Q&A | Kingi Snelgar on the limits & frustrations of a white legal system

Kingi Snelgar is a Māori lawyer from Aotearoa New Zealand. Having secured his LLM at Harvard, he’s now back practicing in Auckland with the team at Mānuka Chambers. Mānuka are four Māori lawyers – all also court-appointed Youth Advocates in the Manukau Youth Court – who are committed to helping their clients navigate the justice system. Here Kingi relays to Sarah some of his frustrations at working within a Pākehā-oriented system, and his concerns as to what that means for Māoridom and the futures and wellbeing of Māori offenders.

Since returning to NZ from studying in the US, you’ve expressed frustration with the local legal system, including low numbers of Māori or Pasifika legal practitioners working in the field. Can you expand on this frustration?
My time back in the Manukau District Court has reminded me of the serious underrepresentation of Māori or Pasifika practitioners and professionals in the criminal justice system. I would say 90% of those processed through this court are Māori or Pasifika, and yet probably only 20% of us working there are Māori or Pasifika. These are estimates based on what I see daily but it seems like an obvious imbalance. On the face of it, this represents brown people being processed by a Pākehā-dominated system.

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I hope more effort is placed on diversity in the profession so that those that work in places like Manukau are more of a reflection of those coming through the Court, as well as this community. Many of us who work in South Auckland – myself included – do not live there, which is another concern. Without more diversity, we have people being processed through a system that lacks the cultural understanding of their backgrounds.

What are some of the barriers to greater diversity within the legal profession that you’ve observed? How would you like to see these addressed?
Some law schools have targetted admission schemes aimed at increasing the number of Māori and Pasifika lawyers. Surviving law school is the first barrier, then obtaining jobs in the criminal, family and youth spaces is difficult because of the lack of clear career pathways. Private firms along [law firm-heavy] Shortland St are a much easier option given their summer clerk programmes and connections to the law schools.

I think all law firms, and especially government law offices like the Public Defence Service have an obligation to actively encourage Māori and Pasifika to apply. When I was at the Crown, there were only two to three Māori or Pasifka lawyers there, out of a very large office. Most of the people I came into contact with through my work, whether victims, witnesses or defendants were Māori or Pasifika.

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The wider profession needs to take a leadership role, starting with the New Zealand Law Society, to monitor whether we are indeed becoming a more diverse profession.

What are some of the key systemic barriers you identify in NZ’s legal system more broadly, particular the ways in which it discriminates against, or underserves the interests of Māori and Pasifika people? What are the implications of these barriers?
The New Zealand legal system was introduced into Aotearoa by Pākehā settlers as a tool to colonise and displace the traditional Māori legal system. This same tactic was used in other countries like Australia and Canada. We share the same experience and live with the outcomes of colonisation today, like high suicide, poverty, and imprisonment rates. These are not random occurrences but are connected to our history. We must not forget this, especially in the context of the criminal justice system.

“We live with the outcomes of colonisation today, like high suicide, poverty, and imprisonment rates. These are not random occurrences but are connected to our history.”

That legacy of colonisation, racism and distrust lingers over the modern legal system. Some Māori distrust courts because of this. I am no different. My tupuna Mokomoko – my great great great great grandfather – was hanged by the colonial court system for a crime he did not commit. His wife Kimohia was also murdered by colonial troops. In New Zealand, Māori, like African-Americans in the United States, suffer from mass incarceration as a way to oppress and control an already severely dispossessed people. Police and politicians have accepted the system is significantly flawed, in that it treats Māori harsher than non-Māori for no other reason than their ethnicity.

Access to justice is another big issue. Māori and Pasifika peoples generally cannot afford private lawyers to protect their interests and get the best outcome. They often rely on legal aid lawyers. The current legal aid scheme leaves your typical legal aid lawyer struggling to recover the time they put into a case and as a result this encourages resolution and the quick disposition of cases. Combined with this, the modern criminal justice system is geared towards quick and ‘efficient’ outcomes which, at some point, come at the expense of quality decisionmaking by lawyers and the wider criminal justice system. The focus has become more about efficiency than justice.

“The modern criminal justice system is geared towards quick and ‘efficient’ outcomes which, at some point, come at the expense of quality decisionmaking.”

The people that suffer because of the lack of adequate payment is not the lawyer but the Māori or Pasifika person appearing in the court, who does not receive good representation. Those that pay for private lawyers will most often receive a better outcome. I know many of my colleagues do their best to ensure clients receive the best quality representation but there’s a ‘tipping point’ where it’s just uneconomical to put time into a case. Your reputation and care for the people you represent keeps you going. I know for many of us, legal aid is just not worth it and this means less lawyers being willing to take on cases for the most vulnerable in our society – Māori and Pasifika.

My main concern is that legislation, the political climate around punishment, and the lack of financial incentive mean Māori and Pasifika appearing in court are more likely to go to prison, because it’s as if our system is geared towards this outcome. This is an ongoing form of colonisation.

One immediate thing that could be done is to invest in community providers and drug programmes, coupled with a Drug and Alcohol Court in Manukau. Other considerations are a review of the legal aid payment scheme. Overall though, there must be a transformative outlook from politicians and community leaders to counter the costly and inefficient obsession our society has with locking people up. Prisons don’t work, and in fact make people worse. Without change another whole generation of Māori will suffer.

How has the time you spent studying in the US, and participating in protest movements like Standing Rock affected your perspective?
Returning to Aotearoa and working as a defence lawyer has made me think: can you really make change from within? Have I subconsciously narrowed my vision of what is achievable by working in a criminal justice system that has serious flaws? It’s often after a challenging day in court that I have these thoughts. I know many other friends and colleagues have the same dilemma.

Read Kingi Snelgar on spending time at Standing Rock, protesting the DAPL

My time overseas reminded me that I wasn’t critical enough of the frameworks and institutions that continue to oppress and colonise Māori. Professors overseas, courses in critical legal studies, student activism and indigenous activism reignited my fire to continue to push for what is pono and tika – just and right – despite resistance from others, or even myself. I realised my legal education in Aotearoa put blinders up in some ways to what is possible.

For now, I am am trying to balance two important things. First and foremost is to achieve the best results for the client. Grand language and goals for decolonisation and decarceration do not help the person or young person currently in prison or before the court. Although, I do not like concessions based on pragmatism. I – like to – think I can achieve small wins and help people through the challenges of the criminal justice system.

“Grand language and goals for decolonisation and decarceration do not help the person or young person currently in prison or before the court.”

Secondly, is the big picture stuff. This is what excites me and is what many friends are also striving for. I feel there needs to be more of a focus on challenging the system, and frameworks that have led to where we are. More challenges to mass incarceration, the disregard given to te Tiriti, the pursuit of money at the expense of our whenua and moana, and the existence of poverty in our society. These are things that many friends and whanau are striving to change in our various capacities.

Can you identify any parallels between the experience of Māori in New Zealand, and that of indigenous populations elsewhere?
There are many. I spent some time at the United Nations Permanent Forum on Indigenous Issues, where hundreds of nations gathered to voice their concerns about mistreatment and colonisation. I was fortunate to connect with other young indigenous people and soon realised we all faced similar issues around suicide, education, and a lack of recognition of our treaty and sovereign rights.

The New Zealand 2017 general election is fast approaching, on September 23. What are some key concerns for Māori that you hope will be addressed by contending parties?
It is great to see what looks like more people engaging in political issues on social media. I’ve seen lots of posts discuss which party they think is doing better for Māori advancement. Some of these posts contain healthy discussion, while some focus on making personal attacks on candidates, which is not so good. I commend those that are running for election and are trying to make change within the parliamentary process. I hope that Jacinda Arden represents a new generation of political leaders. I have enjoyed her comments on climate change and poverty but I hope she delivers on her campaign messages, if elected. I know some of my indigenous whanaunga see Justin Trudeau as someone who has failed to deliver, by continuing to support oil and gas projects.

While engagement with the political system is important, I think there are some important things to remember in the context of Māori rights in Aotearoa. First, making gains through political processes is always going to be challenging for Māori. Despite being Tiriti partners, which guarantees tino rangatiratanga, Māori are a minority in our democratic process. This means that Māori are limited in what they can achieve, because their influence is limited. Yes – MMP changes things to some extent by bringing minor parties like the Māori Party into Parliament, but at best Māori can only make small and incremental gains in Parliament. Māori MPs will have to make concessions, given our minority status, to get small results in other areas. This is the reality of our current political system. So I don’t see politics as the best way to achieve justice and the best results.

“Despite being Tiriti partners, which guarantees tino rangatiratanga, Māori are a minority in our democratic process.”

Some of our most significant changes around Te Reo and land began with community activism. This is where I think transformative changes can continue, and I see examples like the Foreshore and Seabed hikoi as examples of what is possible. More recently, Standing Rock reminded us that indigenous peoples will still loook to activism as a way to create a climate for transformative change. This is because transformative change isn’t possible in a political system where the Māori voice will always be a minority.

Secondly, politics is not so much about visionary leadership based on policy and ideology, but trying to cater to what will secure the most votes. Minority parties are slightly different but are still limited in influence. Politics is now more about the personalities of candidates, not policies or ideologies. This leads to personal attacks rather than meaningful discussion of policies. A good friend, Max Harris has written a book called The New Zealand Project that challenges our political thinking to become more values-focussed. This is a good read for those of us thinking of ways to improve our political system. I think we as Māori intrinsically have values through tikanga, but again, influencing the political system is always difficult as a minority.

Thirdly, is a minority in a democratic political process consistent with tino rangatiratanga? I don’t think this was what was expected when our ancestors signed te Tiriti. You could say that our iwi are focussed on asset management rather than nation-building, partly due to the governance frameworks imposed on them through the settlement process. I think there should be more focus on how our marae, hapu, iwi and communities can achieve tino rangatiratanga now, rather than waiting for politicians or parliament to do this. We need to think creatively and outside the limits of the current system to make real change.

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I am really pleased to see so many talented Māori running as candidates, and I’m hopeful for what can happen in the next generation. While we need to continue to hold our representatives to account to push for change in our politics, I’m mindful that progressive change is difficult in Parliament, especially in terms of tino rangatiratanga. Discussion of the big questions in the Matike Mai report from Moana Jackson and others must continue as a way to implement tino rangatiratanga. If we don’t focus on the big questions and look beyond the political model we currently have, we will continue to make change within a very restrictive process. I think we should think outside the process itself.

What does your work in the Youth Court involve?
I represent young people (13–17) and children (12–13) charged with serious crimes in the Youth Court in Manukau. Nearly all of my clients are Māori or Pasifika, have been expelled or suspended from school, have some drug and alcohol exposure, and come from a single parent family. Many have parents in jail, are in foster care and have had very difficult upbringings.

“I sometimes feel like an ambulance at the bottom of the cliff, and like to balance my court mahi with the big picture transformation.”

My role is to advise the rangatahi and assist them through the court process. This work takes a significant personal toll, as you cannot help but feel for the rangatahi. I sometimes feel like an ambulance at the bottom of the cliff, and like to balance my court mahi with the big picture transformation. I do however enjoy trying to achieve the best outcome for my client, and help them avoid ever coming back to court with the support of mentors, marae-based courts and social services.

Kingi Snelgar is a lawyer and activist from Aotearoa, New Zealand, with an LLM from Harvard University. Find him via www.manukachambers.nz.

Sarah Illingworth is a freelance journalist and Editor at Impolitikal. She has an MSc in Poverty & Development from the University of Manchester. Read more by Sarah.