Hinemoana Markham-Nicklin^[1] and Toni Wharehoka^[2] reflect on what should happen next to realise the delivery of legal education in Aotearoa that is bijural, bilingual and bicultural.

Hei tīmatanga - Introduction

From criminal justice reform to constitutional change, Moana Jackson has been leading mana-based change. Moana Jackson’s work has always been decades ahead of its time. The New Zealand Council of Legal Education’s (NZCLE) recent decision to make te ao Māori and tikanga Māori content compulsory for all law students follows longstanding calls from Māori legal academics, and reflects Moana Jackson’s 1997 recommendation to introduce compulsory education of tikanga Māori to our law school at Te Herenga Waka | Victoria University of Wellington.^[3] The recent decision finally recognises that a legal education in Aotearoa must encompass tikanga Māori, the first law of Aotearoa. Such a step signals a movement towards what Justice Tā Joseph Williams terms the “third law of Aotearoa” where the first law, Māori law is colliding with the second law, Pākehā law.^[4]

Tikanga Māori is relevant and applicable to many facets of the state legal system, including legislation, the criminal justice system, public law, and property law. Therefore, law graduates must be “trained to work in a bijural, bicultural and bilingual Aotearoa New Zealand legal system” and they must be able to meaningfully engage with tikanga Māori in order to be effective lawyers.^[5] However, law schools must also be able to meaningfully engage with tikanga Māori in order to provide effective, culturally responsive and competent delivery of te ao Māori concepts. Currently, law school remains a tool of colonisation that continues to perpetuate the dominance of Pākehā law.^[6]  If we are to shift to a truly bijural system which recognises tikanga Māori within its own right, we must decolonise our institutions to create a legal education that is bicultural, bilingual and subsequently bijural.

In Part Two this article discusses the growing recognition of tikanga Māori in the state legal system and therefore the requirement for law graduates to emerge from law schools equipped with the tools to operate in the unique legal landscape of Aotearoa. Further, it echoes the warnings from Moana Jackson in 1997 in relation to teaching tikanga and te ao Māori within law schools. In Part Three the article discusses our journey through law school and some of the challenges and opportunities we have faced. In Part Four the article unpacks the risks identified in Part Two and argues that we need to examine, understand and reconsider the values that the monocultural law school is built on to create a bicultural institution that is capable of teaching a truly bicultural degree. Finally, Part Five identifies the steps that need to be taken by law schools in order for Moana Jackson’s vision, expressed in 1997, to be fully realised and for the NZCLE decision to have its desired effect — for tikanga Māori to be recognised as law in its own right.

II     Tikanga Māori in the law degree: the NZCLE decision

Tikanga Māori has emerged slowly through the cracks of the colonising power’s legal system. In the modern era, tikanga Māori has been recognised in diverse statutory contexts including the Resource Management Act 1991, the Building Act 2004 and the Oranga Tamariki Act 1989. It has arisen in the criminal justice context through Te Pae Oranga,^[7] R v Mason and section 27 cultural reports.^[8] The Waitangi Tribunal | Te Rōpū Whakamana i te Tiriti o Waitangi in Ko Aotearoa Tēnei grappled with the notion that there ought to be more recognition of tikanga Māori in the context of intellectual property.^[9] Te Urewera and Te Awa Tupua have received statutory recognition of legal personhood, reflecting the kaitiaki relationship Māori have with the environment.^[10] In Takamore v Clarke and more recently in Ellis, the Supreme Court has begun to consider the role of tikanga Māori as a strand of law that informs Aotearoa’s common law.^[11] These developments demonstrate it is crucial that the lawyers who emerge from law schools are equipped to work in the unique legal landscape of Aotearoa. This requires law students to engage with te ao Māori and tikanga Māori during their legal education.

The need for tikanga Māori and te ao Māori concepts to be implemented in law schools has been recognised and acted upon by the recent NZCLE decision.^[12] This decision calls for celebration. However, while Moana Jackson recommended this change in 1997, he warned that true biculturalism needed to be achieved before the incorporation of tikanga into legal education could be done.^[13]  Law school operates as a tool of colonisation, a largely monocultural institution that further embeds the view that Pākehā law and Western knowledge are superior to tikanga Māori. Any change must begin with transforming the monocultural structure of the institution itself. In light of the NZCLE’s decision, we echo this warning from Moana Jackson. In order for tikanga Māori to be properly implemented into legal education, law schools must first undertake structural and systemic change.

III  Māori and the Pākehā law degree: Our journey through law school

Our journey through law school has been curious. It is where, for the first time in our educational journey, we learned about Te Tiriti o Waitangi. It is where our first year law lecturer recited Chief Justice Prendergast’s infamous words labelling Te Tiriti o Waitangi “a simple nullity” and noted his dismissive remarks that Māori were “barbarians”, incapable of having social order or a system of law.^[14] It is where we have cringed when classmates roll their eyes and groan after our law lecturer announces that we will be spending a week learning about tikanga Māori in property law. It is where we have had to console our teina who have been subject to racist remarks by Pākehā lecturers or other students. It is where our names and other kupu are mispronounced. It is where we have sat in lecture theatres, frozen, as other students debate the legitimacy of tikanga Māori as a source of law in Aotearoa and our inherent rights, as tangata whenua, guaranteed by Te Tiriti o Waitangi.^[15]

However, law school is also where we have reconnected with te ao Māori. At law school we have learned how tikanga Māori interacts with the state legal system. We have learned that tikanga Māori is a resilient force that is emerging through the cracks after being overlaid by Pākehā law.  At law school we have found refuge in Ngā Rangahautira | Victoria University of Wellington Māori Law Students’ Association, we have been taught by leading Māori legal academics and we have connected with Te Hunga Rōia Māori | the Māori Law Society. At law school we have rediscovered our own Māoritanga and affirmed our identity as proud, Māori tauira. At law school we have learned about indigenous rights, we have gained the tools we need to challenge the underpinnings of the common law system and we have joined the movement to decolonise and reindigenise Aotearoa.

It is difficult to reconcile this reconnection with te ao Māori within the colonial building that once housed Te Tiriti o Waitangi, leaving it to rot and be eaten by rats in the basement. But our reconnection with te ao Māori was not instigated by our law degree, or Old Government Buildings. This reconnection was instigated by Ngā Rangahautira, Dr Carwyn Jones, Māmari Stephens and other Māori tauira and legal academics. Just like tikanga Māori emerging through the cracks of the state legal system, Māori tauira and Māori legal academics are rising up and becoming agents of mana-based change in these monocultural institutions.

IV   The risks of tikanga Māori in a Pākeha law degree

Although Moana Jackson recognised the importance of teaching tikanga Māori as part of the law degree, he argued that the teaching of tikanga within the Pākehā law degree is highly problematic.^[16] A bicultural law degree is needed. However, in order for the law degree to be bicultural, the institution itself must become bicultural.  One way in which law schools can become bicultural is through the employment and empowerment of Māori academics within these institutions.^[17] Another way is by unpacking, understanding and reworking the values on which the monocultural institution is built.^[18]

An assumption which sits at the heart of the Pākehā law degree, and the institutions that deliver this degree, is that Pākehā law is “the” law and tikanga Māori is simply an “add-on”.^[19] In reality, Pākehā law is the second law of Aotearoa which was forced upon tangata whenua through colonisation. The assumption that Pākehā law is “the” law in Aotearoa is what is known as epistemological racism. This form of racism assumes that Western knowledge is superior to mātauranga Māori.^[20] In the Waitangi Tribunal’s recent report on the Crown’s actions dealing with tamariki, He Pāharakeke, he rito Whakakīkinga Whāruarua, epistemological racism is described as the most insidious form of racism.^[21] This is because it drives Crown policies that result in the assimilation of Māori.^[22]

In order to prevent this vicious cycle of epistemological racism continuing within our law schools and law degree, we must listen to Moana’s call to Pākehā staff and students to scrutinise their own culture and realise that Pākehā law is not “the” law but a cultural construct on its own.^[23]  This promotes understanding of the nature and history of Pākehā law in Aotearoa. As a result, our legal education will finally reflect that tikanga Māori was the first law in Aotearoa and the subsequent introduction of Pākehā law did not make it “the” law but the second law in New Zealand. This will help shift our law degree from being monocultural to bicultural.

Moana highlighted in his report that when Māori advocate for self-determination or seek autonomous structures there is often an accusation of the denial of “academic freedom”.^[24]  Although this debate may seem dated, there have been recent discussions of threats to academic freedom due to the compulsory teaching of indigenous content within universities in Canada — the debate is, unfortunately, still a live issue.^[25] As has been displayed in the Canadian context, it would not be surprising that within Aotearoa a call to dismantle the structure of the law school to create a truly bicultural degree will be met with such a response. Therefore, we must reconsider the concept of academic freedom before we can progress with structural change.

Under the Education Act, New Zealand universities are characterised as the “critic and conscience of society”.^[26] This allows academics to freely voice their opinions and ideas within their teaching and beyond the walls of the university without fear of reprimand.^[27] As a result, it is a potential risk that academics may use their role as the “critic and conscience” of society to question the role of tikanga and te ao Māori within the law degree and disseminate these ideas to students and those beyond the walls of the University. Further the concept of academic freedom may prompt a pushback from academic staff if there are suggestions to restructure the institution, as it will affect the way they teach and regulate their courses. The issue is further complicated because the content of the law degree in Aotearoa is affected by decisions of the New Zealand Council of Legal Education.

However, in his other work, Moana has said that freedom of speech should not make another feel less free.^[28] Freedom of speech is not an unqualified right.^[29] The same idea can be applied to “academic freedom”. “Academic freedom” should not allow Māori knowledge to be seen as less than Pākehā knowledge. It should not be unqualified. Law schools must ensure that academics, through the use of "academic freedom", are not allowed to use their influence to make tikanga Māori be seen as less than Pākehā law. It is only with these baselines that we can ensure a truly bicultural institution and a bicultural law degree emerges and can flourish.^[30]

V     Moving forward: a truly bijural, bilingual and bicultural law degree

The NZCLE decision is a great first step in realising Moana Jackson’s vision from 1997. However, law schools do have a long journey ahead of them to ensure that cultural distortion of tikanga and te ao Māori does not happen and the degree they provide is truly bilingual, bicultural and subsequently bijural. In continuing the work Moana has begun, we list a set of demands that reflect his suggestions from 1997. Although suggesting radical change may seem impossible and unrealistic, Moana highlighted in a recent speech that when ancestors crossed Te Moana-nui-a-Kiwa they overcame what they believed was impossible through courageous wisdom.^[31] He further highlighted that courage “is simply a deep breath you take before a new beginning”.^[32] This is how we achieve this new beginning for our legal education:

• Reconsider the values our institutions are built on, such as “academic freedom”, to ensure that epistemological racism does not survive;
• Employ and empower Māori legal academics in our institutions;
• Give an integral role to Māori Studies departments in teaching tikanga and te ao Māori, as they are guardians of this knowledge, to show the wider context in which tikanga and te ao Māori exist;
• Make te reo Māori compulsory within the law degree, as this is the only way tauria can understand the intricacies of tikanga, te ao Māori and te Tiriti o Waitangi;
• Recognise whānau, hapū and iwi obligations of Māori tauira to ensure they are properly supported through their studies; and
• Consult mana whenua to ensure that our tikanga Māori courses reflect the tikanga of the land upon which our institutions sit.

Notes

[1] Ngāti Kahungunu ki te Wairoa and Ngāti Pāhauwera.

[2] Taranaki and Te Atiawa.

[3] Moana Jackson He Waka Eke Noa: A Report for the Faculty of Law, Victoria University of Wellington (Ngā Kaiwhakamarama I Ngā Ture | Māori Legal Services, Wellington, 1997) at 24.

[4] Joeseph Williams "Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law" (2013) 21 Wai L Rev 1 at 11.

[5] Ngā Pae O Te Māramatanga “Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree — Phase One: Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand” (Borrin Foundation, Wellington, 2021) at 8.

[6] Jackson, above n 3 at 24.

[7] See New Zealand Police “Te Pae Oranga Iwi Community Panels” <www.police.govt.nz>.

[8] R v Mason [2012] NZHC 1849; and Sentencing Act 2002, s 27.

[9] Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011).  

[10] Te Urewera Act 2014, s 11; and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14.

[11] Takamore v Clarke [2012] NZSC 116; Ellis v R [2020] NZSC 89.

[12] New Zealand Council of Legal Education “Te Ao Māori and Tikanga Māori” (7 May 2021) <www.nzcle.org.nz>.

[13] Jackson, above n 3, at 115 and 124.

[14] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72 at 77 and 78.

[15] While we acknowledge the differences between Te Tiriti o Waitangi and the Treaty of Waitangi, for the purposes of this article we use “Te Tiriti o Waitangi” to cover both versions.

[16] Jackson, above n 3, at 124.

[17] Jackson, above n 3 at 120. This subject was further explored by our dear friend Rhianna Morar. See Rhianna Morar “Ka Whawhai Tonu Mātou: Intellectual Work and the Settler-Colonial University” (LLB(Hons) Research Paper, Victoria University of Wellington, 2021).

[18] Jackson, above n 3, at 49.

[19] At 44.

[20] Waitangi Tribunal He Pāharakeke, he rito Whakakīnga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at 52.

[21] At 52.

[22] At 52.

[23] Jackson, above n 3 at 49 and 52.

[24] At 53.

[25] See Karen Drake “Finding a Path to Reconciliation: Mandatory Indigenous Law, Ainshinaabe Pedagogy and Academic Freedom” (2017) 95 Can Bar Rev 10 at 33; and Frances Widdowson “The Threat to Academic Freedom, Freedom of Inquiry and Academic Standards” (6 June 2019) Fronteir Centre for Public Policy <www.fcpp.org>.

[26] Education Act 1989, s 162(4)(a)(v).

[27] D Gareth Jones, Kerry Galvin and David Woodhouse Universities as Critic and Conscience of Society: The Role of Academic Freedom (Te Wahanga Tatari Kaute Tohungatanga o ngā Whare Wananga o Aotearoa | New Zealand Universities Academic Audit Unit, Wellington, 2000) at 2.

[28] Moana Jackson “No one’s exercise of free speech should make another feel less free” (6 May 2018) E-Tangata <www.e-tangata.co.nz>.

[29] See Human Rights Commission Human Rights in New Zealand (Wellington, 2010) at 131–132; New Zealand Bill of Rights Act 1990, s 5; and Human Rights Act 1993, s 131.

[30] Jackson, above n 3 at 49 and 114.

[31] Moana Jackson “Moana Jackson: Decolonisation and the stories in the land” (9 May 2021) E-tangata <www.e-tangata.co.nz>.

[32] Jackson, above n 31.

Author: Hinemoana Markham-Nicklin

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