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Indigenous courts, the way of the future?

Fuseworks Media
Fuseworks Media

An advocate for an improved justice system for Māori, Dr Valmaine Toki has researched and visited indigenous courts in comparative jurisdictions and is now calling for the establishment of indigenous courts in New Zealand.

The University of Waikato associate professor considers if Māori were to have their cases heard in courts where ‘tikanga Māori’ and ‘therapeutic jurisprudence’ are practised, then there would be far fewer Māori in New Zealand prisons and far fewer cases of recidivism.

While only 15% of New Zealand’s population, Māori comprise 50% of the male prison population and 60% of the female prison population; statistics that haven’t changed in 30 years. This disproportionate situation is similar for indigenous peoples in other countries.

Dr Toki, from Te Piringa Faculty of Law at the University of Waikato, has researched indigenous law and courts in New Zealand, Canada, Australia, the USA, Ecuador and the Pacific. She was the first New Zealander appointed as an Expert Member on the United Nations Permanent Forum on Indigenous Issues, and recently published a book Indigenous Courts, Self-Determination and Criminal Justice.

"This situation has been motivational - indigenous peoples’ rights to self-determination, tino rangatiratanga, with a focus on criminal justice. Clearly the system isn’t working for Māori. Fundamental principles such as reciprocity, taking responsibility, whanaungatanga and balance are principles that should be recognised and implemented in the criminal justice process," Dr Toki says.

Her book gives historical context to the present situation, current criminal justice initiatives, the Treaty of Waitangi’s place in the New Zealand legal system, the UN Declaration on the Rights of Indigenous Peoples and Self-determination, and initiatives from other countries.

She proposes two ways that indigenous courts could be introduced, either by building on the marae-based justice system that has been introduced for rangatahi (youth) and matariki (for adults), or expanding the jurisdiction of the Māori Land Court to include criminal and civil matters for Māori.

"There are arguments for both, but first there has to be the political will in place to effect a change to the current system. It would be good if some positive and practical steps came from the recent Criminal Justice Summit. That would be a start. Simply from a fiscal perspective, considering the expense of incarceration, that money could be better spent on health or education," Dr Toki says.

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