Indigenous and Other Discriminated Populations in Aotearoa Require Restorative Justice to Heal Wounds

Dr Lorna Dyall, Raewyn Bhana, and George Ngatai

We will share our experience in being been involved in supporting the implementation of restorative justice on the marae and in the community, working with judges, Court staff, Police, facilitators and community leaders working for change. Working from a kaupapa Maori paradigm addressing harm from a victim’s perspective has widened the lens to the ongoing victimization of Maori and vulnerable groups in the community. A joint presentation will be provided

A group presentation will be presented on restorative justice for Maori, lessons learned, vision for the future as Maori lives matter, the need for structural, social, justice and political reform required so Maori can live free lives without being victimized to become statistics for Police, Courts Judges, Corrections and providing employment to many in Aotearoa. COVID-19 and the death of George Floyd in Minneapolis, Minnesota and the Armed Response Unit placed specifically in Maori and Pacific communities with no community engagement resulting in increased criminalization of Maori, requires us to rethink and re visualise what contribution does restorative justice offer to Maori. Further, who needs justice, Aroha, compassion and a fresh start in Aotearoa?

 Introduction

Toi tu te kupu, toi tu te mana, toi tu te whenua

 Hold fast to your culture, for without language, without mana and without land

 the essence of being Maori would no longer exist

 Aotearoa has faced many challenges this year with issues it seems coming to a head or a tipping point for change, as the status quo or acceptance of structural racial and sexual discrimination is no longer acceptable. This view is increasingly becoming louder and clearer as people protest that black lives matter here in New Zealand and in particular indigenous peoples lives matter and are the most vulnerable and targeted by the Police, Justice, Corrections and custodial care facilities, as forensic mental health services, whom alone and together create services and workforces that meet their institutional needs. This fact is verified in New Zealand by the many recently released reports which have looked at the effectiveness of mental health and addiction services[1], the Family Court[2], our legal and justice systems[3], the quality of care and protection of those under required State Care[4] and the conduct of Oranga Tamariki, the Ministry of Children statutory required to provide protection and care of tamariki (children), mokopuna (grandchildren) and young children and adults. A total independent review of health and disability services and structural arrangements has also been undertaken and a final report released in June 2020, at considerable cost to the public, has identified that a new Maori health authority is needed to address health inequalities for tangata whenua which will be discussed later[5] .

  Oranga Tamariki

Since 2017 the Chief Executive of Oranga Tamariki has had a statutory requirement to give effect in leadership and daily work full recognition of Te Tiriti o Waitangi, a requirement to support the mana and wellbeing of children and for Maori children to have regard for their own whakapapa and connections to their whanau, hapu and iwi. This agency is also required to be transparent and accountable for the outcomes that they achieve for the most vulnerable in our communities and this includes reporting and being transparent on outcomes achieved for tamariki, including outcomes specifically for Maori.  Care and protection of children and young people are also now a shared responsibility and the Chief Executive is required to enter into strategic relationships with iwi and Maori organisations, so Maori children where possible are not placed solely under state care.

Recent independent reviews of Oranga Tamariki have been critical of their relationship and interactions with Maori whanau and the taking of Maori babies from their mothers to be uplifted under the care and protection of this agency without appropriate iwi or Maori organisations involved who could assist with the development of appropriate solutions[6] [7]. These actions have and create considerable trauma for many Maori women, whanau and communities, who fear that once they are under the radar of Oranga Tamariki they are at risk of being under their ongoing monitoring and supervision and if they have had children taken previously and this will affect the wellbeing of future children they may have.

Restorative justice is also part of the responsibilities of this Crown agency under The Children and Young Persons and their Families Act 1989, now renamed Oranga Tamariki Act 1989. Family Conferences can be convened where members of a child family or whanau can attend to consider the best interests of the child in accordance with the legislation. The taking away of children from indigenous populations is a common experience globally, and is part of an ongoing process of colonisation and attempts of genocide, for the trauma of all involved is life determining and creates further trauma for ongoing generations.

This Act has paved the way for   institutionalising restorative justice into the framework, policies and processes for abuse to be addressed, for harm to be dealt with, for human rights to be considered and for Maori to become a legitimate partner in the care and protection of their taonga, (treasure) that is there children. This is a Te Tiriti o Waitangi right for Maori, but it has taken this agency almost 20 years to incorporate this fact in their work and therefore, we can ask what degree of physical, spiritual, mental, whanau and economic harm, this government agency and has created in that time span.   

This proposal is not radical but mirrors restorative justice decisions taken in Canada in relation to indigenous children abused under federal care between1960-1980[8] and $750 million was paid out as compensation for indigenous children who were denied care, protection and the right to be indigenous.

Restorative justice is a process which women, children, men, families and whanau should be able to use when they have been adversely harmed by Oranga Tamariki to seek justice and to participate in a process where they can hear and listen to the offender that is the agency and those employed by the agency, to explain their actions. Further for those who are victims, to have the power to be able speak and to outline the harm that has been created by their actions and the ongoing effects in their lives, and following generations.

Royal Commission into Historical Abuse in State Care

 Listening to those who had the courage to speak of their adverse experiences of being under the care of Oranga Tamariki or previously the Department of Social Welfare, through the Royal Commission Inquiry into Historical Abuse in State Care, the ripple effects of abuse affected all areas of victim lives. Those who spoke in public and in a court situation, sought accountability from those involved in their care and protection, especially those who had lost their whakapapa connections. This was important for Maori, as this affected their cultural, self-identity and their legal right to being Maori.

They also sought access and ownership of their personal information so that they could match their memory with events that had occurred in their lives with information that they had provided previously for their protection, such as being sexually abused or subject to physical violent by those employed to care for them or others in their environment. What people often found was that the information that they had provided some time ago, generally as children or young adults, this had been taken off or misplaced from their personal files, so that now as adults there was no record of the adverse events that had occurred and the right of restorative justice was therefore challenging.[9]

 Restorative justice, this is a process which Maori individuals and whanau should now be able to utilise to address the harm that they have experienced and there is a responsibility for Oranga Tamariki as a Crown agency to be engaged as through their actions, human, Te Tiriti o Waitangi and international indigenous rights have been abused and reparation for damages incurred should now be available.

Definition of Restorative Justice 

For the purposes of this paper, restorative justice  is defined as  “a process to involve to the extent where  possible those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations in order to heal and put things as right as possible”.[10] This definition is used as it included in the Ministry of Justice’s guide to best practice for restorative justice in Aotearoa and defines who can be involved,  the process to occur and outcomes that can be expected to be achieved.

Maori have paved the way for the introduction of restorative justice as it is an indigenous process of addressing grievances between kin and to restore whakapapa connections, respect mana between all parties involved and allows relationships to be healed over time. Many indigenous concepts and process are appropriated by non-indigenous institutions and practitioners and as a concept restorative justice is now incorporated in the Sentencing Act 2002, the Parole Act 2002, Victims’ Rights Act 2002 and the Sentencing Act 2014, which now requires all suitable cases to be referred for restorative justice, before offenders receive their final sentence in the District Court.

 Restorative justice processes should be utilised for Maori to be reimbursed for the intellectual capital and matauranga Maori that justice agencies have taken and used back against Maori. Gifts are given to be used and valued by all to create balance and harmony not abuse and lack of accountability.

Family Violence and Restorative Justice

Restorative justice is also incorporated in the area of family violence which is important in New Zealand as this issue has and is endemic in Aotearoa, now a core part of the work of the Police in responding to call outs, a significant impact on government spending and has a resulted in new legislation, the Family Violence Act 2018, which was enacted in 1 July 2019. This Act has been created to support consistency across agencies in dealing with family violence by the implementation of the use of a set of principles to guide decision- making.

Gender, racial and social and economic inequalities are often at the heart of sexual, domestic and family violence and as a result Maori and Maori women suffer significantly from these intersections of structural discrimination and unconscious bias which affects their opportunities and life paths which can be perused. Maori women experience twice the rate of family violence than NonMaori women and have three times the risk of being killed by an intimate partner.[11]

 Restorative justice process, decisions policies and actions need to be recreated to change structural discrimination against Maori and in particular Maori women and their children who had their own mana, authority and positions of leadership, prior to the arrival of NonMaori. The right to vote for New Zealand women in 1893 did not add mana to wahine Maori as they were already involved in key decisions affecting whanau, hapu and iwi and had their own rights and responsibilities for the care of whenua and other taonga.

Police and Restorative Justice

 Restorative justice is also part of the work of the Police in determining suitable cases for Adult Diversion in which a person may avoid a criminal offence if agreed actions are completed within a defined time frame. Police diversion of low-level offences has provided the opportunity for the establishment of “Te Pae Oranga”, where Police, Iwi and respected members of the community work together on a panel, at the marae or an appropriate venue, such as, in a community organisation, to support those referred to be given a second chance.  Offenders are required to   develop and reflect on their social, ethnic and cultural identity, to be willing to be involved in early intervention, to address troublesome behaviour, such as, uncontrolled anger, issues with alcohol or drug issues, driving offences, petty thief, wilful damage to property, and breaching trespass orders[12].

 Individuals both males and females are interviewed before meeting the Te Pae Oranga panel similar to a pre-conference, to hear the individual’s story as to the events that have occurred, underlying issues and a plan of proposed action to address harm developed for consideration later by the Police where representation is included on the Iwi Panel. Wrap around support is also provided to offenders, so that a recurrence of behaviour does not occur.

 A similar process also occurs for victims involved and a date and time is set for both parties to meet with the Police and Iwi panel leading to recommendations in which the offender is required to meet and complete within a 6 to 8-week period. Wrap around support is also offered and provided to the victim. On completion of the recommendations given by the Police and Iwi Panel, by the offender and support they have available, the matter is resolved and no criminal offence is recorded on the individual’s record.  The focus of Te Pae Oranga is to intervene early with offenders who break the rules to stop this behaviour so a pathway to involvement of Court and justice services is avoided.

The Police adult diversion scheme and Te Pae Oranga are important initiatives for Maori, as intervention can be offered early, support can be provided, whanau are engaged in the process, cultural and self-identify is strengthened and no criminal record means that future employment, study, leadership and travel opportunities are not compromised, Further  there is no involvement of Courts, justice, lawyers  Corrections personnel or agencies involved who benefit significantly economically from Maori offending.

Feedback from those who have been involved in Te Pae Oranga as offenders, victims, family supporters have been extremely positive, in that they have appreciated the process of preparation required to be done before meeting the Iwi Panel, the ability to present their story of events and changes made in their lives and to consider the wisdom and guidance of those on the panel especially Iwi members. Involvement of the Police in being represented on the Panel is seen as positive and addressing offences at a community level, without the involvement of the Court, legal and judicial panel enables more honesty, open dialogue and greater opportunity for people to learn of the consequences of their actions[13].  As a Maori developed intervention, Te Pae Oranga needs to be expanded and be operated not only on marae but in other settings which Maori are in control and can create an environment which is welcoming to offenders and victims and together both are supported through a process of healing, growth and ongoing development.

This initiative however, will likely not reduce significantly offending in the next few years, unless significant investment is made in diversion solutions which are developed by Maori for Maori and the wider community, as the Maori population is predominately young, under 30 years of age, is vibrant, fertile and unemployment for Maori across all age groups is likely to increase. This is due to impact COVID 19 and ongoing after effects, the return of New Zealanders both Maori and nonMaori from overseas and the ongoing displacement of Maori into marginal areas of employment, housing, education and access to limited effective health and social services continues on a daily basis. 

Maori are now a population under considerable stress having to make major adaptions in a local, national and global environments where we have little control and have been delegated to live on the margin, instead of being an equal partner with the Crown and this is clearly defined in Te Tiriti o Waitangi.

Early research looking at the effectiveness of Te Pae Oranga as a restorative justice process has identified early gains, in that offending may continue for some clients, but the offending is at a lower level offence, and does not require imprisonment.  

A reduction of Maori in days spent in prisons and hospitals is positive and empty beds, provides the possibility of reducing infrastructure and operational costs. Savings gained provides new opportunities to divest in prisons and invest in Iwi, and Maori organisations who can operate such panels with the Police supporting Maori whanau and communities[14].

 We recommend that we develop further diversion opportunities for Maori by Maori, who criminally offend or break rules. This is often related to stress, mental health and addictions issues, developmental issues and intergenerational trauma. The pipeline needs to be strengthened to change the pathway for many Maori which leads to imprisonment.  The pathway to imprisonment largely provides employment for middle- and upper-class professionals, who are supported by academics, occupational groups and tertiary educational institutions which are invested in research, teaching and creation of new employment opportunities which contribute and support ongoing structural hierarchies at the expense of tangata whenua.

 Misuse of Drugs Amendment Act 2019

 New legislation was introduced last year, to provide an alternative to prosecution for illegal drug use and to provide provision for a person to be diverted to the health and social service sector for health centred and therapeutic care. This is considered in the public’s interest, as this approach would enable more investment in health and social services and a redirection of funding from law enforcement which currently, is funded three times more than the mental health, addiction and health sector. 

It was assumed on passing this legislative change, that this amendment in the public’s interest, would reduce the number of Maori who are criminalised for illegal drug use and would enable Maori to have greater access to mental health and related health and social services support.

Once again, this legislation change has been introduced on the assumption that this would benefit Maori. However, as Maori have not been engaged and empowered to develop their own solutions with appropriate funding and support, to build Maori individually and as members of whanau, hapu and iwi and greater leadership in their communities, this restorative justice initiative has not developed the results so far as would be expected for Maori.

At the same time New Zealanders, are shortly to go to the polls and to elect a new government and to vote on two important referendums.  First proposed is the Cannabis Legislation and Control Bill, which if supported by the public, will enable recreational use of cannabis to become legal. The second referendum is the End of Life Choice Act 2019, giving people with a terminal illness the option of requested assistance with dying. Both referendums have important consequences for Maori, they have been introduced in relation to the public’s interest, not Maori interests. Recreational legalised Cannabis will affect a young vibrant Maori population and their potential for intellectual and spiritual development and the other legislation will shorten the life course for Maori, as tangata whenua receive unequal health outcomes from all areas of the management of chronic health diseases and terminal illnesses.

 Restorative justice initiatives introduced under the disguise of diversion options to support redirection of funding for health and social services or enabling end of life choice for those diagnosed as terminally ill, will create further harm for Maori and tangata whenua again will become victims of policies and legislation created solely in the interests of the public.

 Hokai Rangi: A New Government Strategy to Reduce Maori Imprisonment

 There is now a need for Investment in Maori and how we live as members of whanau, hapu, iwi and participants in diverse communities to support the Government’s latest strategy “Hokai Rangi”. This Government strategy led out by the Minister of Corrections Hon. Kelvin Davis, aims to reduce Maori imprisonment from 52% to 16% to mirror Maori representation in the national population. 

Re investment in whanau, hapu and iwi and whanau development needs to be a number one priority, at the expense of investing in prisons, Court, judges, legal profession, Corrections. specialist mental health and social service expertise. Current investment depletes those already depleted creating a negative spiral of losses in the development of people, leading to underdevelopment of Aotearoa.

Maori women and restorative justice

Hokai Rangi as a Government endorsed strategy focuses on Maori imprisonment, but it is silent on Maori female imprisonment which currently accounts for 62% of female imprisonment in Aotearoa. Police diversion and Te Pae Oranga are important restorative processes for Maori women for wahine Maori are structured in New Zealand society to be at the bottom and to give others a chance to succeed above wahine Maori at their cost.

Restorative justice processes and criminal offending are processes that Maori women are often involved in supporting partners, members of whanau, hapu and iwi but their effectiveness in healing Maori women lives are still to be researched for the focus is generally on addressing the behaviour of men and their development.

More Maori women who come before the Police or other Crown agencies for offending or abuse, should have the opportunity of diversion, such as panels like Te Pae Oranga, which may be made up of wise and mature women of their kin and community who can understand and appreciate the challenges in their lives, where society is stacked against them and their children to achieve and flourish.

Research undertaken by the Maori Women’s Welfare League in 1984, identified that stress and anxiety was a major issue for wahine Maori and through their life they play different roles and responsibilities in the development of themselves as young women, being mothers and carers of children and family members, becoming involved in the community as they age and developing specific roles and responsibilities on the marae and in the community. Maori women play a key role in supporting the transfer of tikanga Maori and cultural knowledge from one generation to another. These roles and responsibilities are different from the roles that NonMaori women play in their communities[15].

This needs to be appreciated where conflict in identity and adaption to living in both worlds, Maori and NonMaori can create stress and behaviour which can lead to offending, abuse of drugs, problem gambling, mental health and wider family and social issues.

  There is a need for the development of diversion restorative justice processes and initiatives which are developed by Maori women for Maori women and their children to address the effects of white racism and white feminism which creates barriers for the advancement and development of Maori women, as wahine Maori have defined Te Tiriti o Waitangi rights, their own mana and their own whakapapa.

Restorative Justice and Tikanga Maori

Restorative Justice as defined by the Ministry of Justice is now a process which has embraced and integrated Maori values in the process. To be a restorative justice facilitator requires the person either Maori or NonMaori to have a full understanding and ability to live and practice Maori values in their daily life. The values are:

  • Pono – to be truthful, honest and sincere
  •  Tika – to be able to things in the right way
  • Aroha– to be able to feel compassion, caring and empathy for others
  • Mana– to be able to enable people to achieve motuhake and self determination
  • Manaakitanga– to show respect and care for others
  • Aharurutanga– to be able to provide a place of warmth and safety

 These values are required to be key in the process of restorative justice as well as to utilise the following whakatauki in engagement of the process. The whakatauki is: 

He aha te mea nui o te ao

 He tangata, he tangata, he tangata

 What is the most important thing in the world

 It is people, it is people, it is people

 In adopting such values and vision for restorative justice in Aotearoa, it would be expected that these values are also an integral part of how Courts, Justice, Corrections, Police, Health, Education, Child Protection, and Social Services which incorporate restorative justice, patients’ and Maori rights in the health, disability and accident related sectors. This is important so that there is not an “us and them approach”. Instead we have an approach of working collectively together not in silos, but integrated to achieve a common vision that is the development of people, utilising the values that Maori have ancestrally learnt and transfer from one generation to another.

These values are in many respects universal and are shared across many populations and religions supporting the Te Whare Tapu Wha model which Maori have developed and now is accepted and endorsed by the majority of nonMaori living in Aotearoa as a framework to achieve and maintain good health. This model of health has been endorsed in the various mental health, justice and legal reviews which have been undertaken in Aotearoa. The model was developed in the 1980s by Maori and highlights the length of time bureaucratic institutions take to change.

This model of health is also seen as a pathway to wellbeing as people working together can nurture the growth of others and acts as kaitiaki or protectors of the whenua (land) awa, (rivers) moana (sea) and species that lives within these environments. [16] Restorative justice in New Zealand as a concept that has now moved forward to focus not only on reparation to repair the damage but to do more for both offenders and victims that is to support them to both recover and achieve wellbeing.

Our connections to each other and the wider environments we live in and are dependent upon balance and harmony. This is an ongoing process of negotiation between Maori with the Crown in different forums for restorative justice for Maori. This is an ongoing issue of healing, harmony, balance and restoration and it takes place daily in any sector of Government and Crown agencies, affecting policy development, design and implementation of legislation, resource decisions, management and governance. These relationships and interactions are underpinned by our founding constitutional document Te Tiriti o Waitangi. 

This document gives rights and responsibilities to be met by the Crown, its agencies and also for Maori as individuals and members of whanau, hapu and iwi.   To ensure that Crown agencies are Pono and Tika, restorative justice requires Crown agencies and whom they contract with to be regularly reviewed, audited and monitored independently and transparently by Maori and Iwi so that ongoing harmony, balance and appropriate development for Maori and NonMaori is achieved and maintained.

 Te Triti o Waitangi needs to be at the heart and centre of restorative justice, part of the training, skill development and knowledge of those who are accredited as restorative justice facilitators, so that Maori, Crown agencies and its agents can interact with each other as equal partners. Harm can then be addressed and resolved which builds relationships based upon Maori values which define the process and outcomes expected of restorative justice in Aotearoa.

 Crown agencies and agents that act on behalf of the Crown need to be reviewed and audited by Maori on a regular basis, to ensure that they embody all of their decisions, the vision and values of restorative justice and to achieve positive development   for all tangata so that peace, harmony and justice occurs in Aotearoa.

Public Funding and Independent Reviews

Considerable public funding has now been invested in numerous independent reviews over the past three years commissioned by the Labour and New Zealand First Government, as mentioned to provide advice and recommendations to create transformational changes, often described as “once in a generation opportunity”, to look, reflect and to create a new system. Restorative justice processes have been involved in the methodology of these reviews, seeking input from vulnerable and marginalised populations and Maori, wanting to hear their lived experience to improve the effectiveness of Crown services and achieve defined outcomes, as national targets. Those involved in conducting these reviews have been led by recognised esteemed leaders and academics in our country, utilising their professional skills, knowledge and research.

Collectively, the findings of these reviews and recommendations proposed have many similarities, in that they have all have reported that Crown publicly funded systems as Justice, Family Court, mental health and addiction services and Corrections are not operating as the public would expect and this is especially so, for Maori and other vulnerable marginalised populations creating adverse outcomes in their lives.

Despite the fact that many Crown statutory agencies are now required by statute to consider Te Tiriti o Waitangi responsibilities in all of their statutory responsibilities, meet New Zealand and international human rights responsibilities, meet expected public sector best practices and have audit systems in place. It seems that currently, Maori are invisible or ignored when key decisions are made. It is now accepted as a fact that structured racial discrimination exists daily in New Zealand. This discrimination is both explicit and implicit, the latter now called unconscious bias, resulting in adverse outcomes for tangata whenua and widening health, economic and social disparities.

Having defined legal professional and management accountabilities to be met by Crown agencies, it is disappointing that Crown agencies are not operating as required and how the public would expect. This opens the way now for Maori to seek restorative justice as victims and to meet with offenders, that is Crown agencies and its agents, to hear and listen from them first hand “Kanohi ki te Kanohi” (face to face) and to listen as to the reasons why Maori were not visible and prioritised as the population to be considered in all governance, management and professional decisions. This is important so that Maori as victims of discrimination can articulate the effects of their exclusion of not being visible or allowed to be involved in decision making to voice in their own words, emotions, feelings and actions, of the harm that has been created in their lives and will continue in future generations unless redressed.

Intergenerational trauma and post-traumatic stress, premature death mental illness and addictions, suicide are all outcomes that Maori experience from traumatic harm and which requires acknowledgement by the offender and reparation for damages occurred.

Restorative justice is a process that Maori and those harmed by Crown agencies and personnel acting outside or unconsciously of their statutory responsibilities and requirements can meet through a structured and managed restorative justice conference to hear and listen to both parties’ stories and to work through outcomes which are agreeable to both parties of the harm that has occurred and how this may be addressed as defined and articulated by the victims involved.   

This should be seen as next step and evolution of restorative justice in Aotearoa in not just dealing with the individual offender and victim who are often both victims of legislation, policy decisions and programs funded and operationalised by Crown agencies and their staff unable to meet fully their statutory responsibilities.

Policing and Armed Response Teams

The Armed Response Unit was introduced in Counties Manukau, Waikato and Canterbury, October 2019, on the rationale that it would allow high risk events to be deescalated and defused with minimum force involved.  Each unit consisted of three or more experienced officers with armed offenders’ squad (AOS) expertise and these teams were used in peak hours. They were introduced with no consultation to the communities in which they would operate, no engagement with Maori and the introduction occurred as an initiative created by the Police with no formal approval given by Government or the Cabinet process.

Having Police with arms in the community is a sensitive issue for Maori as Maori are more likely to be more adversely effective by armed Police, resulting in injury and death. The locations chosen by the Police included two areas, Counties Manukau and Waikato which Maori and Pacific populations are significantly resident and also recent migrants. These areas were chosen by the Police on the rationale that they had the highest number of firearms seized, located and surrendered. However, after reviewing the Official Information Data, it has been identified that firearms were less than 1 % of alleged assaults on Police.

For a six-month trial period Police data reported for the three areas the Armed Response Units attended, 8629 incidences have been described and defined as 3Ts- a stop, search of car or person, bail checks. Other incidences were family harm, arrest warrants and investigating suspicious people or cars and thus generally policing.

 After a change in leadership of the Police, the Armed Response Units have been disbanded and the new Police Commissioner Andy Coster has stated that ARTS are not the style of policing New Zealand want. The role of Police of enforcement and first frontline responders in relation to indigenous and other populations who experience systematic and systemic racism is now a global matter, leading to individuals, families and whanau fearful of the Police and are reluctant to seek their assistance if need is required.

 Restorative justice needs to be offered by to those who were victims of the Armed Response Units as they were created with no formal Cabinet approval by the Government and the initiative was implemented by the Police and no consideration was given of this Crown agency’s responsibilities Te Tiriti o Waitangi responsibilities and Maori national international human rights.

 COVID- 19 Public Health Response Act 2020

 The law enforcement role of the Police is now broadening in communities following COVID- 19 and the development of new legislation giving the Minister of Health, Director- General of Health and other Ministers considerable powers to manage further waves  of possible transmission of COVID- 19, or any threat to the health and wellbeing of the population, such as the flow on effects of  a country where the political, economic and social infrastructure is increasingly becoming unstable and access to resources as food, water, shelter and  health and medical services is constrained created by racism, sexism  class discrimination and rapid  increase of migrants to this country.

In responding to the threat of COVID- 19 infection, Maori have been criticised for being proactive in taking a leadership role in their communities and tribal boundaries protecting those in their whanau, hapu and communities and determining who can enter into their rohe (tribal area). The legislation has totally ignored Maori in Aotearoa, there is no mention of Te Tiriti o Waitangi, or Maori statutory bodies as Te Kaunihera o Aotearoa  ( New Zealand Maori Development Council ) or Te Puni Kokiri, the Ministry of Maori Development, legally responsible to facilitate  Maori achievement in health, education, employment and other areas and to ensure Crown delivered and purchased services are adequate and suitable for Maori, being involved in a leadership role of determining  rules for public health protection and Maori protection.

The new Act is now waiting to be used as COVID-19 spreads globally creating community transmission, infection and deaths at a level not experienced since the global flu endemic in 1918 and onwards. New Zealand borders are currently closed other than for New Zealanders requesting to come home and to comply with quarantine requirements.   Looking back and forward, this new legislation is another form of the Government developing legislation for the protection of the public and the right to use the Police to enter people’s home without a warrant and impose infringement orders, which can result in a person   having a criminal record, affecting their future life course. 

The Act gives considerable power to the Police in how they interact in a community, neighbourhood and in a family situation. Maori are invisible in this Act, so no consideration has been given to the effects of this power on tangata whenua who are over policed as we are seen always as potential offenders. The drafting of this legislation and approval of it by the current Government and then hearing submissions from the public during lockdown, highlights that Maori are constantly in a position to having to educate and inform politicians and senior public servants of their legal responsibilities to tangata whenua.

 Restorative justice needs to be undertaken with Maori statutory and Crown agencies as well as Iwi leaders as to how do we manage our boarders as a country and within Aotearoa, to ensure protection and safety for health and wellbeing of tangata whenua and the general public. Maori are innovative and understand a public health approach and management of global and national crisis matters, such as a threat of communicable and non-communicable diseases and water.

  Purongo Whakamutunga: Health and Disability Review

 The New Zealand health and disability system and our Accident Compensation Corporation are often envied by other countries and people who do not have access to[LD1]   primary medical, hospital, disability, mental health and rehabilitation services significantly funded by publicly or by indirect taxation.   New Zealand’s health and disability services has evolved over time with inequalities increasingly now becoming visible for Maori and those who are unable to speak or heard when they advocate that health, disability and accident related services are no working for them and they need to be co designed with individuals, families and whanau as a one size fits all no longer works.

The release of the review of findings of the expert group established to provide advice and direction of the next stage of evolution of health and disability services has found that current structural arrangements of district health boards across the country are no longer appropriate. Further, that there is a need to having professional management and governance of services of district health boards, rather than elected community leaders and a reduction in number of boards. If the findings of the review team are implemented as planned over a 5 to 20 year time period for the next generation, we can expect to see greater centralisation, less bureaucracy, ring fenced funding for defined services, for the Ministry of Health to be reduced in function, a public health advisory committee to be established to ensure public health matters are not lost sight of in the provision of medical and related health services and the establishment of a Maori Health Authority. It has also been recommended that a charter be established with defined values and principles to shape and form a shared culture across the health and disability sector, to address racial, sexual and employment abuse in the health and disability sector.

The review team has also recommended that Te Tiriti o Waitangi in the New Zealand Public Health and Disability Act 2000, be reviewed to keep abreast with recent Waitangi Tribunal decisions in the health and related sectors, the United Nations Declaration of Indigenous Peoples’ Rights and other human rights which apply to tangata whenua.

The release of the report, findings and recommendations proposed by the Review Team are important for Maori as they provide the foundation and the evidence to support the implementation of restorative justice in the health and disability and also the Accident Compensation Corporation (ACC) although not the review, but Maori are affected by ACC services purchased and delivered in the public health sector.

The Review team has made a clear statement that “Maori health outcomes are significantly worse than those for other New Zealanders and reflects a failure of the health and disability system and does not reflect Te Tiriti o Waitangi commitments”. The review team also accepted that racism and sexual structural discrimination operates in the health and disability system to the disadvantaged of Maori and many are harmed or wounded by this system. This fact and the findings of the review team have been accepted by the current Labour and NZ First Government that significant changes need to be made in the New Zealand health and disability sector to address and redress structural inequalities that affect Maori throughout their life course. It is recognised that the structural inequalities affect other marginalised and discriminated populations but for Maori the health, disability and accident related sectors, they have specific legal responsibilities to be met for tangata whenua. To move forward the harm created of the abuse inflicted on Maori needs to be addressed through restorative justice and reparation provided by the offender, that is the Crown, for its intergenerational trauma and the cost of not actively preventing the transfer of this trauma to the future generations net yet seen.

  Restorative justice as a process and is legal right for Maori to enter into as a process of restorative justice with the Crown as the offender for its ongoing abuse of maintaining structural discrimination against tangata whenua.

 Restorative justice process can also be utilised by other populations if they are affected by abuse created by the Crown.

Maori Health Authority

 The Maori Health Authority was proposed but not endorsed by all members of the Review Team. This typifies the general views of New Zealanders, that we should not treat or have separate arrangements for tangata whenua despite their advocacy and desire for a system that works for Maori. This is important for the current generation of Maori who are are young, vibrant, many are educated, many want to return home and they do not want to live the lives of their parents or relatives that have been abused and mistreated by Crown agencies on the assumption that they know what is best for them.

The   proposed Maori Health Authority as proposed by some members of the review team can be seen as an olive branch to tangata whenua and acknowledgement that the current system is not working and to accelerate change a new body governed and directed by Maori is required.  It is proposed that this body should have multiple roles on establishment  access to Vote Health and ACC funding, the ability to purchase and co design service  for Maori with mainstream service providers, establish their own public health infrastructure as a Maori Public Health Advisory Body, undertake independent auditing and monitoring of services to assess their effectiveness for Maori, be involved in policy and legislation design and implementation so that unintentional consequences which are adverse for Maori are reduced as far as possible. The Maori Health Authority should also be able to receive funding from other Crown agencies as Oranga Tamariki, Police, Justice, Corrections and Ministry of Primary Industries for any decisions made in any sector of Government policy and purchasing has flow on effects for tangata whenua.

This realisation has become visible in the prevention of community transmission of COVID- 19 and the management of our national borders and the question when do we open, with whom and what possible cost to human health, health of the environment and overall economy.  

 The Review Team reviewing New Zealand’s health and disability system has provided useful evidence for change, structural changes cannot be made without policy, legislation and funding changes. Maori no longer  should  be asked or segregated  to sit on the side line and watch and wait for Cabinet decisions to be made instead, the first step before any wider structural changes are made should be to create the Maori Health Authority  representing Maori interest to have a direct input and  to have the same status as the Ministry of Health in providing expert policy advice and legislative design in the reengineering  of our New Zealand public health and disability system following the complex review undertaken and COVID-19 experience so that both Maori and the Crown are fit for purpose to address any other issues which occur expected or unexpected.

 The Maori Health Authority should be established as the first step to address and create new structural changes in the health, disability and accident related sectors and to be involved as   an equal partner as the Ministry of Health in provision of expert advice, in policy, legislative design and resource decisions to create a future health service fit for purpose for Maori and NonMaori.

Conclusion

This paper has been prepared to provide voices on the importance of restorative justice to address harm that has occurred intentionally or unintentionally by Crown agencies that have acted illegally or ignored the significance of their statutory responsibilities. Restorative justice as a process needs to evolve further in New Zealand to be of relevance to tangata whenua, to address and redress the big issues in their lives to prevent ongoing trauma for future generations.

We have an infrastructure in place and Maori now trained and experienced and recognised as restorative justice facilitators. They now need to be engaged by the Crown as being independent to facilitate a process between offender and victim to have pre-conferences and restorative justice conferences to address harm occurred, reparation required to address harm and outcomes to be achieved for the offender to address taking responsibility for behaviour, and lastly, the process to be documented for openness and transparency.   Furthermore, the offender needs to be held accountable for delivery on outcomes to avoid legal prosecution and an ongoing criminal record.

Ehara taku toa te toa takitahi engari

 he toa takimano

 My strength is not of an individual but that of the collective

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[1]  Government Inquiry into Mental Health and Addiction ( 2018) He Ara Oranga, https://mentalhealth.inquiry.govt.nz/inquiry-report/he-ara-oranga/www.mental

[2]  Ministry of Justice ( 2019) Te Korowai Turea Whanau The final report of the Independent Panel examining the 2014 family justice reforms https://www.justice.govt.nz/assets/Documents/Publications/family-justice-reforms-final-report-independent-panel.pdf

[3]  Ministry of Justice ( 2019)  Turuki Turuki Moving Together https://www.safeandeffectivejustice.govt.nz/assets/dfbbd11a5d/MOJ1012_Report_Accessibility_AW6.pdf

[4]  The  Royal Commission of Inquiry Into Abuse in Care is ongoing and has not reported https://www.abuseincare.org.nz/.

[5] New Zealand Health and Disability Review ( 2020)” Health and Disability System Review Final Report  Purongo Whakamutunga”, https://systemreview.health.govt.nz/assets/Uploads/hdsr/health-disability-system-review-final-report.pdf

[6]  Tokalau  T ( 2019)  Human barricade protecting uplift at Waitakere Hospital stuff.co.nz/national/121808417/human-barricade-protesting-baby-uplifts-at-waitkere-hospital, June 13 , 2020

[7]  Office of the Children’s Commissioner ( 2020 ) “Te Kuku o Te Manawa”, Office of the Children’s Commissioner https://www.occ.org.nz/assets/Uploads/TKTM-JUNE2020-Final.pdf

[8]Lunggen D. (7 October 2017). Canada to compensate aboriginal children removed for families. ttps://www.reuters.com/article/uk-canada-aboriginal/canada-to-compensate-aboriginal-children-removed-from-families-idUKKBN1CB244.

[9]  L Dyall attended the public hearings of the Royal Commission of Inquiry into Abuse in Care, held in Auckland 29 October-8 November 2019 and witnessed survivors of abuse present their evidence of abuse and impact on their lives.

[10]  Morris A (2002) Critiquing the Critics : A Brief Response to Critics of Restorative Justice, British Journal of Criminology,42,596-615, pg 60 ,  cited in the Ministry of Justice ( 2011) Restorative Justice Best Practice in New Zealand, Ministry of Justicehttps://www.justice.govt.nz/assets/Documents/Publications/RJ-Best-practice.pdf

[11] Ministry of Justice. (2015). Strengthening New Zealand’s legislative response to family violence A public discussion document. Wellington: Ministry of Justice https://consultations.justice.govt.nz/policy/family-violence-law/user_uploads/fv-consultation-discussion-document-v2.pdf.

[12] Panels now operate in Auckland City, Waitemata, South Auckland, Hamilton, Whakatane, Rotorua, Gisborne, Hastings, Lower Hutt, Nelson, Christchurch and Invercargill.

[13]   Dyall L (2020) has reviewed internally the feedback from offender, victims that have utilized Te Pae Oranga at Orakei Marae or the Whanau Ora Clinic, Manukau on their feedback and satisfaction with the process from Police diversion to completion of the process and  completion of outcomes agreed to avoid sentencing.

[14]  Pahi C More  re- offending but less harm from marae based, 10 August 2020, justicehttps://www.stuff.co.nz/national/114705546/more-reoffending-but-less-harm-from-maraebased-justice-scheme

[15] Murchie, E. (1984). Rapuora Health and Maori Women, Maori Women’s Welfare League, Maori Women’s Welfare League

[16]  Pitama, S Huria T, Lacey C (2014) Improving Maori Health through Clinical assessment Waikare o te Waka o Meihana y 2014, Vol 127 No 1393; ISSN 1175 8716, pg 107-144.

 http://journal.nzma.org.nz/journal/127-1393/6108/ ©NZMA


 [LD1]

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