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Executive summary

E1 The purpose of this report is to assist justice sector institutions to better understand and respond to the needs and values of Mäori women.

E2 Many of the women whom we consulted were concerned that they did not have access to the legal system; too often they said it was something of which they did not feel part. They expressed their feelings in terms of inadequate performance of the Treaty of Waitangi. We have attempted to grasp what they sought to convey and then to work out how to deal with the result.

E3 Chapter 1 begins with what the women saw as the relevant principles of the Treaty of Waitangi. The Treaty promised that:

• the values of Mäori must be respected and protected (the Article II promise); and
• Mäori should form part of the new society and feel as much at home in New Zealand and its institutions as other New Zealanders (the Article III promise, reinforced by the Preamble to the Treaty of Waitangi).

E4 Both promises suggest that, as far as practicable, our institutions and their practices should take account of Mäori values. Some women 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. Most, however, accepted that a single system of justice is necessary, but must acknowledge Mäori values and offer diverse solutions where practicable.

E5 The challenge 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.

E6 We identify at least three principles of particular importance to guide justice sector agencies’ policy and operational efforts to ensure that Mäori women are treated justly. We state that Mäori values have a part to play in the laws, legal institutions and legal system. Although, some changes can be discerned in the changing attitudes and development of laws, significant barriers to justice have been identified by Mäori women: they are cultural disregard of Mäori values and socio-economic disadvantage. We have identified two major goals to improve Mäori women’s access to justice:

• access to a secure cultural identity, and
• full participation in society and the economy.

E7 Chapter 2 sketches a brief picture of the role of Mäori women prior to and at the time of the signing of the Treaty of Waitangi. It is intended to provide some background information about the complementary roles of men and women in Mäori society and to highlight the impact on Mäori social organisation of land alienation and laws affecting Mäori women and their families. The disintegration of the basic social unit had profound effects on Mäori women. The value of their roles in the organisation of the whänau was lost, especially as traditional sources of support (including from Mäori men) weakened. Marriage according to custom was invalidated and legal marriage resulted in a relationship that had consequences for property and children. Customary succession practices were affected with serious consequences for Mäori women. Meaningful participation in their own society was undermined. The rules and values of colonial society effectively marginalised them from participating in the new regime.

E8 Chapter 3 is based on the comments of Mäori women, a selection of which we have set out in appendix E. These views were recorded at the consultation hui held by the Law Commission. Mäori women spoke of the Treaty and the failure of the justice sector to recognise Mäori cultural values and to provide the option of services based on those values. They spoke of the cost of accessing justice services, for instance, the affordability of legal services, inadequate access to legal information and limited or no access to legal services. Their views also expressed anger, frustration and disillusionment as a result of their negative experiences within the justice system. While the views expressed are not representative of those held by all Mäori women, or indeed all those at the hui, the general dissatisfaction with justice services is too recurrent to be disregarded. Overall, they perceive the justice sector treats them as having little or no value. The systemic failure identified by the experiences of Mäori women requires urgent attention and change.

E9 Chapter 4 identifies the needs of Mäori women having regard to their socio-economic position. The access of Mäori women to justice cannot be considered only in the narrow context of services, but requires some additional understanding of the extent of their marginalisation in society generally. The marginalisation of Mäori women is apparent not only through the views of the women consulted, but also through the statistical evidence which demonstrates the disparities between Mäori and non-Mäori women and between Mäori women and Mäori men. Mäori women did not speak specifically of low income, lack of education and the over-representation of Mäori in criminal law statistics, but the statistics highlight these disadvantages. Mäori women’s access to justice cannot be separated from the level and quality of their participation, both in Mäori society and in society generally.

E10 Chapter 5 provides an overview of the role of justice sector agencies and of their polices and activities which bear most directly upon Mäori women’s access to justice. While there is a clear willingness by Crown agencies to acknowledge the Treaty of Waitangi, there is less clarity as to how it may be implemented into specific strategies and achieve outcomes in accordance with the Treaty. Moreover, there is little evidence of policy initiatives which specifically focus on the value of Mäori women in New Zealand society.

E11 Chapter 6 develops the three principles of the Treaty of Waitangi (identified in chapter 1) to guide justice sector agencies’ policy and operational efforts. They are the principles of partnership, options, and participation. In light of these principles, the chapter describes the policy-making processes of, and the services provided by, the state’s justice sector agencies and suggests strategies by which state agencies may best promote justice for Mäori women. The aim of the strategies is to ensure that justice sector services are effective for Mäori women. The chapter also identifies three broad means of measuring effectiveness distilled from Treaty principles:

• participation by Mäori women at all levels of the justice sector workforce and as voluntary users of justice services;
• increased autonomy of Mäori women assessed, for example, through levels of dependence on state benefits, knowledge of the law and the justice system and the establishment of specific Mäori services to provide access to justice; and
• cultural endorsement, or the consistency of services with Mäori cultural integrity.

E12 By these strategies, it is intended that Mäori women will be able to participate in the justice system not only as users, but as providers, professionals and stakeholders. Our concern is that the justice system has failed to meet the needs of Mäori women. This failure is manifest in the negative experiences they have described to us and in the perceptions that they have; primarily that the justice system accords to them little or no value. The consequence is that Mäori women have little or no confidence in the justice system. That system is intended to bring all of us under the rule of law – the principle that peace and good order result from common acceptance of Parliament’s laws.

E13 The consequences for the rule of law within our community, when those at the heart of Mäori families are disillusioned, angry and frustrated with the system, are deeply troubling. With this in mind we have sought in this report to explore some of the background of how this situation has arisen, and to suggest strategies based on the Treaty of Waitangi by which state agencies may best promote justice for Mäori women.