Simon Wilson is an award-winning senior writer covering politics, social issues, the climate crisis, transport, housing and urban design, with a focus on Auckland. He joined the Herald in 2018.
OPINION
“Being brave is the deep breath you take before doing something you’ve never imagined before.” - Legal scholar and social analyst Moana Jackson, 2022
It was a statistic that horrified the Government of the day. In 1988, the Minister of Justice and Deputy Prime Minister, Geoffrey Palmer, revealed that 50 per cent of the inmates of New Zealand prisons were Māori.
Palmer, who’d used that “horrified” word himself, wanted something done. So he asked the legal scholar and Māori-rights advocate Te Moana Nui a Kiwa Jackson, better known as Moana Jackson, to investigate.
Jackson (Ngāti Kahungungu, Ngāti Porou, Rongomaiwahine) toured the country. He met with 6000 people, including many who were or had been in prison, and produced a report called Māori and the Criminal Justice System: A New Perspective, He Whaipaanga Hou. It is still one of the largest research projects into Māori ever carried out.
He Whaipaanga Hou made the case for a separate Māori system of justice. It wasn’t quite what Palmer had in mind. But while politicians, the judiciary and much of the public were shocked, the debate on race relations in this country was changed forever. Even though its central idea has not come to pass.
Jackson wasn’t the first to propose a “by Māori, for Māori” approach. Donna Awatere had done the same with her book Māori Sovereignty, published in 1982, the year after the Springbok Tour brought race relations onto the streets and into the living rooms of the nation.
And the lineage stretches far back before her. Under article two of the Treaty of Waitangi, the Crown guarantees to preserve rangatiratanga in Māori society. The meaning of that is contested, but it’s fairly clear that at the time, Māori and many Pākehā observers assumed Māori would retain authority over their own lives and social institutions.
As Māori advocate Julia Whaipooti says in the documentary Moana Jackson: Portrait of a Quiet Revolutionary, “It is what Te Tiriti promised us, which is that we will take care of our own stuff.”
In the same film, Jackson says that every different understanding of the treaty is based on “an illusion that on the 6th of February 1840 every Māori in the country woke up and said, ‘We don’t want to make our own decisions anymore, we’re going to give it to that lady in London we’ve never even met.’”
He argues that this illusion should stop. In 1988, his focus was justice, but the potential application was far wider. “Taking care of our own stuff” means, or can mean, everything.
This is what gives He Whaipaanga Hou its lasting significance. Jackson died in 2022, but his report from 34 years earlier provides a full-scale evidential, analytic, cultural, legal and moral framework for the restoration of rangatiratanga. Should such a thing be wanted.
From the moment of its publication, Government and civil responses to racial injustice in Aotearoa New Zealand had to grapple with a central question: should Māori have autonomous authority over their lives, or does “one law for all” mean that cannot and should not happen?
Jackson had started from a simple proposition: What we do now has failed, so let’s try something else.
He looked overseas and saw that high rates of imprisonment were common to indigenous peoples everywhere. He looked at home and saw that this couldn’t be explained just by poverty and deprivation.
“Proportionately,” he said, “there are more poor Pākehā people than there are poor Māori people.” But “in research project after research project, once you factor in socio-economics, the only difference left is race”.
The critical factor, he said, was colonisation. Social structures that alienate a people who have lost sovereign authority in the place that once was theirs. So he proposed a justice system for Māori based on tikanga: the established practices and values of Māori society.
This didn’t mean “special treatment” for Māori, but it might end the worse treatment Māori routinely received. To put that another way, Jackson observed that special treatment already existed in the judicial system: it went to Pākehā.
He pointed out that Māori already had a justice system when the first colonisers arrived. He wasn’t advocating a return to the punishments that might have been handed out two hundred years ago, any more than Pākehā today would advocate for the hangings, floggings and hard labour common in 19th-century Britain.
Under tikanga, he explained, the point of justice is to restore “the balance between the wrongdoer and the victim through mediation processes involving sanction and recompense”.
Indeed, he defined justice as “the maintenance of ea, which is the balance in relationships” and suggested the benefits of this flow to everyone: victims as well as offenders.
He didn’t see a viable alternative and he spent the next 34 years arguing the case. It boiled down to this: “You can’t get justice in an unjust society.”
The film Moana Jackson: Portrait of a Quiet Revolutionary, made by Moana Maniapoto and Toby Mills, offers a beautiful tribute to Jackson. It also makes the case for restoring rangatiratanga as clearly as you will find anywhere.
The initial response to He Whaipaanga Hou was to turn the report on its head.
“The justice system, the police, everyone, they all insisted they were not the problem,” says advocate Hinemoa Awatere in the film. “Māori communities were the problem and they deserved what they got.”
We’ve spent the decades since the report moving away from that idea. We don’t have a social consensus on how to do it, although there does seem to be a consensus that we should. Few people in institutional roles would argue with that today, although there are many in the wider population who do.
By 2022, though, Jackson was not impressed with progress. “The safe parts of the report” were adopted, he says in the film. There’s “tikanga everywhere” and “lots of people are doing lots of good work”, but successive Governments have “ignored the substantive issues”. Māori in the Justice and Corrections system are not subject to a system run by and for Māori.
Despite all that work, things have not got better. Where 50 per cent of the prison population in 1988 was Māori, the Ministry of Justice says it’s now 52 per cent.
And rather than trying to change this, says Professor Tracey McIntosh at the University of Auckland, we think of it as “an accepted feature of the New Zealand landscape”.
The system is reproducing the harm, she says, and somehow we’re okay with that.
Jackson didn’t think his alternative would be easy. A tikanga-based justice system would require society to “trust us to look after ourselves, because we will make a mess from time to time. But they will be our messes to fix, our messes to prevent. Because goodness, we can’t do any worse than they’ve done.”
Since He Whaipaanga Hou, every Government of the day has said, “We can’t have separatism.” But the wrongs have not been righted.
There are some who say not only that we can’t have separatism, but also argue we should not try to right the wrongs. At least, not with any targeted programmes, because that’s wrong in itself.
And then there is Whānau Ora.
Whānau Ora is a “by Māori, for Māori” approach to funding health providers inside iwi and other Māori entities. It allows providers and whanau to decide how the money is spent, so they become the “architects of their own solutions”. A review in 2019 found clear evidence this flexibility and autonomy were succeeding, although it noted the approach was still new.
The review also said demand for Whānau Ora in some areas was “overwhelming” and exceeded the available funding and resources.
Whānau Ora was created by the Māori Party, working inside the National-led Government of John Key.
Prime Minister Christopher Luxon has several times said he supports “by Māori, for Māori” approaches like this. But his coalition partners and some of his own National Party cabinet colleagues have been outspoken in their opposition to any separate programmes for Māori.
Whānau Ora is not rangatiratanga in action. It’s controlled by the Government of the day and its key problem, underfunding, is not something the service providers can fix. But the way the first minister in charge, Tariana Turia, talked about it, it’s clear she was thinking along similar lines to Jackson.
“Whānau Ora is about whānau being empowered to develop a plan for our future; and to trust in our own solutions,” she said in 2011. “It is about restoring to ourselves, our confidence in our own capacity to provide for our own – to take collective responsibility to support those who need it most.
“I believe that Whānau Ora represents a major transformation in the way services are designed and delivered, contracts arranged and the way providers work together.”
Perhaps Whānau Ora points to a pathway – not only in its structure and aims but in the surprising lack of controversy it’s generated. It’s a “race-based” programme, after all. But the sky hasn’t fallen in.
Moana Jackson had his sights set on 2040, although he knew he would not live to see it. The bicentennial anniversary of the signing of the Treaty of Waitangi, he suggested, should be the target date for honouring the rangatiratanga promise of the treaty.
“This country is yet to establish a rangatiratanga sphere of influence,” he said. He was thinking well beyond justice or health: he meant a Māori congress or parliament. If that happens, he believed, it would then be possible to create a “relational sphere of influence, where the two houses can come together to make joint decisions”.
“People,” he said, “just have to be brave enough.”
Karen Chhour weighs in on the incident at a South Auckland youth justice facility.