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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 19 April 2015
WAIKATO LAW SCHOOL: AN EXPERIMENT IN
BICULTURAL
LEGAL EDUCATION
PART 1: BICULTURALISM AND THE FOUNDING OF WAIKATO LAW
SCHOOL
Stephanie Milroy*
INTRODUCTION
In New Zealand policy discourse centres on biculturalism rather than multiculturalism. Although multiculturalism for a period had some currency, biculturalism has achieved a greater purchase in policy, largely because of the importance of the Treaty of Waitangi in New Zealand. Biculturalism may be seen as a foundation for one kind of pluralist society. The attempt to make state institutions bicultural may provide lessons for those attempting to imagine a multicultural society.
Waikato Law School was established with the founding principles of professionalism, biculturalism and teaching law in context. Biculturalism is a contested term but it means at least that the Treaty of Waitangi should stand as a blueprint for structures and processes in the School. When the first Maori students graduated from the Law School Stephanie Milroy was one of the staff who conducted a survey of those students to see whether the School had lived up to its promise of biculturalism. In 1999 Leah Whiu conducted a follow-up study to see what changes had occurred at the School in order to judge progress on the bicultural journey. This paper will consider the successes and failures of the School, the barriers to further success, and what lessons may be learnt by those attempting to create bicultural and multicultural institutions.
In the first part of this chapter Stephanie Milroy discusses the interaction of the terms "multiculturalism" and "biculturalism" in education policy,
Stephanie Milroy LLB (Auck) LLM (Waikato), Ngai Tuhoe , Te Arawa. She was
appointed resident judge for the Waikato Maniapoto district
of the Maori Land
Court in 2002. Stephanie began her career in private practice before being
appointed lecturer and then senior lecturer
in law at the University of Waikato
in 1990.
174 Yearbook of New Zealand Jurisprudence Special Issue - Te
Purenga Vol 8.2
the reasons for biculturalism being a contested term, and the founding of the Law School with the inclusion of biculturalism as one of the main goals of the School. In the second part of the paper Leah Whiu will discuss the reality of being a Maori student at Waikato, making use of the words of the students who took part in her study.
MULTICULTURALISM AND BICULTURALISM
"Bicultural ism" and "bicultural" are relatively new terms.1 Schwimmer used the term in connection with Maori and Pakeha2 relations as early as 19683 but it did not come into widespread use until the 1980s.4 Biculturalism is the latest development in race relations policy taken up by the State (to a degree) and various institutions. It is useful to look back at the history of race relations policy, particularly in education, to give a background to biculturalism.
When Pakeha first arrived in New Zealand Maori were characterised as barbarians and savages, albeit noble ones, to be saved and civilised by the Pakeha: in other words a policy of assimilation was adopted towards Maori.5 As numbers of Pakeha settlers increased Maori also came to be seen as an impediment to be removed so as to provide Pakeha with access to land.6 As war and, later, disease took their
3 Schwimmer, E (ed) Maori People in the 1960s (London: Hurst, 1968)
2005 Waikato Law School: An Experiment in Bicultural Legal Education 175
terrible toll on Maori population numbers, the duty of the Pakeha became to "[smooth] the pillow of a dying race."7
Once it was seen that the Maori population was not dying outs and instead, from the 1920s onwards, was recovering and expanding,9 the dominant policy remained one of assimilation.1° Assimilation meant that Maori would become brown-skinned Pakeha, Maori culture being obliterated in the process. The education system was an important tool in that process," not only contributing to the loss of the language and culture, but also marginalising Maori by a deliberate policy of training for manual labour rather than for the professions. Maori were thought to be too unintelligent for a 'refined education or high mental culture.'12
The policy of assimilation was later overlaid in the 1960s by the policy of integration which was advocated for in the Hunn Report on the Department of Maori Affairs, a review which was completed in 1960.13 Integration involved the idea of combining Maori and Pakeha cultures, rather than Pakeha culture replacing Maori culture. The focus of the policy was the "we are one people" ideology. In fact this ideology was used by Pakeha teachers, perhaps unconsciously, to subvert the process
9 Ibid, 109-111.
quote of the school inspector's report from which this excerpt was taken.
176 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
of bringing Maori culture and language into schools in the '60s and '70s.14 The results of the policy were similar to assimilation because there was still compulsion on Maori to learn Pakeha culture but only the "opportunity" for students to learn Maori culture.I5
Integration was closely related to "multi-culturalism," which was seen by Maori as a tactic by the State to "quieten Maori demands for their language and culture to be taught in schools, as well as to placate mainstream New Zealand and encourage tolerance and restraint.'
Multiculturalism was described as a mechanism 'for doing nothing' and, in response to the push for multiculturalism in education, Ranginui Walker argued for biculturalism as a more appropriate social relationship for Maori and Pakeha under the Treaty of Waitangi.17 Biculturalism was seen as involving issues arising out of "colonisation and its impact on indigenous peoples, whereas multi-cultural issues have resulted ... from immigration post-colonisation"." By the 1980s the idea of multiculturalism as being an answer to Maori educational needs was being challenged by the idea of biculturalism.19 During this period a combination of influences, including Maori activism20 and the Waitangi Tribunal findings, led to heightened prominence being given to the Treaty of Waitangi. While biculturalism may have started out as a policy advocated by some Maori in response to the prevailing social conditions,
14 Walker, R, supra n 11, 241 - 242.
2005 Waikato Law School: An Experiment in Bicultural Legal Education 177
the strong linkages that can be drawn between biculturalism and the Treaty mean that the Treaty is often used as the grounds on which biculturalism is now argued.2I
Biculturalism - A Contested Term
Biculturalism has filtered into the consciousness of a number of organisations, such as the University of Waikato, with further impetus being given to this development by the stance adopted by the Royal Commission on Social Policy. The conclusions reached by the Commission about the Treaty of Waitangi were that:
the Treaty of Waitangi is for all New Zealanders;
the Treaty's application encompassed all social and economic policies;
and the Treaty is a pro-active document with implications for the future as much as for the past.22
In education the Department of Education prepared briefing papers in 19 8723 which, "within the spirit of the Treaty of Waitangi," acknowledged Maori as tangata whenua. The papers talked of an obligation "to improve the status and achievement of Maori people through education."24 The Taskforce to Review Education
24 Idem.
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Jurisprudence Special Issue - Te Purenga Vol 8.2
Administration25 stated that the provisions of the Treaty of Waitangi would be observed in respect of policy. It was also determined that one of the basic principles of the school curriculum should be to honour the Treaty on Maori language and culture.26
At the same time as references to the Treaty proliferated in policy a growing number of cases involving the Treaty of Waitangi were being heard in New Zealand. The influence of the courts on interpretations of what the Treaty means, and therefore what "bicultural" might mean has been considerable. Possibly the most important provision containing reference to the Treaty was s 9 of the State-Owned Enterprises Act 198627. That section provided that nothing in the Act permitted the Crown to act in a way which was inconsistent with the principles of the Treaty. The section opened the door for the New Zealand Maori Council to file an application for an injunction against the transfer of land by the Crown to SOEs (State-Owned Enterprises) which might be the subject of a claim to the Waitangi Tribunal.28 The Court of Appeal, in deciding the case, stated that if it had not been for the inclusion by Parliament of the principles of the Treaty in the statute the court could not have acted. The Court's job was to interpret the statute, which involved interpreting the principles.29
The Court's principles included the sovereignty of the Crown, protection of Maori chieftainship and possessions, and a partnership between the races where both parties had to act reasonably and in good faith.3° These Treaty responsibilities were "analogous to fiduciary duties," including a duty to remedy past breaches of the Treaty. However, the Crown's duty to govern was paramount so that the Crown could deny remedies where such remedies might conflict with the duty of good
28 New Zealand Maori
Council v Attorney-General [1987] 1 N.Z.L.R 641.
29 Ibid,
661.
30 Ibid, 663-664. This is the legal foundation for arguments in favour
of biculturalism.
2005 Waikato Law School: An Experiment in Bicultural
Legal Education 179
government.31 While the government could make policy decisions, it should "take the Maori race into its confidence."32 This, the Court said, fell well short of an open-ended duty to consult, which would be unworkable.33 In its discussion we can see the Court moulding Treaty principles to fit into traditional legal concepts from the British-based monocultural legal system - "fiduciary" and "partnership" are concepts from that system.
The term "partnership" itself needed further interpretation by the courts,34 who later made it abundantly clear that partnership did not mean an equal partnership, especially where material resources were concerned - the Crown still had the overriding power of rule. Thus the courts' interpretations attempted to confine the guarantee of tino rangatiratanga, effectively denying Maori the full promise of the Treaty, surely in itself a breach of the Treaty. Partnership is now often used in conjunction with biculturalism, and treated as an element of biculturalism. The meanings both words take on depend on the context in which they are used. But Maori have found to date that the government has paid little more than lip service, if that, to the concept of a partnership with Maori.
Bicultural Models
However, some progress towards a biculturalism based on the Treaty has been made in several organisations which have set up bicultural models of operation, such as the Anglican Church, the Ministry of Women's Affairs and the Women's Refuge Movement.
The model chosen by the Anglican Church arose out of the report of a bicultural commission, comprised of three Maori and three Pakeha. The commission travelled the country listening to the submissions of Paella and Maori Church members on the Treaty and its implications for the life and structure of the Church. The result was that some Church land was returned to Maori and the governing body of the
good government since it supposedly protected New Zealand's economy.
32 Supra n 28, 665.
33 Idem.
180 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
Church, the General Synod, was restructured on the basis of three cultural streams - Pakeha, Maori and Pacific Islands. In the past the Pakeha members could outvote the Maori by sheer weight of numbers. The new structure means that can no longer happen, allowing the Maori or Pacific branches of the Church a veto on measures which might affect them adversely. Within that structure each branch of the Church is self-determining. John Paterson, the Bishop of Auckland, has stated that the synod works much harder now at achieving consensus and in developing mutual understanding and trust.35
The term used in the Church to describe the system is the tikanga system and various other Maori terms are also used. This shows the double-edged nature of biculturalism. It can be, and sometimes is, the adoption of the best in each culture to the mutual benefit of both. On the other hand it can so easily become cultural piracy, another form of colonisation, where the values and language of one culture are misappropriated, suffering deformation in the process. In determining whether such appropriation is valid one of the most important indices must be the relative positions of power of the parties involved. In New Zealand, Maori were stripped of political and economic power, so that redress must occur before any kind of cultural sharing can take place on a basis of equality. In the case of the Church I do not think it has practised cultural piracy, since it has made some redress to Maori, and sought political equality for Maori. But any organisation must be very careful to avoid further colonising activity which would simply become another layer of oppression for Maori.
The model adopted by the Ministry of Women's Affairs was to set up Te Ohu Whakatupu, a Maori policy unit, whose original purpose was to advise the Minister on issues for Maori women. The other unit in the Ministry is the Policy Unit. Te Ohu Whakatupu has almost equivalent staffing and resources as the Policy Unit.
The Ministry established a structure which supported Maori staff, not only in the traditional areas of liaison and consultation with iwi and issues specific to Maori, but also in contributing to mainstream policy development and analysis. This was an area most Maori in government
35 Paterson, J in Archie, C (ed) Maori Sovereignty: The Pakeha Perspective
(Auckland: Hodder, Moa, Beckett, 1995), 28.
2005 Waikato Law School: An
Experiment in Bicultural Legal Education 181
were too busy engaged in liaison to deal with, yet which has a major impact on Maori. The Ministry also has a sufficient number of Maori to be able to give each other support in carrying out all functions. Te Ohu Whakatupu also created a plan called "The Responsiveness to Maori Plan " by which accountability for the needs and aspirations of Maori women is systematised. The Plan proposes mechanisms and tools by which each part of the Ministry's activities can be monitored and by which each staff member can monitor themselves for responsiveness to Maori women's aims, not only as a response to the Treaty but also as sound business practice.36 The dilemma for Maori women in Te Ohu Whakatupu is that others regard the Ministry as part of government, a tool of the oppressor.37 This is a dilemma for all those who are trying to transform Pakeha institutions into bicultural ones, and the justification for them will be if such work actually assists in delivering on Treaty guarantees.
The Women's Refuge Movement also developed a bicultural model based on equal sharing of resources, and shared decision-making power at national level. The Maori women's refuges have their own controlling body, as do the Pakeha women's refuges. Although a cloud now hangs over the operations of the national body, when it was in full operation the Maori and Pakeha refuges each sent equal numbers of representatives to the national collective to deal with national issues.
All these models share, to a greater or lesser extent, certain common characteristics: a transfer and sharing of responsibility, resources and decision-making power. In these organisations there is also growing recognition of Maori culture, needs and aspirations. All these organisations are at points where Maori and Pakeha must come into contact. What they have sought to achieve is a fair and just accommodation of the needs of both cultures while also recognising the need for redress, since Maori have suffered so much political, economic, social and spiritual damage from colonisation. In other words these organisations have recognised that it is not enough to give everyone equal opportunity if history means that some are not able to take advantage of it.
37 Ibid, at 72-73.
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Jurisprudence Special Issue - Te Purenga Vol 8.2
These organisations also recognise that the democratic ideal of "one man, one vote" has worked a tyranny of the majority on Maori: the prevailing form of our democratic system has to be challenged and changed if it entrenches oppression rather than overthrowing it.
Other Visions of Biculturalism
There are more general visions of biculturalism which show a great deal of variation in the way the term "bicultural" is interpreted. One vision is of decentralised Maori regional bodies which would "complement" public policy, provide a voice for Maori in national politics and be involved in local social and economic development.38 This vision takes account of scarcity of resources and practical difficulties in setting up entirely separate structures for Maori and Pakeha.
Another Maori vision focuses on the need for people to examine themselves, the social institutions they create and their philosophies to find out why they fail to serve the people who need them, the majority of whom happen to be Maori. One strategy is increased Maori representation on decision-making bodies. The goal is for Maori to have choices about education, legal service, health service and form of government. At that point the interaction between Maori and Pakeha will be more successful - that would be the point where we could have a bicultural society.39 Biculturalism, then, is something to work towards by restructuring to free Maori from oppression, and thus to free Pakeha as well.
In another Pakeha vision40 of New Zealand, however, the Maori-Pakeha relationship plays a very small part - the main concern is economic success for New Zealand in the global marketplace. It is desirable to have a harmonious society, and to achieve this Maori grievances must be addressed: this vision assumes that the government, the courts and the Tribunal are addressing them properly.
39 Ramsden, I, "Doing it for the mokopuna" in Ihimaera (ed),
ibid, 259-260.
40 Fay, M, "Getting a Real Score on the Board" in Ihimaera
(ed), ibid, 152 at 163.
2005 Waikato Law School: An Experiment in
Bicultural Legal Education 183
These models and visions range along the centre of a spectrum of possibilities for New Zealand society. Governmental models go so far in allowing Maori a share in decision-making and resources, but at some point a line is drawn and what is beyond that line becomes untenable. Maori who speak up for such rights are vilified.'" This can be seen in terms of the redress offered to Maori. Such redress for the most part represents an insignificant proportion of any given resource, regardless of the fact that Maori might have a well-founded claim to the entire resource. An example arose during the fisheries negotiations.42 Maori had a strong claim to the entire fishery, but by way of compromise started negotiations at 50% of the fishery. The government's baseline settlement was 10%43 followed by later purchasing by the Fisheries Commission. The introduction by the government of the fiscal cap on settlements of Maori grievances, which was set at $ 1 billion, also represented far less than 12% of the value of New Zealand resources.
When the discussion is Maori tino rangatiratanga (ultimate sovereignty), or where Maori wish to withdraw, consolidate, nurture and strengthen themselves by autonomous action,'" Pakeha reactions tend towards aggressive dismissal, with charges of separatism or apartheid being levelled as clinchers to the argument. More subtle arguments may deny that Pakeha have any obligations under the Treaty on the basis that to adopt Treaty obligations it is necessary to adopt a monocultural Maori perspective, and this is something Pakeha cannot and should not have to do.45
Indeed, polls46 have shown that the majority of Pakeha do not believe that Maori should have "special rights," or receive compensation for past wrongs. Education in particular comes in for a hammering from
43 Ibid, 12.
44 For example by setting
up kura kaupapa.
184 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
such magazines as Metro for taking account of cultural sensitivity.47 Such opinions represent one end of the spectrum, while Maori who call for Pakeha to leave our shores represent the other end. The main difference is that white middle-class supporters of Metro are part of the dominant power-holding culture, and far more able to influence policy-makers, if for no more reason than the power of the ballot box, let alone control of the media.
These models, visions and "anti-visions" show how far apart are the definitions of and the debate on biculturalism. They also show how dependent they can be on the parties involved, the personalities involved, the nature and activities of the organisations, the involvement of the Crown, existing arrangements which may give opportunity for change or which limit it, and the goals that are to be achieved - in short, the context in which those moving towards biculturalism find themselves.
However, none of the visions which take biculturalism seriously seem to be based on any mystical notion of what a bicultural being would be like, and which we should all become.48 What they seem to concentrate on are structures, processes and resources grounded in our understanding of the Treaty and the successful functioning of organisations for Maori and Pakeha.
The overall aim is freedom from oppression for Maori, and the opening up of real choices as to how we live for everyone. Freire refers to the proper vocation of any person as being "the pursuit of full humanity"; neither the oppressors nor the oppressed can be fully human until the oppression ceases.49 Biculturalism in its simplest definition could be "how we are going to live together as full human beings, in light of our history and providing for our cultural differences."
But that definition is not enough in itself. The really hard part is the translation into working structures and processes of, in this case, a law school, or whatever the particular context might be. If we are looking
49 Freire, P Pedagogy of the Oppressed (London:
Penguin Books, 1990) 58.
2005 Waikato Law School: An Experiment in
Bicultural Legal Education 185
at education at a general level then I would argue that a proper conception of biculturalism allows a wide range of models. Maori education is in such crisis that Maori need space to themselves to heal the damage done by colonisation in terms of the loss of culture, language and those intangible things which Moana Jackson calls the Maori soul5° and without which we are dead as a culture. So we need, as a matter of survival, totally Maori educational institutions at all levels which are well-resourced. To some extent this is happening with the emergence of kura kaupapa5I and whare wananga,52 although resourcing is always an issue. Another necessity for those Maori who are unable to attend wholly Maori institutions are schools and universities where Maori are treated as equal partners in decision-making, with resourcing to Maori which is sufficient to deliver the education Maori need and want. This will involve real power-sharing between Maori and Pakeha, and managing such a relationship requires bicultural communication and bicultural processes.
At the level of a particular bicultural institution, such as a law school, models need to be developed in situ. The result is going to be different from other models since we are adapting to a different environment with a myriad of variables. All the same, it will have some things in common with the other models. The model must include transfer and sharing of resources and decision-making power (perhaps the hardest and most important step); acknowledgment of our history; and practices and procedures that deliver a legal education service that works for Maori as well as for Pakeha.
I would also argue that visions and models of biculturalism are going to change as our cultures change and our ideas of what is acceptable and unacceptable change. Maybe New Zealanders will come to think
186 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
differently about issues such as Maori sovereignty, so that our models of biculturalism will become old-fashioned or just wrong. Some forward-thinking and adaptability should therefore be planned for as a part of a bicultural institution.
THE FOUNDING OF WAIKATO LAW SCHOOL
The language of biculturalism was first officially used in relation to the Law School in Te Matahauariki,' the Report of the Law School Committee. The Report was written as the proposal of the University of Waikato for siting the fifth New Zealand law school at Waikato. Amongst other things it mentioned that lawyers must be trained to respond to the "needs and concerns of people in a bicultural society" and that the University "is a place of Maori and Pakeha learning."54 The University's own charter provides that the University seeks to
create and sustain an institutional environment in which ... the educational needs of Maori people are appropriately catered for outside a formally constituted whare wananga; Maori customs and values are expressed in the ordinary life of the University; and the Treaty of Waitangi is clearly acknowledged in the development of programmes and initiatives based on partnership between Maori and other New Zealand people.
The Law School would provide the "opportunity to give meaning to the notion of a partnership of good faith that is central to the Treaty of Waitangi."55 It would also encourage "the integration of Maori lore and English law, a confluence of two streams of thought."56 What this integration consists of was not explained in the Report and its meaning remains elusive to me.
Factors which were taken into account in the Report relating to the bicultural element were the existence of a heavy concentration of Maori population in the Waikato region and its richness in Maori culture. Specific mention was made of the strength of the University in Maori
53 Te Matahauariki: The Report of the Law School Committee (1988) 1
& 17.
54 Ibid, 1.
56 Supra n 53
at 1.
2005 Waikato Law School: An Experiment in Bicultural Legal
Education 187
studies, particularly in Maori language, but also including the Mana Tokorau Programme at the University, a programme which allowed students to take 15 courses relevant to Maori culture and administration.57
In terms of what else might be meant by a bicultural law school the Report is of little help except to say that certain aspects of the law could not be understood without an appreciation of the Treaty, the history of Maori and Pakeha relations and Maori values in regard to land and fisheries. This recognition of the relevance of Maori issues was at least an advance on my own legal education, in which Maori issues were only raised in Maori land law, and then limited to the operation of the Maori Affairs Act and the Maori land court. The Report was written at a time when Maori issues, particularly the fisheries issue, were on the front page of the newspapers, so the Law School committee could hardly ignore them. The Report made no mention of structural or resource-allocation issues around biculturalism, but rather just made the above-mentioned very general comments, in line with the nature of the document as a general proposal. In other words, the Report said "biculturalism is a good thing and let's have it," but it was not clear about what biculturalism was.
Margaret Wilson,58 gave a presentation during her application for the position of foundation dean which is indicative of her thinking at the time that the Law School was being set up.59 She approved of the fundamental commitment to bicultural and societal perspectives, and recognised the need of Maori, as well as women, consumers, the commercial community and so on, to get service from the Law School. So, Maori were in there somewhere, but contesting for the legal education service along with all sorts of other groups.
Wilson saw the chief objective of legal education as being "to give students of law knowledge and an understanding of the values of our legal system, and the skills to use that knowledge for the benefit of themselves and others.' Such power should be "shared equally
57 Ibid, 16-17.
58 The first dean of Waikato Law School.
60 Ibid, 11
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throughout groups in the community," recognising that, in fact, the legal system had been dominated by people of one gender and race for centuries. Women and Maori students were to be encouraged to graduate, and there would be support for study programmes which would challenge orthodox thinking on how the system could best serve our society.61 This showed a concentration by the foundation dean on the content of the Law School curriculum, but an absence of consideration given to structural issues within the Law School, except the important one of trying to get a critical mass of Maori students into the school. The focus of the goal was on what the graduates would be able to do for society, but there was a lack of consciousness that a commitment to biculturalism might require more than this of the Law School.
In terms of the specifics of making the commitment, real the foundation dean referred to general principles to guide the curriculum only. These principles began with the need for a good grounding in the core law subjects and development of legal skills, particularly legal analysis. The School would then develop areas of excellence subject to being "very realistic about what we can achieve with the resources available."62 This, no doubt, is a politic proviso to make. However, I am always wary when resort is made to defending omissions or errors for "lack of resources." Maori experience has often been that either the resources are lacking where Maori need them, or that resources for Maori are misapplied and are therefore ineffective.63
The dean went on to say that the course of study should also be "appropriate to the needs of the students and the region," including the Maori community. Maori legal studies could be an "area of specialisation" for the School. The dean looked to the input of the Maori community so as to avoid the "clip-on" approach to legal education.64 The vision here in terms of biculturalism was inchoate and limited, although that might be expected of such a preliminary presentation.
61 Ibid, 12.
62 Ibid, 16.
64 Wilson, supra n 59
at 24.
2005 Waikato Law School: An Experiment in Bicultural Legal
Education 189
Even so, some discussion of bicultural structures, processes and developments within the Law School could have been possible. It is also clear that the direction taken here failed to envisage some of the most important aspects of bicultural visions, such as the sharing of resources and decision-making power with Maori, which are precursors to a substantive biculturalism. This in itself leads to the position of the Maori perspective as a "clip-on" to the rest of the curriculum. Without adequate resources Maori staff would be unable to access the Maori community, unable to engage in the necessary research, and unable to give proper attention to how best to deliver the Maori perspective throughout the curriculum.
In an article in the then newly established Waikato Law Review the foundation dean stated that the bicultural approach had proved "the most challenging aspect of the programme."65 The reasons she gave for this were twofold: firstly, the ill-defined nature of the concept of biculturalism generally and by the University; and secondly the change of external environment with the election of the National government in that it gave no support for bicultural initiatives. Whatever the government we just have to live with it (at least until the next election), but the first reason needs further discussion. I have shown that for some organisations and individuals the concept of biculturalism has been given meaning in terms of structures, processes and sharing of resources and power. In fact in that article the dean herself gave a model of biculturalism of 50% staff and students being Maori with courses in Maori and English.66 What I think was really being said is that the University and the Law School were reluctant to face up to the full implications of biculturalism, to the point where what was really being advocated was a culturally-sensitive education at best, not biculturalism. Therefore the concentration had to be on the curriculum
which was to be :
inclusive of Maori and Maori customs and values, but also to provide for students the best legal training in the English-based, but New Zealand-developed, common law system. In this way Maori students obtain understanding and knowledge of the dominant legal system, while Pakeha
65 Wilson, M, "The Making of a New Legal Education in New Zealand" (1993) 1
Waikato Law Review 1 at 21.
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Jurisprudence Special Issue - Te Purenga Vol 8.2
and other students obtain knowledge of the effects of the existing system on Maori and the fact that Maori have their own lore and values that regulate aspects of Maori life. The purpose of this approach is to enable students more effectively to challenge the existing legal system's exclusion of Maori, while also enabling them to use the system, where possible, for the benefit of Maori.'
These aims are worthwhile and, indeed, part of the necessary first steps towards biculturalism. But, as the foundation dean herself admitted, this is not equal partnership. Equal partnership was "the goal to be achieved", and needed a 20-30 year development plan.68 One student referred to this as follows:
There is a widespread lack of support (despite the rhetoric) for
biculturalism in Waikato. Thirty year plan (as said by the dean) is not enough - it is an insult.
A 20-30 year time span is the never-never. No attempt was ever made to articulate this plan to the students or staff or to set intermediate goals along the way by which progress could be monitored. In my view what really happened was that the administration started out with a limited view of biculturalism, and then came into contact with staff and students imbued with ideas of biculturalism which originated in the wider societal debate. It became clear that only those facets of biculturalism which were originally contemplated by the Pakeha administration would find expression in the Law School. The results of this approach are apparent from the comments of the students who took part in the surveys and which will be discussed in part two of this chapter.
BARRIERS TO BICULTURAL LEGAL EDUCATION
There are a number of barriers to creating a bicultural legal education but I am going to refer to two of them: the nature of colonialist law and legal education; and continuing changes to the tertiary sector in New Zealand which are occurring as a result of the adoption by government of New Right economic policies.
67 Idem.
2005 Waikato Law School: An Experiment in Bicultural Legal
Education 191
Colonialist Law and Legal Education
The system of law in New Zealand was developed from one based on British social and economic structures and values. As such, it may work reasonably well for Pakeha but it is not well adapted to a New Zealand society which is based on recognition of two cultures whose interactions should be shaped by the Treaty of Waitangi. This was referred to in the report Te Whainga i to Tika: In Search of Justice69 at paragraph 1.3 where the writers say, "for many, especially Maori, that system embodies institutionalised racism...." That report also recommended that legal services should reflect our bicultural heritage." The monocultural nature of the system was also referred to by Moana Jackson in his report The Maori and the Criminal Justice System, He Whaipaangahou: A New Perspective71 when he commented on the philosophical bases for the present criminal justice system and the systemic bias against Maori offenders.72
Moreover, the legal system cloaks its monocultural nature under phrases such as "one law for all", and "everyone is equal before the law."73 Judges are also supposedly objective, neutral experts who base their decisions on legal principles obtained from analysis of previous legal decisions.74 Feminist writers75 have shown that the law is gendered and reflects the values of the white middle class male. Thus the rational, legal being is a white middle class male. In turn, the perspectives, the values, the culture of those who do not fit this description, the "others," are silenced and made invisible by the law.
69 Advisory Committee on Legal Services, 1986.
70 Ibid, at para. 2.1.
72 Ibid, at
260-269.
73 Idem.
192 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
A classic example of the monocultural nature of the legal system was shown when Ken Mair, a well-known Maori activist, was imprisoned in October 1995 for contempt of court for insisting on saying a karakia (prayer). The judge was prepared to allow Mair the opportunity to say the karakia, but failed to understand that Maori culture required that all parties involved in the resolution of the case should be present. The judge refused to have the karakia said in his presence, thus undermining the basis for the karakia. Imprisonment for saying a karakia seems unbelievable to Maori, yet this result was always possible given that the judge was Pakeha, that court protocol has always reflected Pakeha ways of doing things, and that protocol has always been determined by Pakeha.76
Maori students, in being taught the fundamentals of the legal system, are coming into contact with values which may differ from traditional Maori values. It may take Maori students some time to recognise that in learning the law they are learning another language, another code, and this is all the more difficult because of the underlying assumptions by law teachers that there is a shared set of values and culture amongst students. Teachers therefore fail to signal the need for translation, and may themselves be unable to translate the law culture in such a way as to have meaning for Maori students.
However, for Maori students there is the added dimension that the legal system in New Zealand has played its part in destroying Maori culture, in imprisoning Maori, in confiscating Maori land and resources. Thus Maori students in land law are taught about the Land Transfer system, but no reference may be made to Maori systems of land tenure which were replaced by the Land Transfer system. Similarly, in law school discussions of the New Zealand constitution may be premised on the notion that the Treaty is a nullity77 or a significant historical document which still has no legal significance, except where it may be included in statutes by the New Zealand Parliament. Such a discussion would fail to take account of Maori views of the Treaty and Maori
76 Mair v District Court at Wanganui [1996] 1 NZLR 556. This incident
was discussed in-depth on Kim Hill's Nine to Noon radio show on 3rd
November 1995 and reported in The Waikato Times on 2nd November
1995.
77 Decided in the case Wi Parata v Bishop of Wellington (1877)3
NZ Jur (NS) SC 72
2005 Waikato Law School: An Experiment in Bicultural
Legal Education 193
views of the basis of sovereignty. Law may be taught with references to due process, but the abuse of Parliamentary power allowed the passage of Acts confiscating Maori land, and providing for detention without trial of Maori protesters.78
Nevertheless, Mdori students know from their own oral histories and their own experiences that the law has been used to the detriment of Maori. Thus, for Maori students legal education represents an emotional, intellectual and spiritual assault made all the worse in that legal education may try:
to persuade Maori that the law has an innate fairness and justice which can compensate for, or mask, its colonial-cultural bias. It is to teach Maori to believe in the good faith and honesty of the institutions and law which have oppressed them: it is ultimately to seek from Maori an honouring of the law and Crown in whose name the whole profitable horror of colonisation was inflicted upon them."79
So the teaching and learning of law for Maori cannot be treated in the same way that one may treat a chemical experiment, or the teaching of mathematical equations. Unless carefully handled legal education may be a destructive process for students.8° Furthermore, if strict adherence to an orthodox curriculum is required, without full support being given to the inclusion of Maori perspectives of law, then Maori lecturers are being asked to participate in making their own people and their own culture invisible.81 The creation of a bicultural legal education can only proceed so far until it comes up against the need for fundamental change to the legal system. This leads to the question as to whether it
194 Yearbook of New Zealand Jurisprudence Special Issue - Te Purenga Vol 8.2
should be part of the aims of the law school to advocate for such change and to produce students who will go on to make such change as lawyers and legislators.
The New Right
One cannot discount the effect on law school curriculum of National government policy in relation to tertiary education. Government funding has fallen by 6.7% between 1990 and 1995 and dropped to 75% of government-estimated costs by the year 2000.82 The universities lack resources to continue novel developments or to put into place new initiatives such as bicultural programmes. These must be carried by the universities until either their value becomes obvious to the general student market, who will therefore be willing to pay increased fees for them, or until a "niche" market is created for "women and Maori." These imperatives force the Law School into offering the courses which job hungry students and the profession want taught.
There also seems to be an increasing burden of administration for academics as the University restructures the administrative operations over and over again, devolving functions to the schools, sometimes without the associated funding and causing uncertainty and upheaval in the running of the University. Restructuring may give more freedom to make policy appropriate to the Law School in some areas but one is never certain of the long term. The need for academics to respond to an ever changing environment has been a tremendous drain on Law School resources. The flow-on effects on teaching and research are obvious. In these circumstances it is all too easy to drift back in our core business to the point of lowest resistance, which is the provision of the traditional legal education, with the Maori perspective as an optional "clip-on."
82 Figures from the Ministry of Education as reported by Keith Dalton, Director,
Financial Services Division, University of Waikato. See also Report of the
Ministerial Consultative Group, "Funding Growth in Tertiary
Education and
Training", Ministry of Education, May 1994. The Labour government has continued
with the policy that students pay about
25% of course tuition fees, as well as
providing less generous assistance for student living expenses than in the
past.
2005 Waikato Law School: An Experiment in Bicultural Legal
Education 195
Tightened budgetary conditions also make it more difficult to attract Maori with legal qualifications into the education sector. There is the potential to earn much more money in the private sector. By contrast job conditions in the tertiary sector in New Zealand are worsening and the support available to assist young Maori academics to start their careers is in jeopardy. New academics are being asked to gain further qualifications at the same time as being required to take on heavier teaching loads.
There are other barriers to a bicultural law school which are part of our daily reality as Maori and teachers. That reality will now be discussed.
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