Māori and Tauiwi have different concepts of justice
Through historical and more recent conversations, attention has focused on the different nature of justice in Māori and Tauiwi societies.
Prior to the arrival of Europeans in Aotearoa New Zealand, for a thousand years Māori had developed well-established social structures, and systems of accepted rules and conventions by which their societies were regulated and governed. Commonly referred to as ‘tikanga’, these rules and conventions related to all aspects of communal life including, for example, family relationships, property, conflict resolution, trade and land rights, and protection of the environment.
Following the signing of Te Tiriti o Waitangi in 1840, and despite the promise that Māori would continue to exercise rangatiratanga over their affairs, the colonisers imposed an adversarial British system of justice on Aotearoa New Zealand and all its citizens (both Māori and Tauiwi).
This British system of justice, at its most fundamental level, was based on a social contract whereby citizens handed over the right to dispense justice in exchange for various protections under the law.
This system was founded on a different set of principles and values to those of tikanga Māori. It divided the rules by which society operated into two streams of law, civil and criminal. Each had their own distinct set of principles and procedures.
The civil law dealt with matters that were considered ‘private’, typically disputes between individuals or companies, often involving money, contracts, wills, tax, land or other property, and family matters. The criminal law, by comparison, dealt with wrongs considered to be done against the State, even though the harm from these wrongs was mostly experienced by individual victims.
Crimes were defined in law. They were behaviours that lawmakers (the State) believed were harmful and which should be subject to criminal penalty imposed by the State. The focus of this system was on punishing wrong-doers and ensuring ‘fairness’, in the sense that everyone had the same right to basic liberties and the law should apply equally to all. Critically, victims were largely excluded from this process and had no role, unless called as witnesses.
The institutions established to maintain this system of law have consequently developed around three major functions, all focussed around offenders:
- investigation (Police)
- adjudication (courts)
- sentence management (Correctional services).
While victims generally have complained about their lack of voice in the current criminal justice system, Māori in particular are highly dissatisfied with the imposed common law model of justice.
“There are significant differences in philosophy and practice at every stage between Māori and Pākehā justice. Whereas the cornerstone of modern Pākehā justice is arguably backwards-looking, retributive justice, a Māori approach is strongly forward-focused, in terms of repairing disrupted relationships, and achieving mediated outcomes acceptable to all parties, including victims of wrongdoing.”
Associate Professor Khylee Quince, Strengthening the Criminal Justice System for Victims Workshop, 2019