Can the Restorative Justice Industry be Relevant to Indigenous Peoples?

The following commentary is made in response to the recent restorative justice symposium held in Wellington, New Zealand on 24-25 October 2018:

As an Indigenous scholar, I hold little hope that the Restorative Justice (RJ) industry will one day prove itself to be of significant value to Indigenous peoples. My pessimism is based on my observations and experiences of the way members of the industry go about their work. Especially problematic is the fact that the consistent use of elements of the Indigenous life-world by RJ advocates cannot be considered an unintended consequence of the marketing activities of the industry. The marketing of RJ products is underpinned far too often by the reiteration of unsupported myths designed to demonstrate the ‘indigenousness’ of what is ostensibly a white, middle class dominated and controlled crime control business, for this to be considered as anything other than the purposeful employment of Indigenous knowledge and practice for the advantage of the industry (Cunneen, 2008; Tauri, 2014). And so, RJ advocates continuing to bastardise Indigenous philosophies and socio-cultural practices, and to mislead the ‘market’ about the ‘Indigeneity’ of their products. This activity continues despite a decade or more of sustained Indigenous, and non-Indigenous critique of this behaviour (for example, see Blagg, 1997; 2008; Cunneen, 1998; 2008; Love, 2002; Tauri, 1998 2004, to name but a few).  To date, there has been little response to this critique. Indeed, I would suggest that the situation is worse than that: it appears the more we point out the unethical conduct of members of the RJ movement with regards Indigenous peoples, the more our views are ignored.  So, why the lack of response to the Indigenous critique? Why do members of the RJ industry continue to co-opt elements of Indigenous life-worlds, and continue to exaggerate the indigenous foundations of both their movement and some of its key products? These questions provide the basis for an interesting and informative research project. Until that is done we can only speculate, as I will attempt to do to do here.

It is now well established that members of the RJ ‘community’ aggressively marketed their RJ wares, most especially derivatives of New Zealand’s FGC forum, on the increasingly globalised crime control market (Tauri, 2016). It has further been established that the marketing was most aggressive in those settler colonial contexts suffering from the dual wicked problems of Indigenous over-representation and the radicalisation of Indigenous political activity (Tauri, 2014). This should come as no surprise to anyone who has engaged with the RJ lexicon that exploded from 1990 to the late 2000s. Much of this material contained oft-repeated claims of the indigenous foundations of RJ policies and philosophies and forums imbued with the ancient teachings and practises of Indigenous peoples (Richards, 2007). That the RJ movement is now accepted as a legitimate player on the globalised crime control market, and treated by the settler colonial states as a viable partner in its continued domination of crime control, owes much to the development and marketing of the industry’s supposedly ‘Indigenous products’. In part this may explain why so many RJ advocates, in particularly those responsible for bastardising Indigenous peoples’ philosophies and justice processes, remain silent in the face of increasing critique of their practice. And why would they not choose to remain so? For right now they have the support of the state to design, implement and ‘evaluate’ their products.  In return, and to ensure their products are ‘marketable’ to the biggest funder of crime control, they modify them, continually designing out or softening the restorative ‘bits’ in order to make them more palatable to the tough on crime stance that dominates governmental response to social harm in most Western jurisdictions (Roach, 2012; Rudin, 2005; Suzuki and Wood, 2017; Tauri, 2009). In a policy environment like this, what is a little bit of noise from a small group of stroppy coloured folk, when the Industry has been accepted into the governmental fold, and is eligible to receive taxpayers’ monies?  After all, they know better than us what our communities need, right? 

Wrong. From a critical Indigenous perspective the response to the deceit, the myth-making and condescension of the RJ industry towards us is obvious: if you continue to use our philosophies and practises without our input and consent; if you continue to use ‘our stuff’ to line your own pockets and to further your careers without respectful engagement with us; if you continue to exaggerate the ‘Indigenousness’ of your products, and ignore our critique of your conduct, then you are a hypocrite who is not living up to so-called principles of the restorative justice movement to which you belong. You will also do serious damage to the movement itself in being able to work to achieve the transformative potential its members claim it is capable of. But perhaps just as important to a movement founded on social justice principles and aims, you will soon cease to be of any consequence to one of the most disaffected, disenfranchised communities residing in the settler colonial context.

This commentary was formulated to inject an Indigenous perspective into one of the key ‘contested areas’ of RJ-related analysis, namely its value to marginalised communities residing in western jurisdictions. It has also been designed to yet again offer an empirically-informed perspective on what I consider to be one of the significant ‘grey areas’ of RJ theorising, policy formulation and practice, namely the Indigenous experience of all this activity.  I say ‘yet again’ because while it has been written with these key aims in mind, it was also written with another purpose in mind - to cajole, to embarrass, to prompt RJ advocates and practitioners to respond to the Indigenous critique of RJ. In truth, the ‘debate’ about the value of RJ to Indigenous peoples is not a contested area at all, because as stated earlier the majority of theoreticians, advocates and practitioners have thus far ignored the Indigenous critique. For there to be a ‘contest’ there would actually have to be a debate, and so far the only debate that appears to taking place is between like-minded, RJ advocates who are conveniently ignoring the Indigenous experience.

By comparison, it is more accurate to say that the impact that RJ is having on Indigenous communities is indeed a ‘grey area’ of practice.Despite this, advocates continue to make claims about RJ programmes, like the FGC and other conferencing formats, being ‘capable of meeting the needs of Indigenous peoples’ because of a magical alignment between these formulations and our ‘ways of doing justice’. Indigenous-led research by the likes of Moyle (2013; 2014), Victor (2007) and others, inserts an empirically-informed edge to our critique, and also acts as a thinly veiled challenge to the RJ to up its game when making claims about the ‘added value’ of its activities for our communities.

I have from time-to-time been asked if RJ offers anything of value to Indigenous peoples, if we ‘want’ it, if it can play a meaningful part in how Indigenous communities respond to social harm that occurs in our communities. I usually answer these questions with a two part response, the first being direct and to-the-point, which is that it is hard to formulate a response because there has been very little RJ ‘delivered’ in Indigenous communities across all settler colonial contexts. Most of what passes for RJ programmes experienced by Indigenous peoples are state-controlled standardised criminal justice interventions where the RJ elements have been exaggerated to create the illusion of communitarianism. And secondly, I answer by saying that rather than having to identify a position on the validity of the use of RJ by or in Indigenous communities, it is for RJ advocates and practitioners’ to demonstrate why their policies and programmes should be implemented in lieu of our own responses to social harm.  

For the  RJ movement to become relevant to us it needs to 1) stop mythologising its own history, 2) enhancing the mythologising by exaggerating its linkages to Indigenous life worlds, 3) stop using elements of our life-worlds to market their products, without our permission, 4) engage with our scholarship, with our perspectives,  instead of relying on the perspectives of non-Indigenous academics and advocates, and finally, 5) show us some respect by actually respond meaningfully to our critique of the industry, its products and the activities of its practitioners.  These things I believe are necessary for the movement to demonstrate that it can be a critical ally, one that supports our drive for self-determination in the realm of justice. 

References

Blagg, H., 1997. A just measure of shame?  Aboriginal youth and conferencing in Australia, British Journal of Criminology, 37(4), pp. 481-501.

Blagg, H., 2008. Crime, aboriginality and the decolonisation of justice. Sydney: Hawkins Press. 

Cunneen, C., 1997. Community conferencing and the fiction of Indigenous control, Australian New Zealand Journal of Criminology, 30, pp. 292-311.

Cunneen, C., 2008. Indigenous anger and the criminogenic effects of the criminal justice system.  In A. Day; M. Nakata and K. Howells eds. Anger and Indigenous men. Leichhardt: Federation Press, pp. 37-46.  

Love, C., 2002. Maori perspectives on colloboration and colonisation in contemporary Aotearoa/New Zealand child and family welfare policies and practices. Paper presented at the Policy and Partnerships Conference, Wilfrid Laurier University, Waterloo, June. 

Moyle, P., 2013. From family group conferencing tp whanau ora: Maori social workers talk about their experiences, unpublished Master's thesis, Massey University. 

Moyle, P., 2014. Maori social workers’ experiences of care and protection: A selection of findings, Te Komako, Social Work Review, 26(1), pp. 5-64.

Richards, K., 2007. 'Rewriting history': Towards a genealogy of 'restorative justice', unpublished PhD thesis, University of Western Sydney. 

Roach, K., 2012. The institutionalisation of restorative Justice in Canada: Effective reform or limited and limiting add-on? In I. Aertsen., T. Deams., and L. Robert, ed. Institutionalising Restorative Justice. New York: Routledge, pp. 167-193. 

Rudin, J., 2005. Aboriginal justice and restorative justice.  In E. Elliot and R. Gordon eds. New directions in restorative justice: Issues, practice,evaluation. Devon: Willan Publishing, pp. 89-114. 

Suzuki, M., and Wood, W., 2017. Co-option, coercion and compromise: Restorative justice in Victoria, Australia, Contemporary Justice Review, 20(2), pp. 274-292. 

Tauri, J., 1998. Family group conferences: A case study of the indigenisation of New Zealand’s justice system, Current Issues in Criminal Justice, 10(2), pp. 168-182.

Tauri, J., 2004. Conferencing, indigenisation and orientalism: A critical commentary on recent state responses to Indigenous offending. Paper presented at The Qwi: Qwelstom Gathering: ‘Bringing Justice Back to the People’, Mission, British Columbia, 22-24 March. 

Tauri J., 2009. An Indigenous commentary on the standardisation of restorative justice, Indigenous Policy Journal, 20(3), online. 

Tauri, J., 2014. Settler-colonialism, criminal justice and Indigenous peoples, African Journal of Criminology and Justice Studies, 8(1), pp. 20-37.

Tauri, J., 2016. The state, the academy and Indigenous justice: A counter-colonial critique,  unpublished PhD thesis, University of Wollongong. 

Victor, W., 2007. Indigenous justice: Clearing space and place for Indigenous epistemologies. Ottawa: National Centre for First Nations Governance.