‘Maori Courts’

The Maori associations were tasked with overseeing, upkeeping and improving Maori welfare in general, and this brief included addressing crime, disorder and disfunctionalism through means other than policing. The state authorities were so concerned about levels of offending and disruption within Maoridom, especially in the urban spaces, that the Maori Welfare legislation had departed from the ideology of legal sameness in more ways than just that of confirming the usefulness of wardens for indigenous social control purposes. It also enabled the Maori committees to constitute themselves as Maori Tribunal Committees (commonly called ‘Maori courts’ or tribunals) with power to adjudicate on low-level offences. The tribunals needed to comprise at least three Maori committee members, and operated under judicial principles different from those of the criminal justice system. They could, for example, make decisions on the basis of prima facie evidence.

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One intention behind this was preventive. To deflect potential or actual offenders (especially ‘errant youth’) from entering the mainstream justice system, tribunals sought to bring community pressure to bear upon them in the early days of their ‘misbehaviour’ or offending. The principles of the scheme emphasised reform and restitution rather than punishment. The aim was ‘reintegration’ (or, in the case of people new to the city, integration) into the local Maori community, avoiding a ‘slippery slope’ that might end with incarceration and its consequences – such as young men learning criminal techniques from ‘old lags’. ‘Saved’ youth would eventually, through their communities and their support mechanisms, be helped to integrate into wider society.

In pursuit of pre-emptive or actual rehabilitation, the Maori courts tended to operate by such means as ‘social criticism, group therapy and conciliation’. They were often concerned with what the regular judicial and other authorities regarded as ‘domestic issues’, as well as with matters such as petty theft or drinking and brawling in public. They were responsive to matters referred to them by schools, regular police, government departments, pakeha-dominated organisations and pakeha individuals, as well as by wardens and other members of the Maori community. Frequently, they would adjudicate upon behaviour that they felt would reflect adversely on Maori in the eyes of wider society, even if it were not actually illegal. They formed part of the apparatus attempting to replace the influence of kaumatua that had been lost in the post-war years, especially among those in the cities. The Secretary for Maori Affairs in 1966, Jock McEwen, noted to his counterpart in Justice that the urban Maori courts were struggling because the traditional authority exercised by elders had ‘largely disappeared’, making their social control functions all the more important.¹⁷

Despite operating difficulties, many tribunal committees managed to perform satisfactorily as far as their communities were concerned. They could confirm traditional patterns of social organisation and behaviour in both old and new environments, and provide opportunities for new leadership strata to emerge. Wardens often played key roles in the Maori courts system, offering (among other things) an intermediary presence between accused individuals and tribunal members. Such success as the Maori courts experienced in making communities safer by monitoring and punishing untoward conduct also lay to a considerable degree in the fact that the accused could choose whether or not to subject themselves to the coercive authority of the tribunals. When a case of a minor breach of the law was brought to a Maori committee’s attention, for example, the alleged offender could have it either adjudicated by tribunal or heard in the Magistrates’ Court. Accused persons would often seek guidance from within the Maori community over their options, including from the wardens, and a sizeable proportion decided on hearing and judgment by the Maori court.

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This did not mean that the tribunal committees were a ‘soft touch’. They frequently exercised their power to impose fines (up to a hefty maximum of £10). And similarly to other official systems which harnessed Maori organisation, many exceeded their formal authority, including when imposing sanctions. Despite this, many offenders agreed to make an appearance before a tribunal committee even if their behaviour would not have seen them hauled before a ‘pakeha court’. They appreciated (or had been made to appreciate) that they had violated the mores of the Maori community, even where this might be composed of families scattered throughout pakeha populations in suburban housing estates. Over and above their low-level judicial powers, then, the tribunal committees possessed a communal standing and authority that was highly significant in Maoridom.¹⁸

The ‘physical setting’ of Maori courts often ‘emphasised the official nature of [their] proceedings’, and sittings frequently incorporated the imposing attendance of wardens. Their ‘presence in uniform symbolised the authority of the court’. In various ways, in fact, Maori courts involved a meld of pakeha and Maori systems. In one tribunal studied by Ranginui Walker in a new Auckland suburb in the 1960s, proceedings began with a whaikorero in both English and Maori, as if to symbolise the partnership between Crown and Maori that many Maori believed the system was, or should be, moving towards. The charges against the accused were often brought by the wardens and generally fell within the parameters of those decreed by ‘pakeha’ law. But after they were announced, the secretary, in ‘explain[ing] the nature of the court’, would declare that ‘it was a people’s court to deal with the problems of the Maori people’.

Punishments imposed in this court were not necessarily those available to the mainstream judiciary. In a case regarding the harbouring of state wards, the offender was severely reprimanded and ‘sentenced to prohibition for twelve months’. It was also ordered that her affairs ‘be put on a businesslike basis’, and she was be placed ‘under a budget officer [to] ensure the cupboards are filled and the children well-fed’. The verdict, in effect, made the harbourer of state wards a temporary state ward herself, but one overseen by a Maori network to which general supervisory powers had been devolved by the Crown. Such an outcome was seen by both the local Maori leadership and the state authorities to be to the benefit of all parties: the offender (who may have thus escaped a more severe sanction by a pakeha court), her whanau, the community and ‘the nation’ itself.¹⁹

Most Maori committees that took on judicial functions were acutely conscious of racism and discrimination in mainstream New Zealand society. They believed that rising levels of ‘misconduct’ and crime by Maori youth were not only tragic per se but also encouraged unfavourable pakeha reactions topage 133 Maori in general. This impeded progress for Maori on many fronts, including the search for autonomy. Greater recognition of rangatiratanga needed widespread support among pakeha as a prerequisite, and gaining this required enhancing the public image of Maoridom. Behaviour which involved harassing pakeha was treated particularly harshly by the tribunals. One individual who had troubled his pakeha neighbour was fined a maximum sum and placed under the scrutiny of wardens for three months. The elders who dominated the tribunal admonished him because, as a result of his noise and abuse, ‘Maori people lost face’. The committee secretary added: ‘The loss of face is felt by us, the Maori people. We feel that if Peter goes down we all go down. Therefore Peter heed carefully the cry of your people.’ Many statements made in the court were of similar ilk: ‘When you fall we fall’; ‘When you succeed we succeed’. One tribunal committee put it thus: ‘This Court empowers us to see to the welfare of our children, to see that we live cleanly so that we can’t be called “Dirty Maoris”.’

Those who fell foul of ‘the law’ or breached expected standards of behaviour were seen by Maori courts (and more generally by those who supported the committee system) to be contributing to the stigmatisation of all Maori – thereby jeopardising official and public acceptance of a strong Maori influence within state and society. Tribunals attempted to reinforce the offending individuals’ sense of communal identity and responsibility. Modes of behaviour that were seen by the various authorities, Maori and pakeha, to be universally desirable were stressed. In Walker’s words, ‘when an offence is committed, the Maori community closes its ranks, reaffirms its solidarity and reintegrates into itself the deviant member. A Maori offender is reminded that, despite the anonymity of urban life, his every action for good or ill reflects on the Maori people … The courts provide an opportunity to reassert and promulgate what are considered to be the norms of good conduct.’²⁰

A collective solidarity, then, pervaded those who operated and related to the Maori court system: ‘When you die who will mourn you? We your Maori people will.’ It was even possible for offenders to be rehabilitated by being given official positions in Maori associations, including as wardens and honorary welfare officers. In a significant number of areas, the local people took a very keen interest in ‘their’ court’s transactions. In one Auckland suburb in the 1960s and 1970s, attendances at the tribunal, convened once a week, averaged fifty. Such community support for the system was particularly important in state housing areas which were Maori-dominated. Suburban ethnicisation was increasing, especially in the outer suburbs to which, by the 1970s, the majority of migrants were heading to rent houses from the state. This process of spatial ethnicisation was a consequence of the phasing out of pepper-potting, together with a small amount of what would be later dubbed ‘white flight’.

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These new communities were by definition poor, given that the allocation criteria for renting ‘state houses’ focused on low income and family need. They confronted many problems, such as planning decisions which left them devoid of adequate community amenities. Social difficulties were further compounded from time to time by recessions, starting from 1967. Various demographic changes exacerbated social disorder. Sectors of Maori youth born or brought up in the cities or towns, far from their tribal marae, were increasingly dismissive of social control efforts by kin or committees. Their growing disinclination to place themselves under the jurisdiction of the Maori courts was one of the reasons for the eventual decline of the institution.²¹