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(Illustration: Toby Morris)
(Illustration: Toby Morris)

ĀteaSeptember 9, 2020

Why our cannabis laws are racist

Guest writer
(Illustration: Toby Morris)
(Illustration: Toby Morris)

Law expert Khylee Quince explains how racism plays a big part in the way current cannabis laws are applied – and why it’s time for reform.

On October 17, New Zealanders will vote on whether they think recreational use of cannabis should be legal. It’s a non-binding referendum, which means that even if more than 50% of us vote “yes”, parliament will still need to vote to pass the bill before it becomes law.

There’s been a lot of discussion about the way we use alcohol compared to cannabis – how, despite the different laws governing their use, booze and weed are both relatively affordable, available and easy to get.

But how does the reality of cannabis use stack up against the way cannabis laws are enforced? AUT law professor Khylee Quince explains how racism plays a big part in the way current cannabis laws are applied. And for that reason alone, it’s time for cannabis law reform.

(Gif: Toby Morris)

Is cannabis illegal in NZ?

Yes, under the Misuse of Drugs Act 1975. Under this law, it is illegal to grow, smoke, possess or sell cannabis in any amount or form. The only legal exception is the medicinal cannabis scheme, which is designed to improve access to quality medicinal cannabis products for patients.

But almost everyone I know has used cannabis before.

Exactly. Most New Zealanders have used it and are able to access it even though it’s technically illegal. Even if you’re convicted for using cannabis, almost everyone goes back to using cannabis at the same rate as before they were found guilty.

So, what makes cannabis laws racist?

For more than 20 years, the police have pretty much turned a blind eye to low-level cannabis use and possession. Most people found with a small amount of cannabis are not charged, convicted or punished. So, cannabis is decriminalised in practice, if not in law.

What’s the problem, then?

The problem is that police don’t always use the same approach for all cannabis users. This is where issues of racism and discrimination come in.

What evidence is there to show this is a thing?

Even though Māori and non-Māori use cannabis at similar rates, Māori are three times more likely to be arrested and convicted for cannabis use than non-Māori.

So what? Shouldn’t everyone who does the crime serve the time?

Because the arrest and conviction rates are different for Māori and non-Māori, there are more long-term negative impacts for Māori than for non-Māori. These include greater disruption to education, employment, opportunities to travel and even access to healthcare.

Are you saying there are Treaty of Waitangi issues to think about when it comes to cannabis?

Yes. The Cannabis Legalisation and Control Bill acknowledges the disproportionate harms suffered by Māori from prohibition and aims to address discrimination and equity concerns. For example, allowing people to grow some cannabis at home will alleviate cost concerns about the prohibitive cost of legal medicinal cannabis. The bill also provides the opportunity for persons with low-level convictions for possession and use to enter a legalised market.

If the bill passes, how can we be sure that cannabis reforms will be any fairer for Māori?

The Cannabis Legalisation and Control Bill acknowledges the Tiriti o Waitangi partnership by making sure the Cannabis Advisory Committee includes Māori representatives to provide advice and guidance on future cannabis policy and regulation.

What is the difference between decriminalisation and legalisation?

Decriminalisation is the halfway house between unlawful and lawful. The drug remains technically illegal, but police are explicitly empowered to not prosecute, unless it is in the public interest. Instead of prosecution, they can refer people to health interventions if needed. It’s a murky space, which makes it really hard to identify and prove that things like abuse of power and discrimination are happening – because we don’t know who the police have let go, only those they have proceeded against.

How will legalisation help?

More Reading

If the current cannabis laws are reformed, recreational users won’t be charged, convicted or imprisoned for use or possession. Police won’t be able to use suspicion of cannabis use or possession to justify wider search, seizure or surveillance activities. Legalising cannabis for personal use for over-20s will eliminate the racism that comes with enforcing cannabis prohibition. In other words, cannabis law reform will help ensure all cannabis users have fair outcomes in health, education and justice.

In the latest episode of Conversations that Count – Ngā Kōrero Whai Take, The Spinoff’s Leonie Hayden is joined by Massey University Associate Professor Chris Wilkins and Selah Hart, CEO of Hāpai te Hauora for an in-depth look at New Zealand’s upcoming cannabis referendum. Listen below or subscribe wherever you usually listen to podcasts.

Keep going!
(Image: Getty)
(Image: Getty)

ĀteaSeptember 7, 2020

What’s the big fuss about Māori seats on councils?

Guest writer
(Image: Getty)
(Image: Getty)

Annie Te One explains why embedding Māori representation in local government shouldn’t be such a big deal. 

After the next local elections, Tauranga City Council will join Wairoa District Council and Bay of Plenty and Waikato Regional Councils in being the only local governments with designated Māori wards. Debates over Māori representation in local government, whether about designated Māori seats or voting rights on committees, are ongoing. Many arguments against Māori representation are well known but confusion still exists about the whole topic. Below are some common questions and concerns, answered.

Are local governments the Crown? Because if they aren’t, do they have obligations to Te Tiriti o Waitangi?

Local governments receive their powers from the Crown and are therefore expected to uphold the governing principles and responsibilities the Crown has. This includes responsibilities to Te Tiriti o Waitangi, which is referenced in important local government legislation, including section four of the Local Government Act 2002.

Do Māori seats encourage separatism and racial inequality?

No, designated Māori seats on local government are in fact aimed at working towards creating equality in decision-making and ensuring there is better collaboration with Māori. Māori wards and constituencies are one avenue through which councils can uphold Te Tiriti o Waitangi obligations and other statutory obligations to include Māori in decision-making. Currently, only about 10% of councillors are Māori, so having Māori seats is one way we can work towards more equal representation in local government.

But maybe if more Māori stood as candidates they’d get elected – what’s stopping them?

Many Māori do in fact stand as candidates in local elections, but many struggle to gain a support base if they seek to champion Māori political rights. Having designated Māori seats is one way Māori voices can be sure to be heard, while still giving Māori constituencies the exact same rights as the rest of the community to cast a single vote for a candidate they prefer.

But if you aren’t voted in by the public, you shouldn’t have a say in council decisions, should you?

Local governments already appoint, and pay, numerous experts who are not councillors to sit on committees and sub-committees. This is to ensure the decisions they make are well informed by experts in different fields. When the first forms of British-informed local government were set up in Wellington in the 1840s, they had surveyors (who were not councillors) present at all council meetings to help develop the city plans. Mana whenua have expertise over their lands and resources that is essential to council decision-making and will make for better-informed decisions that benefit the entire community.

Māori need to win a seat based on their own merit, not through a designated Māori seat.

Being elected to a Māori seat is Māori winning a seat based on their own merit.

Mana whenua can be involved for pōwhiri and ceremony, but not with actual decision-making.

Yes, mana whenua can and should be involved in council ceremonies, if they want to, but simply inviting Māori to open events is not the same as a Te Tiriti o Waitangi partnership. It also ignores the fact pōwhiri and ceremonies are part of wider Māori political practices that in many instances open the floor for political discussion and debate.

Giving Māori a voice on councils will give them more say than other members of the public, won’t it?

Māori are underrepresented in local government politics, so a concern they will have too much say is overstated. More importantly, though, Māori perspectives are not in opposition to the rest of the community; Māori voices come from the public and are good for everyone.

Māori are only 3% of the population in our city and that is too few to warrant a Māori seat.

Te Tiriti o Waitangi is not based on population. Partnership is not dependent on population. In fact, during the debates over Māori seats in Auckland in 2009, the Royal Commission on Auckland Governance argued that even if the Māori population were to decrease, Māori representation would be even more important to ensure Māori perspectives are maintained in local decision-making.

But Te Tiriti o Waitangi doesn’t say anything about Māori representation in local government.

Te Tiriti o Waitangi is explicit that Māori tino rangatiratanga is reaffirmed. This means Māori have the right to be directly involved in the governance of natural resources and other matters in Aotearoa. Tools such as Māori seats, or voting rights on council committees and sub-committees, are one way of working toward tino rangatiratanga. Te Tiriti is also essentially about partnership, which can begin to be met through guaranteed Māori representation.

Local government is doing enough already, with mana whenua consulted on numerous issues.

Many local governments are engaging with Māori in various ways, but, with no accountability measures on what ‘consultation’ actually means, engagement does not always result in Māori voices being clearly taken into account. Mana whenua knowledge is essential and specific expertise, and needs to be treated as such. This can be acknowledged through paid positions, voting rights and guaranteed Māori seats, all of which demonstrate the value of Māori knowledge.

Dr Annie Te One (Te Ātiawa,  Ngāti Mutunga) is a lecturer in Te Kawa a Māui/School of Māori Studies at Te Herenga Waka Victoria University of Wellington.

Ātea