Frenemies: restorative justice and customary mechanisms of justice

Abstract

More often than not, restorative justice is said to take roots in Indigenous practices. In fact, Indigenous and other traditional mechanisms of justice are often described as examples of restorative justice practices. In New Zealand, the government equates the Mãori approach to doing justice with family group conferences (FGC); a restorative justice mechanism which it claims embodies Mãori values and preferences. This article contends, however, that the type of ‘justice’ embodied in customary mechanisms, has often been taken out of context, and rendered universal and ahistorical through its representation as restorative justice mechanisms. Using fieldwork evidence, an analytical comparison between principles of restorative practices, New Zealand’s FGCs and the Mãori approach to justice was conducted. It concludes that this tendency to equate restorative justice with Indigenous approaches to law and justice is harmful and dangerous for it risks rendering the scholarship homogenizing and universalizing restorative justice, to the detriment of local preferences and practices.

Keywords:

• restorative justice
• Indigenous
• Mãori
• family group conferencing

Acknowledgments

I would like to give particular thanks to my doctoral supervisor Dr. Joanna Quinn for her careful feedback and suggestions when writing this paper. I also want to thank Dr. Shirley Julich whose support, during my time in New Zealand, was in invaluable, as well as all my respondents who agreed to share their culture with me. This research would not have been possible without the financial support from the Social Science and Humanities Research Council of Canada.

Notes

1. Fieldwork consisted of several months of ethnographic research conducted in New Zealand. During that time, 33 interviews were conducted with Maori individuals belonging to 20 different iwis.

2. An in-depth discussion and description of Tikanga Maori can be found in Vieille (2012).

3. For more information on customary mechanisms of justice, their existence and legalization, see for instance: Baines (2007); Hovil and Okello (2007); Hennessy (1984); Marchetti and Daly (2004); Zartman (2000); Vieille (2011).

4. Jones, interview with author, 1 July 2010; Chant, interview with author, 10 May 2010.

5. Anonymous social worker, interview with author, 22 July 2010.

6. Anonymous probations officer, interview with author, 28 June 2010; anonymous member of the UN forum on Indigenous Issues, interview with author, 18 May 2010, Chant, interview with author, 10 May 2010.

7. Anonymous probations officer, interview with author, 28 June 2010.

8. Chant, interview with author, 10 May 2010.

9. Royal, interview with author, 11 May 2010.

10. Anonymous Kaumatua, interview with author, 13 June 2010.

11. Anonymous member of the UN forum on Indigenous Issues, interview with author, 18 May 2010.

12. Anonymous schoolteacher and head of Mãori department, interview with author, 17 May 2010.

13. Rãhui Kãtene, interview with author, 31 May 2010.

14. Anonymous former offender, interview with author, 9 June 2010; Hohaia, interview with author, 10 May 2010; anonymous schoolteacher and head of Mãori department, interview with author, 17 May 2010; anonymous member of the UN forum on Indigenous Issues, interview with author, 18 May 2010; anonymous former lawyer and law professor, interview with author, 20 May 2010; anonymous social worker, interview with author, 22 July 2010; anonymous representative from the Ngati Whatua Trust, interview with author, 27 June 2010.

15. Anonymous representative from the Ngati Whatua Trust, interview with author, 27 June 2010.

16. Kãtene, interview with author, 31 May 2010; anonymous social worker, interview with author, 22 July 2010.

17. Anonymous Kaumatua, interview with author, 13 June 2010; anonymous former lawyer and law professor, interview with author, 20 May 2010.