible). He has seen many Maoris too shy in the dock to speak for themselves....

"The Police and Justice Departments accept a Maori as being anyone who claims to be one, whereas the census definition is a person of at least half Maori blood. This difference in definition is enough to over-state Maori crime statistically...." (pp. 34-35)

In 1971 the Justice Department Report on Violent Offending again referred to this element of definition affecting the high Maori crime rate in a predominantly young population (p. 21) and again recorded that Maoris "were significantly less likely than Europeans to be represented by counsel" (44.3% of Maoris compared to 86.7% of NZ Europeans) and that welfare officers of the Maori and Island Affairs Department who could arrange for legal aid, "depend on the police, to notify them of Maori youth being charged....." (p. 35)

But none of these three government departments took the practical steps to ensure the reduction in the crime and imprisonment rate achieved by the Nelson Action Group during 1972.

On the other hand, on 6.4.73 the Minister of Justice was reported as taking the negative line of publicly denying any "deliberate" racial discrimination by NZ magistrates contributing to the high rate for Maoris (The Nelson report had not suggested deliberate or individual discrimination). And on 25.6.73 the President of the Nelson District Law Society made headlines: Charge that Non-Pakehas are Unfavourably Treated by Court is Unfounded Evening Post with statements defending Magistrates on much the same lines as the Minister of Justice.

But the co-author of the report Justice and Race (Dr Oliver Sutherland) in his reply pointed out that the Law Society president had jumped to mistaken conclusions, by among other things, basing his defence on the numbers of Maoris convicted (relatively small) rather than the rate (relatively high in relation to 8—10% of the population).

On 18.8.73 the Minister of Justice, in spite of his positive attitude generally to improving prevention of crime by measures less negative than imprisonment, again maintained in a published letter to the Dominion that while he did not dispute the fact that Maoris were over-represented statistically among New Zealand offenders and was also disturbed by it: "What I do not accept is that this is the result of some kind of racial policy adopted knowingly or unknowingly by the Courts".

But he continued: "One reason why more Maori offenders are put into custody instead of being released back into the community may well be that the sentencing Court has decided that home conditions are so unsatisfactory that the offender may better be dealt with in custody and away from them."

So again we have the vicious circle of "assistance" from Pakeha paternalism which has never cured the root causes of Maori disproportionate poverty (the failure of the law to protect Maori rights and interests) but, while offering its custody as preferable to Maori homes (much as it offered compulsory English in schools as the road to success instead of the Maori language), still—as in the NZ Herald education feature, 10.8.73—talks of the "confused values of Maori parents" giving rise to "double standards" among young Maoris....

Painting of a group of early european visitors to Aotearoa walking through bush

If this is the best our society can offer at present, we must recognise that, as with Lord Stanely's Instruction to Governor Grey in 1845, it is for Maoris at most a second-best.

The danger of making such "assistance" permanent under the Race Relations Act 1971 should surely be recognised—when in 1973 the Social Welfare Department's report (p 16) expects over 50% of Maori youngsters to appear before the courts before they are 17, but government stresses the importance of promoting respect for the family unit and encouraging good family relationships.

b) On the significance of Maori initiative in the education system.

4) Intent and Defamation:

Intent has key significance in the laws on defamation (libel etc) and racial defamation (discrimination).

The laws on defamation protecting citizens in general might also be expected to protect the reputation of racial groups, especially as it can be summarised thus (Dominion, 27.6.73):

"The law accepts that every man is entitled to his reputation. A Catch-all definition of libel is to disparage or degrade a person in the opinion of others; to expose him to ridicule, hatred or contempt; to prejudice him in his office, profession or trade'—"in short, to lower his reputation in the eyes of others".

So an ordinary citizen can claim damaged for the publication of erroneous information damaging to his reputation. And newspapers in particular have complained of their liability to pay damages to people "we have accidentally misreported, who are not so much concerned to have their names cleared, the record set straight, as to get money from a newspaper" (Dominion, 29.6.73)

(Note in passing: If the Maori people could claim such damages for the publication of disparaging statements in history books, and consequently in the news media and elsewhere, they would have no more need to beg for money from government and by public fund-raising campaigns to finance Maori schools, maraes, land development and similar welfare needs.)

Painting of Maori Warriors performing a haka

Of course we realise that from the government's point of view this could create an 'impossible' situation. If offenders publicly reported as "part Maori" (as at Kaikohe this year) could claim damages to the extent that they are not recognised as "part-Pakeha" this would not only reduce the Maori crime rate (but increase the European crime rate); it could probably also provide more than sufficient funds for Maori legal aid and other welfare necessities, because such damages arising from government reports and publications could well bring in millions of dollars.

And the same criterion could well apply to official omissions to remind the NZ public how far institutions set up by government (Maori Education Foundation, Maori Purposes Fund, Maori Affairs Department etc), have been built on and dispose of Maori monies. Such official omissions have led to the situation where too many New Zealanders regard government control of Maori affairs and Maori monies as "government assistance in favour of the Maori".)

But the Race Relations Act (Section 25-see Conciliator's Report, p11) protect Maori reputation from the publication of insulting material inciting racial disharmony only if the victims can prove "intent to... bring into contempt or ridicule" etc.

So in NZ those who publish matter defamatory to a racial group are protected; they are free to do so as long as they can disclaim intent to disparage etc. And intent is notoriously hard to prove in a court of law.

Suggestions that the freedom of the press would be better protected it citizens had to prove intent to justify their claims for payment of damages have apparently been rejected by the Minister of Justice who reportedly (Dominion 29.6.73) does not want a situation "where the law renders a man in a public position powerless unless he can prove malicious intent on the part of the newspaper". (This was described as the situation in the United States, where greater freedom of the press was instrument in exposing the Watergate Affair as damaging to the public interest.)

It will be clear to all who wish for positive promotion of racial harmony that the Maori people and Polynesian people generally, are "in a public position" in NZ just as much as any "man in a public position", but that NZ law at present renders them "powerless" in the manner which the Minister of Justice reportedly rejects for NZ citizens in general.

It is also clear that a century of racial defamation would have to be overcome before the "uninhibited, robust and wide-open debate of public issues" advocated by the Minister of Justice and the press in the public interest could include properly informed debate on the public issue of institutional racism.