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Last Updated: 22 August 2023
F W Guest Memorial Lecture 2021
1
F W Guest Memorial Lecture 2021
Decolonising the Law in Aotearoa: Can we start with the law schools?
Joe Williams*
I have chosen a decolonising theme for this lecture. Unlike most of his contemporaries Frank Guest would have loved this theme. Despite being a member of the intellectual elite of his time, Guest did not seem to have much of an attachment to the prevailing power structures. He reflected this in quite practical ways. He volunteered for service early in the Second World War mostly, according to his son Jim, because he wanted to do his bit to prevent Hitler from invading the USSR. But unlike most men of his class, Frank was not interested in a commission. In fact, he had no pretentions to rank at all. He “marched in” (as they say), fought, was captured and interned all as an ordinary enlisted man. While a Prisoner of War in Germany, he taught university level philosophy and law to his fellow inmates. He well understood education’s power to liberate the mind, even while the body is captive.“Decolonisation” was a term coined in the great reckoning that followed the post-war collapse of the old Western European colonial empires and their replacement with the bipolar world of the mid-20th century. Decolonisation was embraced with enthusiasm by the new and optimistic United Nations. It is such a powerful word. It is full of implied accusation and the duty to atone. It communicates, without the need for more, who is the good guy and who is the bad guy.
As I hope you will see, I am not deploying decolonisation as a weapon in that way. Rather I want to use it as a tool for thinking about law here in 21st century Aotearoa. And while the decolonisation I have in mind will be transformative, I see it as a mutually beneficial process. I see decolonising the law as a necessary step for all of us; settlers and natives alike.
When I began to think about the topic, I started with the idea of decolonising the law, but I quickly realised I had skipped an important step. Law is not a self-contained project in its own right. Law also sits within a much wider context. It exists only in relation to the social, economic, political and cultural reality it purports to regulate. So, law is
* Judge of the Supreme Court of New Zealand. Delivered at the University of Otago, 22 April 2021.
2 Otago Law Review (2021) Vol 17 No 1
an aspect (albeit an important one) of who and what we are as a society. Decolonising the law in Aotearoa is just a part of our deeper search for reconciliation and balance as an entire community. It is a part of the larger project of decolonising ourselves.
Definitional problems
A good starting point is what do I mean by decolonising? Wilson and Yellow Bird suggest that:1
Decolonisation ultimately requires the overturning of the colonial structure. It is not about tweaking the existing colonial system to make it more Indigenous-friendly or a little less oppressive. The existing system is fundamentally and irreparably flawed.
As Moana Jackson says colonisation narratives tend these days to be “written in a stubborn past tense” as if colonisation was a thing that happened, not a thing that is happening.2 I agree. Properly understood colonisation is a process that does not end until it is stopped. It did not stop when New Zealand adopted the Statute of Westminster in the middle of the 20th century. It continues in the present.
Jackson suggests that restoration may provide a better approach than decolonisation, a way of “restoring a kawa that allows for balanced relationships based on the need for iwi and hapū independence upon which any meaningful interdependence must rest.”3 Moana’s approach may well be the more sensible, but I’m stuck with my title now and I’ll press on with it.
Traditionally decolonisation meant taking back your country from the colonial usurpers. That’s how it applied in Africa, Asia and much of the Pacific.4 But this version of decolonisation did not work particularly well in the settled colonies such as New Zealand where the indigenous people swiftly became a minority alongside a permanently transposed majority settler population. Apart from anything else, throwing out the coloniser would be a breach of the Treaty of Waitangi. So, Māori like other permanently colonised minority peoples, were left high and dry by traditional “blue water” decolonisation in the 20th century.
3 At 149.
4 With the exception of New Zealand, Hawaii and the French territories.
F W Guest Memorial Lecture 2021 3
George Manuel, a First Nations leader in 1970s Canada, described these marooned indigenous peoples as the “ Fourth World”.5 Is decolonisation even possible for these Fourth World peoples?6 For them,7 decolonisation must have a different meaning, if it is to have meaning at all. It must mean something more than “let’s not be quite so mean to the indigenous minority”.
The “system” and the idea of decolonisation
Of course, the basic systems – political, economic, and social – that were imposed here in the second half of the 19th century as part of the colonial project are still very much intact and largely uncontested, at least in mainstream discourse. Our economy remains firmly market-based. Economic value subsists primarily in our private property – real, personal and intellectual, and in our individual labour, skilled or otherwise. Transferable capital, an idea introduced by the colonists, remains the most powerful economic force in our system.New Zealanders like to see themselves as robust individualists within the western, and particularly, the colonial tradition. So long as we don’t hurt others in the process, we expect to be free to speak our minds, to listen to others doing the same, to believe what we want to believe, go where we want to go, and do what we want to do, without interference from the state. And we vote a lot because our governments matter to us. We expect to be able to toss out whoever has control of the treasury benches once every two or three election cycles just to keep them honest.
The settler state has expanded and deepened over the nearly 200 years of the Crown colony, Dominion and then sovereign state of New Zealand. This was, I think, largely by design. The settlers’ understandable sense of isolated insignificance here in the South Pacific, so far from their origins, has meant most New Zealanders have a greater tolerance for the interventions of a protective State than the citizens of other countries in the Anglosphere. The Polynesian character is different. Ocean people whose culture developed on tiny dots in a vast ocean had, by necessity, to learn to be comfortable with what settlers so anxiously saw as the
(Collier-Macmillan, Canada, 1974).
4 Otago Law Review (2021) Vol 17 No 1
“tyranny of distance”.8 But perhaps Polynesian communitarian values may have also contributed to that trust in authority.
In any event, the State protects private capital and other property, and it facilitates the market systems upon which those factors depend for their efficacy. As best it can, it maintains social cohesion, and it prepares its citizens to be productive members of the community by educating them. It does what it can to ameliorate the interpersonal inequalities that market-based systems inevitably produce, and, if necessary, it suppresses the anti-social behaviour that tends to result if such inequality is left untended for too long.
If decolonising means unpicking those basic tenets of the system imported in 1840 and developed thereafter, then that is not going to happen any time soon.
Alternatively, if decolonisation has a narrower focus – if it is about the Jacksonian ideal of “reclaiming the right of indigenous peoples to once again govern themselves in their own lands”9 – then achieving that goal has been and will continue to be a bumpy, contested, complex, multi- dimensional, long-term project. That narrower focus is really a potential subset of the decolonisation I have in mind. What I have in mind is more subtle, less spectacular, but meaningful nonetheless; perhaps in the longer term, more meaningful. Let me explain.
Being colonised is a state of mind
They say the past is a different country. I’m not sure I entirely agree, but there is something in that idea. As the last (and most reluctant) Dominion to adopt the Statute of Westminster in 1947,10 just as the neo-natal boomer generation began to fill our publicly funded maternity wards, Britain was still “home” to their proud Pākeha parents most of whom had never set foot on British soil. When I was born in the early 1960s, at the other end of the boom, I could have been forgiven for believing that New Zealand was located somewhere off the coast of the United Kingdom. They played God Save the Queen before the movie started at the “pictures” in that New Zealand, and we all stood up! Our newsreaders spoke only BBC English (even Marama Martin, the Māori weather lady), and almost all of our vehicles were imported from Britain, and most of our meat and wood went in the other direction.
F W Guest Memorial Lecture 2021 5
As the boomers worked our way up through primary and secondary school, and on to our first jobs, these islands seemed to drift deeper into the Atlantic, responding to the irresistible gravity of the United States. We weren’t the only islands located there. Australia was also adrift in the vicinity. In fact, a little closer to the US than we were. But the US was also a child of empire. Except for the monarchy,11 it reflected and sometimes magnified its parent’s values and attitudes just as much as it consciously distanced itself from them. This is true of all offspring.
So, colonisation in contemporary New Zealand is as much a state of mind as anything else. And minds can be changed. In the end, decolonisation involves all of us making a leap of imagination. Imagining that we are in fact a Pacific country located at the bottom of the great Polynesian triangle. Realising that we are actually Polynesians. All of us.
The signs
We have yet to come to this realisation but there are some signs at the margins that suggest the kind of decolonisation I have in mind is a cause that is not without hope. Little things. Like songs in te reo regularly making it on to the charts (the arts are always first); like the whenua and the community being steadily re-clothed in Māori names; like the impossibility of gaining entry into any of the record number of te reo classes on offer now in this country because they are all oversubscribed; like bilingual ads for popular mainstream products and bilingual signage on buildings and vehicles; like the famously undemonstrative kiwi male suddenly taking to heart the most over-the-top dance on earth (the haka); like New Zealanders deciding to sing the national anthem in Māori (first) without any official directing that they do so; like marae becoming refuges for all of our communities in times of crisis; like motorists, Māori and non-Māori alike, complying with iwi checkpoints during the pandemic; like universal compliance with iwi imposed rāhui even when they have economic consequences.These signs suggest we are intuitively searching now for the path to decolonisation, even if we don’t know it yet. We have already left the mid-Atlantic and we have set a course for Polynesia.
It will take us some time to get there. The journey will not be smooth, and, like all ocean journeys, reliant on wind and current. It will occasionally be necessary to take a different tack to get to our own destination, but the numbers game makes plain the general direction of travel: the consolidation of kōhanga, puna reo, kura, wānanga; the widespread
respect too.
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teaching of reo and New Zealand history in mainstream schools – te reo is compulsory in some decile 10 schools! These developments all speak powerfully to the counter colonisation of the education sector. And as the Jesuits well knew, in the long term, education is the key. As Professor Tahu Kukutai demonstrates powerfully, the large Māori under 25 cohort will have a significant impact on New Zealand’s wellbeing – one way or another.12
Numbers have changed politics in this country too. There are more MPs of Māori descent in Parliament than proportionality would justify. Of course, a number of those members are not particularly Māori in the traditional sense, but in that they simply reflect the heterogeneity of the Māori demograph.
Of the twenty ministers in Cabinet, five are Māori and three are Pacific Islanders. That is, more than a third of the Cabinet is Polynesian. Of the six ministers outside cabinet two are Māori and one is a Pacific Islander. This level of Polynesian representation at the apex of what was once seen as settler power – the political executive – is of course unprecedented. The proportions will not always be this high, but they are most unlikely to return to those prevalent at the end of the 20th century. The Crown in right of New Zealand is no longer a Pākehā.
The justice sector ministerial demograph is particularly revealing. Of the five justice sector ministers only one is Pākehā. The others are Samoan, Tokelauan, Cook Island Māori and Ngā Puhi. All of this appears to have passed largely unremarked upon.
Unsurprisingly, law has also followed the track of these developments, though more tentatively. The power of the Treaty of Waitangi as a constitutional symbol has led the way. The creation of the Waitangi Tribunal in 1975, and the historical Treaty settlements process begun (or re-begun, there had been earlier attempts) in 1985 triggered tribal reconstruction (of sorts). The changes in child welfare law that followed toward the end of that decade13 – made necessary by the mass incarceration of Māori children in the 1960s and 1970s – reintroduced whanaungatanga into the law (sort of). The Resource Management Act enacted at the beginning of the following decade contained recognition (of sorts) of tikanga in relation to environmental regulation, and the repatriation – that seems to me to be the right word – of the Māori Land Court by Te Ao Māori in 1993,14 produced a (somewhat) tikanga literate bench.
F W Guest Memorial Lecture 2021 7
The first decade of the 21st century is most memorable for the retrograde effects of the foreshore and seabed controversy and the resultant flexing of new-found Māori political muscle. But in the second decade, we saw the inevitable (in hindsight at least) big leaps forward: a second tikanga based critique of the child welfare sector;15 Treaty settlement driven iwi counter-colonisation of local government, including partnership-based regulation of major waterways and iconic landscape features,16 and the internationally acclaimed recognition of the legal personality of a river and a forest.17 These changes have been driven by both Māori and Pākehā leaders, well supported by post-settlement iwi organisations, and for the most part, the subject of a cross-party political consensus.
In the judicial sphere, the development of a new common law framework for the recognition of tikanga also began somewhat tentatively.18 But in 2012 Takamore19 effectively dispensed with the old test for the incorporation of local and “native” custom into the common law, that had been followed by English courts since The Case of Tanistry20 and Campbell v Hall21 from the 17th and 18th centuries respectively. And the Ngāti Whātua22 decision in 2018 accepted that a public challenge to Crown Treaty settlement policy based on a mana whenua claim involves a justiciable question of rights at common law.
In criminal justice, an offender’s culture and background have been accepted as important in sentencing,23 and the Chief District Court Judge (who is Māori) now proposes to mainstream the approach of the therapeutic Māori courts to deal with all offending.24 Tikanga will be a dimension both of the content of sentencing law and how we sentence offenders. Not a separate system of justice for Māori, but, it might be
(Wai 2915, 2021).
23 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
24 Heemi Taumaunu Norris Ward McKinnon Annual Lecture 2020 (11 November 2020).
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suggested, a single and more Māori system of justice for all. The Chief Judge’s proposal is broadly supported by the District Court bench of 170 judges and the Government.
So, by focusing on areas of their work where it is clear that tikanga can make a positive contribution to the structure and culture of our law, judges have begun joining the dots left unconnected by two generations of piecemeal legislative introduction of tikanga into our law. The common law’s culture is more organic and incremental than Parliament’s, and we are still to work out what this closing of the gaps in the architecture of the law will mean case by case. That is, after all, the common law method. But, as I have said, the common law’s direction of travel is reasonably clear.
With that discursive background in mind, what do I really mean by decolonising the law?
Decolonising the law
Eesvan Krishnan suggests in an excellent recent article that “the master’s tools will never dismantle the master’s house.”25 Tracing the history of common law aboriginal title, Krishnan ably demonstrates that the common law courts have never (till now anyway) been instruments of decolonisation, even when purporting to redress longstanding injustice. Rather, he suggests, they have mostly been engaged in damage control on behalf of the settlers. If it is to happen at all, decolonisation will be a legislative, not a judicial, project on Krishnan’s analysis.I’m not sure I agree. Decolonisation is too big a job to be left to one player in the legal system, even one as important and powerful as Parliament. Te Kooti Rikirangi Te Tūruki, the Rongowhakaata military and religious leader, famously said to his followers “Ko te waka hei hoehoenga mā koutou i muri i ahau, ko te ture. Mā te ture anō te ture e aki.”26 He saw the law as a monolithic metaphor for colonial power. He drew no distinction between the politicians, the judges and the bureaucrats. He was, I think, right.
Colonial law was imposed co-operatively by the various institutional expressions of colonial power. Each branch shared a common purpose often explicitly but otherwise implicitly, and performed its constitutional function so as to achieve that purpose. If the usurpation of mana Māori had been a criminal offence, then each branch of the colonial government
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was a co-conspirator in terms of s 66(2) of the Crimes Act 1961. So, I have come to the view that decolonising the law will also be a joint venture. This time it will be a common enterprise between the legislature, the executive, the judiciary and the law schools.
Te Kooti’s whakatauki makes the point beautifully: the law is both a problem and a solution.
Te Whare o Te Ture
I am not particularly learned in the detail of the law. Presented with a legal problem to resolve, I usually start by searching through the architecture of the law to find the right legal territory. If, as the Chief Justice has recently suggested, the law is a house, then the first question I pose to myself is “in which of the many rooms within that house does the problem live– contract, tort, equity, public law, statutory interpretation etc?”27 This can sometimes be the most important question. Once I have made that selection, I will try to identify the most relevant area within that room. For example, if I’m in the public law room, then is the problem procedural or substantive? Then I begin my search for the detailed reasoning path to my answer. The process may be deductive through the application of statute or inductive by way of the common law method. As long as I am in the right area of the right room, I can use the skills I learned at law school to find my version of the answer. I need have no particular expertise in the relevant legal category.
Decolonisation begins when we come to see two new things about the law’s house. First, that it has a few rooms in it we hadn’t noticed until now. They have been locked (and off limits) for so long we forgot they were there. And second, that if we take the time to look again into the open rooms with which we are more familiar, but from a different angle, they can take on quite a different complexion.
So, decolonising the law is not about upsetting the fundamentals of the common law, but training ourselves to see it through a different lens. That is, that the law can be both a colonial villa and a wharenui depending on the viewing angle.
There are already many examples where the law requires us to demonstrate this kind of optical dexterity. For example, the application
10 Otago Law Review (2021) Vol 17 No 1
of kaitiakitanga in environmental law, whanaungatanga in family law, or mana in human rights law.28
For much of the last 40 years, the introduction of tikanga elements into our law was intentionally modest, ameliorative and non-disruptive. Damage control, as Krishnan might have suggested. We had hoped it would suffice to shine a strong torch through the keyholes of those locked rooms to get a sense of what lay inside, under the dust sheets. We thought it would be enough if we learned the names of the vague shapes we saw through the aperture and redeployed this new vocabulary as and when needed in our work as lawyers, judges and teachers. That way we could respect tikanga without having to actually go into the rooms and risk getting covered in dust and cobwebs. We got away with this for nearly 40 years. But now, the true nature of tikanga’s effect on the architecture of the law has become more obvious. Tikanga teaches us that the law is in fact a shape shifter. Changing our frame of reference can change its very nature. We can’t stay outside any longer. It is time to go exploring.
So, the process of decolonisation can now begin. Where necessary, that which was simply assumed, can be contested (or affirmed) through an alternative tikanga-based lens. When law is pluralised in this way, we allow ourselves to ask: “Why? Why does the law have to be this way?” And, even where the legal directive is clear, whether by reason of its legislative form or because it is contained in long-standing authority according to which people have organised their affairs, then we can still ask: “How? How might tikanga affect the application of that settled law?” These questions may produce the same or different answers, but just by asking them we will liberate our common law sensibilities from at least some of the constraints we imposed upon ourselves while floating in the mid-Atlantic.
The role of legal education
How do the law schools fit into this challenge?Law schools have a special role to play. Judges operate at the retail level, even in the appellate courts. We resolve actual disputes. We expound the law only to the extent necessary to discharge that function. Legislators, I accept, operate at the wholesale level. But they only rarely expound on a whole category of law in a single statute. Most often they write laws for areas or even sub-areas within a larger category. Legislators enact law in accordance with the policy needs of the time. It is not their job or
28 See Resource Management Act 1991, s 7(a); see also Oranga Tamariki Act 1989, s 5; see also Sweeney v The Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181, [2021] 2 NZLR 27.
F W Guest Memorial Lecture 2021 11
their habit to tend the entire architecture of the law’s house. That job is for the law schools and the law reform institutions. But to teach the law, it is the academy that must construct the true meta-synthesis. It must present to each generation of aspiring lawyers a cohesive working model of the law. It is the law schools that must fit the theory and practice of tikanga into that model.
Decolonisation is a diverse student body
Education has always been a key instrument of the colonial project in New Zealand just as in other colonies. Education for Māori was designed, as it was elsewhere, to educate the native out of the child.29 As Paulo Freire said so powerfully in 1970:30
The educated individual is the adapted person, because she or he is a better “fit” for the world. Translated into practice, this concept is well suited for the purposes of the oppressors, who’s tranquillity rests on how well people fit the world the oppressors have created and how little they question it.
Law schools should also be seen in this light. They are institutions that map and replicate the status quo. They ensure that the ranks of the legal profession, the judiciary and the public service are populated by the ruling class and that the content of the law remains colonial.
Entry requirements are an important aspect of this traditional role of law schools. Harold Johnson, a Cree ex-prosecutor from Northern Saskatchewan, noted in his hard-hitting memoir Peace and Good Order: The Case for Indigenous Justice in Canada:31
You don’t have to be smart to get through law school. ... But law school is not about teaching law. Law school is about making sure undesirable people do not enter the legal profession. ... Law school is not the bridge into the profession. It’s the gate. It’s there to keep people out. It’s there to make sure poor people, women, Indigenous Peoples, single parents and other marginalised people do not make it through. It is designed by and for wealthy single white males.
Law school, Johnson suggests, colonised him.
(New Zealand Council for Educational Research, Wellington, 1974) at 34.
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A recent article by Imogen Little suggests that by turning a blind eye to the educational inequality in New Zealand’s schooling system and by privileging affluent students who are not brighter or endowed with greater innate ability, this is also what law schools do in New Zealand.32 That group predominates at law school because, according to Little, its members consistently benefit from better quality education and a greater store of social and cultural capital.
Some progress has been made on gender and ethnic diversity in the last 30 years, but not nearly enough. And almost no progress is apparent with respect to socio-economic diversity. Though full-time professional law schools developed rather late in this country, that fact does not diminish their role in confining the common law imagination within acceptable colonial bounds.33 For the sixty years since a law degree was made a prerequisite for admission to the profession, and in some universities, for far longer, law schools have replicated the ethnic and socio-economic demographics of the wider profession. The creation of the Waikato law school in 1991 with its adoption of a bicultural approach to legal education made a difference to both kinds of diversity, but again, not nearly enough.34
As Gary Peller writes, this consistent exclusion of key groups in the community from the profession, is accepted because it is assumed law school admission is based on a “neutral, apolitical meritocracy”.35 The thinking goes that, for whatever reason, too many poor people and too many Māori and Pacific Islanders are just not up to the rigours of legal education. If they were let through the turnstiles in greater numbers they could undermine the standing of the profession. In fact, Peller suggests that the exclusion is no longer even necessarily conscious. It has been that way for so long that no one notices anymore. And no one has any idea how to change it, even if there was an inclination to do so.36 But as Little
F W Guest Memorial Lecture 2021 13
demonstrates, the evidence does not support the proposition that the academic barriers to law school entry accurately predict performance in professional practice.37 The barriers serve a different purpose. Generation after generation.
Decolonisation is a diverse curriculum
The state of diversity in teaching material follows the same pattern as the state of diversity in the student body. Law schools have made some changes to course content to reflect legal developments in respect of tikanga and the Treaty, but, as I’m sure the law faculties themselves would agree, the performance is as patchy as developments in the law itself in this area. It will not be enough to teach the Treaty and tikanga through a rear-view mirror – that is to summarise what Parliament and the courts have already said. It is time for the law schools to illuminate a path going forward.Some law schools dive deeper by offering stand-alone tikanga papers, but I understand these are not common.38 Others prefer to take an integrative approach. For example, most law schools include short “Māori perspectives” sections in key papers. This includes the Treaty in public law, Māori concepts of kinship in family law, kaitiakitanga and so on in environmental law, the asymmetrical impact on Māori of criminal law, mātauranga Māori in intellectual property law, and Māori land law as an aspect of real property. These Māori sections are a marked improvement on what I didn’t get at law school in the 1980s, but they still tend to focus on the way in which state law makes room for tikanga rather than on the substance of tikanga itself. That is because most law schools lack the necessary expertise to teach tikanga. Teachers understandably want to stick to their knitting.
It is now clear the approach of the past will not be enough in the future. In late 2019, the New Zealand Council of Legal Education (CLE) called on each law school to give an account of itself in terms of the treatment of tikanga in their degree programmes. That followed the Borrin Foundation sponsored publication of an issues paper on the challenges of indigenous legal education.39 It was the collective work of the entire national cohort of Māori legal academics and it called for significant change. It challenged
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legal educators to adopt a bijural, bicultural, bilingual legal education system. In November 2020 the Council of Legal Education resolved that tikanga Māori must become a core requirement of undergraduate legal education. On 7 May 2021, the Council resolved unanimously that Te Ao Māori concepts, including tikanga Māori, must be taught in each of the compulsory New Zealand Council of Legal Education subjects (except legal ethics). The Council and law schools, with the assistance of the Borrin funded group, are now exploring how to implement this directive.
Experience elsewhere
We are not the only common law jurisdiction that is grappling with this issue. The Canadians and the Australians are already ahead of us in this project.
Canada
In 2015 the Canadian Truth and Reconciliation Commission Report published its recommendation 28:40
We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism.
This recommendation is now being acted upon by the majority of Canadian law schools to varying degrees. Of the 20 Canadian common law schools, almost all of them now offer some content that aligns with recommendation 28. Some of this content specifically focuses on the interaction of indigenous communities with the state law and the impacts of the state law on them. All but three of the law schools also offer courses that deal directly with indigenous laws and legal traditions outside of the state law paradigm.
The University of Victoria Law School is leading the way in Canada. It offers a joint degree programme that graduates students with both a common law Juris Doctor and a Juris Indigenarum Doctor in indigenous legal order. The development of this programme was spearheaded by Professors John Borrows and Val Napoleon.
According to Professor Borrows, the aim of the programme is to train graduates to assist indigenous communities with revitalising their law,
F W Guest Memorial Lecture 2021 15
rather than dispossessing or displacing that law with the colonial version of the common law.41 Indigenous legal orders and the common law are taught from a trans-systemic, multi-juridical perspective, by comparing and contrasting multiple legal systems. The common law is decentred. Borrows believes that the programme produces better common law graduates than orthodox JD programmes, because students learn about the common law in its appropriate cultural context.42
The joint programme is taught over four years. During this time, students undertake traditional common law courses such as contract, torts, and legal ethics. These papers can be taken with a sole focus on the common law system or students can opt to enrol in “Trans-systemic Contract” or “Trans-systemic Torts”. In these trans-systemic papers, students learn the common law but also indigenous law, exploring Anishinaabe constitutionalism or Cree criminal law for example. The programme does not purport to provide a comprehensive education in every indigenous legal order in North America, but rather focuses on exploring aspects of some of these legal orders.43
During the four years of the programme, students undertake two field studies. Each field study comprises the entire course load for one semester. Students work with an indigenous community on a law related project and report back to their fellow students about their experiences. The aim is to find ways to address the legal issues or needs of the community using both the internal solutions of their indigenous law and external settler law.
These field studies have a particular focus on learning law from the land as the “legal archive” that indigenous peoples work from.44 Storytelling, natural features and analogy form an important part of this kind of learning. Students may also participate in the practices of the community that they work with. In a March 2020 information session about the programme, Borrows stated that the faculty is also considering expanding the field schools internationally, so that students
<https://youtu.be/FJRZUjZtL-c> at minute 1.
16 Otago Law Review (2021) Vol 17 No 1
may work with indigenous communities across the world, including in New Zealand.45
Here the law teacher is not necessarily a subject matter expert but rather a Freirean style facilitator. The real teachers come from within the communities where indigenous law operates.
Meanwhile, Professor Napoleon has written about whether recording and analysing indigenous law, including through the teaching of it in an academic context, could undermine indigenous law.46 She takes the view that written records of indigenous law, and other non-traditional mediums of retention and transmission, can be important tools in repairing the damage colonisation has done to indigenous languages and to the community connections that allowed orality to be an effective means of transmission. She suggests that the use of non-oral records and forms of analysis ought to be seen as a natural development. No law is static either in form or content, least of all indigenous law. A living system of law, Napoleon argues, must be “understandable, accessible and applicable”.47 The student must therefore actively engage with all sources of indigenous law including those in written form. And, like any law, students must be equipped to subject indigenous law to deep analysis.48 Students must not be afraid to critically engage with indigenous law out of fear they might interpret it “wrong” or somehow appropriate it. This kind of critical engagement with the subject will not break it, Napoleon argues. Rather, indigenous legal narratives recorded in oral histories, in art and in ceremonies have survived centuries of colonisation and continue to be practiced by communities. They are robust enough to survive analysis.49
Australia
Unlike Canada and New Zealand, Australia did not have a single driver for greater recognition of indigenous customary law. The 38 Australian law schools have a significant degree of content autonomy provided they deliver the (perhaps aptly named) “Priestly 11” core subject requirements. Nonetheless, most law schools provide some indigenous law content although like New Zealand, it tends to be state law heavy and custom law light.
47 At 27.
48 At 27.
49 At 28–29.
F W Guest Memorial Lecture 2021 17
In 2018 the University of Western Australia Law School began a project called Indigenisation of the Juris Doctor, with a five-year completion goal. The project aims to incorporate “indigenous knowledge, cultures and experiences throughout the JD”. Five key features of the project are:50
(a) an equitable and ongoing partnership between indigenous and non-indigenous peoples;
(b) a set of best practice principles for Indigenisation;
(c) a culturally competent approach;
(d) a whole-of-degree basis for curriculum change; and
(e) an iterative and supported process for curriculum development and delivery.
The project is a cross-disciplinary collaboration between the UWA Law School and the School of Indigenous Studies. It also involves input from a Noongar cultural expert, in recognition of the fact that the Law School is situated on Whajuk Noongar land. A Noongar cultural competency programme is being embedded into the JD as part of this.
A key goal of the project is to ensure that the curriculum does not simply include content about indigenous people created by non-indigenous people.51 Ambelin Kwaymullina, a leader of the project, emphasises that indigenisation of the curriculum should not be valued as a way to provide assistance to disadvantaged indigenous communities, but rather should be inherently valued for the intellectual and cultural depth indigenous knowledge brings to the academy.52
Reversing the erasure of indigenous sovereignties is a key project goal. Other goals include addressing the “disproportionately heavy workload of indigenous university staff” while acknowledging that their expertise is often undervalued.53 Indigenous students are also recognised as being burdened with expectations to act as authorities on indigenous knowledge within the law school. The project aims to move the law school away from this form of ad-hoc exploitation and into a healthier framework of more structured reciprocity.54 The project also aims to support non-indigenous teachers in undertaking “cultural and inclusive training” before curriculum development begins.55
53 At 12.
54 At 13.
55 At 29.
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Our path
How then do we begin our version of this same journey here in Aotearoa? There are clearly some aspects of the Canadian and Australian experiences that we can learn from. For example, there is wisdom in the adoption of a cross-disciplinary approach to tikanga content. I also admire the honesty of indigenous academics’ acceptance that the project must be reparative as well as educative. And I am impressed by the confidence they show in rejecting the indigenous-law-chiselled-in-stone-tablets approach to teaching. But the circumstances in this country, while similar to those in Australia and Canada, are not the same. We have tribal corporations, marae and kāinga, but we lack the separate jurisdictional arrangement of the Canadians and the vast territorial possibilities of the Australians. On the other hand, we have some natural advantages that I want to explore.
Sources of tikanga
I want to start with the content of tikanga that needs to be conveyed to students in any tikanga law course worth its course fee. As I said one of the key problems in this country is the relative superficiality of tikanga material that is currently taught and the capacity gap in most law faculties in terms of subject matter competence. It is not unrealistic to expect that a tikanga course would contain the same depth of material as a commercial or property law course. But where is this material to be found? Some is in written form but unlike the commercial or property law courses, some will be in the form of oral tradition and some will, of necessity, be purely experiential. Most of it will not be law in the way law schools are used to teaching it or law students are used to learning it. But that is the point. As I have said, at its best, learning tikanga liberates the minds of common lawyers so they can see the wharenui where they once saw only a colonial villa.That said, an important advantage in Aotearoa compared to Canada and Australia is the fact that here there is a single indigenous language and, though there are local variations in approach and emphasis some of them quite significant, tikanga is, still a single body of principle. This will make things easier for our law schools.
Written sources
First, there is a vast body of 19th and early 20th century ethnographic material published by colonial ethnographers in English. Legal scholars must tap into these sources if they are serious about discussing tikanga. These include works by Grey, White, Best, Beattie and Smith to name
F W Guest Memorial Lecture 2021 19
only a few.56 And they include the many volumes of the Journal of the Polynesian Society, especially the earlier ones. They contain articles by both Māori and Pākehā scholars. In most, the writer’s focus was not law, but their work sometimes contains a great deal of hidden legal principle.
There are also the modern discussions of tikanga in Waitangi Tribunal reports and (just as importantly) in evidence of tikanga experts presented to the Tribunal; and in modern texts written by experts for general consumption: they include Mead, Barlow, Salmond, Boast, Stafford and others.57 Then there are the significant number of Māori authors who produced Māori language manuscripts in the 19th and early 20th century. These often discuss and debate matters of tikanga. To name only a few such authors, they include Te Rangikāheke of Te Arawa, Matiaha Tiramōrehu of Ngāi Tahu, Tāmihana Te Rauparaha of Ngāti Toa, Makareti Papakura of Te Arawa, and Te Whatahoro of Ngāti Kahungungu-Rangitāne58 whose teacher was the famous Te Mātorohanga of the ancient whare wānanga in Wairarapa (Te Poho o Hinepae) and Uawa (Te Rāwheoro).
There are also the hundreds of editions of the 49 Māori language
newspapers published between the middle of the 19th century and
(Huia Publishers, Wellington, 2003); Cleve Barlow Tikanga Whakaaro: Key Concepts in Māori Culture (Oxford University Press, Melbourne, 1991); Anne Salmon Tears of Rangi; Experiments Across Worlds (Auckland University Press, Auckland, 2017); Richard Boast Buying the Land, Selling the Land: Governments and Māori Land in the North Island 1865–1921 (Victoria University Press, Wellington, 2008); Don Stafford Te Arawa: A History of the Arawa People (Oratia Media, Auckland, 2016).
20 Otago Law Review (2021) Vol 17 No 1
the first 25 years of the 20th century.59 In letters to the editors of those publications and in feature articles, Māori (and more than a few bilingual Pākehā) debated tikanga issues between themselves and discussed how tikanga might operate at the interface with the Pākehā world. They are all online now.
I should also mention, of course, the literally hundreds of Native Land Court minute books60 and Papatipu books in which Native Land Court judges, assessors, or rangatira recorded the evidence given in court or in rūnanga about rights to land and resources or to rights of succession. In the larger more contested cases individual mātanga and rangatira gave evidence for days on end without notes. They used whakapapa, whakataukī, waiata, haka and karakia to weave complex social, economic, military and political histories. They record who gathered food where and how often, who those resource complexes were shared with and on what basis, the whakapapa connections between those right-holding kin-groups, who won when they quarrelled, who married whom to seal the peace, and how the quarrel affected the interests of the victors and vanquished.
The minutes do not deliver up easily digestible abstract treatises of tikanga as law. Rather they are law as it is being done. The underlying philosophies and principles of tikanga have to be extracted from what is said. For example, the obsession of witnesses with providing comprehensive whakapapa matrices when making or contesting claims to land reflects the transcendent importance of kinship narratives in grounding legal rights and obligations. Tikanga lawyers both then and now must demonstrate a facility in remembering and applying whakapapa. In a sense, the courtroom setting for these minutes is incidental. Exactly the same contests would have played out on marae and in wharenui between the expert tikanga advocates of competing hapū before, during and after the Native Land Court period. They were the mechanism for avoiding physical conflict over resources. And they were the way law was performed and remembered. What changed was that native land legislation meant the Land Court had a settler-backed monopoly on dispute resolution over traditional rights. Individualisation and the undermining of chiefly leadership meant the ancient fora could no longer compete. But the tikanga based body of evidence brought to the Court was the same. Professor Boast’s three volume history of the
F W Guest Memorial Lecture 2021 21
Native Land Court and compilation of its leading judgments will be a valuable resource for teachers and students alike in this area.61
Kōrero tawhito
A second broad category are the traditional oral literature sources: the waiata (song-poems), haka (posture dances), ngeri (free-form haka), whakataukī (proverbs) and pūrākau (traditional stories) of Te Ao Māori. These too are repositories of legal principle, but the legal dimension is invisible to the untrained observer of these performed statements of principle. There are thousands of them remembered and repeated to this day. They include love songs, songs of grief and loss, songs to the dead, songs to children to convey important tribal knowledge and tradition, songs about traditional territories, songs about events, songs of political ambition, chants of derision and insult, chants to provoke war or to make peace, boastful dances, seductive dances, chants about mana and tapu, wise proverbs to guide the living, and stories to explain why things are as they are, or were as they were.Let me give you some examples.
Te Waiata mō Tuteremoana was composed by his grand uncle Tuhotoariki and performed at Tuteremoana’s birth.62 It contains the story of Tuteremoana’s iwi, Ngāi Tara (of Te Whanganui-a-Tara fame), from the gods to the beginnings of the iwi on the East Coast of the North Island at a little village called Whāngārā-mai-Tawhiti. It speaks of the importance of celestial knowledge (“e mau tō ringa ki te kete tuauri, te kete tuatea, te kete aronui”) suggesting that important knowledge is god given and sacred.63 It affirms the need to strive for balance through the repeated pairing of oppositional ideas. Another example from the waiata illustrates this: “ka toro te akaaka rangi ka toro te akaaka whenua, ka tupea ki te wehe nukurangi, ki te wehe nukuātea.”64
Polynesian Society Inc, Wellington, 1970) vol 3 at 2.
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This striving for balance between forces in tension is a constant theme in tikanga Māori. It plays out in all tikanga of wrongdoing. Thus Te Waiata mō Tuteremoana reflects basic tikanga principles of obligations.
Erenora Taratoa of Ngāti Raukawa composed the famous ode to mana wāhine called Poia Atu Taku Poi.65 She uses the metaphor of her poi to weave a network of strategic alliances and reciprocal obligations with leading mid-19th century North Island rangatira south of the line between Hauraki and Waikato.66 The poi represents both her beauty and her mana which she says “is not from recent times but from the ancient world of her elders.”67 Her mana is in her whakapapa and she uses it to strategic advantage on behalf of her people. She boasts of her ability to draw these leaders to her with the allure of her poi. The pātere (a fast-paced form of waiata not unlike modern “rap”) is a celebration of the political power of women of mana in the traditional Māori world. It contains tikanga based human rights principles.
Then there is the famous story of Rātā who went to the forest to cut down a tree in order to fashion a canoe capable of carrying him and his people to attack his enemy Matuku who had killed Wahieroa, Rātā’s father. You probably know how the story goes. In his rush to get the canoe built, he failed to obtain the consent of the forest by performing the necessary karakia. Thus, though Rātā felled his tree, the insects and the birds of the forest returned in the night and reinstated it. The karakia they used when going about their work is still known.68
of a man that Erenora became involved with. Puhiwahine objected to the match and Erenora responded scathingly, asserting her mana and celebrating her sexuality in the face of Puhiwahine’s disparagement. For more, see Ani Mikaere “Colonisation and the Imposition of Patriarchy: A Ngāti Raukawa Woman’s Perspective” in Leonie Pihama and others Mana Wahine Reader: A Collection of Writings 1999–2019 Volume II (Te Kotahi Research Institute, Hamilton, 2019) at 14.
F W Guest Memorial Lecture 2021 23
Rātā ware, Rātā ware,
Noho noa koe ka tuatua noa i a Tāne
Koia i whekii, koia i whekaa, Rere mai te maramara
Koia i piri, koia i mau, Rere mai te kongakonga. Koia i piri, koia i mau,
E tu Tāne, kia torotika to tu,
Tihe mauriora.
Ignorant Rātā, ignorant Rātā, You took liberty and felled Tāne
Hear the thud, hear the sound (of the adze)
The chips fly hither,
Stick together, hold together Arise Tāne and stand straight Behold, he lives anew.
Rātā broke the law of the forest and as a result he was deprived of the fruits of his labour. Tānemahuta (the forest god) issued a proceeds of crime asset forfeiture order.
One of my favourite whakataukī is “Ko te kai a te rangatira, he kōrero.”69 It emphasises skill in oratory as an important attribute of the successful leader. But there is a hidden legal message in it: Chiefs must lead through persuasion. They are not like the Kings of old England or the Ancient Regime, they do not rule by divine right. The executive discretion of rangatira Māori is more limited. They must take the people with them or risk being abandoned. This is a tikanga principle of public law.
These examples perform the same function in tikanga that case law or higher fundamental principles perform in the common law. They provide principles to guide everyday life and they identify sanctions when the principles are breached. There is a significant body of written material about them though it is mostly in the Māori language. And they are repeated and performed regularly on marae and in wānanga. If they present a problem for modern teachers of tikanga, it is not that there is a dearth of this material, it is rather that there is too much of it!
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Te reo Māori
This means that to be an effective tikanga lawyer (and teacher) some facility in te reo Māori will be required. In any event, language is a window into the way its speakers think about their world including their law. Te reo Māori is no different. For example, there is no word in Māori for the abstract idea of property but there is a word for belonging. These two facts explain a lot about the worldview of Māori speakers.I understand that achieving bilingualism is a challenge, but if we are serious about tikanga it is one which must be met, at least to a basic functional level. And I understand that this will take time. All I can do is reflect on what a difference this will make to the quality of teaching.
Oral sources
In addition to all that written material there are purely oral sources of tikanga. These are the words of modern tikanga practitioners located within their communities. Oral sources of tikanga are even more important than written sources. They reflect tikanga as it is actually practised in Māori communities today. There will be a great deal of overlap between the early written sources and the views expressed by modern practitioners. But they will not always be the same. Tikanga is not an artefact. To survive it is required to change and develop to meet different circumstances. Sometimes an aspect is re-enlivened after years of neglect because it has become relevant again. Sometimes a tikanga principle is repurposed to better accommodate changing social attitudes.Teaching and learning within the oral and lived side of tikanga brings different challenges. The law teacher may not be the subject matter expert. They may simply be the facilitator of learning from actual practitioners such as kaumātua and kuia the drawer together of the threads of others’ kōrero.70 Sometimes it will be students who bring their knowledge of tikanga to the classroom and the role of the teacher will be no more than to facilitate a discussion amongst the students.
Holistic learning
What is clear is that tikanga law cannot be taught or learned within a law school silo. Traditional institutional walls must be removed. Law
70 Borrows employs a teacher-as-facilitator methodology in teaching indigenous laws at the University of Victoria, Canada. See “Indigenous Ways of Teaching and Learning” (online seminar, 25 February 2021) University of Victoria, National Centre for Indigenous Laws Open Forum Series <https://uvicindigenouslaws.ca/open-forum-series-past-events/ widgets/82487/videos/6575> at 1:40:35.
F W Guest Memorial Lecture 2021 25
schools will need to reach out to their Māori Studies departments for assistance. The written sources I have discussed and the waiata, haka, ngeri, whakataukī and pūrākau I’ve mentioned will be very familiar territory in those departments. Law schools needn’t reinvent any wheels. In fact, Māori Studies departments will often employ community based (mana whenua) tikanga practitioners or alternatively they will have comfortable working relationships with such practitioners.
In fact, the growing demand for tikanga Māori and kaupapa Māori inputs in other (non-law) professional degree courses such as medicine suggest to me that universities probably need to take a whole of university approach to this issue. But here, I venture well beyond my expertise and comfort zone.
Outside the walls of the University, there are the three modern Wānanga (tribally-based tertiary institutions).71 In my experience, Wānanga campuses almost invariably employ the sorts of tikanga practitioners I have in mind and they are almost always active in local Māori communities where tikanga is practised as a matter of course. Law schools need to think about building strategic partnerships with the institutions in which tikanga lawyers can be found. Such relationships can be reciprocal with value flowing in both directions – perhaps law teaching into the Wānanga in exchange for tikanga teaching into the law schools.
In my view tikanga content, except at the most basic level, should be team taught in law schools. The model should be that tikanga practitioners and law teachers work together to facilitate tikanga learning as law. I expect the best insights will be achieved when both worlds are in the room and cooperating in the teaching exercise.
Some say that there is risk in bringing tikanga into law schools, there is a fear the material will not be treated with the respect it deserves, that it might somehow become commodified and debased. I understand that fear, but I think Professor Napoleon is right. Teaching tikanga at law school won’t break it. Tikanga has always been contested and contestable. The written sources of a century ago and more confirm this. Tikanga practitioners have always delighted in argumentation over the content of tikanga principles and how they apply to particular situations. So, we must not be afraid of debate about tikanga. Argumentation is not just a Western legal tradition nor a tradition only of Western education, it is a Polynesian tradition too.
71 Te Whare Wānanga o Awanuiārangi, Te Wānanga o Raukawa; Te Wānanga
o Aotearoa.
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But it is in the nature of western universities (particularly given the law school student demograph) that some students will bring a sceptical or even resentful mindset to having to demonstrate knowledge of a “primitive” legal system with little relevance to their lives in order to graduate.72 We should not be surprised by this or unwilling to engage with these views. They probably reflect the attitudes of a significant, if decreasing, sector of the community at large. When confronted by the same problem in Canada, Professor Jeffrey Hewitt developed a usefully respectful and disarming technique for dealing with it.73 He invited students to pose written questions or make written comments anonymously and at the beginning of each class he spent time addressing these. It was a safe way in which the sceptics, the resentful or the just plain ignorant, could speak their minds. I expect it took all of Professor Hewitt’s skill as a teacher to pick his way through that potential minefield but his experience was that this approach paid off. I expect it will in this country too.
Tikanga as experience
Law school decolonisation requires more than just multi-disciplinary or multi institutional strategies. Tikanga education should also be experiential – in community, on the land, in the water, diving for kinas.74 Done well, this could be the most powerful dimension of tikanga education. It has the potential to bring so many advantages to both sides.From the law schools’ point of view, community-based teaching will build a new body of academic knowledge around tikanga as practiced in real life. In this way the legal academy can contribute to enriching and strengthening tikanga just as University Māori Studies departments and iwi Wānanga have over the last 40 years. Students will (I hope) come to learn that tikanga knowledge and principles are embedded in communities and their land and seascapes. Unlike the Western paradigm, they are not abstracted. The wharenui is a book that contains important statements about rights, interests and relationships. But none of it is in writing. The landscape contains stories of how a mountain got there and who has rights in it; of the seasonal rhythms of a river’s flora and fauna,
F W Guest Memorial Lecture 2021 27
when gathering is allowed and how it must be done; of the footprints of the ancestors, confirming by their existence, the ancient connections of living communities to their lands. There is another saying: “Kei raro i ngā tarutaru ko nga tuhinga a ngā tūpuna”.75
Community based learning also means that the teachers are not just teaching tikanga, they are teaching in tikanga. Learning at kāinga or by the sea or the rivers will naturally be preceded by appropriate ceremony. Students and teachers must be welcomed into the community or into the ocean and so forth. There are right ways and wrong ways to do things. If that is true in community and on the land, ought it also to be true on campus in the classroom? These are interesting questions to be worked through. In tikanga Māori they are serious questions.
An important aspect of this decolonising journey is the reciprocal advantages that the communities themselves could gain from this influx of the law students. Students may be invited to help the community with some project in which they are engaged, to run legal clinics or just to reflect back into the community the possibility of law school as a real option for them. These are opportunities to empower Māori communities in practical ways. And they may also transform the process of learning tikanga into one of building tikanga based relationships that will endure after the course has been completed. This is the tikanga of tauutuutu and it might also help the law school with its diversity problems.
On the subject of diversity, I hope my earlier comments have convinced you that law schools have a great deal of work to do. A decolonised law school cannot be monochrome, either ethnically or socio-economically. Bringing tikanga into the curriculum will also be a way of welcoming into the law school those for whom tikanga already matters, or who aspire for it matter in their future lives. This kind of diversity adds a richness to the whole law school.
So, universities must scaffold Māori, Pacific Island and disadvantaged students into their law schools. In the Māori context, as I have said this can be done by working with and learning in Māori communities; but in all cases, law schools must reach out to lower decile schools and make law an attractive career choice for their students. And the irrational barriers to entry, protecting an unjust status quo, must be removed.
More can be done at law school too. Those from diverse communities who make it in are more likely to be adult students, solo parents, or living in multi-generational households. Relevant supports are needed for these students. And those supports need to be active and systemic. They must not, through fiscal or structural neglect, be merely passive
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or ad hoc supports available only to the student who knows to ask. The diverse students I have in mind are not born entitled. They are often so surprised they are at law school at all, that they do not think to ask for more.
I have already talked about breaking down intellectual and institutional barriers to build tikanga based expertise at a level commensurate with that expected of other law subjects. Law schools that have not already done so, must build strategic relationships with mana whenua communities within their catchments. As I have said, they will need to foster an ethic of reciprocity. Law schools cannot just teach tikanga, they’re going to have to do tikanga. This will take quite a leap of imagination for faculties steeped in the status quo.
The late Justice Ruth Bader Ginsburg often complained, tongue-in- cheek, about her early days on the Supreme Court when she had to educate her male colleagues about sexism. She said it was like teaching kindergarten, but for the most part it paid off. Māori legal academics will inevitably be cast in that role too. In addition to educating, encouraging and cajoling their colleagues, they will also bear the heaviest burden in terms of teaching and facilitating the teaching of tikanga material. Their classes will be more complex and more resource hungry if, as I suggest, they are team taught. The community and land-based aspects will push Māori staff to the limit. At the same time, they will be required to bring their most thoughtful and creative minds to the task of developing a new curriculum to deliver it to a student body that may not be unanimously well-disposed to it. They will need lots of support and encouragement. The road is likely to be bumpy for them, particularly in the first few years. Above all they must be valued. Other disciplines have made the mistake of expecting their Māori staff to be all things to all people, at a discount. It has not always ended well. The law schools must not make the same mistake.
The money
Now, how the heck do we pay for all this? I am tempted to avoid this most important of all questions (to law school deans anyway) by saying that money is not my area. But that would be unfair. Undoubtedly, more resources will be needed if we are to succeed in integrating tikanga into legal education. This is the point where, in my experience, the rubber meets the road. That is where we find out whether the supportive words actually mean anything.Some will ask how this extra resource burden can be justified in our partially user pays tertiary education environment. It is a fair question. My response is a personal one. I wish that this material was taught
F W Guest Memorial Lecture 2021 29
when I was at law school. I would have been a far better lawyer if it had. Counsel are appearing in courts and tribunals across Aotearoa pursuing or defending proceedings on tikanga Māori grounds with great regularity now. Many have only a passing understanding of their tikanga-based cases or of the tikanga based cases of their opponents. The quality of judicial decision making can suffer as a result. This can be avoided if the law schools educate the profession in these matters. The benefits will be worth the required re-prioritisation.
In any event it seems to me that we can resource this adventure in the same way that I suggest we should teach it: through interdisciplinary, interinstitutional and intercommunity cooperation. In other words, we must adopt a traditional whanaungatanga approach to sharing the burden.
Conclusion
In my admittedly provocative title, I asked whether we could start the process of decolonising the law in Aotearoa by decolonising the law schools. I was, I confess, being a little tongue-in-cheek. In fact, decolonising the law is a process that has been tentatively underway for a generation now, first through legislative innovation and then in the common law. But this has been largely piecemeal and unsystematic. What is required now is thoughtful synthesis, the careful laying down of markers to illuminate the law’s path going forward. This is work for the law schools. It’s your turn now. Perhaps my subtitle should have been “Can we (finally) start with the law schools?”The CLE has therefore presented the academy with a timely challenge. To respond to that challenge, I have suggested you unlock these long- neglected rooms in the house of the law and air out the wharenui annex. Stop peering through the keyholes to work out what’s inside. I have recommended that you remove the intellectual, pedagogical and institutional barriers to the law’s acceptance and comprehension of tikanga, and that you demolish the misconceived barriers to the entry of minorities and the poor into your classrooms. I have encouraged you to reach out to wānanga and Māori communities – to sites with the capacity to help you – and to build whanaungatanga relationships with them. I have urged you to rediscover law where it actually lives – in traditions and performance, in the whenua and the wai. You need consciously to make Polynesian lawyers because that is how we decolonise the law in Aotearoa.
I confess I cannot predict how this will go. We may lose our way or just lose interest. We may find that it is all too hard. Or we may, with the best of intentions, suffocate tikanga through institutionalisation. But I am quite certain that these are risks that must be taken. And if we
30 Otago Law Review (2021) Vol 17 No 1
proceed with care and aroha, we are entitled to be optimistic that what we find at the other end of the process will be better suited to our 21st century Pacific circumstances than is currently the case.
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