We often look to the Treaty of Waitangi as the definitive turning point in New Zealand history. As the founding document and shared agreement between two peoples, many look at this early colonial era as a time of trade, survival and adapting to a new society. Pākehā immersed themselves in Māori culture and language, adopting transliterated variants of English names and living amongst Māori communities. However, colonialism was ready to establish itself in other ways, impeding against the principles of both Treaties. British law soon outweighed the authority of Māori lore, a prosperous system that regulated Māori development for centuries. From 1840 onwards, the boundaries between English and Māori law were blurred, but one particular felony led to the enforcement of a ‘one law, one people’ policy in early colonial New Zealand.
Barely two years after the signing of the treaties in Waitangi, a teenager was publicly hanged in Auckland City, changing the course of New Zealand history forever. Tried, sentenced and hanged within the space of a week, Maketū Wharetōtara was found guilty of murdering his Pākehā employer, her children, and their farm manager in the Bay of Islands. A gruesome undertaking, and the first Supreme Court case in Aotearoa, it is clear that Maketū was adhering to the cultural lore he had been raised with - where offences against one’s mana invoked the need for utu, revenge or reciprocity, as a form of payment for the offence. In the case of Maketū, he had murdered the family for a series of wrongdoings on their part, from physical abuse to verbally abusing him on the job, effectively corrupting his mana as the son of a chief. From a pre-colonial Māori perspective, these instances authorised the urgency for utu, backing Maketū’s decision to restore his mana.
However, there was a much larger conflict of interest for Maketū’s whānau and iwi. His employer, Elizabeth Roberton, had taken in a young Māori girl, Isabella Brind, whose grandfather was a great Northern chief. Isabella was one of the five slain, causing greater complications for Maketū at the risk of having provoked inter-tribal conflict. With her whānau demanding utu, Maketū’s father, Ruhe, reluctantly surrendered him to colonial authorities in hopes of avoiding inter-tribal conflict with other Northern iwi. Colonial authorities interpreted this as Māori recognition of the English system.
There were several speculations made at Maketū’s trial, one of which was the questioning of the all-white jury judging Maketū. At this point in history, the separation between English and Māori law was yet to be finalised. However, the Judge’s Panel set this precedent, stating “No matter whether some are Pākehā and some are Māori, if the blood of an innocent person is deliberately spilt by someone, this panel will hand out the harshest sentence possible under the law.” Essentially, this trial officially recognised that Māori lore had been replaced with English law, discarding the preexisting lore of an established culture. Controversially, Pākehā disregarded the concept of utu as an ancient, outdated rule, despite the overarching principle of ‘an eye for an eye’ being completely indoctrinated into English law.
The execution of Maketū set the precedent for what Māori could expect of this new system, which Pākehā had sanctioned on their behalf. The undertaking of his case spoke volumes of a legal system, rather than a justice system, as Maketū’s lawyer, Charlie Brewer, was only employed as Maketū’s legal counsel an hour prior to the trial. He also was not allowed the chance to communicate with Maketū. Despite this, Brewer argued that Maketū’s lack of understanding of penal law should be considered, which was counteracted by the prosecution who presented the ‘one law, one people’ principle. The jury found Maketū to be guilty, and he was hanged six days later. He was seventeen.
The renowned Hōne Heke was one of few to contend the hand-over of Maketū to colonial authorities, believing that as a Māori, he should be dealt with by Māori. Interestingly, Hōne’s argument aligned with the social code of the time, where English law did not apply to Māori. Accepting his fate as payment for the deaths he caused, Maketū was tried and hanged before a crowd of a thousand in Auckland City. His whānau were denied his remains for ten months. Ultimately, Maketū’s death turned Hōne Heke, a once proud supporter of colonialism, against British forces and inspired the Flagstaff War.
Looking back, Māori society (particularly Northern iwi) was left significantly depleted: from a grim massacre to a morbid execution, all built up to treacherous inter-tribal conflicts. However, little would improve following these collisions. Maketū’s execution initiated the full-blown force of English rule and law, steering history in a completely different direction.
Following this first-of-its-kind occurrence, the ‘one law, one people’ policy has grown into a system of mass-incarceration that disproportionately impacts Māori, denying them their connection to cultural lore and revoking the protection that was granted to them through the signing of the Treaty of Waitangi. The ongoing effects of this can still be seen today, when we look at our prison system. While being sent to prison is considered the consequence of your heinous actions, and that social isolation demands accountability, this isn’t necessarily the case. Instead, Aotearoa’s prison systems are upholding colonial norms and laws, causing further harm and displacement towards Māori. Māori make up 52% of the prison population, but only 15% of the general population. 70% of all convictions will reoffend within two years. Obviously, the prison system is ineffective at addressing systemic issues.
Famous Māori scholar Moana Jackson was one of the first academics in the country to state that our justice system is racist. He described our prison system as a colonial eyesore, and called for abolishment. Despite massive amounts of backlash and criticism for his statements, Jackson maintained his stance and became the voice at the forefront of the conversation around decolonising our justice system. In recent years, Jackson’s findings have grown in popularity alongside the revitalisation of te reo and the acknowledgment of colonial wrongdoings. Jackson held the belief that the only way to solve Aotearoa’s problem of high incarceration rates and to dismantle systemic racism was to implement a Te Tiriti and tikanga based system.
In recent years, this country has seen more public criticism of our prison system, especially in wake of the 2020 Waikeria Prison riots and this year's stand off at Hawkes Bay Regional Prison. People Against Prisons Aotearoa have held a wave of protests in the call to abolish prisons. Over the past few years, there have been some indicators that we are slowly decolonising our system. It is now compulsory to teach tikanga in law schools, and it can now be used in court as a defence. Across the country, Rangatahi courts have been implemented in Māori and Pasifika communities to help rehabilitate youth offenders, and reconnect them with their whakapapa and iwi. Historical treaty settlements have taken place, and discussion around the role that racism plays in the justice system is beginning to be had.
However, despite these gentle movements toward decolonising our justice system, and acknowledging the corruption of our prisons, Aotearoa still has a long way to go when it comes to genuine change and reform. Until then, it’s important to keep educating ourselves on the matter, and understand that there is room for more than just one definition of justice.