A Case for an Indigenous Court - a realisation of self-determination?
Toki, V. (2016). A Case for an Indigenous Court - a realisation of self-determination? (Thesis, Doctor of Philosophy (PhD)). University of Waikato, Hamilton, New Zealand. Retrieved from https://hdl.handle.net/10289/10612
Permanent Research Commons link: https://hdl.handle.net/10289/10612
This thesis searches for appropriate ways to alter entrenched patterns of highly negative outcomes for Māori in the criminal justice system. The statistics demonstrate that proportionately, Māori are much more likely to be apprehended, arrested, prosecuted, convicted and incarcerated than other New Zealanders and ethnic groups, and much less likely to be granted parole. An overview of the current relationship between Māori and the criminal justice system provides a background to begin understanding these long-standing patterns. An examination of the ancestral conceptions of tikanga Māori, including issues of proper conduct, punishment, behaviour and attaining balance, provides a persuasive framework to positively transform the criminal justice system. In order to understand why tikanga Māori is not meaningfully realised today, an historical review of the introduction of English law and legal systems clarifies the negative and almost fatal impact English law had on tikanga Māori. An evaluation of two instruments — Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples — provides further context for this dialogue. A specific focus on the right to culture and the right of self-determination, within these two documents, highlights the need to meaningfully revisit and/or realise these rights as a pathway to recognise the concepts of tikanga Māori. A review of comparative jurisdictions indicates existing support for the right to culture and the right of self-determination within respective legal systems and constitutions. An examination of the current criminal justice initiatives and policies in New Zealand highlights the status quo. This current status quo is set against initiatives in comparative jurisdictions. Following a domestic and international analysis, models underpinned by therapeutic jurisprudence and tikanga Māori, are suggested as a potential way forward for Māori to realise a form of self-determination. In conclusion, new frameworks are proposed. These may provide an opportunity to apply the philosophy of Te Ao Māori, realised by an indigenous legal system, manifested by an indigenous court premised on fundamental Māori concepts and doctrine as the most promising way forward for Māori to ameliorate the disproportionate offending rates. A suggested extension to the Māori Land Court to include a criminal jurisdiction or, alternatively, a Tikanga Court is proposed.
University of Waikato
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