Using restorative justice to resolve historical injustices of Indigenous peoples

Abstract

This article explores the application of restorative justice to situations of historical injustice. It argues that applying restorative justice practices and principles could maximize justice for Indigenous peoples by, first, refocusing Indigenous land claims on the restoration of tribal respect and dignity rather than on the restoration of property rights, and second, acknowledging the wider social relationships in which such conflicts arise. This article also contends that using restorative justice in situations of historical injustice may impact on the practice of restorative justice itself. First, the roles and relationships of key players will change which may lead ultimately to a reconsideration of the role of the State in restorative justice. Second, applying restorative justice in situations of Indigenous historical grievances underscores the collective nature of such conflicts and the collective, contextual nature of evolving notions of the justice in restorative justice.

Keywords:

• restorative justice
• reparative justice
• historical injustice
• Indigenous peoples
• Maori
• New Zealand

Acknowledgements

This article is based on a paper presented to the ‘Frontiers in Restorative Justice’ Conference, December 2–5, 2004, Centre for Justice and Peace Development, Massey University, Albany, New Zealand. The author would like to thank Warwick Tie for support and encouragement.

Notes

1. Many of the issues raised in this article have resonance in other situations which seem to demand reparations of one kind or another. For example, mass abuses of human rights in situations of transition to democracy, human rights abuses arising out of WWII, and the reparative demands of African Americans for the consequences of slavery. This article examines only the specific issues of reparations in the case of historical injustices against Indigenous peoples arising from colonization by European powers. In the interests of brevity and clarity, this article does not discuss the intersection of this subset of reparative issues with the many other situations where reparations might operate.

2. Note the fairly well developed international standards on reparations in situations of transitional justice where there have been mass, and often systematic, abuses of human rights. These situations involve a similar, but yet distinct, set of goals and challenges. See generally: Bottigliero (2004); Braithwaite (2002a); de Greiff (2006); Mani (2002); Miller & Kumar (2007).

3. Note, however, that this article does not use the terms ‘reparative justice’ and ‘restorative justice’ interchangeably.

4. Where the victim is no longer alive (e.g., in a murder case), usually the victim’s immediate family will be alive and considered to be the (indirect) victims.

5. The kind of broadening of vision required here must also occur when applying restorative justice to situations of human rights abuses (Cunneen, 2001 & 2006). See also Sullivan & Tifft (1998 & 2001) for arguments concerning the role of restorative justice in situations where structural conditions create harm, inequality and violence, including economic harm.

6. On the intersection between human rights and restorative justice standards see Bottigliero (2004), Braithwaite (2002a & 2002b), Cunneen (2001 & 2006), de Greiff (2006), Falk (2006), Johnstone (2002), Mani (2002), McEvoy & Eriksson (2006), Miller & Kumar (2007), Zellerer & Cunneen (2001).

7. Issues of representation of the collective and the mandate required to negotiate the settlement of historical grievances continue to raise difficulties in New Zealand’s Treaty settlement process. Another problem is the kind of post‐settlement governance structures appropriate to hold and manage kin‐based assets (Gibbs, 2004; TPK, 2004).

8. The fragmentation of traditional Maori groups, and group identity is a continuing problem in the Treaty settlement process, often taking shape as disputes about mandate. The events in Taranaki are a good example. See Waitangi Tribunal (2000, p. 28).

9. Because any Maori, as an individual, can make a claim to the Waitangi Tribunal, the hearing process at least offers the opportunity to state a case against the Crown and to have the Tribunal report on that case.

10. See, for example, Ivison (2000). The Waitangi Tribunal has argued along similar lines saying, ‘the broad object of the Treaty was to secure a place for two peoples in one country, where both would benefit from settlement, and which basically required a fair sharing of resources’ (Waitangi Tribunal, 19971997, p. 406, emphasis added). Note also Dawson (2001).

11. Even in the case of the Ngai Tahu claim, where no land was confiscated but instead the Crown failed to ensure that Ngai Tahu retained sufficient land for their future needs, the results are similar: loss of mana (tribal power, prestige), loss of rangatiratanga (chieftainship), loss of turangawaewae (a place to stand) (Waitangi Tribunal, 1991). Justice demands that these wrongs also be righted. See also Johnstone (2002, pp. 102–105) for a discussion of this issue in relation to restorative justice and offenders.

12. On issues regarding the giving of apology in a wide range of situations see Barkan & Karn (2006); Brooks (1999); Gibney, et. al. (forthcoming).

13. Because Maori tribes view the Treaty of Waitangi as a solemn pact between the Crown and each tribe and therefore typically see the concerns of stakeholders and the wider community as issues for the Crown alone to resolve outside the Treaty of Waitangi settlement process.