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.  

A Comment on the Epistemic Violence of White Academic Privilege - Part 1

The following blog is part 1 of a two part entry which provides an overview of the strategies and techniques of neo-colonial, epistemic violence perpetrated by the Academy against Indigenous scholars and communities.  Part 2, which will be posted in December, will report on recent research by the author and his colleagues, on Indigenous scholars’ experiences of racism within academic institutions.

Introduction

Indigenous peoples in all Settler-Colonial societies experience a number of issues when confronting both the criminal justice system and the academic discipline of criminology, including:

That the imposition of a criminal justice system, modelled on existing and developing Western models, was key to advancing the colonising process, especially the control and eventual subjugation of Indigenous peoples.

That the criminal justice system itself plays a significant role in the over-representation of Indigenous peoples.

That the criminal justice system and its supporting discipline, criminology, respond to Indigenous justice philosophies, theories and practices by portraying them as primitive, myth-based, and, therefore, illegitimate.  Furthermore, the ‘system’ marginalises Indigenous knowledge by employing rhetorical devices that construct it as ‘traditional’ and therefore as the antithesis of the preferred ‘scientific’ approach.  Except that is, for beliefs, practices and rituals policy makers and criminologists deem to be ‘culturally acceptable’, such as sitting in a circle or saying an ancient pray.  In other words, elements of the Indigenous world are utilised for their ability to eroticise and legitimise the criminal justice system, and not so much for their ability to empower Indigenous peoples.

And, a major player in the processes of marginalisation previously described is the discipline of criminology, or more accurately a particularly virulent derivative I have referred to previously as Authoritarian Criminology. 

Authoritarian Criminology

The charge that Criminology was a major player in the colonising enterprise within Settler-Colonial societies and other colonial contexts has only recently been given serious attention from those working in the discipline, such as Biko Agozino and Chris Cunneen; although we must acknowledge the work of Franz Fanon and others in the 1950s onwards is point out the importance of the social-behavioural sciences (Psychology, Anthropology, Sociology), and even history, in the colonial enterprise. 

Authoritarian Criminology can be identified by the following core practices:

Research, publications generally focuses on the conceptualisation of crime (and its definition) and what constitutes legitimate enquiry, as defined by the state.

Practitioners confine their critical criminological gaze to issues relating to state-defined problem populations: more often than not the targets of their empirical enquiry are people of colour and working class youth; and too often the research is carried out with little or no direct engagement with individuals, organisations or communities from these population groups.

Confine their enquiries to problems and questions that the state deems important for which they receive remuneration via the establishment of contractual relations.

Limit their critical analysis of state systems and policies on programme effectiveness and evaluation largely devoid of historical context and wider political economy of the state’s dominance of justice in the neo-liberal moment.

Empower themselves through the veil of scientism, an ideological construct that privileges their approach to measuring the Indigenous life-world, whilst denigrating Indigenous (and other) forms of knowledge that seek to explain the social world from the perspective of the Other.

Utilise the process of myth construction and maintenance in a hegemonic exercise aimed at privileging its ‘way of knowing’ in the policy making process, over that of potential competitors.

Silence Indigenous academics (and our critical, non-Indigenous colleagues) by deploying well-worn, racist strategies such as focusing on our ‘emotional’ responses to unethical or racist conduct (more about these strategies in Part 2 of this entry). 

So, what needs to be done to combat the hegemony of Authoritarian Criminology in deciding what is/is valid knowledge and dominate policy-making, especially in the development of Indigenous policy; activities that can most accurately described as contemporary manifestations of colonialist, epistemic violence?

The Unfortunate Truth about Policy and the Academy

Before we begin to construct effective strategies for empowering ourselves, we must first acknowledge the following unpleasant truth about policy-making, policy makers and certain influential members of the academy: Neither the state (the policy makers) nor the predominantly white, middle class, privileged Western academy is simply going to stop what it is doing.  There is too much at stake for them to do so, including power, authority, prestige and, most especially of import to their institutions, grant monies, for them to voluntarily hand over the authority they have given themselves to speak for us, to the Indigenous Other and our critical, non-Indigenous collaborators.  The truth is we will have to break the hold they have on speaking about ‘our experience’, and fight them for the privilege of being able to directly influence the development of policy that impacts our communities. 

The importance of breaking this monopoly was brought home to me recently when I read two papers by non-Indigenous academics who had picked up government-funded research contracts on Indigenous issues, and then had to go and find out how to actually ‘do research’ with Indigenous peoples!  What?  You apply for a project for which you actually do not have the methodological know how or the cultural competency to carry out, and after you get the nod you then try to find out about ‘Aboriginals’?  As an experienced Indigenous academic, two questions immediately sprang to mind when I was confronted with these two examples:  a) why are government agencies giving contracts and grant monies to academics who demonstrably lack the requisite skills or knowledge to carry out emancipatory, empowering research with Indigenous peoples?  There are a number of ways we can explain this situation, but for now I’ll offer just two: i) because the government officials who make these decisions have just as little knowledge and experience of the Indigenous context so they go for academics who ‘look and act like them’; and/or ii) they go for the ‘safe option’, namely academics who will toe the line by only asking safe questions (meaning questions that will not elicit direct criticism of an  agency or their Minister) and who will stick to the institutional script.  And, what is for me the most important question, b) why are non-Indigenous academics without the requisite methodological and ‘cultural’ experience and knowledge applying for these grants? Is it ego, ignorance, or a combination of both?  I will finish on this issue by saying that I believe that one of the reasons why they feel they are able to apply for said grants when they clearly should not, is because for so long now they have been able to do so without being challenged by the Indigenous Academy.  Furthermore, it was/is possible for them to do so because we have historically done little to confront the government officials who handed the grant monies over to them to carry out their ‘Indigenous research’.

Breaking the Hegemony of Authoritarian Criminology

There are a number of ways we can respond in order to extract authority and respect from policy makers and the academy:

Continue to work ‘within the system’ (or systems) and provide meaningful support to the academy and the state to enhance Indigenous participation in their knowledge construction exercises, as some are doing already.  For example, in the New Zealand context we could use our Treaty settlement monies to fund scholarships so that we make our peoples more attractive to the academy and the public service.  However, 10 years of experience in the public service and numerous conversations with other Indigenous peoples working in the policy environment, informs me there are significant limitations involved in putting all our eggs in that particular basket. After all, the state is the entity thru which the immediate post-colonial and current neo-colonial disempowerment of Indigenous peoples is facilitated.  It (the Settler-Colonial state) is reluctant to treat us as human, as capable of looking after our own.  A recent case in point was the racist NTER policy implemented in Australia in the mid-2000s.  Continuing engagement and involvement with the policy sector is a legitimate and necessary approach, but much more is required.

Working within the academy by using the tools and methods of the academy to challenge the processes it utilises to achieve hegemony, with the added factor of engaging in research with Indigenous peoples, and not ‘on’ coloured people.  We must continue to develop our own counter-colonial theories and methodologies that challenge the legitimacy of the Academy’s tools and the exalted position its practitioners give themselves, too often on the backs of Indigenous peoples.  We must actively challenge the knowledge constructed about us, but rarely with us.  In other words, we must become or remain political (or, if you work in policy, ‘radical’); and much more aggressive (intellectually) towards the work of policy makers and members of the academy, especially Authoritarian Criminologists.

As I have hinted in an earlier blog, for every diplomat and peacemaker, we must have an academic warrior, someone who is part of a developing ‘Warrior Criminology’.  We cannot afford to be afraid of being called ‘aggressive’ or ‘emotional’, as we often are when we critique policy makers and academics and confront them directly for their racist behaviour and for the methodological shortcomings of their work.  In fact, our goal should be to embarrass them as much as possible: too often crap gets published about us about which little is said publicly.  Instead, we get annoyed and then moan at each other about some recent rubbish published in an ‘A journal’, but then bow to the silly conventions of the Eurocentric discipline that are built to protect its practitioners from any direct criticism of their shonky work, and most especially when they exhibit racist and unethical conduct. 

Recent examples of work about ‘us’ that deserved Indigenous censure included a 2008 report on Maori and crime by New Zealand’s Department of Corrections, and one on race and crime; both of which managed somehow to avoid any meaningful engagement with the critical Indigenous lexicon.  Can you imagine a journal article getting the green light if it focused on the contemporary development of restorative justice theory, but avoided the work of Howard Zehr,  John Braithwaite or one of the other founding ‘fathers’?  No?  Well, too often that is exactly what happens when non-Indigenous criminologists write about ‘us’: all of a sudden white man’s magic makes Indigenous scholarship disappear.  What this argument demonstrates is that we must become more active and strident in critiquing work that ignores Indigenous scholarship, or where the authors report on the Indigenous experience while avoiding engagement with Indigenous peoples.  We cannot allow the voice of the Institutional Other, the so-called ‘scientific criminologist’ – or as I prefer to call them, the Authoritarian Criminologist - to remain the dominant voice on the Indigenous experience because too often these authors are not telling Our Stories.