Hon Dr Pita Sharples, Minister of Maori Affairs

Notes prepared for speech to Community Law Centres hui:

‘A Voice for Justice’

Te Pakira Marae, Whakarewarewa, Rotorua

Thursday 16 September 2010, 10.00am

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Tena koutou nga mana whenua, nga iwi kainga, Tuhourangi, Ngati Wahiao, Te Arawa waka, tena korua, tena koutou. Na koutou te karanga ki roto i tenei whare tipuna. Na koutou te whakaruruhau mo tenei hui.

E te koromatua, Mayor Kevin Winters, korua ko to tuarua, a Trevor (Maxwell), tena korua.

E nga rangatira whakahaere i te hui, tena koutou. To the Trustees and staff of the Rotorua Commmunity Law Centre, and to the Canterbury Centre who are jointly hosting this tremendous hui – thank you indeed for your invitation and welcome.

I would like to acknowledge your manuhiri tuarangi here today, your important visitors from afar, from Australia (Professor Patrick Dodson and Paul Lane from the Lingiari Foundation in Broome, and Phil Glendenning of the Edmund Rice Centre in Sydney which funded Pat and Paul to attend) from Christchurch (Christine O’Brien and Steve Hart) and Kim Workman, my very distant relation from the furthest corner of Ngati Kahungunu’s tribal territory! As well as my Parliamentary colleagues Hon Simon Power, who opened your conference, and Lianne Dalziel.

It is a special honour to share the stage today with Pat Dodson, who is known around the world as a champion of the Aboriginal peoples of Australia.

He is here today representing the Lingiari Foundation which he founded – named in honour of an earlier Aboriginal leader, the late Vincent Lingiari.

Vincent Lingiari was a great example of a man who saw a problem that needed to be addressed, and he rose to meet the demands of justice for his Gurindji people.

Their simple call, for fair wages and working conditions for the Gurindji stockmen and workers on Wave Hill Cattle Station, had dramatic consequences for all Aboriginal people, all Australians, and for indigenous peoples all round the world.

The walk-off Vincent led in 1966 developed from a labour dispute to a protracted struggle for the return of their customary lands, which focused attention on Aboriginal rights across Australia. Almost ten years of campaigning led, in 1975, to the return of freehold title to Wave Hill Station to the Gurindji people, and veto over mining on their traditional lands.

Who will ever know for sure, the liberating effect of that victory? How speaking truth to power transformed the lives of the people, from vitual slaves on their own land, to owners and managers of their vast territories.

Who knows what influence Vincent Lingiari had on Eddie Koiki Mabo, of Murray Island in the Torres Strait? At the time, Koiki Mabo was a gardener at the James Cook University in Queensland, where he sat in on lectures and questioned the academics about land rights and legal title.

One thing led to another, and Koiki Mabo became the claimant in a land rights case that challenged the very basis of the constitution of Australia – the legal doctine of ‘terra nullius’.

I guess one man’s doctrine is another man’s myth, and the idea that Australia was ‘no man’s land’ until white settlers arrived was surely conceived in the realms of fantasy. But it was a powerful belief in the Australian establishment, until Koiki Mabo spoke his own truth to power, and the Australian High Court finally recognised native title.

The truth that both men spoke was rooted in their own culture and custom. It required tremendous strength and courage to assert their tikanga, to a nation united in their belief in a different world view.

I want to salute Pat Dodson and the leaders of the Australian Aboriginal liberation movements, because their victories and their achievements have profound implications for the tangata whenua of Aotearoa, and indeed, for all New Zealanders and all peoples who live together in this world.

This week, the Coastal and Marine Area (Takutai Moana) Bill was introduced to our Parliament. Without going into too much detail, I want to note that the Bill forms part of New Zealand’s continuing struggle to come to terms with the mana and tikanga of tangata whenua, and to give them proper recognition in the laws of the land.

As we all know, the very idea that tangata whenua could claim prior rights to the takutai moana was legislated away by the Foreshore and Seabed Act, which confiscated everything that was not already in private freehold title, vested it in the Crown, and denied tangata whenua the right to take their claims to court.

The new Bill repeals Crown ownership, which has been the fundamental block to a proper discussion of the issues. Interestingly the replacement Bill creates its own form of ‘terra nullius’, by declaring that the takutai moana belongs to no-one. But from my point of view, that is a holding position to enable everyone – claimants, courts, Ministers and the public, to consider the customary concepts of mana and tikanga, and what are their meaning and effect for us all today.

The way that Australia has addressed these issues will influence the courts and the Parliament in New Zealand, I am sure, so I want to pay tribute to Pat Dodson and his many predecessors, who fought their battles not just for themselves, but for all of us too.

For indigenous peoples, land rights are about identity, and cannot be separated from contemporary social and economic status and rights.

Pat was a member of the 1987 Royal Commission of Inquiry into Aboriginal Deaths in Custody, and I want to say that Maori people in Aotearoa have very serious issues related to the criminal justice system, leading to very high incarceration rates for Maori.

The over-representation of Māori begins at the apprehension stage and gradually increases through prosecution, conviction and sentencing to custody.

Māori are apprehended for at least three times the number of offences as Europeans[1] and receive fewer warnings, cautions or diversions than Europeans;[2]

In 2007, it was reported that Māori were eleven times more likely to be remanded in custody than Europeans awaiting Court appearance or sentence;[3]

13 per cent of all convictions against Māori result in a custodial sentence (compared to 8 per cent for Europeans and Pacific peoples);[4] Over half of Māori inmates are in prison for sentences of less than one year;[5] All of this reflects a high use of imprisonment for Māori for low level offending. If I have a message of truth to power, it would be that Maori will never allow the current situation to be considered normal. The fact that it seems to be accepted or tolerated is a national disgrace.

It is clear that right through the justice system, discretion is exercised in ways that prejudice Maori.

The upshot is that there are too many Māori in our youth justice and prison facilities.

There are also too many Māori victims of crime and tragically, the flow on is that too many Māori children grow up in households and communities affected by crime and punishment.

These figures speak truth to power in Aotearoa, and the truth is that the criminal justice system does not deliver justice to Maori.

Pressure from lobbyists over law and order, with harsher sentences to satisy a lust for retribution, will certainly tip the scales of justice further against our people.

The introduction of the Sentencing Act and Parole Act was the previous government’s response to a referendum on

“…the need for an urgent reform of our Justice system to introduce restorative justice which seeks to place greater emphasis on the needs of victims and includes hard labour for all serious violent offences”.

These Acts abolished periodic detention, community service and community programme, and the sentence of community work was introduced.

The Sentencing Amendment Act 2007 created new sentences of home detention, community detention and intensive supervision.

Within the first 100 days the incoming National-led Government also changed the laws on: • Bail: It is now harder to get bail. (Bail Amendment Act 2010) • Child sentencing: Courts are required to take into account the defencelessness of children in sentencing. The Child and Family Protection Bill. • Gangs - doubling penalties for being a member of an “organised criminal group” (Gangs and Organised Crime Bill, 2009) • Parole eligibility – originally for “the worst repeat violent offenders” and those convicted of the “worst murders”, but now applying to anyone convicted of particular offences –popularly known as the ‘three strikes’ policy. • Children, Young Persons and Their Families (Youth Courts Jurisdiction and Orders) Amendment Act 2010 – changing the age range for Youth Court jurisdiction and the range of Youth Court Orders available.

So, faced with a bad situation that calls for justice, can we be like Vincent Lingiari and Koiki Mabo before us, and rise to the occasion? Can we speak our own truth to power?

Like them, I think we must look to our own tikanga, and the sources of law in the land, to see the causes of the problem and find solutions.

Our tikanga Maori in relation to offending and justice focus on the restoration of relationships. Pat Dodson has led the cause of reconciliation between Aboriginal peoples and white Australians. We too must promote these tikanga in every way we can.

For example, most Treaty settlemments between Crown and iwi incorporate a formal statement of apology by the Crown. It may seem formulaic now, but it does give the iwi a chance to consider the apology, and to grant forgiveness, and in doing so, to liberate the offender.

This government is committed to addressing the Drivers of Crime.

This is a chance for me to speak my own truth to Power – because my Co-Chair in the Hon Simon Power, New Zealand’s Minister of Justice, who was here yesterday to open your conference.

In April last year we called a summit meeting at Parliament to look at how to break the cycle of criminal offending and punishment. Then in November, Cabinet agreed that for Māori, there were four priorities for government to address the underlying drivers of crime:

• antenatal and parenting support;

• treating behaviour problems in at risk children and young people;

• reducing the harm from alcohol and drugs; and

• alternative approaches to managing low level offenders.

At the end of last year, Simon Power and I announced a cross-agency work programme to address the drivers of crime.

It is important to prioritise Māori in our efforts but in so doing; we must also ask whether or not government funded services targeted at Māori are the right ones to meet the needs of Māori whānau.

In New Zealand we have tended to rely on international evidence, usually from the USA or United Kingdom, with adjustments to recognise cultural differences.

But this evidence and research:

• does not come from a Māori world view;

• cannot be assumed to translate to Māori settings; and

• has failed to significantly impact on unacceptable levels of Māori offending and imprisonment.

It has also prevented the development of good evidence about what works for Māori. In particular, I think approaches that deal with offenders as disordered or deviant individuals, in isolation from their community, social and cultural context, are doomed to fail Mäori.

An eminent Maori jurist (Eddie Durie) said recently ‘If you go on doing what you’ve always done, you’ll go on getting what you’ve always got.”

Māori designed, developed and delivered initiatives have a critical part to play.

Anything we can do to promote Māori control over their own destiny, community strength and resilience, and pro-social behaviour by Māori will reduce crime overall, and help improve the social and economic position of Māori in the long term.

At the end of last year, I presented a framework for action: working at three levels to address the drivers of crime for Māori:

• addressing community factors: through action with key government agencies to make them more effective for Māori;

• addressing factors in the criminal justice system that create barriers to early and successful intervention and maintain the unacceptably high rates of recidivism for Māori; and

• building Māori services and whānau capacity through Māori designed, developed, delivered initiatives and evaluation.

Within this context, I can say that legal representation and community law centres are central to ‘addressing factors in the criminal justice system.

Another aspect of the Drivers of Crime is a work programme on alternative approaches to managing low level offenders

This is vital to Māori because approximately 5,000 people begin a short-term prison sentence each year and 56% of short-term prisoners are Māori.

For youth: the judicial initiative to establish Rangatahi Courts before whanau on a marae, is potentially transformational, particularly if it is enhanced with appropriate support for rangatahi and their whānau.

For adults: two existing options for managing low level recidivist offenders (which lawyers might promote) could be used more often. They are:

• the ability to place offenders on community sentences in the care of ‘any person, persons, or agency… such as… an iwi, hapū or whānau, a marae, an ethnic or cultural group, or a religious group’;[6] and

• pre-sentence adjournments for treatment.[7]

There is also scope to expand restorative justice services designed, developed and delivered by and for Māori. The work that is unfolding across agencies in the Drivers of Crime programme is exciting and fills me with much hope. We know that there are challenges especially those whānau who are hard to reach; especially in terms of gaps within existing policy development.

For many whānau involved with the criminal justice system, the issues are multiple and compounding.

We know we must focus particularly on those whānau and communities where there are high levels of offending, intergenerational offending and barriers to the legitimate means to success.

The ‘hard to reach’ whānau and communities includes whānau associated with gangs, whānau with heavy drug and alcohol use, transient whānau – some following a family member who is in prison, homeless whānau, whānau experiencing family violence. The answers lie within us, as Māori people. Especially if we dig deep to find the resilience that exists within all whānau. Whānau resilience is rooted in our identity with the land, and stored in collective support networks.[8] As Professor Sir Mason Durie put it, whānau resilience is about: … the achievements of collectives: families, whanau, communities, tribes, mobs, and whole populations. Success in that sense is a shared experience which reflects an ability to adapt and a propensity for turning adversity into accomplishment.[9]

KIA ORA

ENDS

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