Stephen Franks Speech - Treaty of Waitangi & Maori Affairs

Going Native: What Indigeneity Should Look Like In The Morning

Australasian Law Reform Agencies Conference: Session 6, 2-00pm to 3-15pm Thursday 15 April 2004, Law School Lecture Theatres

I will speak to you law reformers as a practising politician, not as a lawyer or scholar - though all three perspectives should be congruent. I will urge much greater respect for indigeneity in our law. What we now have is lip service. That does not mean it is necessarily useless - lip service has a place in courtesy. But genuine indigeneity could offer much more, provided it is assimilated into our substantive law.

Most proposals for more indigeneity are restricted to procedure. A new batch is contained in the Law Commission's report, released on March 15. Dollops of indigenous ritual are to be splashed over the court process. Courts are to accommodate karakia, and affirmative cries of "kia ora" from the accused's supporters in court. The accused won't be isolated in the dock.

Meanwhile, the courts must continue to apply substantive law embodying the cultural imperialism of the social engineers - the self-anointed progressives who have dominated our legal establishment for 40 years.

These anointed have been well intentioned, but their law reform projects commonly set out to negate mainstream cultural values. For example, traditional practices, such as smacking children, and views on crime shared by most New Zealanders, pakeha and Maori, are dismissed as "redneck".

Accordingly, this paper will assess elements of Maori custom against the traditions and expectations of New Zealanders generally. As an elected spokesman on justice, I hear from voters what they want. They demand genuine respect for their inherited mores. Most of these mores are found across the cultures in New Zealand. Culturally respectful law reform could be largely a reinstatement of former powers and freedoms.

I will argue that indigeneity should not create any form of parallel or separate law or system. It should not be concessionary, giving some people more or less protection or rights than others, according to race or culture. Indigenous elements should pass the same tests for intellectual coherence, and practical impact, as any other proposals. They should not compromise any of the elements of the rule of law. Indigeneity should confer no trump card status. Any indigeneity should be incorporated in law for all of us equally, by assimilation.

Maori ought to be insulted if their ritual is offered to sweeten substantive law that over-rides customary beliefs. If they do not demand more than adoption of ritual, if Maori are bought off by lip service, pakeha too should mourn. All New Zealanders would benefit if Maori demanded more genuine respect for those traditional values, which are shared by their pakeha neighbours.

If instead cultural respect is confined to transplanting hui procedures to our courts, we will all be the losers. We will have lost Maori as potential leaders and allies in the fight to recover traditional freedoms from the anointed. And hui procedures are unlikely to engender more respect for the courts, or for Maori. Many Maori think some of them should be left to wither. Resurrected rituals may just frustrate nearly everyone.

Whakapapa

Spell check rejects "indigeneity" as a word. It is new. Among those who have used the term, Jeremy Waldron has politely pricked some rhetoric balloons generated by the Treaty industry. Another who has used it, Professor Durie, is at this conference to update us on his thinking.

It may be synonymous with indigenous rights for some purposes. Few will now be unaware of the Court of Appeal's assertion of common law indigenous customary rights, since its seabed and foreshore decision on 19 June last year. I have tried to keep abreast of the official fashions in thinking about separate Maori justice systems since a debate over that topic at the Commonwealth Law Conference in Auckland more than a decade ago. That means I have read Moana Jackson's writing. Ben Kingsbury worked for me as a law clerk, so out of curiosity I have tried to keep up with his work.

I investigated New Zealand's pusillanimous position in the debate over the draft UN `Declaration of the Rights of Indigenous Peoples' a couple of years ago. I had read the NZ Law Commission's 2001 Study Paper "Maori Custom and Values in New Zealand Law". My correspondence with Robertson J about an aspect of that paper may account for the invitation to present a sceptical view to this conference.

I first became concerned about customary rights when the Ngai Tahu settlement excluded customary claims from the provisions acknowledging the settlement as "full and final". Now the Court of Appeal decision to over rule its own earlier authority has justified that early concern. A startled government and people face uncertainties ruled out for at least 40 years, and consciously suppressed over the 60 previous years after New Zealand lawyers rejected the Privy Council view that the Crown was not the exclusive source of title in this country.

Professor McHugh's evidence to the Waitangi Tribunal in January confirmed my suspicion that indigenous rights include much recent invention. A flimsy base of respectable antiquity allows the legal entrepreneurs to pass this off as rediscovery or rejuvenation. In land law indigenous rights threaten the remarkable achievement of generations of legislators, surveyors, lawyers, and judges who ensured that we could easily know precisely who is entitled to the control of almost every metre of New Zealand.

The research does not confirm the intellectual coherence of "indigeneity" in law, even if historical legitimacy is conceded it remains hard to find out:

• What is indigenous law?

• Where it is looked up?

• Who knows what it is if it cannot be looked up?

• How we test those who claim to know it?

• How we can know they are not just making it up?

• How we make sure it is not being stated to suit the personal and political interests of those who claim to know it?

I fear that the word "law" is devalued when serious scholars allow the term to be applied to unwritten customs, etiquette, practices and claims. Such tolerance may abet intellectual and political opportunism. Worse, uncritical fascination with a new source of law could encourage judicial activism. This paper concentrates, however, on indigenous customs discarded or over-ridden by statute, not the courts.

Dealing with Criminals - the Law Commission Report on the Courts

The Law Commission's 2001 special paper collected accounts of early attempts to apply Maori customs as a separate part of the colonial legal system. Other than in the Maori Land Courts, and in relation to adoption and inheritance, this phase did not last long. In its latest report the Law Commission is unapologetically assimilationist. It does not spend any time exploring the alternative of separate law and institutions. I endorse that choice. I agree that the courts should now be authorised to make new efforts to reflect Maori culture and practices. Where I disagree is on the elements of culture that should be melded back in.

The latest report exhibits a cultural sensitivity that comes across as cringing. It serves as apologetic confirmation that courts have lost confidence in their traditional authority. To wonder about incorporating indigenous procedure 150 years after establishment here seems symptomatic of a judiciary that is unable to project cultural pride and power. They want "flexibility" and "sensitivity to diversity" and local consultative councils (of course including Maori) and liaison officers, to tell them how to transform their courts in to one stop resource centres for their local communities. They want to be able to deliver "therapeutic justice".

I doubt that "user friendliness' characterises an ideal dispenser of justice in any of New Zealand's cultural inheritances, at least so far as criminal justice is concerned. Most cultures clothe authority in symbols of power. People required to obey are deliberately distanced from the authority figures. Distinctive dress, elevation, mysterious language, respectful silences and attendants enforcing unique etiquette, deliberately inspire awe or fear, or at least subordination. The tapu of tohunga comes to mind.

The Commission produces no evidence beyond unscientifically selected user statements that "user friendly" criminal courts will achieve objectives better than traditional courts.

The retort that they could hardly do worse than at present, is not an answer. Today's courts are not traditional. For a lawyer like me, who last practiced in the courts in 1976, it has been tragic to go back recently and see the loss from the District Courts of respect and authority (and yes fear).

I am reminded of a paper my medical student daughter sent me. It reviews two books reporting research suggesting that old fashioned `authoritarian' doctoring may heal better than doctoring by practitioners "trained in the new style, ... humble, egalitarian, emotionally honest". The doctor who projects confidence in his diagnosis and prescription, and in his own authority as a healer, promotes healing. The mysterious factors that give power to the placebo effect seem to be at work. New law, which requires doctors to explain the risks, uncertainties and choices in treatment, may work in the opposite direction.

I suggest that symbolic obeisance or lip service to multi-culturism by way of appeasement is worse than useless, if the effect is simply to make judges seem cultural neuters, pre-emptively apologising for any offence, real or imagined.

Instead a genuine respect for indigenous cultures would reinstate and assimilate important cultural mechanisms lost to us all. They should go into our one law for the benefit if all, pakeha, Maori and tauiwi. Courts should be made more awe-inspiring and tapu instead of more "user-friendly".

Dealing with Criminals - Whakamaa

Most Pacific cultures have shame-based systems for dealing with anti-social conduct. So do the cultures of our latest wave of immigrants, from Asia. For Maori, shame or whakamaa was essential for a healthy society to discourage wrongdoing. I urge the restoration of shame as a natural consequence of criminality, by straightforward repeal of all name suppression after conviction. This is especially important in our disastrous youth justice system. Criminal records should be accessible to all upon enquiry. Instead, Mr Goff's Clean Slate Bill, now only two hours debate away from passage, will suppress the criminal records of up to 700,000 people, and instruct them to lie about their past. I regard that as Taliban level cultural destruction.

Criminals and Utu

For Maori, as for many other cultures, utu or retribution was not just legitimate, but essential to restore balance between a wrongdoer and his victim. In some north Asian cultures the heavens are in disharmony until the wrongdoer is suffering as much as the victim. In Anglo Saxon custom personal vengeance was the basis of redress for injuries suffered. A genuine respect for Maori customary law would give us a modern analogue of utu.

Instead retribution is unmentionable as an objective of the criminal justice system. Mr Goff's Sentencing Act doesn't even mention punishment. Sir Geoffrey Palmer's lofty announcement in 1989 that "retribution has no place in the law of a civilized nation" should have been denounced as one of the most culturally offensive statements a Minister of Justice could make.

Now Labour has written an entire sentencing code around that proposition. Where was the criticism from the commentators usually so quick to condemn cultural insensitivity? The offender and his whanau can oblige judges to listen to their excuses, and their views of what the sentence should be, while the victim is not even allowed to address the court. Victims may, if they get the leave of the court, read a prepared whinge about how badly the criminal has hurt them, but not express a view on what should happen to the offender.

Criminals and Muru

Some may object that the new reparation regime in the Sentencing Act at least heads in the direction of the Maori concept of muru. Muru legitimised self-help compensation from offenders' connections. It ensured that every family member had a direct personal interest in minimising offending by the relatives. At the extreme, muru's group liability allowed spontaneous depredations on entirely innocent connections of offenders. Contrast that, for example with current law that does not even oblige the family to support themselves, let alone pay for the damage they cause. Family group conferencing can involve the criminal connections of young offenders solemnly planning to steer them straight, without anyone being brave enough to confront them with their own responsibility for family crime patterns.

Labour, including its Maori MPs, rejected my amendments to require the court to consider the hardship caused to victims and their families before lightening the offender's reparation burden because of potential hardship to the offender's family.

The Parole Board is directed to release offenders as soon as they are eligible, if it considers them not to be a danger to the safety of the community. They are not authorised to take into account whether the offender is remorseful, or reparation promises have been kept. It is irrelevant that he has not showed proper submission to authority in prison - the old idea that parole is a reward for good behaviour is completely unfounded - prisons are not even asked about the prisoners' behaviour.

Retribution as the basis for punishment reflects a wisdom common to most peoples. Though deplored by the anointed there is little evidence that it stands up to scrutiny on measures of efficacy any less reliably than, say, rehabilitation. Retribution is consistent with developing understanding of the psychological mechanisms that sustain individual and group support for rule observance. It is rational to punish cheating even if it costs more than any recovery or other benefit in the particular case.

Land Law

Solemn documents do not prevent the anointed from traducing indigenous rights. Article 2 of the Treaty extended to Maori (and pakeha) the promise of English property law. In the classical description, their homes would be their castles. Maori consciously chose such property rights over customary landholding patterns. They were promised certainty of boundaries, of title against conquest, transferability, and exclusive enjoyment. On their own property even the monarch could not intrude, absent hot pursuit or a warrant given by independent judges.

What is left of this promise? Property rights are summarised in recent government discussion paper as a "societal construct ...[a bundle of constantly changing] social, economic and legal elements...[that] is not defined and is subject to constant renegotiation". The Resource Management Act scarcely pays lip service to Article 2.

I have great sympathy for East Cape's Potaka marae. They want to build fish farms on their land. They should be free to do that as long as they avoid nuisance to neighbours or to the commons. Local government's power to stop them is a breach of the Treaty and an infringement of their ownership rights.

In most regions a property use as innocuous as digging a kumara pit would require resource consent. It might even need neighbours' approval, and the supervision of an archaeologist, perhaps an engineer's certificate. It could be prohibited on the prominent frost-free ridges where they were traditional. Such landmarks have been effectively expropriated as Significant Natural Areas.

Imagine the illegalities in building a fortified pa. Ignoring the anti-gang fort rules of some local authorities, think about the OSH risks in the earthworks and the absence of safety rails, the use of native timbers for the palisade, the modifications of headlands, the tipping of spoil over the cliff. Who could create a shell midden now? Even local rubbish dumps have been replaced with transfer stations.

These new restraints do not only conflict with anachronisms. Fire permit rules interfere with current activities as simple as putting down a backyard hangi.

The new Building Act will end do it yourself building. It will prohibit building except under the supervision of authorised experts. This had been a defining right for both indigenous and more recent settlers.

What should we think of `gated villages'? Pioneered by retirement village operators, developers of up market subdivisions now want to offer them. I see them as the revival of ancient pa tradition - a fence to keep predators out of a whole settlement, instead of needing dwelling-by-dwelling security. Perhaps promoters might have to seek out partnerships with local iwi to revive customary rights to self-protection, and overcome the developing hostility of local government.

None of these comments are intended to support a restoration of communal land ownership. The international evidence is overwhelming. Widely dispersed communal land holding is not good for the land, or the owners. Maori are entitled under the Treaty to the benefit of English property law. In essence, after an initial trial of parallel legal rules, assimilation became official policy. Sadly, assimilation of land law has taken too long.

`Indigeneity' to be resisted

There are indigenous customs that should never find a place in New Zealand law. Some is antithetical to the rule of law, in the sense that it is not ascertainable in advance. A simple rule might reject customs for which there is no respected parallel in other New Zealand cultures. I am sure that in future it will be politically difficult to promote the assimilation of elements that have not been validated by experience, and research, even if that has not been the case over the past two decades.

Most of us now take as given a few very important ideas that were leading edge in 1840, if they had emerged at all:

1) Rights should not depend on social rank - there must be equality before the law. This conflicts with the customs of the patriarchal tribes of pre-conquest England, the rank consciousness that pervaded later English society, and Maori custom. They were replaced by the aspiration of English law reflected in Article Three of the Treaty.

2) Evidence rules should not be relaxed in favour of hearsay and assertion by folk with nothing more than status to commend them. If a reminder was needed we have it in the unhappy recent experience of letting psychologists' and other experts' opinion rank as evidence in child abuse cases.

3) Prudent scepticism should greet claims that informal "customary authority" will suffice for stewardship on behalf of others. It is safer to assume that all humans grapple with the drives of greed, and family preference. All races and cultures succumb to temptations to abuse power and opportunity. For example, Reg 27 of the Amateur Fisheries Regulations is wishful stupidity. It authorises an undefined class of kaumatua to legitimise fisheries depredations, after romantics decided to resuscitate in our law "customary fisheries management". The result is a constant temptation to dishonesty, and a source of contempt for Maori from their neighbours. This exemption privilege over other people is of negligible value to most Maori, and there is no reported attempt to measure whether any benefit outweighs the relationship costs of a permanent race irritant.

4) Robust local government is the product of long and expensive experience. Simple wisdom, such as "no man should have two masters" is ignored by indigeneity mechanisms such as "kaitiakiship" or co-management with local government.

5) Effective succession mechanisms distinguish successful institutions. Most of us now believe that democracy is at least a good way to "toss the bastards out" when they should go. We think meritocracy is normal, and desirable. State recognition of group leadership, mandate and representative status should not be extended without traceable appointment and succession mechanisms. For example, references in legislation to "kaumatua" are nowhere defined, yet kaumatua are given authority to verify documents. The law should not artificially resuscitate or protect aristocracy or any other form of oligarchy.

6) Administrative law should apply even-handedly to Maori organisations. Holders of office are stewards for those who appoint them, not winners of a lottery for the spoils of office. We should not tolerate claims that pakeha must "get used to" breaches of conflict of interest rules. There are too many stories of breaches in Maori organisations. They may be more related to a grant culture - "easy come easy go" than a cultural artefact. Any steward will be tempted by sickly patronage, official double standards - tolerance of misfeasance that is not tolerated elsewhere.

7) Indefinable spiritual values should be excluded from courts. Scorn for the RMA is often connected to difficulties in weighing incommensurables. Our courts should remain secular, ascertaining facts and applying rules known in advance on the basis of objective processes.

8) Unfounded reverence for whanau relationships should not leave children of Maori families at any greater risk than children of other cultures.

Other Customary Values

Resuscitation of indigenous customs in the law will need a reform context. Politically it is too late for such a project to survive if it is seen as just a privilege for Maori. It may fly if it responds to widely shared concerns. Cultures other than Maori are concerned about law that over-rides cultural norms, or eliminates freedoms to act in culturally significant ways.

Our law is hostile to the embedded traditional cultures of mainstream New Zealand, as well as to minorities. Cultural imperialism is alive and thriving. The anointed seem to feel moral superiority in affronting many patient, decent, tolerant, ordinary people. For example:

• They plan to outlaw smacking, against the wishes of more than 80 percent of parents, despite the centrality of childrearing practices to every culture.

• Criminal justice insiders now use a language foreign to the rest of us. Most people are baffled to learn that prisons are to meet the "criminogenic needs" of criminals. We think prisons are for punishment, to carry out sentences given by independent courts. We recognise that they have protection, rehabilitation and deterrent purposes, but cant believe that the Justice Minister could produce in 2002 a comprehensive sentencing code without once using the word punishment. The anointed think prisons should "incapacitate" only until it is politically safe to deem the criminals no longer a "danger to the community".

• They see the criminal law as just another lever of power to educate the despised masses. For example they changed prostitution law to pretend outrage at child prostitution, by deeming childhood to extend to age 18, but coolly rejected police requests for practical powers to enforce the law, such as a right to ask for proof of age. The underage prostitute is immune from prosecution in all circumstances, including for giving false proof of age.

• They've turned human rights law on its head. Instead of constraining the state from abusing its coercive powers, human rights clerics have made it criminally immoral to advertise for a Christian forecourt attendant. You could be liable for the offence caused by leaving a salacious calendar girl on the wall of the staff common room, but not for sending in to every living room images of gay sex that still shock many families.

• They see family law as a mechanism for eroding traditional notions of family obligation. From having been the most indissoluble of partnerships, a contract enforceable by law as well as by powerful social sanctions, the law now expressly prohibits a court from taking into account who is to blame for the end of a marriage. On division of the property the blameless party cannot get compensation for even the most blatant breaches of the marriage contract.

• Welfare entitlements have slashed the normal social connections that reward responsibility and discourage selfishness. Traditionally communities could give practical effect to social sanctions, to limit taking without giving. Those who wouldn't look after their families, who failed to pull their weight, had to wheedle charity out of people who knew them. Today's anointed feel special virtue in forcing working families (so disgustingly bourgeois) to be anonymously unselfish. They must pay, no questions asked, even for bludgers who have just got out of prison for preying on their working neighbours.

• The DPB makes economic cuckolds of taxpaying families. People who are struggling to feed clothe and educate their own children are forced to pay as well for the children of men who breed with no intention of ever looking after their children.

• The living alone benefit frees children from the economic sanctions that every culture uses to underpin parental authority. Faced with inconvenient restrictions, children can move out to indulge a drug habit, to prostitute themselves, even to have children themselves while living off the taxes of other parents.

On the other hand the anointed dismiss economic freedoms. Years ago they loved Lady Wolfenden's slogan - "the law has no place in the bedrooms of the nation". Telling consenting adults how to behave, irrespective of offence to "uptight" neighbours, is `authoritarian' even `fascist' in the rhetoric of the anointed. But the "fascism" in denials of liberty seems to evaporate when those adults want to decide their own terms and conditions of employment:

• No one can lawfully agree to `at will' termination, no matter how much compensation is payable for early termination.

• No one can lawfully agree on something as rational as a retirement age.

• Reinstated feudal liabilities hit employers with vicarious liability for risks as diverse as harassment, and stress, as well as physical harm.

Such exposures translate directly back to losses in job satisfaction for employees. Masters are forced to inflict layers of back-covering supervision. Unpromising job candidates are discreetly shunned instead of giving them a chance.

Concluding with Courage

This cultural tour has gone past a range of historic sites. Though it has been necessarily superficial, we have seen ruins where cultural treasures once stood. I will conclude by coming back for a second look where we started, with criminal justice.

The law is now presiding over the destruction of the social virtues of courage and risk taking. They were claimed by previous generations of New Zealanders as hallmarks of the national character, along with stoic self-reliance, and uncomplaining personal responsibility for one's choices. We defined ourselves by what we were not - hence the delight in the stereotypical other, the "whingeing Pom".

Sir George Grey and other early pakeha champions of Maori were captivated by Maori valour. They were awed by the Maori love of war. They identified acts of chivalry to parallel their own traditions. Those pakeha drew on such sources to give nobility to their own participation in conquest. Generations later the Maori Battalion maintained the legend. Toughness in rugby and other sports sustains it.

Now bravery and self-reliance in the face of crime are discouraged. It is mocked as `macho". Police warn people not to resist violent criminals. Even those who do successfully are criticised for foolish courage. The courts tend to punish violence even-handedly, instead of exempting mere retaliators. Loss of provocation as a defence was an early step in the process. People determined not to be victims of aggression can be impoverished by the Police practice of routinely charging people who use weapons in self-defence, leaving it to the courts to decide whether it was justified in practice.

Despite evidence that on balance it may harm more than it helps, stipulated counselling has replaced the voluntary cup of tea and the stiff upper lip as the standard recommendation for dealing with upsetting life events.

Criminal nuisance charges have sent sports organisers, schools, local authorities and others into a frenzy of "risk minimisation". OSH liabilities are closing farms to visitors. Boy racers are pursued to extinction, yet officially sanctioned race venues incur high professional risk compliance costs. Young people and poor people will be shut out.

Much effort now goes in to criminalising carelessness. Police investigation of traffic accidents occupies 25% of investigation resources in some areas. As one commentator puts it " a side effect of making everybody a potential criminal is that the concept of crime becomes blurred and genuine criminality becomes less unacceptable".

There should be little mystery about the attraction of ethnic gangs in this climate. There are few other institutions in which stoicism, irreverence and warrior ritual are now openly practised. We can admire the survival of `staunchness' even as we deplore the results.

Genuine indigeneity in our law would have judges once again deciding who was right and who wrong in fights, and applauding self defence, and defending volunteers, and protecting risk takers against the liabilities that are squeezing them out of our culture. Genuine respect for indigenous practices and virtues would wipe from our list of clichés the ambulance/cliff justification for the fence building we now see at the crest of every humble rise.

I'm for genuine indigenisation.

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