New Zealand

800. Special Laws for Maoris. No Maori courts have ever been officially constituted in New Zealand with recognised authority to deal with local law and order problems. Since European settlement, Maoris have been subject to the general legal system which, for the most part, has taken no account of Maori laws and customs. However, some concessions have been made. Maoris once had the right to be tried by an all-Maori jury, a provision repealed in 1962.[1223] Some account was, and is, taken of Maori customs and practices at the sentencing level, but not in determining substantive criminal liability. In the civil law area direct recognition has been given to various Maori customs and practices linked to the land. The Treaty of Waitangi signed in 1840 with the Maoris of the North Island was an initial recognition of Maori land title. It guaranteed undisturbed possession of the land but gave the Crown the exclusive right to purchase any land sought to be alienated. In order to regulate the way in which this was to occur the Maori Land Court was established in 1865.[1224] It had three main functions:

(1) to ascertain the owners of Maori land according to Maori custom;

(2) to transmute any title so recognised into one understood at English law;

(3) to facilitate dealings in Maori land and the peaceful settlement of the colony.[1225]

The Maori Land Court (and the Maori Appellate Court) still operates with largely the same functions.[1226] There is now also a Waitangi Tribunal with power to make recommendations about changes to the law or its administration which would further the ‘principles of the Treaty’.[1227]

801. Te Atatu Maori Committee. A recent development is a community justice scheme operating in West Auckland run by the Te Atatu Maori Committee. The Committee sits as a form of local community court hearing cases referred to it by the ordinary courts, and seeking to deal with them in a recognizably Maori way. Similar to the makgotla in South Africa, the West Auckland scheme was established as a form of self-help.[1228] However its concern is exclusively with rehabilitation and reparation for an offence: it has no role in determining the defendant’s guilt.[1229]