The Foreshore and Seabed and Restorative Justice

In a recent speech Tariana Turia (Turia 2010) made some points about restorative justice and the foreshore and seabed.

To backtrack just a little, what is restorative justice? This is a form of justice where the offender makes good to the victim in some way. The offender gets to know who the victim is. Then there is the matter of what the offender should give to the victim. Sometimes this is done through families, the family of the victim and that of the offender meet to discuss some form of restitution.

In Aotearoa/New Zealand the best known expression of restorative justice might well be the FGC as the Family Group Conference is known. This was introduced in the 1989 Children, Young Persons and their Families Act. This is called between families by the court or a court appointed officer.

The next question to be ‘back-tracked’ might be; what is the matter of the foreshore and seabed? This refers to the foreshore and seabed of Aotearoa/New Zealand and also to some legislation, the 2004 Foreshore and Seabed Act of 2004. This was an act that forbad Maori to take claims over the foreshore and seabed to court. It was very unpopular and lead to a protest march and the formation of the Maori Party of which Tariana Turia ia co-leader.

In 2009 the Act is set to be repealed and replaced with something else ( see Cleave 2010).

It could be the period after 2010, the time after the scrapping of the Foreshore and Seabed legislation will be one where people are claiming different things in different ways. The Treaty of Waitangi especially Article Two will always be in the foreground of of such claims but there are other arguments to be made. In March 2010 in a speech to the National Restorative Justice Aotearoa Practitioners Conference Tariana Turia, co-leader of the Maori Party looks for restorative justice with respect to the foreshore and seabed.

Tariana Turia starts by saying;

‘For if there was ever a case of turning the tide of injustice into a more enduring and peaceful solution, we would find that in the call for the repeal of the Foreshore and Seabed Act.’

Tariana Turia goes on to talk about an explicit association between restorative justice and the Foreshore and Seabed Act of 2004 which was clearly to be seen in the Ministerial Review of that Act in 2009;

‘The submissions revealed the extent of the injustice felt by many.
The Human Rights Commission described the Act as a “decisive set back in Crown-Tangata whenua relationships”.
Te Ope Mana a Tai reported that “the Foreshore and Seabed Act will never be viewed by iwi/hapu as anything other than an instrument of confiscation”.
And the Dunedin branch of CORSO argued that “the Government should be proving to the international community that we are redressing our pained history of unjust confiscation of traditionally held land, not continuing this legacy of raupatu as this legislation does”.’

The mention of raupatu is important and Turia returns to it later in her speech which is reproduced in its entirety below. Muru might have been mentioned as there is a sense in which plunder of Maori resources occurred in the 2004 Act. Similarly, utu might also have been talked about below as some sort of reciprocal adjustment might be invoked. It may be that the blindingly obvious things to say such as there has been a takahi of the mana of the Maori a trampling of the prestige of the Maori, have been left out.

Tariana Turia points out;

‘…restorative justice, in its purest sense, is a process designed to reduce the impact of crime on victims, and to hold offenders accountable for their actions.
It is about enabling victims a voice in the system, and providing the space for them to receive reparation, apologies and answers.
In the case of the Foreshore and Seabed Act, the offending party was universally recognised as the Government. Accordingly the accountability for redress and restoration was also in Government hands. Te Hunga Roia Maori o Aotearoa/The Maori Law Society put this view forward by saying
“A Government that has the courage to enter into discussions is likely to find that genuine and enduring solutions are available, with a little creativity, and a commitment to achieving justice”.’

Having defined perpetrator and victim Tariana Turia proceeds to look for restorative justice through a Treaty process;

‘We stand then, on the brink of history, straddling between the dark, desperate days of the 2004 Act; and the future which will emerge from the review of that Act negotiated as a key milestone in the relationship agreement signed between the National and Maori Parties.
In a few weeks time, the Government will be embarking on a consultation exercise to face the community, and to address the longstanding grievances that have remained in the aftermath of the Foreshore and Seabed Act.
The confiscation of the foreshore and seabed, like the alienation and extinguishment of Maori land, has all the hallmarks of the situations that may be most effectively dealt with in a restorative justice approach.
For if we think of restorative justice as requiring a full account of history; an acknowledgement of wrong done; forgiveness, healing, reparation and the restoration of effective relationships, then the treaty settlement process would seem to be entirely consistent.’

The treaty settlement process Tariana Turia evokes replaces the Family Group Conference as the point at which arbitration occurs. Some imagery lingers and there are cross-overs. Effectively there are now two ‘families’ tangata whenua and tangata tiriti;

‘Turning the tide would mean we are prepared to face the injustices of our history; and work towards the articulation of the truth in order to heal broken relationships and achieve reconciliation between Maori and the Crown.
Achieving Treaty justice is not, however, just about a Bill of Rights for Maori.
Achieving Treaty justice is also about the opportunities for all New Zealanders to benefit from the rights of nationhood.
As Judge Taihakurei Durie has said, “We must remember that if we are the tangata whenua, the original people; then the Pakeha are tangata tiriti, those who belong to the land by that Treaty”.’

Tangat tiriti is an example of what Fenton and Moon have called relexification (Fenton and Moon 2000). This is sometimes a matter of critique. An example of a word wearing out or threatening to do so might be kaitiakitanga;

16 February 2009 Media Statement

‘Kaitiakitanga in tourism now a joke


The Government's decision to mine New Zealand's national parks makes a mockery of the Ministry of Tourism's guiding principle of 'kaitiakitanga', says Labour’s Tourism and Associate Maori Affairs spokesperson Kelvin Davis.
"The Ministry claims this guiding principle is the basis of their approach to sustainable management of our natural environment for future generations.
“It is an insult to Maori that our language and culture is used to embellish a Ministry's mission statement when the Government tramples all over its true meaning.
“Mining of national parks is contrary to the value of kaitiakitanga and the best interests of New Zealand's tourism industry,” Kelvin Davis says.
“Tourists come to New Zealand to view our landscapes and appreciate our Maori culture, not to take photos of big holes in the ground.
“If kaitiakitanga is not to be practised in reality, the word needs to be removed from the Ministry of Tourism's mission statement in order to stop the pretence that kaitiakitanga is a value of this National Government."’

Tariana Turia is speaking after a period of lexical change. The Maori LanguageCommission, Te Taura Whiri i te Reo has been active since the mid seventies and some words like kaitiaitanga and, perhaps, taonga (cf Goldsmith 200?) have been used a lot in the worlds of politics and government..

Coming back to Tariana Turia’s speech, the treaty settlement process offers, like the Family Group Conference, a safe environment for Maori;

‘The greatest strength of the restorative justice approach is that it reminds us of the views of victims, who say that to experience justice they need to talk about the offence and its effects in a safe environment.
Following on from that, we know that whanau, hapu and iwi have often found the hearings process of their claims to be extremely painful, but also provide the impetus for a stronger understanding of their histories. It gives them a context to appreciate their experience. And importantly, it creates a platform from which to build a future.
But all too frequently the hearings – whilst open to the public – are heard only by tangata whenua. Tangata tiriti stay away – perhaps out of ignorance, perhaps out of respect. But until the stories are shared, reconciliation will never be achieved.’

The process of sharing stories goes with a sharing of rituals between groups, between families (Cleave 2009). There are two traditions here, one involving a Polynesian form of social work and one involving a form of social work derived from Europe (Khulmann and Cleave 2000).

As Tariana Turia says hers is a wide ranging approach;

‘I have gone much broader than perhaps you expected this morning, in applying the restorative justice concept to the wider sense of injustice still felt so keenly within Maori communities.
But in essence what you may be talking about in an individual sense, is much the same as what I am talking about in a collective sense.
The restorative justice process encourages an environment in which the offender takes responsibility, demonstrates accountability for their actions, creating room for dialogue.
The essential difference that I am describing is that pertaining to a world view of collective responsibility.’

Having taken the idea of families interacting to heart Tariana Turia proceeds to make a case for things working out best when families are healthy;

‘I believe that the family group conferences introduced in the 1989 Children, Young Persons and their Families Act respected both the central importance of the collective in Maori society, while providing the policy foundation for the restorative justice process.
The FGC process remains a central component of the youth justice system for dealing with offending by youth from 10 to 16 years.
For adult offenders, restorative justice can occur as part of the Police Adult Diversion process; pre sentence, or post sentence in the parole of offenders and as part of reintegration back into the community.
All of these points provide an opportunity to bring the whanau together, to draw on the collective strengths of the family context to make things right.
Although of course restorative justice processes are not unique to Maori, the processes do have strong alignment with Maori values such as reconciliation, reciprocity and whanau involvement.
The key, as always, lies in the implementation.
And so this is where I come to whanau ora as unlocking that key.
I absolutely believe that whanau ora has the ability to bring the nation forward, to transform the way in which we relate together.
It is my heartfelt belief that when you build capability within the whanau, you build the capacity of the country.
At its very core, whanau ora is about the wellbeing of the group. While any number of professionals have the instruments to measure and record statistical progress of individuals, such measurements are not an adequate reflection of whanau wellbeing.
Whanau ora, then, is not just about the accumulated results of a group of individuals – it is primarily about the way in which the group operates as a whole to achieve health and wellbeing for its people.
It is about the strength of the whanau in having knowledge of their whakapapa, history and identity; being confident in singing their own waiata; in recalling the stories and the korero of their ancestors.
It is about expressing value and respect for all who belong to them – tamariki, matua, kuia, kaumatua.
Whanau ora is the fullest realisation of the roles, functions and responsibilities we have to each other. It will be seen in people who are able to collectively meet their own community and family responsibilities, rather than depending on someone else to tell them how to be.
It is about being able to make decisions and participate in all aspects of life.
It is about knowing that we will be there for each other.’

In a fairly bold statement Tariana Turia opens out the prospect of families being agents of change;

‘I believe that restorative justice processes that recognise whanau as the foundation for change, are far more likely to reach enduring resolution.
I have been concerned that in some cases, professionals or outside groups appear to replace the role of whanau in the restorative justice approach. In my mind, there is no substitute for the role that whanau can play in ensuring their own family members are responsible and accountable for their actions.
I am absolutely committed to the vision that Maori strengths, strategies and solutions that encompass the whole whanau will create the wellbeing that we all aspire towards.
Restorative justice can play a useful role in ensuring we take on a more positively framed approach to addressing the issues that confront us – and we do that by restoring the sense of responsibility to shift our focus from talk and to act now.
I believe that whanau ora is the transformation that we have been looking for, to determine our own destinies, to shape our future.
Whanau ora is about turning the tide from the currents of despair and disempowerment, to the source of our greatest potential for change – each other.
The tide is in for transformation to occur. Let us share our stories, voice our own solutions and focus our collective strengths on creating the nation that our ancestors desired when they signed up to the promise of Te Tiriti o Waitangi.’


In March 2010 as repeal of the 2004 Foreshore and Seabed Act segues into new legislation Tariana is using the means at her disposal to make a point. Those means are the theory and practice of restorative justice and the notion of the whanau along with an idea of health, ora. Along with these theories, ideas and notions there are the actual words used, the language tools of the time in Maori and in English such as ‘restorative justice’ and ‘whanau ora’, ‘tangata whenua’ and ‘tangata tiriti’.


Bibliography


Brown Michael F, 2004 Who Owns Native Culture? Harvard University Press

Cleave, Peter, 2009, Takutai, the foreshore and seabed, Campus Press

Cleave, Peter 2009 Papers on Social Work, Campus Press

Fenton, Sabine and Moon Paul2000 Cultural and linguistic hybridity: the relexification of the Maori language and its implications for social and cultural change in Cleave (ED) The Nurturing Shield: a collection of writings on the Maori language pp3-26 Campus Press

Goldsmith, Michael 2009 Who owns Native Nature? Discourses of Rights to Land, Culture and Knowledge in New Zealand International Journal of Cultural Property 16: 325-339

Khulmann, Carola and Cleave, Peter 2000 ‘Language and Mutual Aid’, in Cleave (edit) The Nurturing Shield pp159-176 Campus Press

Turia, Tariana, March 27 2010 ‘Restorative Justice : turning the tide’ speech to National Restorative Justice Aotearoa Practitioners Conference
Brentwood Hotel, Kilbirnie, Wellington