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Indigenous processes of addressing wrongs


Tariana Address: Indigenous processes of addressing wrongs

Speech to National Coalition for Law Centres, Te Rau Oriwa marae, Whanganui

E nga mana, e nga iwi, e nga reo e huihui nei, tena koutou katoa.

Thank you for inviting me to be here with you this evening.

It's an important part of our tikanga, as tangata whenua, to share food.

We might explain the importance of food in terms of lifting tapu from participants in the formal rituals of a pohiri - or simply in terms of manaakitanga.

But, following colonisation, our people have been exposed to different tikanga. For example - there's no such thing as a free lunch.

So I take it that, sooner or later, one way or another, I'll pay for this dinner.

There's another tauiwi expression - to sing for your supper. Perhaps that's why I was asked to speak to you tonight.

Well, I haven't forgotten our own tikanga - such as utu. So if I have to pay for my dinner, by speaking to you, you will pay as well, by having to listen to me.

Actually, utu is part of our tikanga that is especially relevant to justice. Not just 'paying the price', as in punishment or retribution - but reciprocity, you reap what you sow, what goes around comes around.

Justice is at the heart of all our tikanga, when you think that 'tikanga' means the right, proper, appropriate or correct way of doing things. It can't be tika if it creates injustice.

But what is tika, and what is just, is a question of values. Community law centres dealing with tangata whenua issues work along the interface between two sets of values, and systems of justice, that often conflict.

Look at the language of justice. Te reo rangatira has no word for 'guilt'. Yet 'Guilty or not guilty?' is the first question a defendant is asked in court. How do you reconcile the two different world views?

Let's look at some translations. According to Te Taura Whiri i te Reo Maori, 'guilty' can be translated as 'hara', or 'proven guilty' as 'mau tangetange'.

Mau tangetange is a complicated linkage. [Mau means caught or held, according to the Williams dictionary. Tangetange means forthwith, and 'tu tangetange' means to stand up out of order in a meeting, disrupting the proceedings. 'Mau tangetange' translates 'found guilty' as 'caught or held to be out of order'.]

This translation conveys a sense of disruption or disorder in the offence, and a judgement by others - but not the personal knowledge of doing wrong, and a feeling of remorse or contrition, that goes with the English idea of 'guilt'.

Hara, according to Williams, means to violate a tapu, intentionally or otherwise.

Tapu has little in common with English law. Some of our statutes allow or even require tapu to be violated. So, you could commit a hara in all innocence, or be guilty of refusing to commit a hara. Again, intent or acknowledgement of wrongdoing doesn't come into it.

Incidentally, I understand the task of translating the language of justice was too much even for the indomitable Timoti Karetu and others, including Wharehuia Milroy. They started to compile a list of 'Terminology for Legal Interpreters' some years ago, but they never got as far as 'guilty'.

Perhaps Wharehuia's daughter Stephanie can make more progress as a judge of the Maori Land Court!

Seriously, though, our lack of a word for 'guilt' does not mean our tupuna were lawless and amoral. Quite the opposite. We had many ways of regulating social behaviour and delivering justice. But personal guilt was not the basis on which these things were judged.

For one thing, any offence taken was just as important as the offence that was committed. In other words, the offence upset a relationship, and it's the putting right that counts, not proving guilt. These days it's called 'restorative justice'.

The other thing we must remember is that our tupuna lived, breathed, loved, fought and died as members of whanau. Their identity, security and strength came from their ancestors and their kin.

The importance of this idea cannot be overstated. Tikanga, and their ideas of what was just, were framed within the paradigm of whanau.

Within the whanau, each individual was accountable to the group, and the group took responsibility for individual members. Tikanga were designed to maintain and reinforce bonds amongst the whanau.

The survival and welfare of the whanau was paramount. This was how our tupuna judged a situation. If the actions of an individual put the whanau at risk, they were wrong and could be punished.

Imagine, for example, if your nephew was accidentally scalded in the bath. These days, we would see the suffering of the child, and the parents, and we would no doubt sympathise with them.

But our tupuna were more likely to punish a careless adult who let a child have an accident. To them, the future of the whanau depended on its children, and they all took an active interest in bringing up their mokopuna.

Outside the whanau, differences were settled by diplomacy between groups - not by blaming and punishing individuals. There were tikanga that applied to this as well - also aimed at protecting and strengthening the whanau.

This, to me, is a whanau ora - where individuals take responsibility for each other's protection and well-being, and everyone is accountable to the group. A whanau ora has the leadership, tikanga and skills to be able to maintain its integrity, to manage its relationships with others, and to settle differences and resolve grievances.

In the context of whanau ora, I am quite certain tangata whenua could manage issues of offending and justice to get a better result than we have achieved through the adversarial legal system we inherited from Britain.

Heoi ano, kia ora tatou katoa.

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