Indigenous Courts, Self-Determination and Criminal Justice

Valmaine Toki

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351239608
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In New Zealand, as well as in Australia, Canada and other comparable jurisdictions, Indigenous peoples comprise a significantly disproportionate percentage of the prison population. For example, Maori, who comprise 15% of New Zealand's population, make up 50% of its prisoners. For Maori women, the figure is 60%. These statistics have, moreover, remained more or less the same for at least the past thirty years. With New Zealand as its focus, this book explores how the fact that Indigenous peoples are more likely than any other ethnic group to be apprehended, arrested, prosecuted, convicted and incarcerated, might be alleviated. Taking seriously the rights to culture and to self-determination contained in the Treaty of Waitangi, in many comparable jurisdictions (including Australia, Canada, the United States of America), and also in the United Nations Declaration on the Rights of Indigenous Peoples, the book make the case for an Indigenous court founded on Indigenous conceptions of proper conduct, punishment, and behavior. More specifically, the book draws on contemporary notions of 'therapeutic jurisprudence' and 'restorative justice' in order to argue that such a court would offer an effective way to ameliorate the disproportionate incarceration of Indigenous peoples.

Chapter 1

Māori and criminality

A Criminality and causes of offending

Criminality

Schiller notes that the “behavioural definition of crime focuses on, criminality, a certain personality profile” that causes a crime.¹ The type of person likely to commit a crime is often “a style of strategic behavior characterised by self-centeredness and indifference to the suffering and needs of others”.² More “impulsive individuals are more likely to find criminality an attractive style of behavior because it can provide immediate gratification through relatively easy or simple strategies”.³

Some criminologists believe that the orthodox reasons for criminality that relate to sociological, psychological, biological or economic reasons do not explain criminal behaviour.⁴ Rather, they state that the essential element of criminality is the lack or absence of self-control, so those with high self-control consider the consequences of their behaviour as opposed to those with low self-control who do not.⁵ Further, once self-control is learned, it is highly resistant to change.

The Indigenous concept of criminality differs from a non-Indigenous concept of criminality. For Māori, a crime or hara was inextricably linked to, and explained by further concepts such as tapu and mana and the need to rebalance the harm that the hara has caused, rather than any associated behaviour of the offender.⁶

Nonetheless, it is acknowledged that the behaviour or criminality associated with a hara, such as trespass and taking of resources, could stem from conventional elements of criminality, such as self-centredness, indifference to the suffering of others and possibly low self-control. However, the requirement to rebalance the harm caused is mandatory and takes precedence over behaviour that may be classified as criminal.

Causes of offending

Criminology, as a distinct field of study, is devoted to determining the causes of crime. It is no surprise that due to the dynamic and complex reasons why people offend, various theories, such as conflict and group theory, and various factors, such as social and economic factors, can be more heavily weighted than others when determining causes of offending.⁷ Subsequently, sociological and economical theories often describe conditions in which crime frequently occurs, without explaining why it occurs and why some factors affect some people and not others.⁸

Further, it is difficult to avoid similarities and overlap in theories; for instance, the concept of conflict, as a reason to offend, is also labelled as critical or radical criminology.⁹ To this end it is problematic to ascribe to one school of criminological thought when determining causes of offending. A closer examination of the different theories and how they may, or may not explain Māori causes of offending will be informative.

Theories that are based on scientific evidence, unfortunately, have provided little value when explaining causes of offending for Māori. The drive to provide a scientific explanation for criminality is a regular feature of the modern discourse on crime.¹⁰ During the 2006 Conference of the International Congress of Human Genetics, it was claimed that the presence of a specific gene type, the monoamine oxidase gene, contributed significantly to explaining the criminality of Māori.¹¹ This finding was flawed and unnecessarily exacerbated the effect that a gene may have on Māori,¹² proving unhelpful in terms of seeking a cause of offending for Māori.

The functionalist theory suggests that because crime exists in all societies it must have a function, and that function is to help to define what is normal, to make some behaviour more attractive and promote social cohesion.¹³ Whereas the superiority theory suggests that humans are conditioned to strive for superiority, and therefore some people turn to crime as a means of achieving superiority.¹⁴

For Māori, applying a functionalist theory is problematic as tikanga determines what is normal, not the presence of crime. Similarly, the superiority theory suggests that Māori are conditioned to strive to be superior and turning to crime can achieve this. For Māori, committing a crime will not achieve superiority, rather the action of committing good deeds will result in an increase in mana and superiority, not committing a crime.

The strain theory suggests that people whose ambitions are severely frustrated will experience anger that will lead to rebellion against the real or perceived causes of those frustrations.¹⁵ Ambition for Māori is linked to achieving the well-being or ora of the group. If this is not achieved the collective or group are responsible rather than the individuals at large.

Another theory holds that persons will be more likely to conform when they stand to benefit by conforming.¹⁶ Evidence that violence begets violence is also perceived as a cause of offending.¹⁷ It is difficult to assess the relevance of these theories for Māori without a suitable context. For instance, if an act in self defence was deemed violent, would that then be a cause of offending?

Theories related to culture and social factors are more relevant. For instance, the conflict theory suggests that when a person is influenced strongly by two conflicting cultures, the attachment to the rules of one is weakened and can produce deviant behaviour.¹⁸ For Māori who adhere to tikanga Māori this is usually to the detriment of the existing legal system, subsequently by not abiding by the rules of the existing legal system can result in behaviour classified as deviant or criminal. However, this theory fails to provide reasons why adhering to the other system cannot be accommodated, and thus the resulting actions are not classified as deviant.

For Pākehā, the imposition of legislation¹⁹ dictated what a crime was. A crime was classified a crime without any consideration of what a crime meant for Māori, thereby marginalising their view. For Māori, a hara was not dependent on legislation for legitimation; a hara was identified as a ‘crime’ if the action or inaction breached a concept or concepts of tikanga Māori. The behaviour or criminality of the offender was secondary.

Historically justice was administered locally as there was no national centralised police system between 1853 and 1876.²⁰ Peaks in offending rates can be directly linked to historical events. Bull identifies four such episodes between 1853 and 1920, mid 1860s, 1881, 1897, and 1911. These periods are linked to gross violations of human rights and the criminalisation of Māori independence.²¹

The first peak corresponds to the anti liquor restrictions that were imposed.²² According to classical criminology, “rational hedonism is the primary motivator of crime”.²³ In this light Māori who took pleasure in supplying and consuming alcohol perceived this was a risk worth taking.²⁴ However, it is difficult to explain why “special restrictions were imposed on Māori as this is incompatible with the idea that everyone is driven by the same forces”.²⁵ This is further compounded by the position of settlers who considered Māori as deviants, or members of a separate society, because they were different and criminalised them accordingly.²⁶

The first peak during the 1860s also corresponds to war and the accompanying Suppression of Rebellion Act 1863, Disturbed Districts Act 1869 and the New Zealand Settlements Act 1863 legislation that criminalised Māori resistance to settler encroachment on Māori land.²⁷ The Māori Prisoners’ Trial Act and the West Coast Settlement Act 1880 also criminalised these actions. The third peak corresponds to the imposition of the Dog Tax that led to an increase in convictions, as did the Defence Act 1909, that coincides with the fourth peak.

The reasons for the imposition of the raft of legislation to control the liquor industry, to provide land for settlement, to raise revenue and for the desire of the New Zealand Government to establish its own armed forces, criminalised what were benign acts, such as owning a dog or passively protesting. Subsequently, Māori were criminalised for their actions, arrested and imprisoned as they came in conflict with legislation passed to promote the interests of the colonisers.

Criminologists seek to explain this through theories, including group conflict theory that states “crime is intimately related to conflict” and critical criminology that holds “unequal distribution of power is causally related to crime and this power needs to be specified”.²⁸ While conflict occurred group conflict theory assumes a degree of political strength that, in reality, was minimal for Māori who had their own existing social, political and legal structures.²⁹ Notwithstanding, from 1911 onwards the dramatic increase in Māori offending rates and the decrease of non-Māori offending is “driven by renewed attention to law and order brought about by political strife”.³⁰ Bull notes that:³¹

Government harassment of Māori grows ever more subtle … with a view to endorsing the illusion of state control, seemingly innocuous legislation is used to facilitate the over-policing of Māori. Before long, reported offending by Māori is seen as an issue of problem justifying the need for further official intervention and initiating a self-fulfilling prophecy that manifests itself today in the contemporary stereotype of the Māori criminal.

Although historically this may have been the situation for Māori, in contemporary times the orthodox reasons for criminality that relate to sociological, psychological, biological or economic reasons assist to explain the contemporary causes of offending for Māori. However, the examination of the effect of colonisation and the imposition of legislation is required to place causes of offending into context.

Related to the conflict theory is the social disorganisation theory that explains deviance as a si...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Foreword
• Introduction
• 1. Māori and criminality
• 2. Māori and tikanga
• 3. Māori and current criminal justice initiatives
• 4. Constitutional frameworks – the Treaty of Waitangi
• 5. Constitutional frameworks – the United Nations Declaration on the Rights of Indigenous Peoples
• 6. Initiatives in comparative jurisdictions
• 7. Tikanga Māori and therapeutic jurisprudence
• 8. A new vision
• Glossary
• References
• Index