Equality in the Law and Māori

As you may have guessed, I want to talk about equality. 1

But before doing so, I want to mention an experience that provides an illustration of the curious position of indigenous people and the law, and the ingenuity of counsel acting for indigenous peoples.

In an earlier version of this speech I was going to refer to the absence of indigenous icons in popular culture as an illustration of a broader absence of recognition of indigenous culture and norms, including within the law.

I was going to make the point that very rarely do we see indigenous heroes make it into big budget movies. But there is one notable exception, the demi-God Māui, who is one of the central characters in the Disney Movie, Moana. This is a significant though isolated achievement. And in some ways mirrors the evolution in the law, where indigenous norms are finding their way into mainstream thinking.

I was going to put up a picture of him from the movie because he looks awesome. But it was pointed out to me that I needed permission from Disney to use the picture. The approval process takes 8 weeks. I gave up on the idea.

My co-speaker, Karen Feint (now QC) was not however so easily deterred. Within 24 hours her team had developed a principled basis for asserting an indigenous right to use imagery of cultural icons. My other co-speaker Antony McAvoy SC liked the argument too, though said he would prefer to act for Disney on this one. 2 In any event, it is an example of the ingenuity of counsel operating in this space.

I should mention that Disney is faultless in all of this. It never got the opportunity to say yes or no.

So, turning to equality. I want to first provide some context.

The numbers

These statistics of incarceration on the table above will be well known to many of you. They show:

(a) While only comprising 15% of the general population, Māori have comprised about 50% of the prison population for nearly 30 years.

(b) Māori youth have comprised about 50-60% of those charged since 1996.

(c) 65% of youth in prison are Māori.

It appears generally accepted that based on these statistics, Māori are about seven times more likely to be imprisoned than persons with European whakapapa, whom for ease of reference I will refer to as Pākehā.

But in some respects, this conclusion is misleading. Māori and Māori criminality are not evenly distributed throughout New Zealand. Almost 60% of the Māori prison population was sentenced in just six (of 16) regions. In some of those regions, the Māori incarceration rates have ranged between 70-80% of all persons imprisoned since 2014.

The difference is not explained by higher densities of Māori population. Closer examination of the rates of incarceration by Police District reveals that the relative disproportionality in these regions remains about the same or even higher.

For example, the data suggests the following ratios of Māori to Pākehā imprisonment:

(a) In Waikato, 8.5 to 1.

(b) In the Bay of Plenty, 8.8 to 1.

(c) In Counties/Manukau, 12.4 to 1.

The Waitangi Tribunal also recently reported that Māori are 11.4 times more likely to be removed from the electoral role.

This is important because this disparity is reflective of a broader narrative of relative inequality that is bearing on the constitutional rights of Māori.

One familiar statistic stands out for mention - 20% of all offences for which Māori are incarcerated are against justice procedures, government security and government operations. I doubt government security or operations accounts for a substantial portion of this number. I apprehend that much of it may have something to do with pre-trial detention or breach of parole conditions. As with other offending for which imprisonment may be imposed, the ratio of Māori to non-Māori is broadly the same with Māori comprising between 57%-62% of the prison population for this type of offending.

Some intuitions

I think we can make some intuitive conclusions about this data. Māori are grossly overrepresented in the prison population and this overrepresentation is systemic in that is it is pervasive throughout the criminal justice system. We may also assume it is structural insofar as there are structural features of criminal justice that impact disproportionately on Māori, evident (for example) from the large numbers of Māori incarcerated for offending against justice procedures.

Finally, I think it is clear that the impacts will be felt most keenly within specific communities where the number of Māori incarcerated is particularly high and the rates of incarceration are particularly entrenched. I think we can also assume that the effect of these rates of incarceration on the affected whanau is likely to be profound. While the rates of incarceration are alarming in several communities, the 12 to 1 ratio of Māori to Pākehā within Counties Manukau brings home the stark reality for many whānau Māori living within its borders. Any day at the Manukau District Court will regrettably confirm this reality.

A principled basis for equality

I want to move then from this context to talking about a principled basis for promoting equality for Māori.

It might be thought to be obvious that the principle of equality for all is embedded in our law. And that it would operate to protect all of us, irrespective of among other things, ethnicity.

But I think it is necessary to articulate a proper principled basis for promoting equality for Māori; one that responds to the legitimate idea that the architecture of the law needs to be neutral to all, irrespective of race, to in fact protect equality.

I do not have time to explore this issue in any depth today. 3 But what I simply propose to do is identify the sources of law that provide a cogent basis for promoting equality for Māori.

First, international law has affirmed the right of equality for indigenous people. Article 2 of UNDRIP states that: 4

"Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity".

The right of Māori to equality was of course guaranteed by Article 3 of the Treaty of Waitangi, not often cited even in legal scholarship today. It states:

"For this agreed arrangement therefore concerning the government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England."

The Waitangi Tribunal aptly put it this way: 5

"The principle of equity, or the obligation of the Crown to act fairly between Māori and non-Māori, derives from the British citizenship rights granted to Māori by Article 3 of the Treaty."

And even before we had the Treaty, the idea of equality before the law was well entrenched. This will take many of you back to Law School, but Dicey put it this way: 6

"... every man, whatever be his rank or condition, is subject to the ordinary law of the realm."

In my view, if we bundle up these various statements, we can mount the case for the proposition that the right to equality has two basic requirements for Māori:

(a) Recognition of Māori legal, social and cultural norms - or what is called in te ao Māori, tikanga Māori; (b) Recognition of condition - that is, in interpreting and applying the law insofar as it affects Māori, we have a realistic appreciation of the circumstances of Māori collectively and individually so that they are subject to the ordinary law on equal terms.

And this provides a convenient point to segue to the final part of my kōrero on how the law is responding.

Tikanga and Civil Law

Dealing first with the incorporation of tikanga in the civil law. There has been, some might say, a not-so-quiet revolution in terms of the recognition of tikanga Māori in civil law in the last 20 years.

And just to give a little background - for a hundred or so years a prevailing view was that the Treaty was a nullity and the Crown was the arbiter of its own justice insofar as tikanga-based rights (e.g. to land) were concerned. 7

However, in the early 2000s we caught up with Australia and, for the first time, affirmed unequivocally the existence of customary rights based on tikanga, without the need for legislative intervention, in the Ngāti Apa foreshore case. 8 In this case, and in the more recent case of Paki, 9 our most senior Court jettisoned the idea that the Crown was the arbiter of its own justice insofar as concerns tikanga-based rights - Paki was a case concerning rights in respect of river beds - with the Court affirming the right to sue the Crown in respect of alleged failure by the Crown to protect tikanga based rights to the river beds.

And in Takamore, 10 a case about a tikangabased custom of returning a deceased to the haukainga (tribal homeland), the Supreme Court affirmed that tikangabased laws and custom were cognisable by the Courts and should inform the shape of the common law. Then, in Wakatu, 11 the recognition of historical fiduciary obligations, which has at its core a recognition of tikangabased rights to land and a corresponding duty to protect. Finally, last year, the Supreme Court in the Ngati Whatua 12 case stated that tikangabased claims may survive contemporaneous parliamentary proceedings dealing with the same subject matter; that is, the fact the same subject matter might be before Parliament did not necessarily preclude the justiciability of claims based on tikanga.

While each of these cases must be treated with care and understood in light of the specific facts and legislative context applying to it, the recognition of tikanga based claims within them is a major step toward affirming the principle of equality.

Tikanga and Criminal law

The picture is not so positive in relation to criminal law. The Court of Appeal in the leading case of Mason identified two problems for the incorporation of tikanga process in criminal law - first, the criminal law in New Zealand is a code and secondly, tikanga processes have been so affected by colonisation that it is barely cognisable as a body of rules and laws. 13 I wish to note in this respect that with the emergent post settlement renaissance, and the reinvigoration of iwi and hapū-based governance and other social structures, we may see the landscape change markedly in the next 10-20 years.

For the meantime the picture is not however completely undeveloped both in terms of the ongoing evolution of the law and the Courts.

For example, in Keil, 14 the Court of Appeal recognised that the tikanga principle of muru or restorative justice was a relevant consideration in sentencing. While the Court was clear that serious violence could not be condoned, recognition of cultural drivers might be a mitigating factor.

We have also recently seen recognition of "condition" as providing a basis for differential treatment. The Australians will be well familiar with this: 15

[It] is about recognition that disadvantages, which may arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help explain or throw light upon the particular offence and upon the individual circumstances of the offender. I am aware of the limits placed on this dicta by the Court in Bugmy, 16 and the concerns expressed there for individualised justice.

But these concerns can be reconciled as they were by the High Court in Heta in the following terms: 17

"... the normative basis for recognition of systemic Māori deprivation as a mitigating sentencing factor is not dependent on racial or ethnic classification. Rather, it is the presence of systemic deprivation in the lives of Māori offenders and their whanau that may trigger the potential for a differential sentencing response."

My last thought on this topic is to refer to the two relatively new Courts which are employing tikanga in practice and principle, the Rangatahi and Matariki Courts. While the evidence is anecdotal, I understand that engagement with Māori offenders has been positive both at a procedural and substantive level.

* The NZBA thanks Justice Whata for providing us with this article which is based on his speech at the NZBA/ ABA Joint Conference in Queenstown in 2019.

1 I wish to note that I have drawn on a lecture I gave at the Auckland Law School which can be found at: https://www.auckland.ac.nz/en/law/our-research/ research-institutes-centres/aotearoa-nzc-indigenous-peoples-law/news-events/public-lectures-events/public-lecture--justice-whata.html - I hope to publish that lecture in full at some time in the future. I also wish to note that this article is not a verbatim transcription of my speech. Some editorial licence has been employed. 2 Mr McAvoy would later point out in his speech that this observation was a classic example of a judge misinterpreting counsel. He noted simply that Disney might have the better argument. 3 I addressed this issue in some depth in my lecture at the Auckland Law School, above at n1. 4 United Nations Declaration on the Rights of Indigenous Peoples (2007) A/61/295, art 2. 5 Waitangi Tribunal, Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 4.1.3. 6 Dicey, A. V. Law of the Constitution (1885). 7 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72. 8 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA) 9 Paki (No 2) v Attorney-General [2014] NZSC 118. 10 Takamore v Clarke [2012] NZSC 116. 11 Proprietors of Wakatu v Attorney-General [2017] NZSC 17. 12 Ngati Whatua Orakei Trust v Attorney-General [2018] NZSC 84. 13 Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464. 14 Keil v R [2017] NZCA 563. 15 R v Pitt [2001] NSWCCA 156 per Wood CJ. 16 Bugmy v The Queen [2013] HCA 37. 17 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [43].