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The Treaty guarantees three things: protection partnership and
participation. But we are never allowed the participation or the partnership for
Mäori. You haven’t got protection if you haven’t got
participation or partnership. – Rohe 9
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1 A principal function of the Law Commission is to make recommendations for the reform and development of the law of New Zealand. In doing so the Commission shall, under the Law Commission Act 1985 s 5(2)(a),
take into account te ao Mäori (the Mäori dimension) and shall also give consideration to the multicultural character of New Zealand society . . .
2 The primary purpose of this report is to assist those involved in New Zealand’s justice sector institutions, particularly those who are employed by the state and on whom the Crown depends in the performance of its Treaty obligations, to better understand and respond to the needs and values of Mäori women.
3 Many of the women whom we consulted were concerned that they did not have ready access to the legal system, and too often said it was something of which they did not feel part. They usually expressed their feelings in terms of inadequate performance of the Treaty of Waitangi. We have attempted first to grasp what they sought to convey and then to work out how to deal with the result.
4 In recent times, there has been much profound discussion about the Treaty and its principles. Many agencies with whom we spoke saw Treaty principles as lawyerly notions, to be found in decisions of the Waitangi Tribunal and the Court of Appeal. For present purposes what the women saw as the relevant principles were simpler, namely that the Treaty promised that:
5 From both promises, it was suggested, as far as practicable, our institutions and their practices should take account of Mäori values. Some indeed went further and asserted that a single justice system for all New Zealanders infringed the promise of the Mäori language version of the Treaty of Waitangi: that te tino rangatiratanga should be preserved. Many, however, accepted that a single system of justice is necessary but that it must acknowledge Mäori values and, where practicable, offer diverse solutions. One such solution is Mäori autonomy of the kind discussed in paras 424–425 within a single legal system.
6 Justice Durie highlighted the need to look to the values of a society in a paper entitled “Ethics and Values”, delivered to Te Oru Rangahau Mäori Research and Development Conference at Massey University in July 1998:
The need to look to the value system
Mäori society, probably like most others, is conservative with regard to its fundamental values. The point is that it has been receptive to change while maintaining conformity with its basic beliefs. Archival records evidence how Mäori searched for ancestral opinions to establish what was right, often challenging officials to heed Mäori precedent to maintain that which the translators called a proper line of action.
Lawyers should understand this. The common law of England began from recording local customs and practices seen as common to all England. It was in effect, a compilation of the values of that society as shown in practice. It has developed to a situation today where cases are won or lost according to whether one can establish a precedent for a particular course of conduct. Accordingly for Mäori or Päkehä, antiquity may give a measure of validity. For both societies recourse to precedents provides evidence of stability.
However in following precedent, ancestral or legal, custom may not just be maintained but changed. In selecting what to recall and applying the principles to new situations we may discard that which has become unpalatable, outmoded or inconvenient. Judges, applying precedent to different situations, may establish a new principle and yet will say that the opinion has always been in the law but has been discovered only now. Similarly, Mäori will refer to what the old people said to consider what to do on matters beyond the old peoples’ experience. The important thing about this process is that it makes neither the law nor custom moribund, but dynamic.
The point is that in resorting to the past to determine a future course of action in new situations one must look for the principle involved. More particularly one must seek the underlying value for it is the values that establish the enduring cultural norms of a society. (3–4)
7 The challenge for the justice system considered in this report is to ensure that the values of both Mäori and non-Mäori are respected within its institutions and processes. We discuss “the principles of the Treaty” in the following paragraphs. It may be said at once that we agree with the formulation in para 4 and the notions of limited autonomy in paras 424–425. We have applied them in considering how the values of both Mäori and non-Mäori can be respected within our justice system.
8 The concept of the principles of the Treaty of Waitangi has entered the New Zealand vocabulary. The establishment under the Treaty of Waitangi Act 1975 of the Waitangi Tribunal to make recommendations on claims relating to the practical application of the principles of the Treaty has, as part of that purpose, had to determine the meanings and effects of those principles and whether certain matters are inconsistent with them. But there is considerable doubt and uncertainty as to the Treaty’s meaning beyond the specific elements identified in judgments of the Court of Appeal and of the Waitangi Tribunal.
9 As a result some commentators have seen an antithesis between the improvement of delivery of justice sector services to Mäori women, which it is suggested can be progressed outside of a Treaty framework, and the Treaty principles as identified to date. Such an antithesis is evident in the Court’s strategic result areas (see reproduction of SRA 8 at para 252). Some clarification is desirable.
10 The Treaty of Waitangi was executed on behalf of the British Crown and the Chiefs who met at Waitangi and elsewhere, representing their tribes. As New Zealand approaches the 21st century the Treaty relationship is in essence between Mäori New Zealanders – some more or less closely identified with tribes and others not – and the entire New Zealand populace including Mäori, represented in accordance with our constitution by Parliament and government.
11 Some describe New Zealand as a bicultural society, of Mäori and non-Mäori. That description is a partial one; in fact New Zealand contains many cultures, the members of each being proud of their own history and distinctiveness. So others employ the term multicultural; which may nevertheless be seen as understating the position of tangata whenua. There is no simple or single solution to resolving these differences of perception.
12 Within this society, Mäori women are experiencing problems which are directly attributable to:
13 In drawing on the experiences of Mäori women, it is clear that a framework of policy objectives which build on Treaty principles is required to guide state agencies to ensure that Mäori women are treated justly. Such a framework may also attempt to state parameters within which change should be considered. We suggest the policy objectives should:
14 The issues considered in this report transcend legal and constitutional matters and have economic, social and political dimensions. However, the legal and constitutional aspects are pivotal as they form the structure on which society is established. To get these aspects right requires a preliminary examination to identify both the needs and aspirations of Mäori, and the principles that should apply to the legal and constitutional structure.
15 It is clear that many Mäori are educationally and economically disadvantaged. What is also clear is that Mäori are involved in an increasing volume of violent crime and require significant social welfare assistance. The relationship between educational and economic disadvantage on the one hand, and violent crime and dependence on welfare and health services on the other, must be clearly understood in order to secure public support for change. The July 1998 United Kingdom Home Office report by Goldblatt and Lewis, Reducing offending: an assessment of research evidence on ways of dealing with offending behaviour, spells out the connection, emphasising the nexus between educational disadvantage, social and economic consequences and crime.
16 It is necessary to recognise that there are historical and continuing claims in respect of grievances of a variety of kinds and classes. It is also necessary, however, to bring New Zealand’s institutions and society into a state where all New Zealanders feel a sense of ownership and comfort. The present institutional barriers that tend to treat health, social welfare, and justice/corrections as discrete categories, need to be dissolved. Public sympathy for more effective Mäori education will be more readily secured if its effect in tending to reduce other social and fiscal costs is recognised.
17 The work of the Waitangi Tribunal and the courts in general has been pivotal in bringing New Zealanders to an increased understanding of the issues and some of the answers relating to the Treaty. Continuing recourse to these forums as well as direct negotiation to work through the existing and inevitable future differences is, however, still necessary. (See Durie E 1998, “Ethics and Values”, and Frame 1998). A significant effort has been made by the Crown and by New Zealanders generally who, informed for the first time of something of the history of Treaty matters, have recognised the need to respond to the claims.
18 Further specific steps are required to achieve consistent application of Treaty principles. These include:
19 For Mäori, the Treaty promise was therefore two fold: to play a full part in the future of New Zealand society along with other New Zealanders; and to have Mäori culture and values protected. The challenge for all New Zealanders is to develop systems that will honour both elements of the commitment contained in the Treaty by which non-Mäori New Zealanders secured their guarantee of places in New Zealand society.
20 At least three principles of the Treaty of Waitangi are important for the purposes of this report:1
21 The principle of partnership was affirmed by the Waitangi Tribunal which discussed the principle as early as 1983 in the Motunui report; the principle was further affirmed by the Court of Appeal in New Zealand Mäori Council v Attorney General [1987] 1 NZLR 641. The principle is not to be viewed narrowly as a commercial relationship: it is akin to the value of fraternité (fraternity) recognised in the motto of France. It suggests a relationship from which the Crown and Mäori derived certain benefits while also accepting concomitant responsibilities. This mutuality provides the basis for “the reciprocal obligations of the parties to act towards each other with reasonableness and the utmost good faith”: [1987] NZLR 641, 644 (Cooke P), 673, and 681 (Richardson J). Partnership anticipates a nation where Mäori are participants at all levels of society, including policy making, management and the delivery of services.
22 This report is concerned to promote the ability of Mäori women to participate in the justice sector. The principle of participation is concerned to strengthen Mäori communities in accordance with the needs and aspirations that each community determines is appropriate for it, thereby promoting empowerment, material and social advancement and self-determination (see the Waitangi Tribunal’s report, Te Whänau o Waipareira). In short, the principle of participation is about empowering Mäori communities to achieve their aspirations.
23 In acknowledging the nature of modern New Zealand, the Waitangi Tribunal concluded in the Muriwhenua Report that the Treaty gave Mäori individuals a choice to join the culture and lifestyles of the mainstream or continue to live according to tikanga Mäori, or within limits to “walk in two worlds”. In the context of this report, the principle of options also suggests a choice of services – a choice of mainstream services or services developed for and by Mäori.
24 Mäori women’s experiences, which we document in this report, demonstrate that justice sector policy and processes have failed to meet the needs of Mäori women and failed to address Treaty principles. The centrality of the Treaty to Mäori women’s perceptions of justice has led us to develop strategies for change founded on the principles of partnership, participation and options. These principles do not recommend specific action points but present a guide for development of policies by agencies which we discuss in chapter 6.
25 Mäori and non-Mäori share a small portion of the earth’s surface as their homeland and in order to live together in harmony must respect each other’s values and respond to each other’s needs. In this report, we suggest that such harmony can be advanced by focusing on the Treaty of Waitangi. We are aware that there are those who do not ascribe the same importance to the Treaty but who recognise, nonetheless, the importance of ensuring harmonious relations between Mäori and non-Mäori by whatever means. There may indeed be other roads to the same destination. The Treaty is the road we have taken.
26 Mäori women identified the dominance of colonial values and lack of Mäori personnel in the legal system as the major barriers to justice. Looked at from another angle, the lack of knowledge of Mäori values and culture and the lack of Mäori personnel heightened their perception of injustice.
27 Mäori women attending the consultation hui were critical of the attitudes of some in positions of authority in the justice sector. Mäori women referred to examples of unsatisfactory interactions with justice system personnel which suggest that successful interpersonal communications was precluded by a lack of acknowledgement of Mäori values and culture.
28 Underlying this, however, is the effect of low socio-economic status which is a barrier in its own right. While the consultation hui were focused on access to justice, the point was often made by many Mäori women that access to justice cannot be separated from the level and quality of economic and social participation in society.
29 With this in mind, we have identified two major goals to improve Mäori women’s access to justice, and which underpin our recommendations for change. They are:
– services by Mäori for Mäori, and
– laws which take into account Mäori values;
– responsive mainstream (including community-based) services.
30 For Mäori, a secure cultural identity depends on access to the cultural, social and economic resources of te ao Mäori (the Mäori world), especially te reo Mäori, whänau, and land. In other words, security for Mäori means not only a sense of being Mäori but also access to the institutions of culture and to resources. Further, even in the presence of adverse socio-economic conditions, a secure Mäori identity is likely to be positively correlated with good health, better educational outcomes, and a greater likelihood of employment (Te Hoe Nuku Roa: Mäori Profiles cited in Durie M 1998, 58).
31 In a current longitudinal study, Te Hoe Nuku Roa, 700 representative Mäori households are being tracked over a 10-year period to measure their levels of participation in Mäori society and in wider New Zealand society. Preliminary analysis of data suggests that only a minority of Mäori have a secure identity. Fewer than half of those surveyed have meaningful access to land; fewer again actually receive a dividend from land; and about one-third have little or no contact with a marae. Nor do more than a quarter possess conversational Mäori language skills or even minimal knowledge about whakapapa or whänau history: Te Hoe Nuku Roa: Interconnectedness: a paper prepared for the Ministry of Mäori Development (Department of Mäori Studies, Massey University, Palmerston North, 1995).
32 Because the level of cultural alienation of Mäori from their own resources is high, few can be said to have a secure identity despite having high aspirations for greater participation in te ao Mäori. The corollary is that the level of cultural knowledge and understanding of, among other things, tikanga Mäori and te reo Mäori, is by no means consistent across Mäori society. This may also affect the effectiveness of services which are provided by Mäori in accordance with tikanga.
33 Mäori women are over-represented in the very lowest income bracket; they are more likely to be unemployed than Mäori and non-Mäori men and non-Mäori women; and are over-represented as victims of violence (see para 173). For all that, they are neither helpless nor hopeless. Indeed, they are motivated and work to improve their own and their families’ ability to participate more effectively in society. Many Mäori women are seeking second chance opportunities for educational qualifications and training. Many of them have children and desire a better life for their families (see para 381). We discuss in this report how that can be achieved.
34 Chapter 5 of this report describes how a number of government departments have attempted to become more responsive to Mäori. However, there does not appear to be a consistent approach to orientating services towards Mäori clients (Mäori women in particular) or to the use of accountability measures which endorse cultural attitudes and beliefs.
Usually the emphasis is on developing sectoral policies (health policies, education policies, welfare policies, employment policies, etc) and then adding a Mäori view – the so-called mainstreaming approach.
Mäori, however, are seeking a mechanism for an integrated approach to policy development which has Mäori development as the central focus, sectoral perspectives being added as necessary. (Durie M 1998, 236).
Effective outcomes for Mäori will require policy development which takes into account Mäori values and processes by which those policies can be implemented.
35 Services provided by Mäori and in accordance with Mäori values and practices are increasingly available in the health and education sectors. For example, Whaiora is a mental health service operating within a Mäori cultural context though continuing to employ standard western treatments (Durie M, Whaiora: Mäori Health Development, 1994, 111–113). Several other health authorities now also offer services which are geared to Mäori clientele and utilise Mäori cultural expertise alongside conventional approaches. In the education sector, köhanga reo and kura kaupapa Mäori teach children within a Mäori cultural context using te reo Mäori (Mäori language) as the main language of instruction.
36 There are few services by Mäori for Mäori in the justice sector. Those few which do exist are in the criminal justice sector. They are used in conjunction with formal sentencing options, are located within a Mäori community and are supervised by Mäori. The Matua Whangai Programme in Hamilton is one example of the community taking responsibility for the well-being of Mäori offenders through processes and practices consistent with tikanga Mäori. Another example, Te Whänau Äwhina in West Auckland, is an adult pre-trial diversion programme using community panels in a marae-based environment. It emphasises employment or education programmes as options for offenders and comprises Mäori panel members of different age groups from diverse backgrounds. Its programme offers a cultural and educational intervention for urban Mäori youth and their whänau who are without strong connections to their own whänau or iwi (see Smith and Cram 1998).
37 The Law Commission is examining the possibility of wider use of such options in a number of projects. For example, its project on alternatives to prosecution will examine the breakdown in relationships between victim and offender, the offender and whänau, and the offender and community. The project will consider the extent to which restorative justice principles and initiatives are better able to strengthen relationships and meet some of the objectives of the criminal justice system. In this report initiatives of a general nature are considered, with the aim of enabling justice sector services to respond to the needs of Mäori women.
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