Toni Wharehoka explains the goal of a bijural system and how measures including bilingualism and biculturalism can mitigate risks of subordinating tikanga in the dominant legal system.

My whānau hails from Parihaka, a settlement in western Taranaki established by Te Whiti o Rongomai and Tohu Kākahi.  Parihaka represented a movement for peace and independence.  It fought for the society envisaged under Te Tiriti o Waitangi — a society in which the ways of life of Māori and Pākehā were mutually recognised and respected.  This included a mutual recognition and respect for systems of law and governance.  Despite Te Rā o te Pāhua,^[1] the people of Parihaka continue to pick up this wero our tīpuna laid down for us.  

For the goal of Te Whiti and Tohu to be realised, a bijural system is needed.  Legal education plays an integral role in this, and steps are being taken towards bijural education with tikanga becoming a compulsory part of the LLB from 1 January 2025.  These steps, however, have been met with some resistance.  This year, Gary Judd KC filed a complaint about the regulations which will make tikanga a compulsory part of the law degree.^[2]  The essence of Mr Judd’s complaint is that tikanga is not law; rather, it is a system of beliefs and cultural values incapable of being a legal system in its own right.  Although the reasoning which underpins the complaint is fundamentally flawed,^[3] Mr Judd’s comments highlight a risk that comes with the mere incorporation of tikanga into legal education — its subordination as a system of law.^[4]

This risk has been echoed for decades.  In 1997, Moana Jackson wrote a report for Te Herenga Waka on the incorporation of tikanga within the LLB.  He said incorporation is inherently problematic and has the risk of leading to the redefinition and co-option of tikanga.^[5]  The wero for academic institutions in teaching tikanga Māori next year is to ensure co-option does not happen.  I believe successful incorporation requires two further commitments: a commitment to bilingualism, and a commitment to biculturalism.

In applying tikanga, the legal system often uses English equivalents of tikanga values and examines the operation of tikanga within a Pākehā philosophy.  This divorces tikanga from its cultural and philosophical base, removing its integrity.^[6]  A clear example of this is the definition of kaitiakitanga in the Resource Management Act 1991 (RMA) as ‘an exercise of guardianship by tangata whenua over natural and physical resources’.^[7]  Kaitiakitanga, however, is a more holistic concept.  It is a nexus that “permeates between spiritual, environment and human spheres”.^[8]  It extends to further obligations and rights than solely guardianship.  To avoid redefinitions such as in the RMA, a commitment to bilingualism is needed.  As Jacinta Ruru and others have discussed, a commitment to bilingualism would include ensuring law graduates' understanding of tikanga is not limited to the use of English interpretations, professional reo Māori development for teaching staff, and greater access and support for teaching and assessing in te reo Māori.^[9]  

Bilingualism alone is not enough.  Biculturalism is another important tenet for the safe teaching of tikanga.^[10]  An issue with biculturalism, however, is that it has no consistent definition amongst civil and political institutions.  Moana Jackson identified two competing definitions of biculturalism.  The first is where the institution is taken as a given and is altered to become more “culturally sensitive” to Māori needs, measuring Māori success against Pākehā standards.^[11]  The second goes further, questioning the structure of the institution itself and seeking to transform it into one which is underpinned by an equitable partnership, where Māori rangatiratanga is fully engaged and respected.^[12]  It is the second definition that needs to be adopted by academic institutions to avoid the subordination of tikanga. 

To adopt a truly bicultural model, academic institutions must first acknowledge the role they have played in colonisation.  Law and education were common tools used to assimilate and disenfranchise indigenous peoples.^[13]  They perpetuated the myth that colonial law is the law whilst indigenous law was simply a cultural construct, not capable of being a system of law in its own right.^[14]  Teaching the history of colonisation in Aotearoa and the role law and education have played within colonisation will help to dismantle this myth which permeates the thinking of people like Mr Judd, and avoid the subordination of tikanga.^[15] 

Biculturalism also encompasses sharing of resources and decision-making power, allowing tikanga Māori to be taught “by Māori for Māori”.^[16]  To ensure this, law schools will need to hire, retain, and empower Māori legal academics to teach in a kaupapa Māori way.^[17]  This requires a deconstruction of prevailing notions of intellectual work.^[18]  Rhianna Morar has highlighted the colonial nature of the university and its creation of prevailing notions which value Western scholarship.^[19]  This can be seen, for example, in research funding where mātauranga Māori is often lumped into humanities even though it permeates into other disciplines such as law and science.^[20]  Allowing mātauranga Māori to be seen as a source of knowledge in disciplines outside of humanities and Māori studies will widen the applicant pool of Māori legal academics.  It also helps to decolonise research methodologies, which can inform tika practice for teaching Māori content.^[21] 

In conclusion, bijuralism devoid from notions of bilingualism and biculturalism can lead to distortion of tikanga at best, and continue the cycle of colonisation at worst.  To ensure the vision of my tīpuna is fulfilled, I lay down this wero to the academic institutions who will soon begin to teach tikanga Māori.  And although I recognise the burden placed on Māori students and staff, I call upon them to ensure they hold academic institutions to account as we begin the haerenga to a truly bijural system. 

Ngā kupu āpiti - Notes

[1] Te Rā o Te Pāhua, translated to “The Day of Plunder”, refers to the events of 5 November 1881.  Crown troops invaded Parihaka pā, destroying the settlement and forcibly removing its people.  Te Whiti and Tohu were arrested and held without trial for 16 months.  To learn more about the story of Parihaka see: Dick Scott Ask That Mountain: The Story of Parihaka (Penguin Group, Auckland, 2008).

[2] Gary Judd “Senior King’s Counsel files complaint about compulsory tikanga Māori studies for law students” (3 May 2024) The Law Assocation <http://thelawassociation.nz>.

[3] See the eloquent responses to Mr Judd’s comments which dismantle his argument and affirm the status of tikanga as law: Tai Ahu “Te Hunga Rōia Māori/the Māori Law Society responds to Gary Judd KC” (17 May 2024) The Law Association <http://thelawassociation.nz>; Carwyn Jones “Tikanga is the first law of Aotearoa” (9 May 2024) The Spinoff <http://thespinoff.co.nz>; Kingi Snelgar “An open letter to The Law Association” (13 May 2024) LinkedIn <http://linkedin.com>.

[4] See comments about the risks of incorporating tikanga into the legal system generally: Moana Jackson “Justice and Political Power: Reasserting Māori Legal Processes” in Kayleen M Hazelhurst (ed), Legal Pluralism and the Colonial Legacy (Ashbury Publishing, Idaho, 1995) 244; Claire Charters “Recognition of Tikanga Māori and the Constitutional Myth of Monolegalism: Reinterpreting Case Law” in Robert Joseph and Richard Benton (eds) Waking the Taniwha: Maori Governance in the 21st Century (Thomson Reuters NZ, Wellington, 2021) 611; Natalie Coates “The Recognition of Tikanga in the Common Law of New Zealand” [2015] NZLR 1; John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” (2008) 12 Journal of Pacific Law 56.

[5] 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 7 and 124.

[6] Paul Heath “‘One Law for All’ — Problems in Applying Māori Custom Law in a Unitary State” (2010 & 2011) 13 & 14 Yearbook of New Zealand Jurisprudence 194 at 210; Robert Joseph “Re-creating Legal Space for the First Law of Aotearoa New Zealand” (2009) 17 Taumauri | Waikato Law Review 74 at 96. 

[7] Resource Management Act 1991, s 2(1).

[8] Merata Kawharu “Kaitiakitanga: A Māori Anthropological Perspective of the Māori Socio-Environmental Ethic of Resource Management” (2000) 109 Journal of the Polynesian Society 349 at 351.

[9] Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One (Borrin Foundation, Wellington, 2020) at 44.

[10] Hinemoana Markham-Nicklin and Toni Wharehoka “Legal education — reflecting on a truly bijural, bilingual and bicultural law degree” (2021) July Māori LR.

[11] Jackson, above n 5, at 14.

[12] At 14.

[13] At 19–23.

[14] At 15; Markham-Nicklin and Wharehoka, above n 10.

[15] Jackson, above n 5, at 49 and 52; Markham-Nicklin and Wharehoka, above n 10.

[16] Stephanie Milroy “Waikato Law School: An Experiment in Bicultural Legal Education” (LLM Thesis, Te Whare Wānanga o Waikato | University of Waikato, 1996) at 110.

[17] Ruru and others, above n 9, at 41.

[18] Rhianna Morar “Ka whawhai tonu mātou: Intellectual work and the settler-colonial university” (LLB (Hons) Seminar Paper, Te Herenga Waka | Victoria University of Wellington, 2021) at 4–6;  See also Joanna Kidman “Whiter decolonisation? Indigenous scholars and the problem of inclusion in the neoliberal university” (2020) 56 Journal of Sociology 247 at 249–250.

[19] Morar, above n 18, at 10–11.

[20] At 11–12.

[21] At 8–9.

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