“The decolonisation project can only be led by us. By the colonised. Not the coloniser.” — Juan Tauri, with a copy of The Routledge International Handbook on Decolonizing Justice, which he edited with others.

Restorative justice practice in Aotearoa is often described as having its origins in tikanga Māori. But that’s a damaging myth, says criminal justice scholar Juan Tauri. Here he is in conversation with Connie Buchanan.

Restorative justice, as we call it now, first developed in Aotearoa in the early 1990s.

There was a lot of political attention at that time on what to do about a couple of big, intractable problems. One was the massive over-representation of Māori in the criminal justice system. The second was the very pointed critique of that situation by Moana Jackson, whose report on racism in our justice system had come out in 1988.

The state started to become quite interested in managing the criticism and the problem. It was a time when a lot of the strategies and programmes which are now in place were developed. Things like family group conferences, and massive recruitment programmes to get more brown bodies working for police and corrections.

It’s worth looking at the intellectual underpinnings of some of those actions, because today they’re sold to us as being based on tikanga Māori. When, really, that’s a convenient retrofitting which absolves the state of its responsibilities as a Treaty partner.

In the late ‘80s, there were a couple of very influential academics who published books on alternative responses to criminal activity and social harm. They were Professor John Braithwaite in Australia, and Professor Howard Zehr, a famous theorist in America. Their books laid the foundations of what would become the core principles of restorative justice.

By accident of history, just as those books were being published, we introduced the Children’s and Young Person’s Well-being Act 1989 in Aotearoa. The Act called for family group conferencing, which by the admission of the designers of it, was never intended to be a restorative process at all. They didn’t even know what that meant at that time.

Rather, the conferencing idea was modelled on programmes from the US and Britain which were focused on cutting the costs of controlling youth crime, and holding youth offenders accountable for their behaviour. They came up with something that was halfway between just giving kids a warning, and sending all of them through Youth Court, which is very expensive. It involved the family coming to support the young person and making them take responsibility for their actions.

In Aotearoa, the government was also interested in cutting the costs of managing crime, and so it copied a version of that response into our new legislation by adding family group conferencing.

And then people here saw an opportunity to use that to also respond to Moana’s 1988 report. They said: “Well, this imported idea could empower Māori too — whānau can come to these conferences and do karakia and cultural stuff at the same time.”

There were two academics, Allison Morris and Gabriel Maxwell, who really pushed that approach. They were contracted in the early ‘90s by the Department of Social Welfare and the Ministry of Justice to do an initial evaluation of the new Act and particularly of family group conferences. They were quite taken with the work of Howard Zehr and John Braithwaite.

And so, they published a lot of articles saying: “Hey, look, there’s a crossover in our legislation and the practice of family group conferencing which mirrors the core principles of restorative justice.” And they thought the crossover was particularly evident in the Māori elements and components — which were things like allowing whānau to come along to family group conferences. They said that this was tikanga.

But, no, tikanga was not the basis of our legislation or family group conferencing. We imported ideas and then simply drew parallels to certain elements of tikanga after the fact.

So, one of my core criticisms of restorative justice is that we exaggerate how much input Māori had into its development in Aotearoa. And we exaggerate to what extent tikanga was the foundation of practice in that forum.

Family group conferences were based on a concern that low-level young offenders were getting off with just a warning. More meaningful intervention was required — but not going as far as the Youth Court. Were they a response to our deep issues as Māori in a racist system? No. Did they reflect extensive elements of tikanga and of Māori response to social harm? No, that’s bullshit.

In literature elsewhere, I’ve called this approach “retrofitting”. It’s been a consistent approach in policy and practice for Corrections, Police, and the Ministry of Justice.

We’ve seen it so many times. These departments bring in a programme from Wisconsin in the US, or from Bristol in England, or wherever, and then try to make it palatable to the brown people. They write into the programme that it will be sensitive to cultural need. And what that generally means is that Māori get an opportunity to do some sort of very safe cultural practice, something which can be made very benign in that context — like karakia.

Now, I’m not saying karakia are not important. But in terms of deciding how best to respond to a young person’s offending, we have far more powerful tikanga-based processes in te ao Māori than karakia. But those tikanga are not given weight in government programmes. Instead, we retrofit elements of acceptable cultural practice into imported programmes — and then we wonder why they don’t make any difference.

Part of my evidence for that criticism is how many Māori go through the process and don’t recognise it as Māori at all. It’s still a formal government process.

“Restorative justice is not a structural alternative to state systems. It’s a way for policymakers and politicians to silence Indigenous critique. It’s a way to repackage and sell the system back to itself.” — Juan Tauri.

I’ve been heavily criticised for making these sorts of statements, especially at international conferences. There are a lot of people in restorative justice who have skin in the game. They’re in the business of selling restorative justice products, and they bank on the mythologising about the indigeneity of the process for their marketing.

Policymakers obviously don’t like my critique either. Because at the moment they can say that they’re really concerned about doing something for the brown people and there’s a wonderful brown process that they use. The mythologising enables them to say: “Here you go, stop moaning. We’ve given you something, and it’s based on your own stuff. So, therefore, shut up.”

But restorative justice is not a structural alternative to state systems. It’s a way for policymakers and politicians to silence Indigenous critique. It’s a way to repackage and sell the system back to itself.

One of the main reasons I got involved in critical analysis of criminal justice, is because I grew up in a very working-class neighbourhood in Wainuiomata.

In the 1960s, a lot of migrants came into town from the rohe, from our regions. So we had a high population of Māori and we were heavily policed in a very aggressive way right through the ‘70s and ‘80s. The police had what they called the team policing unit, which used to go around and patrol social events and pubs in quite a heavy-handed way. Those were also the days of the borstals. A lot of my cousins, and a couple of my uncles, were sent through the borstals for really mundane things like stealing milk bottle money. I saw the impact of that, not only on them, but also on my aunts, uncles, grandparents.

So I guess that instilled in me a critical perspective on policing and on children’s care and protection services.

When I went to Wainuiomata College, Moana Jackson was my English teacher. I was also taught by a woman called Robyn Peace who is a very well-regarded feminist researcher. And they encouraged us to look critically at the performance of government agencies and the claims they make.

I went to university in 1991, and decided to focus on criminology as a discipline, to research how the criminal justice sector engages with Māori and other hard-to-reach communities like gangs and our Pacific Islands brothers and sisters. From there, I did postgraduate study and spent 10 years in government doing policy work before returning to academia.

That period of the ’90s was really a pivotal time if you’re someone who is thinking critically about how the state develops policy, how it interacts with marginalised communities, and how it deals with criticism from those communities.

During that time, I saw how the notion of family group conferences really took hold. They became probably our greatest criminal justice export. Usually, we’re very much an importer of policy and practice — all our policing strategies, practices and training come from overseas, for example. But the New Zealand model of family group conferences became extremely popular in other settler colonial states. There are very few western jurisdictions now where you don’t find some form of family group conferencing based on the principles we developed here.

That international popularity is one of the reasons why critics like me are given such a hard time. I’ve had judges ring me up to tell me off for questioning the model. But, in my view, one of the core reasons for its success is the mythologising and exaggeration of its Māoriness.

We had academics like Allison Morris, Gabrielle Maxwell, Judge Fred McElrea and Jim Consedine, all theorists and intellectuals, writing about restorative justice in New Zealand in the ‘90s and early 2000s. And every one of them made strong statements about how family group conferencing is a restorative justice practice based on Indigenous thinking and tikanga Māori. They also said that the model was developed in response to Māori concerns about racism in the system. Then the restorative entrepreneurs came along — private franchise companies — who marketed those myths and further cemented them.

The central problem, of course, is that the model doesn’t empower Māori. The legislation and conferencing have not enabled us to deal meaningfully with our rangatahi in tikanga-based ways when they play up and make poor decisions. We haven’t been empowered as Māori to develop our own community-centered and tikanga processes.

Some government agencies are starting do a little bit better here and there. But they still don’t want to do it in a systemic way because it means handing over control of the development process — and handing over money and resources.

The part they just don’t get is that the decolonisation project can only be led by us. By the colonised. Not the coloniser.

In policing, that might mean that we go back to Moana Jackson’s 1988 suggestion, and we perhaps find ways to police our own people. We do something which Aroha Perry tried for a long time in the Waikato in the ‘80s and ‘90s, which was a marae-based system. She held marae-based hearings to hold male sexual abusers to account. She developed it purposely to circumvent the police. Why? Not because of a concern for the offenders, but for their victims. Because we all know the horrendous history of policing response to women survivors of sexual abuse, particularly Māori women.

So that, to me, is the kind of decolonising project we need to pursue. It requires the state to withdraw. And in the New Zealand context, the state really should withdraw because it’s clearly articulated in Te Tiriti that we have a right to self-determination.

If the state was a good Treaty partner, they’d let us get on with our own solutions at an autonomous level. Not just give their prisons our Māori names. But history tells us that they won’t do that.

So, we need to find some way that doesn’t require the support of the state to implement our own solutions. Which is difficult because these things cost money. But I think we could start by getting a movement going where we develop our own marae-based responses to low-level offending, both in the urban context and out in the rohe.

Start by dealing with the smaller stuff — our rangatahi playing up, the annoying crap that people do every now and then. And basically push the police and justice system aside in those instances. That could be really powerful because we know that even for low-level issues, contact with police is dangerous for our young people because they’re seven times more likely than Pākehā to be arrested in those situations.

If we could do that, and it became a widespread response in our communities, then it would force the state to the table to negotiate with us, to ask us how our system might work with theirs. That, to me, is decolonising.

You can’t start that process by going to the state first, and saying: “Hey, can you help us decolonise?” Because then they’ll define what that means. And it won’t look anything like self-determination at all.

You see a lot of very twitchy faces when you speak like this to government officials. When you talk about handing over the authority so we can decide what’s best for our own communities. They don’t deal with that concept very well at all. There will always be people who say: “But that’s separatism, there must be one rule for all.” They ignore the fact that the current system separates and treats us differently right now. We get harsher sentences, we’re stopped more often by police — all those things.

Recently, a young woman from the Ministry of Justice told me that my critique is a little bit outdated because there’s “co-production” now. But her version of co-production was just a slightly more sophisticated consultative process. It means that they’ll come to Māori a tiny little bit earlier than they used to, to get our input on their plan. It’s not more empowering, because at the end of the day, the same decision-making protocols are in place. The co-production policy she develops with Māori still must be signed off by her chief executive and go through cabinet — and it’s those guys who still control the resources and decision-making.

The issue we face is that, on the surface, things look like they’re changing. There’s been so much co-option of our language and our arts that it allows the bigots to sell this idea that everything has been Māorified. And so their perspective is: “Everything looks and sounds Māori now, so how come they’re still moaning, and how come so many of them still offend?

But beneath the surface decoration, the power dynamics haven’t shifted. It’s a veneer. It’s a thin lacquer that’s put over the system where the state gets to pick out what it considers to be appropriate Māori practices. They pick the ones that don’t challenge the hegemony or the control of the state. They empower us according to their own definition of empowerment.

There are some First Nations scholars in Canada who refer to how the colonial state behaves like a shapeshifter, which is one of their mythological creatures that moves between physical forms. They say the colonial state is like that because it’s very good at adapting and changing appearances to maintain control.

We’ve seen it here. In the ‘80s and ‘90s, when all the serious critique came through from Moana Jackson and John Rangihau, the state had to adapt and remould its response. It took small parts of our tikanga and added them to its imported processes. It took our language to name its departments and strategies. It took more of our brown bodies into its policing and corrections forces, and so on.

But it retained power and control of resources. Today, just as in Moana’s time, we see how police are still surveilling our kids, stopping them on the street, just for walking or driving while brown. Let’s look back to the remedies and solutions that Moana outlined in his report. Let’s remember Aroha Perry’s example.

Then I think we need to be subversive, and we just need to start.

Juan Tauri is a Ngāti Porou criminologist and social activist. He has carried out research on a range of criminological and sociological issues, including critical analysis of state policymaking and its impact on Indigenous peoples in settler-colonial societies, Indigenous experiences of family violence, the globalisation of crime control policy, and the development of Indigenous responses to social harm.

As told to Connie Buchanan, made possible by the Public Interest Journalism Fund.

© E-Tangata, 2023