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A moment of gratefulness…

A moment of gratefulness…

I heard the sad news last night that Kathy Ertel passed away a couple of days ago. Most Māori lawyers, or lawyers who have ever practised in Treaty jurisprudence, knew, or knew of, Kathy, and of her great commitment to her many Māori clients. I never knew her well enough to presume to attempt any kind of obituary here; but I know that she played an important part in recent Māori legal history, and that she was respected, and beloved of those close to her. Ka nui taku mihi aroha ki tōna whānau. Moe mai, e te wahine toa, hoki atu koe ki ōu tūpuna, okioki ai.

One of her early achievements was to act as junior counsel on the landmark NZ Māori Council ‘Lands’ case, sometimes known as the ‘SOE’ case. Justice Glazebrook has described the import of the Court of Appeal’s decision in the following way:

The Court of Appeal’s decision in the Maori Council case has been viewed by New Zealand historians as one of the crucial measures that helped facilitate Maori development and identity through propelling extensive social and political change in New Zealand. It has been argued that the decision, which has been seen as giving the Treaty of Waitangi an explicit place in New Zealand jurisprudence for the first time, was one of the catalysts for the creation of a general acceptance that the state has a responsibility actively to fund the promotion of Maori language and culture and language.

Kathy’s passing and remembering her achievements also sent my mind back to another important figure with whom she worked on the Lands case, and at Luckie Hain; the late Martin Dawson, who was also my old boss from my days in the Māori Legal team at Russell McVeagh. He passed away in 2003, a time etched in my mind, coming so close to the birth of my first child; whom Martin met in the last weeks of his own life, and the early weeks of my son’s.

An extraordinary person of chivalry and passion, with a wonderful family, Martin, perhaps more than any other person in my life, was the first to teach me something of what ‘rangatiratanga’ might look like. He had had a really firm vision of New Zealand as a Māori country, over which Māori exercised an enduring rangatiratanga, regardless of the existence of Crown sovereignty. I think, in my mind, I had always thought of this country as ‘New Zealand’ with ‘a few Māori bits here and there’. That was BM: Before Martin. Because of my all too brief time with Martin, the seeds were sown for me to eventually understand that different sovereignties can continue to exist in one place at the same time.

I feel today a moment of gratefulness for Pākehā lawyers who, for whatever reason, have caught hold of a genuine vision of justice for Māori and a better future for Māori in this land. In my time in law (and I feel still such a baby in law, after all) I have met a few such practitioners. The best of them never presume to speak for Māori unless asked; they listen; they learn. They know what they don’t know. They don’t seek to hold on to the reins; they seek, mentor and inspire young Māori to take up those reins instead.

He mihi nui ki a rātou katoa.

 

 

 

 

 

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A Taniwha by the Tail: Te Ururoa & the Māori Language Bill

I heard the news yesterday and my heart gave a leap. In fact, I think it must have levitated a bit, cos it hasn’t settled in my chest just yet. The Minister for Māori Development, Te Ururoa Flavell has announced that the current Māori language Bill will be enacted in both Māori and English.

So…why does enacting the Māori Language Bill in Māori matter?  Isn’t this just a pro-forma kind of thing? Doesn’t it just add yet another layer of bureaucracy to a baseline of bureaucracy? After all, the Bill will still be enacted in English. The right to speak Māori in Court won’t change; we’ve had that since 1987. Big woop, right? And we have been down this legislative track already, haven’t we? The Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013 was enacted in both languages, after all. The preamble in the Te Ture Whenua Māori/Māori Land Act 1993 is bilingual..and a whole bunch of Treaty settlements have Māori language provisions in them. So why get so excited about this one Act?

I can think of a couple of reasons. For one thing, te reo Māori is affirmed again as a serious matter of law in our Parliament. This has not always been evident.

Actually, due to the recent reshowing of the Operation 8 raids documentary ‘The Price of Peace’, I have been reminded of how Māori is often generally viewed in the context of Western law; in short, as a joke.  Scoop summed up how te reo Māori provided some rare moments of levity during some very boring proceedings in the Operation 8 trials:

The judge wanted to skip reading out the charges, but the defence lawyers insisted on it. The registrar began reading the charges against Emily Bailey. All the charges are joint charges, and the name of each of the co-accused is read out with each charge. This gave the registrar an opportunity to show off that he really can’t pronounce Maori names (which is understandable, because Maori people rarely come before the Auckland district court) [….]

During the break they’d found a Maori woman registrar to take over from the white man, so there was no amusement to be found from the mangling of the names. In fact there was no amusement at all. Just endless exhausting reading of charges, in two hours the court got through seven people’s charges. The endless drone would be a good cure for insomnia, and several people fell asleep, but wasn’t particularly enlightening.

The highlight of this was Annette [Sykes] insisting that Tame’s charges be read in Maori. It was no more interesting than them being read in English, but clearly pissed off the judge and police. We must take our pleasure where we find it in the process of being bored to death.

As much as this piece made me chuckle, there is a subtext here. Māori is not really a language we should expect to hear in Court, other than in the names of defendants. Te reo Māori is a delaying tactic, a cheap ruse to frustrate the officers of justice.

But Te Ururoa’s announcement is not a joke.

For a second thing, this Bill will, once enacted, be different. There is every chance that cases will be decided under the Māori version of the Act. There were several cases decided under the 1987 Act which this Bill will replace. There is every possibility that judges will need to wrestle with the Māori meanings of words and interpret them in a way that reflects the will of Parliament…just like they have to do for the other thousand-or-so English language statutes.

Here there be taniwha, of course. Courts are not well equipped for Māori language interpretation issues, as there are few judges conversant in te reo, and there is little that is really settled about the process of interpretation for a Māori language statute. That is going to have to change. (If you would like to read and learn more on this, have a look at this fantastic LLM thesis by Tai Ahu)

So Te Ururoa’s announcement matters. This development marks the re-emergence of te reo Māori as a normal language of Western law in New Zealand. It used to be thus. Hundreds of land deeds, the Treaty of Waitangi, and numerous contracts were all examples of legal documents that would be routinely drafted in Māori and English, or just in Māori and then translated into English. Government policies wavered and varied over the course of the 19th century, but enabled the generation of thousands of pages of official Māori language law and policy documentation. And Māori could create legal effect. Such policies died early in the 20th century, and, in reality, Māori ceased to be a practicable language of legal enactment well before that. Of course, Māori as a language of Māori law is obviously pretty damn extant, thank you very much.

The potential of Māori to be a language of Western law has never died, as anyone who has ever (showing my age here) written a cheque in te reo knows. But in reality, Māori has been reduced to a language of describing Western law, of commenting on it, on protesting it, of expressing suffering under it. But in our lifetimes Māori has only rarely been a language of making law, within our general legal system. Any language has the capacity to be a fully functional legal language in the legal system of any country. Māori lost that status a long time ago in New Zealand.

So that simple announcement by Te Ururoa means something techtonic to me. Something, I think, has shifted and can’t be put back exactly where it used to be. Nor should it be.

St Bede & the Law Student (and my grumpy father)

My late father hated lawyers. Oh boy, did he ever. He despised their necessity. He despised their privilege and pretensions (as he saw it), he despised the system they represented, and he despised the access lawyers had to the wheels of the legal system that he himself was prevented from having. As an entrepreneur himself (not a very successful one) he saw lawyers as leeches of knowledge and money. He rejected formal education by the age of 14 and eventually taught himself Australian tax law and got made bankrupt a few times. He racked up many many thousands of dollars in lawyers’ bills and fines that probably remain unpaid to this day. He was the kind of guy who would read a text on Māori land law for fun, and then toss it aside with a deprecating ‘bloody Maories’ thrown in for good measure. Interesting and infuriating bloke. Kia ora Dad. I have been thinking about your love-hate relationship with the legal system and all it stood for in the wake of two events. One of those events was the Happening labelled in my head as The St Bede’s Debacle. The second event was a visit by a young student to me at my job as a law lecturer. These three thought streams have been teaching me a somewhat fractured lesson about entitlement.

The St Bede’s Debacle was a moment made for public consumption, a private (well, state-integrated) school, elite college sport, boys behaving stupidly and illegally, parents off to the High Court to spend thousands of dollars to protect their ill-behaved progeny from the natural consequences of their actions. Righteous indignations lit up the phones across the land and thickened the atmosphere around water-coolers.  It does irk most New Zealanders (including me), it seems, when people are seen to be treated more gently because of their connections, or their wealth, or (in the eyes of some at least)  ethnicity. (I recently blogged on inherited privilege in NZ here, if you’re interested). The mere idea of privilege gets the blood boiling, and that is good at one level. It shows that the idea of an egalitarian New Zealand is alive and well. I’m glad about that. I’m not sure that New Zealanders are as exercised about under-privilege but that’s a korero for another day. But actually I’m a little more interested in the idea of entitlement. Privilege is something that arises out of a set of circumstances usually not within the direct control of the person who has the privilege. The children of rich parents can no more help their apparent status than can the children of beneficiaries.  Entitlement however, is slightly different as it speaks not so much of an objective set of facts but of a set of attitudes or deeply held beliefs accompanying a given circumstance. Entitlement can occur across socio-economic boundaries. The prisons, for example, are full of people who believed they were entitled to things or activities they were not. Sometimes this is described as ‘psychological entitlement:’

We conceptualize psychological entitlement as a stable and pervasive sense that one deserves more and is entitled to more than others. This sense of entitlement will also be reflected in desired or actual behaviors. Our concept of psychological entitlement is intrapsychically pervasive or global; it does not necessarily refer to entitlement that results from a specific situation (e.g., “I am entitled to social security because I paid into the system,” or “I deserve an ‘A’ because I performed well in class”). Rather, psychological entitlement is a sense of entitlement that is experienced across situations.

As a counterpoint to that definition, I quite like one of Jack White’s songs pithily entitled, well, ‘Entitlement’: I especially like the last verse of this particular song,

guess nobody on earth is entitled Not mothers, not children, not kings Not a one single person on God’s golden shore Is entitled to one single thing We don’t deserve a single damn thing

(for lyrics see here)

Many have said that the parents’ decision to challenge St Bede’s’s decision to punish their boys’ breaking airport regulations by hooning around on the baggage carousel stunk of this kind of psychological entitlement. Other parents without deep pockets whose children might be excluded from grand sporting events for similar hi-jinx won’t be able to access the courts in the same way. And there is no doubt that the parents in the St Bede’s Debacle believed in an absolute entitlement to act as they did.  But others took a more literal view…the right to go to court is available to all. Why should these parents be pilloried just because others might not be able to access such a right?  Along these lines Brendan Telfer noted on Nine-to-Noon this week, the parents merely invoked their right in the New Zealand legal system to have their case heard before a judge, and good on them, he reckoned. OK. Now for the next event. A young man came to see me around about the same time as The St Bede’s Debacle was hitting the headlines.  He was troubled about how difficult he was finding first year law, several weeks into the course. Actually, the conversation I had with him echoes several I have had over my 9 years as a law lecturer.This kind of conversation goes something like this (shortened for dramatic effect…):

‘I’m having trouble with my lectures. I just don’t get it.’

‘OK. What are you finding so hard?’

‘I don’t understand what the lecturer is saying. I write everything she says down. I read it, again and again, I highlight the words, and I write it out again and I still don’t get it.’

‘OK. Show me some of your notes.  Right. Do you know what this is [pointing to ‘Cabinet Minister’]?

‘Not sure’.

‘What about this [pointing to the word ‘statute’]?

‘Not sure about that either.’

‘How about this [pointing to the word ‘Parliament’]?’

‘I know where it is, I just don’t know what it DOES.’

I hasten to add this student was a B student in his other subjects; he’s in his mid-20s, studying to better himself: he works hard. Lots of family commitments. But the ideas behind words like ‘statute’, ‘Parliament’ and ‘Cabinet Minister’, for the moment at least, defeat him: he has never, in his life, come across them before in a way that enabled him to understand them. Perhaps he didn’t come from a family where politics or voting, or even the news, were ever discussed, where Western ‘law’ was ever really thought of as something beyond ‘what the police do’. He’s Māori, but his lack of exposure to the most basic ideas of Western ‘law’ don’t stem just from ethnicity, as I have also had these conversations with Pākehā, although far more rarely. He merely falls on the difficult side of social and educational history: like many other Māori in tertiary study (including me and my brothers) he is the first of his family to study at Uni, the first to study law. He has no template to follow, and for whatever reason school did not prepare him by introducing him to the ideas underpinning our institutional structure. He has enormous expectations upon him, as all such ‘first footers’ do, to improve things for his family, and for those that come after him: to create A Pathway.  He expressed to me his hope to use his legal studies to help his whānau, and perhaps his hapū. Indeed have met many law students who choose law as an avenue to achieving social justice. Many of ‘the best’ of those also go on to corporate careers. The thing that strikes me is the contrast between the St Bede’s situation and the situation faced by this young man.  In the former we see the natural acceptance of an entitlement; an ownership of The Law as an instrument to achieve justice, regardless of whether we agree with that justice or not. Those families had familiarity with the idea of due process, with filing papers, with contesting positions. The courtroom itself might be unfamiliar, but it will not be alien, because echoes of such a room have already played in the mind’s eye; a room in which one has natural standing. There is right, as well as rightness in the process and the outcome. Law is normal, formal, probably a bit absurd and creaky, but part of the natural order of things. Their children may well become the kinds of law students Verity Johnson was talking about here.

Most of the people squawking about the actions of the parents would themselves have some degree of background familiarity with how the system works. I see the easy familiarity with many, many law students in my job, and sometimes I envy them that certainty of ownership; of belonging. On the other hand my young law student believes that his only ticket into the world of law is by dint of the sweat of his brow, as if hard work is all that is ever required; that it will somehow make overcome the enormous conceptual lack he currently faces. I hope it does. I suspect that should that hard work pay off and he make it through the law degree, he still will not emerge at the end of those four or five years secure in any belief that law is his world, that he can move in with any degree of significant familiarity. Right now he has absolutely no confidence that this will ever be his world or his tool; how can he? He cannot even describe it yet. Law in all its manifestations is alien and abnormal; an animal to study behind safety glass; an exotic.

I recently attended a workshop looking at ways in which young Maori could be encouraged to use web resources to learn their rights in law, and to become more confident in their understanding of the law. Three of the young people who attended had been ‘on bracelet’ (electronic bail). Like my student they had almost exactly the same lack of knowledge and, crucially, lack of legal concepts they could easily access in their language. When questioned about the role of (Western) law in their lives (outside the police context) they found it difficult, without prompting to identify areas in which law operates. Such is their experience and exposure to the law. What you see, really is what you ‘get’.

As I was writing this post I remembered a paper I had written 13 years ago about the confidence levels exhibited by surveyed Māori over the age of 30 about the Treaty of Waitangi and the Treaty claims settlement process. I surveyed 121 individual Māori about their confidence in their own understanding of both things. The clear result was that the majority of Maori respondents over the age of thirty had little or no confidence in their understanding the Treaty claims process or mandating. Tertiary education levels had a small effect on these confidence levels, but by far the most important determinant was whether those individuals had regular contact with their marae of at least once a year. If they did they were far more likely to express confidence not only in their knowledge of the Treaty of Waitangi but also in their understanding of processes such as mandating, which form critical parts of the settlement process. On reflection this finding (limited though it may be) is unsurprising, these participants in contact with their marae were familiar with the language, form and content of the Treaty of Waitangi and of settlement. They had been exposed to the concepts of settlement. They had a vocabulary which they could recognise and use. Once could almost say that in this context at least, and for that subset of people, the New Zealand legal system, or apart of it, at least, was normal. Were the same study run today there might be even higher levels of confidence demonstrated after another 13 years of settlement process. So perhaps this study might give some hope that entitlement can be learned, or grown somehow.

Maybe the problem was not that the St Bede’s parents used the courts, and exercised their entitlement. it’s more that there are a lot of people out there who lack sufficient connection to our legal system to even understand they have any kind of entitlement to it, or ownership of it, at all. I wonder what Dad would say about that. Hmm. Would probably involve swearing…

“Institutional racism”. Warning: label may smudge with over-use.

Today we heard, courtesy of Radio New Zealand, that a UN delegation visiting NZ prisons has urged our government to consider the extent to which our system creates systemic bias against Māori (http://www.radionz.co.nz/news/te-manu-korihi/240995/un-critical-over-maori-jail-numbers)

The problem with a phrase like ‘institutional racism’ (the term used most often to describe this notion of systemic bias) is that it creates a distance between people and the problem. The problem is well documented. We all know that Māori are over-represented at all stages of the criminal justice system, from arrests to court appearances, to sentencing, to prison population. http://aic.gov.au/publications/current%20series/tandi/421-440/tandi421.html .

 
Do these statistics really point to a systemic problem? Commentators tend to fall into two kinds of camps. There are those who point to the monolithic nature of the system, the racism of Pākehā, lack of Māori values evident in the system, the history of colonialism and the breakdown of Māori legal institutions, the displacement of Māori autonomy over their own lives and so on as setting the scene for, and justifying the name of, institutional racism. Māori have no investment in this system, and until they do there will be no substantive change. A kind of systemic revolution is necessary to roll back the stats (Moana Jackson is probably still the leading commentator in this camp, as discussed in the JustSpeak paper http://justspeak.enspiral.info/wp-content/uploads/2012/06/JustSpeak-Maori-and-the-Criminal-Justice-System-A-Youth-Perspective.pdf  )

The other camp tends to focus less on the racism and culpability of Pākehā, and the system itself, instead pointing to sociological/individual explanations that underpin Māori over representation. Māori over-representation occurs by and large because Māori offend more. Identify the drivers of Māori crime, address those, and the problem will sort itself out. The system is not to blame, as far as any system can be, the criminal justice system is neutral, and upholds and reflects the primary values of the community (including Māori) appropriately. Sure there could be changes to make the system more ‘Māori friendly’, but the solutions lie within Māori decisionmaking, Māori families, Māori individuals. Criminologist Greg Newbold represents this perspective to some degree, seen here in conversation with Moana Jackson on Native Affairs: https://www.facebook.com/justspeaknz/posts/515353868520154. Another quite strident view from this camp can be seen here: http://www.nzcpr.com/institutional-racism/

My own perspective falls somewhere in between the two camps. In my view the term ‘institutional racism’ has become a kind of label that cloaks the nature of what really goes on in the criminal justice system, and within society more generally. The nature of what really goes on cannot be divorced from the individuals that make up the system. This system is a human artifact and cannot be value free. The law is not neutral, we made it, and we infused it, and the system that upholds it, with values.

I remember hearing one of New Zealand’s high profile judges speaking frankly about the dilemmas he is confronted with when sitting on the bench when Māori offenders come before him. He acknowledged that a decision about giving bail, for example, could go differently depending on whether the offender before him was Māori or not, NOT because of ethnicity, but because almost inevitably the Māori offenders had less stable home circumstances and less support to help them keep to their bail conditions, were more likely to breach, and more likely to end up back in court for the breach. Therefore, such Māori offenders might be more likely to receive bail than their Pākehā counterparts who usually had more obvious home support and more stable home circumstances. What was he, as a judge, to do? Grant bail, and see that offender back in front of him for breach, almost inevitably, lengthening the already negative contact between that offender and the system (including the police), usually resulting in jail anyway, or refuse it, thereby expediting the CJ process but sending the offender to jail more quickly (if the court process ended up in a finding of guilt). Which values does he call upon in the making of that decision? As he observed (and I’m paraphrasing), “if these are the moments of discretionary power I have as a judge, what about all those other moments before the offender even gets to me?” Indeed. Social workers, case workers, teachers, parents, family members, police, probation officers, lawyers, all of them will have had moments of discretion they exercised that impact upon our theoretical Māori individual as she progresses through life, let alone the criminal justice system. All of the ‘discretionary moments’ intersect with the decisions made by this person; what are the nature of the choices she makes in her life? How might she have been ushered into making those decisions, some of which could see her enter into the system? 

Māori are agents, not just victims, and a term like ‘institutional racism’ does two things, it denies Māori agency, but it also points to the sum total of those discretionary moments exercised by all those who have decision-making power within the Criminal Justice System. Perhaps the first step to undermining the phenomenon of systemic or institutional racism, or just over-representation of Māori within that system, is to ask those individuals what decisions they made today. And those same questions should also be asked of the whānau and friends. Ultimately, I think we are all collectively responsible for Māori over-representation in the criminal justice system.

 As for a remedy? Well, I think Jackson is partly right. Māori must have decision-making power over Māori lives, and they must also see themselves reflected in the systems of this country in a way that normalises rather than demonises them. So structural change can achieve some of that. And the capacity of Māori to create and implement useful dispute resolution processes, perhaps using the marae more often, is exciting, and growing recognition of Māori customary law and processes offers fantastic room for growth. There are also international developments in sentencing law that New Zealand could look to in the recognition of culture and background in the sentencing process. We already have this capacity in NZ law (by virtue of ss8 and 27 of the Sentencing Act 2002), the Courts have basically declined to use it to address disproportionality in similar ways that have been done in Canada, for example. (see the Court of Appeal decision in the case of Mika v R, and some interesting commentary here: http://maorilawreview.co.nz/2014/01/criminal-law-sentencing-and-ethnicity-mika-v-r-sensible-or-superficial/.

But I also think that the focus on the institution cannot be at the expense of the focus we place upon ourselves. The battle to stop our young people going to jail starts at home in the everyday discretionary decisions we make as parents, whāea, mātua, tuakana, teina, and finally, as mokopuna ourselves, to live a life outside the criminal justice  institution and well away from any of its tatty labels.

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