It has been a landmark week for two prominent Māori lawyers – cause for much celebration among the Māori legal profession this Christmas.
Last Friday Moana Jackson was awarded an honorary doctorate in law from Victoria University of Wellington, and yesterday long-serving high court justice, and former chief judge of the Māori Land Court, Justice Joe Williams was elevated to the Court of Appeal.
These two Māori men have had a massive influence on the development of Māori legal jurisprudence and also the wider legal system in New Zealand. Their seminal works have dealt with issues such as criminal justice, tino rangatiratanga, Māori intellectual property rights and tikanga in the New Zealand justice system. While we recognise these two men and their contribution to the law, it is time for Aotearoa New Zealand to start paying credence to their ideas.
Moana Jackson needs no introduction to many in New Zealand. The softly-spoken lawyer from Ngāti Kahungunu and Ngāti Porou has been a long-standing critic of the New Zealand criminal justice system and his seminal report in 1988 for the Ministry of Justice on Māori and the criminal justice system, He Whaipānga Hou, has had a major influence on attempts to decolonise the criminal justice system. But while it has challenged Western notions of crime and punishment, the reforms so badly needed to our criminal justice system have not yet materialised. We continue to incarcerate Māori men at a rate seven times higher than Pākehā men and both Māori men and Māori women comprise greater than half of the overall prison population in New Zealand. We need to move away from a system that prioritises punishment in favour of a system that supports rehabilitation and restoration of the people and the communities affected by crime.
Presenting to Te Ao Māori & the Indigenous world – Dr Moana Jackson pic.twitter.com/BomN0WUp6p
— Leonie Pihama (@kaupapamaori) December 14, 2017
Dr Jackson, alongside Professor Margaret Mutu, led the Independent Working Group on Constitutional Transformation which produced Matike Mai Aotearoa in 2016 recommending radical change to the New Zealand constitution. The report set forward six potential models of co-governance, where Māori and Pākehā shared power according to their spheres of influence – the rangatiratanga sphere, where Māori make decisions for Māori, and the kawanatanga sphere, where the Crown makes decisions for its people. A third space, where Māori and the Crown will work together, or the relational sphere, allows for Te Tiriti principles of partnership to operate and deals with issues that affect both Māori and the Crown. Aotearoa New Zealand consists of many peoples attempting to live side by side governed by the rules of one people – the majority European culture. For us to truly become a multi-cultural, progressive 21st century nation we require a constitution that provides all peoples in New Zealand with their own space to exist, alongside a set of shared values to deal with the issues that arise where we intersect. The idea that we are all one people is a dangerous myth. We are many peoples sharing one land, and we need a constitutional system that reflects this.
Justice Joe Williams (Ngāti Pūkenga, Waitaha, Tapuika) is well-known within the legal world, but perhaps less so outside of it. Matua Joe to many, he has been the chief judge of the Māori Land Court, chaired the Waitangi Tribunal, a justice of the High Court, and following yesterday’s appointment – a justice of the Court of Appeal. I first encountered Matua Joe in 2012 at the World Indigenous Lawyers’ Conference in Hamilton. He spoke eloquently during the closing session of the hui about his experience of the law and what we, as Māori lawyers, have to do in order to achieve justice for our clients and our communities. In a theme that runs through many of his speeches he spoke to us about the challenge that confronts Māori lawyers in the Western legal system and that progress, while slow, can be made. We must, he implored, search for the tears in the fabric of the law for those imperfections provide us the opportunity to push through and advance the recognition of Māori rights within the Western legal system.
Matua Joe has been a constant presence among the Māori law community, and never passes up the opportunity to remind us that no matter how far we appear to have come, we still have a long way to go to achieving our collective aspirations and ensuring that our Māori communities are thriving. As Māori lawyers, we struggle with the often conflicting duties to the Western legal system and our own Māori tikanga. And while tikanga is considered part of the New Zealand legal system, if has never truly been afforded the legitimacy that it deserves. This is not helped by the near complete lack of Māori voices on the benches of our superior courts – the Court of Appeal and the Supreme Court. If our superior court judges do not understand tikanga, then how can we expect the court system to properly account for the role of tikanga in our legal system?
One of the enduring legacies of Matua Joe’s leadership of the Waitangi Tribunal was the Wai 262 Ko Aotearoa Tenei report. Released in 2011, the Tribunal noted that: “New Zealand sits poised at the crossroads both in race relations and on our long quest for a mature sense of national identity.” In its most wide-ranging report to date, the Tribunal reiterated that the principle of partnership was required under Te Tiriti o Waitangi and heavily criticised the Crown for falling short of this ideal, “marginalising Māori and allowing others to control key aspects of Māori culture. This leads to a justified sense of grievance, and also limits the contribution Māori can make to national identity and to New Zealand’s economy.” The Report recommended a range of reforms to laws relating to health, education, science, intellectual property, indigenous flora and fauna, resource management, conservation, the Māori language, arts and culture, and heritage. The recommendations have been ignored by the Crown.
With the current chief justice, Dame Sian Elias, due to reach mandatory retirement in 2019, just maybe we might see the appointment of the first Māori chief justice. There are few legal minds as sharp and as inquisitive as Joe Williams and his appointment in 2019 would be a wonderful, and thoroughly deserved, promotion. At the very least, the life’s work of these two towering tōtara of the Māori legal profession, and the wider legal profession that they represent and are a part of, deserves greater public recognition.
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