September 2018 Māori Law Review
Indigenous Courts, Self-Determination and Criminal Justice
Routledge, Abingdon and New York, 2018 (ISBN 978 0815375524)
Reviewed by Fleur Te Aho.
Valmaine Toki's Indigenous Courts, Self-Determination and Criminal Justice (Routledge, Abingdon and New York, 2018) turns its attention to one of our country's most pressing social issues - the massive over-representation of Māori in our criminal justice system. Crucially, rather than just documenting and critiquing this reality, Toki's book offers suggestions to help alleviate it.
Toki draws on the affirmation of the right to tino rangatiratanga/self-determination in Te Tiriti o Waitangi (Te Tiriti) and the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration), court models in overseas jurisdictions, and principles of therapeutic jurisprudence to argue for an 'Indigenous court' that applies, and operates in accordance with, tikanga Māori.
The book has eight substantive chapters.
The first three chapters set the scene. Chapter One considers arguments regarding why Māori offend. Chapter Two discusses tikanga Māori relevant to offending. Chapter Three examines attempts to inject tikanga Māori into the criminal justice system, both past and present, including through Family Group Conferencing as part of the Youth Court system and Te Kooti Rangatahi.
Chapters Four and Five look to Te Tiriti and the Declaration for support for an 'Indigenous court'.
Chapter Six examines other jurisdictions that have implemented courts grounded in Indigenous law and/or practice - such as the Navajo Tribal Courts in the United States and the Koori Court in Victoria, Australia - as well the operation of specialist domestic violence courts that are not.
Chapter Seven argues that therapeutic jurisprudence could provide a basis for incorporating tikanga Māori values and processes into state law, for example through two specialist problem solving courts concerning domestic violence and the re-entry of high-risk offenders into the community following imprisonment.
The final chapter, Chapter Eight, proposes that the 'Indigenous court' could take the form of extending the jurisdiction of the Māori Land Court or, alternatively, establishing a wholly new specialist tikanga Māori court.
The book's strength lies in its subject matter. As noted, it focuses on an important, topical, issue for Aotearoa. Our prison population is expanding at an alarming rate and the majority of those driving the figures are Māori. Politically, there is an acknowledgement that this must be addressed. Toki's proposal that we help do this by establishing an 'Indigenous court' grounded in tikanga Māori is, while not new, welcome. The real contribution of Toki's argument is in offering some practical suggestions on how this court could operate, which draw on the practice in courts from other jurisdictions and from some of our own specialist courts, such as Te Kooti Rangatahi, the Matariki Court and the Alcohol and Other Drug Treatment Courts (AODTC).
Toki's thesis would have been enhanced by engaging more deeply with the tough questions - both theoretical and practical - that arise with establishing a court that applies tikanga Māori. For example:
- What tikanga will apply in the court, given variances in tikanga between iwi?
- Would the tikanga be based on that of the offender or the victim, or those with mana whenua over the place on which the offending occurred?
- What are some fine-grained examples of the content of this tikanga regarding offending today?
- Is the tikanga of all iwi sufficiently developed to fulfil this task and, if not, how do we support its development?
- Who will be the final arbiter of how the tikanga is applied? On the proposal it seems that, at times, a non-Māori judge could be the final arbiter with the guidance of an advisory panel comprised of tikanga experts. Advisory panels have not served Māori well in the past, with Māori advice often ignored.
- How will the integrity of tikanga Māori be provided for? It is important not to romanticise the application of tikanga Māori too, which itself is contested and a site of power dynamics. It is not clear, for instance, that tikanga Māori has always been as gender balanced as is presented in the book.
- Will Māori who are dislocated from Te Ao Māori, the Māori world, experience the proposed 'Indigenous court' in positive ways? Toki acknowledges that for 'some Māori' a marae setting is 'as strange as a courtroom', with an anti-therapeutic effect (at p 220). Given that the Indigenous court is proposed to be marae-based, how will this concern be addressed?
The positioning of the 'Indigenous court' is also central and seemingly unresolved. Toki on the one hand argues that it needs to be 'positioned outside the colonial justice system' to provide a way forward (at p 210), but on the other that incorporation of tikanga Māori should occur 'within the current criminal justice system' as 'an example of internal self-determination for Māori' (at p 1). In support of the latter approach, Toki argues that the court should be provided for in legislation. And that it should 'operate in a similar way' to the Rangatahi, Matariki and AODTC courts (at p 249), all of which apply state law and are positioned within the state legal system.
The reality today is that neither body of law, state or tikanga Māori, is untouched by the other. But there is, for instance and as Toki acknowledges, a very real concern that '[w]hen tikanga is placed under the auspices of legislation, the robust nature of any tikanga-based outcome will become compromised' (at p 87). How can this compromise - and the compromises of incorporation into the state system more generally - be safeguarded against?
Interesting questions arise regarding the potential positive impact of the 'Indigenous court' as well. Toki identifies that the 'Indigenous court' is geared at reducing Māori reoffending rates, but she acknowledges that reductions in reoffending rates have not yet been established in either the Canadian sentencing circles or, for example, the Koori Courts (at p 209). These initiatives are imperfect comparators given that they are not applying Indigenous law, just some Indigenous-tailored procedures (such as including elders and family members). It would have been instructive to have evidence presented regarding the impact of the Navajo Tribal Courts, which do apply Navajo law, on reducing reoffending. At the same time, there are other benefits that the courts potentially offer, such as being sites for cultural resurgence, that it would have been productive to unpack.
In addition, the proposal for an 'Indigenous court' asks and expects a lot of marae, where the courts would be based. Toki notes scholarly criticism of the strain such moves may place on socio-economically marginalised communities (p 210), but she does not probe it further. She posits that iwi could fund a pan-iwi or iwi court using Te Tiriti settlement funds (at p 153). This returns us again to the positioning of the courts. For example, if the court is located within the state system, is it fair that iwi are left to fund a state institution, especially one negatively associated with the punishment of Māori?
Ultimately, Toki's book is a timely reminder that something must be done to address the mass incarceration of Māori in Aotearoa. Toki's proposed tikanga Māori court, while it would benefit from further development, is a promising possibility.
 The proposition that the Māori Land Court become 'Te Kooti Māori' and its jurisdiction be expanded is an interesting one given the fundamental shift in focus - from land - that it would entail.
 See eg Megan Gattey 'Government aims to cut prison population and fix "abnormal" system' Stuff (29 March 2018) <https://www.stuff.co.nz/national/politics/102680021/government-aims-to-cut-prison-population-and-fix-abnormal-system>.
 Valmaine Toki Indigenous Courts, Self-Determination and Criminal Justice (Routledge, Abingdon and New York, 2018) 222. Compare, for example, Clea Te Kawehau Hoskins, "In the Interests of Māori Women? Discourses of Reclamation" (1997) 13 Women's Studies Journal 25.