New Zealand challenged by Māori academics to decolonise its legal training

Wednesday, 6 January 2021

Adrienne Paul is UC lead for a national Māori legal academic proposal to create a bicultural, bijural and bilingual approach to teaching law in NZ.

Before Pākehā law, there was Māori law. So, as an act of decolonisation and cultural redress, shouldn’t the law schools of Aotearoa New Zealand be teaching both?

It is a simple question that has actually been bubbling up for some time.

Prominent Māori figures, like former chair of the Waitangi Tribunal Justice Joe Williams, have argued that Kupe’s law ruled before Cook’s law. And in a 2013 speech, Williams said righting the Treaty wrongs ought to include recognising this fact.

New Zealand should be working towards a “Lex Aotearoa” – an alignment of the two traditions within a new fully bicultural justice system.

* Māori are invited to the dance - but told to leave their culture at the door

* The Peter Ellis case and Māori customary law

* There's no pihikete in my kete: from te reo to te ao Māori

Now it looks like that project is being picked up in earnest.

Professor Jacinta Ruru: Law schools privilege Pākehā teaching and leadership.

Moves are happening at multiple levels. Political commentators have noted how Prime Minister Jacinda Ardern has appointed Māori and Pasifika MPs to cover the justice-related portfolios in her second-term Cabinet.

Kelvin Davis was already the Corrections Minister, and as the new Children’s Minister, he now also takes charge of Oranga Tamariki.

Poto Williams is Police Minister, while Kris Faafoi replaces Andrew Little as the Justice Minister.

These are symbolic top-level steps, if nothing else.

However, decolonisation is a broad project. And flying slightly under the radar has been a call by Māori law academics for a grassroots reform of legal training.

In a position paper published in August – Inspiring National Indigenous Legal Education for Aotearoa New Zealand – the group representing the six law schools say the Bachelor of Laws (LLB) degree needs to be rewritten to make it appropriately “bijural, bicultural and bilingual”.

Otago University law professor Jacinta Ruru, a lead author, writes that Pākehā ways are baked into the very fabric of the legal profession by existing training.

Citing indigenous scholarship, Ruru says law schools are a production line for legal actors, so serve as a continuing, if unwitting, site of colonisation.

She reflects on her own daily experience walking into the Otago law department. Along the Leith River, through the doors of the Richardson Building, past the Robert Stout Law Library. Names telling whose heritage matters, Ruru says.

“This is not unique to Otago’s law school. All law schools in Aotearoa New Zealand are similar: they entirely privilege Pākehā teaching and leadership.”

And so radical reforms are demanded. Like making a competence in te reo basic for any budding lawyer.

If students are to be decolonised – a bridge created between the country’s two founding cultures – they require a basic familiarity with the tongue in which the Māori legal perspective was formed.

Likewise, Ruru highlights the way current university training privileges the settler’s printed word over the oral tradition of tikanga Māori.

She says even the textbooks packing the Robert Stout Library convey an unconscious bias.

She dreams of Otago having a second library where, instead of dry statute books, Māori methods of learning will be employed, “such as art, tukutuku weaving, carvings, and photos of our maunga, our awa, our tīpuna.”

It does make sense. A bicultural justice system would need to be built from the ground up, starting with the young lawyers training for their careers.

And as a demand – given New Zealand’s unique treaty-based history – it sounds only fair.

But can it work and how would it work?

UC’s Adrienne Paul: Students at first think Māori tikanga is too “spiritual” to be a source of law.

Are the Pākehā and Māori notions of law fundamentally compatible or incompatible?

Is biculturalism best achieved by an assimilation of these two systems or through a preservation of their distinct histories?

And given the pressures of a four-year degree course, is the added workload of a bicultural LLB even doable as an ambition?

Sounding opinions

“Ah, these are difficult but good questions,” smiles University of Canterbury Māori land law lecturer Adrienne Paul.

Young and new to the job, Paul is leading the bicultural initiative within her own department. And she admits it is a leap into the unknown for everyone.

Paul says the mechanics of how decolonisation should work is a big part of what is now up for discussion.

The August position paper was phase 1 to get the ball rolling. Phase 2 is gathering feedback. Phase 3 will be formulating a collective action plan to be implemented by all the law schools.

Does Paul herself think te reo might really be made a future course requirement?

“The whole project is about figuring out how much te reo you need to bring in to actually be doing an LLB. The report obviously says full bilingual. But our purpose is to find out what the level of acceptance is from society.”

Of Ngāti Awa and Tūhoe descent, Paul is a latecomer to the legal profession.

She thought she was going to be doing something artsy, like graphic design, until, at 30, she decided she ought to train as a lawyer to help her Bay of Plenty iwi fight their grievances.

Paul remembers sitting alongside her father as a child, “witnessing the pain and confusion at Land Meetings”.

She says Waikato’s Te Piringa Faculty of Law, where she trained, already gives students classes in tikanga – the Māori code of customary practices, principles and protocols – and how it might apply in modern New Zealand legal practice.

Bicultural symbolism: The tohu for the law project represents Kupe’s Law together with Cook’s Law. It can be read as three baskets of knowledge. The Pātiki (flounder) pattern signifies being able to provide for whānau. Created by Tristan Marler (Te Rarawa/Te Aupouri).

First and second-year students get “taster” lectures. Third and fourth-year students are able to follow dedicated Māori law options.

The aim is now to have all law schools reaching the same level and really stepping up the game.

Paul says students in her own Canterbury class have the same general reaction as most people when first presented with the idea that tikanga could be a legitimate part of the legal system.

“I ask if it is even a source of law. The students end up saying no, it’s not, because it’s too spiritual. I tell them in fact it is a source of law. And they go ‘What?!’ ”

However, she says there is no hiding that Māori law has quite a different character to the British common law imported by the colonial settlers.

The Western legal code is a written-down set of step-by-step rules – an abstract programme for regulating individuals as if they are the interchangeable components of an impersonal machine.

Paul says it is built around some concepts, like private property rights and the ability to claim ownership of natural resources, that are quite alien to te ao Māori, or the Māori world view.

But as the law training report states, Māoridom had its own developed pre-colonial belief system that “recognised the importance of, and regulated, relationships between people; between people and their environment; and between the natural world and the spiritual world”.

This Māori law was indeed flexible and social, Paul says. It was organised around concepts like tapu, mana, whanaungatanga (kinship), kaitiakitanga (guardianship) and utu (balance).

The central goal was ora. Being prosperous and well. Finding a collective balance through negotiation and exchange.

Recounting Treaty history, the position paper notes that British politicians were at first minded to incorporate tikanga into the new colony’s legal system, particularly where Māori notions of tapu, or sacredness, were in need of formal protection.

But by 1877, the Treaty of Waitangi was being considered a “nullity” and the Crown had assumed sovereign authority over Aotearoa’s affairs.

Parliament wrote the laws. The court system provided the case law interpretation of their wording. And so for a long time, tikanga Māori was left on the outer.

A common identity?

A talking point of the law degree training project will be whether a bijural justice system – one incorporating two bodies of law – is about a fusion or an accommodation of viewpoints.

Paul agrees a reason for a resistance to change is the negative view that the spirituality and social order at the core of te ao Māori is a problem if law is meant to be something rational and dispassionate.

It seems that uniting the two systems of thought would have to be an impossible task.

Yet the positive view is that New Zealand is a land now searching for the cultural identity that makes it distinct.

The recent surge of interest in te reo and biculturalism shows a desire to connect to New Zealand as its own special place. “It feels like there is a shift going on”.

And doesn’t the settler law also reflect “spiritual” values such as Christian charity, green environmentalism, animal welfare and much else, she asks?

Contested burial: The grave in The Bay of Plenty where James Takamore was interred against his widow’s wishes.

So decolonisation – the bicultural discussion – can be the creative middle ground out of which a new shared identity is forged.

“When you have the fusion of te ao Māori and Western law coming together, it brings more structure to te ao Māori, but it could also bring more flexibility to the Western way of thinking.” Something good from both worlds.

Paul says an example of a fruitful cultural exchange has been the incorporation of the Māori concept of a rāhui – a temporary restriction on food gathering – into the Fisheries Act.

“That is a recognition of Māori law in British law. A rāhui was recognised as the model of protection. And it wasn’t as a replacement, but as an enhancement of our environmental regulations.”

This is how it can generally happen, she says. Where there is an alignment of values, it is not hard to amend the existing machinery of the legal system.

Common law has the advantage that it is open to test cases which can modify the “application” of legislation. Judges make interpretations that set new precedents.

And over the past few years, as bicultural issues have arisen, an increasing number of rulings have been made about how Māori tikanga can influence court judgments, Paul says.

In her course, for instance, she teaches about the James Takamore burial decision made by the Supreme Court in 2012.

Takamore lived with his Pākehā wife in Christchurch. But on his death, his whānau wanted to claim his body for burial in the tribal urupa in the Bay of Plenty.

The Supreme Court upheld his wife’s common law right to have the priority say as her husband’s executor. However, the very fact the tikanga argument was considered established its admissibility in law, Paul says.

Another significant ruling was the Whanganui River Treaty settlement in 2017. This saw the river being granted status as a “legal person” after local iwi said they regarded it as tīpuna – their ancestor.

Most recently, in September, the Supreme Court ruled the Peter Ellis appeal could continue after his death.

Ellis was appealing 13 still-standing convictions stemming from the 1990s Christchurch Civic Creche abuse case.

Former ACT MP Stephen Franks: “You have to have experts who tell you what the rules are.”

Allowing it to proceed is doubly significant because it both acknowledges the importance of a person’s mana even after death, and also extends that tikanga to a Pākehā individual.

In this way, says Paul, there is already a bicultural fusion happening as part of the court process. A Lex Aotearoa is quietly emerging.

Law or lore?

Perhaps that is the rosy view. The law school proposal certainly shows the ambition within Māoridom to promote cultural change. And so far, the project has gone surprisingly unremarked.

Lawyer and former ACT MP Stephen Franks asks what else is to be expected? The feel-good factor in promoting cultural justice makes it nearly impossible to criticise such a move these days.

“Most people in authority in this area have been too terrified of being accused of racism,” Franks says. “No-one wants to be the one who says the Emperor’s got no clothes.”

Franks’ counter-view is that the articles of the Waitangi Treaty make it clear Māori were accepting the English common law approach under the Crown. And to call tikanga a pre-existing legal system is an exaggeration.

“There was Māori lore – l-o-r-e – and a lot of Māori custom, but there was no Māori law. There was individual tikanga. There were many different iwi, and each had their own law.”

He likens it to feudal England before the British legal system was unified. “Every local baron had his own court and applied the law of that locality.”

Common law was created to take the tribal element out of justice. As the basis of a modern society, it has the advantage of being written down and universal.

It deliberately takes social connections and matters of religion and belief out of the equation as much as possible. For a multicultural nation, Franks says that is particularly important.

Yet New Zealand seems to be drifting towards accepting a biculturalism where it becomes unclear who actually has the authority to speak for the Māori law perspective.

Franks says this paves the way for a new self-appointed and undemocratic elite that claims to own the interpretation rights because of their knowledge of te reo and local tribal history.

Reforming a colonial institution: Young lawyers being admitted to the bar at Wellington’s High Court.

“It becomes a big power grab. You have to have experts who tell you what the rules are.

“And I think many of our judges will really enjoy the idea there’s going to be a fusion. As when no-one knows what the law is, then you’re handing the power to the judges to decide.”

The proposed law degree reforms have to be seen in this light, he says. And if there has been a lack of public reaction, it is because digging into the deeper issues has simply become too sensitive.

“I don’t know of any young intellectual lawyers in academia who can speak up and still hold their jobs. There’s just a great conspiracy of fear.”

Auckland University of Technology law professor Kris Gledhill rejects Franks’ fears. Moving Māori law from the fringes of legal training to its centre is well overdue, he says.

“It’s actually a late development. We should be moving full speed ahead because it should have been here a long time ago.

Gledhill says conservatives worry about change. Yet common law is well suited to steady incremental evolution through local court decisions.

“Reflecting the society the law regulates is pretty important.” And both the practice and teaching of New Zealand law already change continuously, he says.

For example, universities have had to update their commercial law courses to take account of the digital age – chucking out older contract law to make space for the new concepts. No-one complains about that, says Gledhill.

Likewise, in the 1990s, New Zealand law did a 180-degree flip when a court ruling said the country’s obligations under international treaty law had to take precedence over its local legislation unless Parliament made specific exception.

Gledhill says in terms of a challenge to sovereignty, that was equally significant. However, it was also part of New Zealand forging its new post-colonial identity within a globalising world. And again, law students need to understand all about that.

He says it is easy to exaggerate the difficulties of incorporating tikanga into New Zealand practice – to treat English-based common law as something sacrosanct.

“But common law is just a technique of making law. And that law should be consistent with the culture within which it occurs.

“So law schools who don’t recognise that are not going to be training people for the modern New Zealand legal system.”

Social geography

UC’s Paul says, from a practical point of view, there is much to be discussed about how students should be taught tikanga Māori.

It is not just all about case law application and legal precedents, she says. Courses need to get into the everyday professional protocols for lawyers as well.

A good part of what she teaches in her own classes is Māori social structure and the right way to approach a community when legal matters touch upon it – who it is proper to contact, from the iwi to the marae level.

“It’s about giving the students an understanding of how iwi are set up – their organisation, their structures, their processes.”

She says it is much like how young lawyers need to know about the powers and responsibilities of health boards or regional councils – the settler power structure.

Māori have their own complex social geography. And law students need a working knowledge of that.

Again it is tricky, says Paul. How all this tikanga can be conveyed within a degree course is what is up for debate.

So far, the indigenising law education initiative is getting strong internal backing, she says. “The deans of each law school are in support of the project.”

But the pushback may come in phase 3, once the course changes become better defined. “The harder questions will come then.” It will depend on how good a case the group makes.

Yet Paul says what looks beyond question is Te Tiriti o Waitangi – the Treaty – was a contract, a partnership, between two societies.

And if New Zealand has its two legitimate sources of law-making, that is what law schools now need to start teaching. It is another of the decolonising conversations the country needs to have.