Waikato Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Waikato Law Review |
|
DELIVERING A BICULTURAL LEGAL EDUCATION: REFLECTIONS ON CLASSROOM EXPERIENCES
The School of Law at the University of Waikato was founded to provide a professional, bicultural and contextual legal education. This article reflects on the experience of incorporating the School’s tripartite mission into the design and delivery of a Law I Legal Method paper. It provides an historical background of the Waikato Law School and contextualises the need for a bicultural approach to teaching and learning in the School’s Legal Method paper. The authors describe ways in which the Legal Method teaching team has incorporated kaupapa Maori dimensions in an effort to promote understandings of both Maori and European conceptions of justice and law. The article briefly reflects upon some of the negative experiences encountered in the classroom when we have exposed our students to Maori perspectives about knowledge and the place of the Treaty of Waitangi in the legal system and in society generally.
Te Matahauariki: The horizon where the earth meets the sky; the meeting place of people and their ideas and ideals; in a spiritual or metaphysical sense, aspiring towards justice and social equity...[A] philosophy which reflects concerns that “humans have for each other...[A]n environment of participation, of challenge, debate and justice in the world as it was, as it is, and as we want it to be.[2]
The founding of the School of Law has been well documented in a number of books and articles.[3] This article re-visits some of that material in order to contextualise the authors’ case studies, which demonstrate the impact of the School’s bicultural mission and our commitment to the Treaty of Waitangi on teaching and learning in our Law I Legal Method paper.
During the 1970s Maori actively challenged the monocultural status quo and asserted their ancestral rights as tangata whenua over the land (rights as first people of the land).[4] As a result of the momentum created during the 1970s, and against the backdrop of the most significant economic restructuring this country has ever seen,[5] the decade that followed was a time during which Maori successfully lobbied for education strategies developed by Maori for Maori at preschool and primary school levels.[6] In 1987 the Maori language was recognised as an official language of Aotearoa/New Zealand.[7] Against that background, it was opportune in the 1980s for New Zealand legal educators and practitioners to reflect upon the objectives, content and delivery of legal education. The impetus for reflection was the discussion of a proposal for the establishment of a fifth law school in New Zealand and a growing disenchantment with the quality of professional legal training.
In 1988, the University of Waikato published Te Matahauariki, the Report of the Law School Committee of the University of Waikato. The Report argued for the establishment of a new School of Law at the University of Waikato. Central to the Report was a recognition of the need for a legal education that reflected the needs and concerns of people in a bicultural society; that was accessible to both Pakeha (non-Maori) and Maori (particularly those from the region served by the University of Waikato);[8] and that had a “law and society” focus.[9] The “law and society” perspective reflected undergraduate law degree curricula in new law schools overseas,[10] but was located in Te Matahauariki within the particular New Zealand context of the Treaty of Waitangi. The Report also regarded as desirable the integration of law courses with courses from other disciplines.[11]
The University of Waikato School of Law was established in 1990 and began teaching its first in-take of students in 1991. The undergraduate law degree was approved by the New Zealand Council of Legal Education (CLE) and includes the courses prescribed by that Council as required for admission as a barrister and solicitor.[12] The Prescription of Subjects (contained in the schedule to the Professional Examinations in Law Regulations 1987) makes no specific reference to the Treaty of Waitangi, however it was recognised that a new Law School would provide an opportunity to give meaning to the notion of partnership in good faith that is central to the Treaty of Waitangi.[13]
Building upon Te Matahauariki, the University of Waikato School of Law adopted for itself the founding goals of professionalism, biculturalism, and the teaching of law in context. Each of these goals will now be briefly discussed.
The provision of a professional legal education was a goal familiar to all legal academics and generations of law students in New Zealand as in other comparable legal jurisdictions. It involved compliance with CLE requirements and prescriptions as well as the provision of skills teaching to support the role of the lawyer as the provider of legal advice. Professionalism also requires the recognition on the part of employers and the wider community that there are benefits from learning lawyers’ skills that go beyond the production of barristers and solicitors. Such “generic” skills ought to be taught effectively and in tandem with a conceptual legal education.
Whilst ensuring that the undergraduate law degree continues to be a pathway to the legal profession, to achieve its aim for law to be studied in context, the Waikato degree includes more non-law papers than other New Zealand law degrees, and conjoint degrees are encouraged to facilitate interdisciplinary study. The first two years of law study are weighted towards public law, rather than private law, in order to provide a context for understanding the operation of private law.[14] Contextual matters are also addressed within the individual Law I papers, Legal Systems, Legal Method and Law and Societies. There are tensions between the professional and contextual goals within the current Law I programme. “Professional” knowledge and skills cannot be taught in a vacuum, and the Legal Method paper has no private law paper in the first year on which to “hang” concepts and skills. We have to teach some contract, tort and criminal law to enable students to replicate lawyering tasks, and lecturers from these subject areas form part of the Legal Method teaching team.
Since its inception, it has been a stated goal of our Law School, through its curriculum, research activities and its own structures, to be in the forefront of the development of a new bicultural legal philosophy.[15] Biculturalism is a contested term, but can mean promoting understandings of both Maori and European conceptions of justice and law. Research has demonstrated that Waikato Law School is the Law School of choice for Maori, largely due to the School’s stated commitment to biculturalism. This is evidence of a real attempt to provide a meaningful legal education for Maori.[16] Maori students and staff of the Law School have analysed and critiqued the School’s attempts to develop the bicultural objective since its establishment.[17]
The responsibility for fulfilling the goal of biculturalism has largely fallen upon, and been embraced by Te Piringa,[18] the indigenous Maori staff collective of the School of Law of Waikato University, who in 2002 received a University of Waikato Staff Merit Award for “[o]utstanding, sustained achievement in furthering Maori aspirations in Legal Education”. The goal of biculturalism is, however, a goal of the Law School as a whole, and the responsibility for providing a bicultural legal education lies with all Waikato legal academics involved in the design and delivery of papers. That biculturalism is not a goal that is easily understood within the wider community was identified by the Foundation Dean, Margaret Wilson, who recorded that she had received requests for reassurance that the Waikato LLB was of the same standard because of the number of Maori students and the commitment to develop a bicultural approach to legal education.[19]
Understanding what is required in developing and delivering a bicultural legal education has not been easy for Waikato legal academics charged with the task. As our former colleague Stephanie Milroy[20] observed:
It was clear from the beginning that biculturalism was not a teaching product that could be designed and produced in the same way that one might produce, say, a Contract law course. A commitment to biculturalism means an ongoing challenge requiring one to change one’s own ideas, attitudes and behaviour, and corresponding changes in the institutions which seek to foster biculturalism.[21]
It has to be said that the Legal Method paper could have followed the well-trodden path, in content and delivery, of other common law jurisdiction first year law papers. It could have been said that there was no bicultural dimension to legal skills within the New Zealand legal system and that the Law I programme as a whole demonstrated our commitment to biculturalism. The authors rejected this approach because of our conceptions of the purposes of teaching and learning law in Aotearoa/New Zealand.
The ways in which the authors teach and conceive of teaching are the result of internalising the goals and values of the contexts in which we teach and have been taught. The pattern of values and goals existing at any one time provides a context for this examination and it influences not only the individual academic’s conception of the purposes of teaching and learning, but also his or her professional practice of tertiary teaching.
The School of Law’s goals and the attendant values provide one context for, and influence the conceptions of, the purpose of teaching and learning. Values such as equality, access, development of the individual, promoting higher-order thinking, and working for the public good are implicit in the goals of professionalism, law in context and biculturalism and they align with society’s goals and values in respect of higher education. Social structures and regional needs (along with the state), which historically resulted in universities that functioned to pursue scholarship and elite education and which valued pure research and the development of moral character,[22] now result in mass higher education systems in OECD countries (including New Zealand). The functions (or goals) of these mass higher education systems are expressed as the need to achieve greater equality of opportunity, to provide education adapted to a great diversity of individual qualifications, motivations, expectations and career aspirations, and to facilitate the process of lifelong learning and the need to assume a public service function.[23]
In the 21st Century, as in the past, there is a relationship between the university and society in terms of benefits and utility that results in the articulation of society’s values and goals in relation to higher education and an expectation that the purposes of a university will include the purposes attributed to it by society. That universities accept this can be illustrated in the case of the University of Waikato. Its website makes explicit that society’s values and goals referred to above have an impact on the values and goals, and thus the purposes, of the institution:
We adhere to the concept of a university education that is, by definition, research-led. Through sustained research intensity and the attraction of high levels of external funding from public sector and industry sources, we aim to maintain a highly competitive research profile which is measured by the quality and productivity of our academic staff. Our strong research programme makes a substantial contribution to the social and economic development of the local, regional, national and international communities. We are part of a very significant cluster of research capability in the country. Located in the centre of a hub of Crown Research Institutes and a recently established Innovation Park, we are exceptionally well-placed to increase our contribution to the regional and national economies. We continue to foster a culture of internationalisation, measured through the diversity of our student and staff profiles, the support and celebration of that diversity, a long-standing pride in our reputation for the pastoral care of our international students, and the measures we take through curriculum, programme design and our global networks and connections to expose our students to international influences.[24]
Tihë mauriora ki te Whaiao ki te Ao Märama
The University of Waikato is committed to meaningful partnerships under the Treaty of Waitangi, and to providing leadership in research, scholarship and education that is relevant to the needs and aspirations of iwi and Mâori communities. As a foundation to this commitment, we recognise the value of Mâori students and staff, and the significance of their contributions to the University and to the wider community.
The University values its relationship with Tainui as mana whenua, and is committed to working closely with local hapû and iwi to ensure responsiveness to Mâori. As a partner to the University, the iwi forum of Te Rôpû Manukura continues to work with the University Council, and to support the development of research and tertiary education opportunities for Mâori.[25]
There is an overlap between society’s values and goals and the values and goals articulated by the University of Waikato. But it is possible to identify particular institutional values and goals in relation to the University of Waikato that sit alongside the values and goals already identified, and which directly have an impact on our conceptions of the purposes of tertiary teaching and learning. The University of Waikato Charter contains a mission statement of educational purposes and values, and sets out the University’s defining characteristics. These statements value academic excellence and international competitiveness for the benefit of people of the Waikato, the nation and the Pacific region. The commitment to partnerships with Maori “as intended by the Treaty of Waitangi” and to kaupapa and tikanga Maori is affirmed.[26] In addition, the University must achieve “the advancement of knowledge and the dissemination and maintenance thereof by teaching and research” under the University of Waikato Act 1963.[27] The University must also accept a role as “the critic and conscience of society” in terms of the Education Act 1989.[28]
It is the people who are employed by the University, including individual academics, who must support the values and achieve the goals to which the University has expressed a commitment and in terms of the University’s statutory obligations. Individual conceptions of the purposes of tertiary teaching and learning must accommodate, in addition to purposes in relation to student learning and the creation of new knowledge that reflect society’s values and goals, purposes that relate to the development of a classroom environment which reflects appropriate social, cultural and spiritual values, the development of appropriate forms of instruction and the promotion of critical thinking and reflexivity that empowers learners, inter alia, to become academics who are the critics and conscience of society.
The values and goals articulated by the University of Waikato include values and goals regarded as those traditionally held by academics themselves, such as freedom in the exchange of ideas and information, freedom of thought and expression (universities as “critic and conscience of society”), the advancement of knowledge and the dissemination and maintenance thereof by teaching and research. Some organisational units within a university (faculties, departments and schools, for example) may hold additional values and goals from those articulated by the university and from each other. Often it is here that there is an uneasy interface between the values and goals of the institution reflecting societal (and state) views, and the traditional culture of academics and their discipline-specific values on the other.
Along with those values and goals in relation to research and scholarship, Goldschmid identifies exchange of information, social responsibility, creativity and imagination, critical thinking, self-reflection and personal growth.[29] Tensions may arise in relation to resourcing that which is valued and goals that have been identified.
The state has interests in tertiary education distinct from those of society in general. For example, the state needs an educated workforce to produce and to compete internationally. Knowledge, skills, culture and research can be viewed as resources within the economy that the state manages. However, for economic and ideological reasons, states have increasingly demanded that the market is the mechanism for identifying and prioritising educational values and goals. We are now familiar with the discourse of student as consumer and purchaser of teaching, with industry as consumer (and, increasingly, direct purchaser) of research and knowledge, and employers as consumers of graduate skills. This international shift in economic policy relating to higher education sees it primarily as a private, rather than a public good in relation to funding, whilst at the same time stating that higher education is a public good in relation to productivity within the “knowledge economy”.
In New Zealand, the policy shift was made explicit in the Green Paper produced by the then Government in 1997.[30] Its vision for tertiary education required the achievement of goals that included increased opportunities for greater participation in tertiary education to “meet the changing needs of the labour market, economy and society”,[31] increased participation and achievement of currently under-represented groups (particularly Maori and Pacific Islands people), qualifications, programmes and providers of world-class standards, and “value for the students’ and the Government’s financial contribution” in recognition of the limited resources available for all government spending, including tertiary education.[32] The reality was that state subsidies for students were reduced on the premise that funding per student had to be reduced to allow more places for more students in a context of finite resources for the whole education sector.
The Labour-Alliance Government established a Tertiary Education Advisory Commission (TEAC) and issued a discussion document that set out this Government’s vision for tertiary education, and the issues to be addressed by TEAC.[33] The Discussion Document states that the Government’s vision is for New Zealand to become a “...world leading knowledge society that provides all New Zealanders with opportunities for lifelong learning...”[34] To achieve this, the Government identifies the need for:
• a commitment to excellence in teaching, scholarship and research;
• an environment where all those involved in teaching, scholarship and research are committed to contributing to the nation’s future direction;
• an environment where participation by all is encouraged, and where Maori aspirations for development are fully supported;
• a sector that fully supports regional and local communities... [35]
Whether social, institutional, academic or articulated by the state, the values and goals underpinning the purposes of tertiary teaching and learning have strong commonalities, such as a belief in equal access, equal opportunity for participation by learners in a safe and appropriate environment, in universities as providers of quality education to an international standard which support the needs and aspirations of regional and local communities and are committed to biculturalism and partnership based on the Treaty of Waitangi. Academics are seen as contributors to knowledge, who model and value intellectual honesty, critical thinking, collaboration/exchange/ partnership, creativity and self-reflection, thereby creating and transmitting a culture that encourages and empowers all learners to contribute to the creation of knowledge for the benefit of self and society.
It is our position that these values and goals made it imperative that we rose to the “challenge” of biculturalism in the design and delivery of the Legal Method paper despite our lack of experience of biculturalism in this context. The place of the Treaty of Waitangi within our society, our University and our Law School, and the legal system (along with the central notion of “partnership”) should be reflected in curriculum design which promotes understanding of both the English legal tradition and that of tangata whenua.
The Law I Programme comprises three compulsory courses: Legal Systems, Law and Societies and Legal Method. As explained in the Legal Method Paper Outline:
The purpose of the Law I programme is to give students an introduction to the history and structure of the New Zealand legal system, its institutions, processes and key actors, the skills of legal reasoning, writing and research, and an understanding of the societal context in which law is made and evolves. The Programme provides the foundation for the School’s commitment to promote professionalism, biculturalism and the understanding of Maori and European understandings of justice and law, and the teaching of law in context.[36]
The primary objective of Legal Method is to provide students with the essential skills needed in the study and practice of law including skills in legal research, case analysis, problem solving, statutory interpretation and legal reasoning.
The Legal Method paper was originally monocultural in both design and delivery. The paper was later re-designed in the context of the values and goals identified above. It was easy to meet the goal of professionalism in a traditional legal methods paper. Contextualism in Aotearoa/New Zealand, however, must mean more than cognitive apprenticeship in traditional (Western) lawyers’ skills. Consideration by the Legal method teaching team of professionalism, contextualism and biculturalism led to the development of Maori perspective small group teaching, the integration of kaupapa Maori into teaching and learning techniques, mooting in te reo Maori, and a research component that included an introduction to the Maori oral tradition and appropriate protocols for researchers with projects involving kaupapa Maori.
As part of Waikato Law School’s commitment to developing a different kind of legal education, staff have endeavoured to create learning spaces which facilitate optimum learning in a supportive manner. Overall, the School has a balance between small and large group teaching, though the Law I programme features mainly smaller group teaching. In all three of the large (180-240 students) compulsory first-year courses, the large group lecture format has been retained to varying degrees, but the emphasis has been on the “streams” or weekly smaller group sessions (25-35 students) of two-hours duration.
One stream in each of the three compulsory Law I courses is taught from a Maori perspective by a Maori lecturer. While the same core materials and assessment methods as those used in other streams are often used in these streams, the teaching perspectives differ and students are encouraged to build upon their own cultural knowledge bases. These “Maori Perspective Streams” provide a space where lecturers can draw upon culturally relevant and appropriate examples to illustrate points and engender discussion, and in some instances conduct classes in te reo Maori.
Recognising that Maori students have diverse needs and expectations in terms of their legal education, Maori students are offered the choice of entering a Maori Perspective Stream or one of the other streams. And though it is important to avoid making generalisations about Maori students, recent research confirms that Maori students find that Maori Perspective Streams provide a safe and supportive learning environment where Maori students feel comfortable being Maori and which are more conducive to establishing whanaungatanga or relationships.[37]
The Maori Perspective Streams have been so successful that often non-Maori have chosen to participate in them. Maori students have raised a concern that the inclusion of non-Maori in the Maori Perspective Streams has had an impact on teaching and learning – but from a teaching point of view the way in which that stream is taught is not compromised or changed by the inclusion of non-Maori students. Maori students have also requested that Maori Perspective Streams be offered in the second year programme as well as the first. The main constraint in being able to offer more Maori Perspective Streams is the availability of suitably qualified staff to teach from a Maori perspective.
Maori Perspective Streams also provide a safe environment for Maori lecturers when dealing with contentious issues. Maori legal academics at Waikato have recounted negative experiences involving class discussion about such things as Maori views of knowledge, the validity of the oral tradition,[38] and Maori perspectives on the Treaty of Waitangi.[39] Sometimes such classroom experiences emulate what is happening in society generally. For instance, amongst the furore in 1997 when a Maori individual took and damaged the America’s Cup as a demonstration of protest, lecturers facilitating classes exploring the role of the Treaty of Waitangi in the legal system experienced heated exchanges between students. Similarly, some classes required skilful facilitation at the height of the national debate over ownership of the foreshore and seabed. Such interactions have the potential to have an impact on learning outcomes if students close their minds to the ideas behind these topics. It is in the small group streams where we find that discussion and engagement on these issues can be facilitated in a more manageable and safe way.
The presence of Te Piringa for the most part as a strong, cohesive group within the Law School provides a forum for mutual support and also provides non-Maori lecturers with an avenue to seek support and information when dealing with lecturing either Treaty of Waitangi content or other Kaupapa Maori content in their courses.
In 2003 Te Piringa co-ordinated a research project aimed at reviewing the Kaupapa Maori content in law courses offered at the Waikato Law School.[40] The objective of the project was to enable the Te Piringa team, and the Law School generally, to gain an insight into what, if any, kaupapa Maori was integrated in Waikato Law School courses. “Kaupapa Maori” was an undefined term that was discussed during the research process, but included Maori perspectives on legal issues and content relating to the Treaty of Waitangi. The information drawn from the research project has, to date, assisted Te Piringa to do a number of things.
First, it has improved institutional knowledge of what kaupapa Maori has been incorporated across the degree programme. This has become important for the purposes of induction and succession planning, as a result of the high turnover of Te Piringa members in recent years.[41]
Secondly, it has provided a basis for Te Piringa to assess whether the school is generally fulfilling its foundation goal of biculturalism, and, in particular instances, to make suggestions to course convenors as to how courses might better fulfil the bicultural mission, in Te Piringa’s view. It is, of course, up to individual course convenors whether or not to take up any suggestions made.
Thirdly, Te Piringa has suggested that it may incorporate key findings of the research into the curriculum review being undertaken in 2004.
The Legal Method paper is notable in this research project as being one of the non Maori-specific courses where kaupapa Maori has been consciously incorporated into delivery methods and classroom practices in a variety of meaningful ways.
It is a course where, over time, Maori academics have designed problem-based learning exercises that integrate kaupapa Maori as tools for teaching legal method skills in the Maori perspective streams as well as across all streams. The following problem[42] is an example of an effective teaching and learning tool that explores the inter-relationship of legal topics and integrates legal skills and legal knowledge, as well as the integration of the knowledge, skills and methods of other disciplines, alongside law.
Donald Mason is a 22-year-old Maori. He obtained his driver’s licence in January 2001. On the application form for his driver’s licence he indicated that he wished to be a donor of organs. He believes that it is important to help others by donating organs when they are no longer needed by the donor. He is also aware that Maori who need organ transplants are most likely to find compatible organs from other Maori and that there is a great scarcity of Maori donors. As soon as he obtained his licence he told his wife, Dana, who is of European descent, that if he dies she can consent to the removal of his organs for donation. A few weeks later Donald was visiting his parents, who are both Maori. Donald told his parents that he had agreed to be an organ donor. Mr and Mrs Mason were both very upset about his decision. They told Donald that it went against Maori custom to take parts of the body away and give them to someone else. They also said that his body was sacred; his organs were part of him and he belonged to his whanau, his hapu, his ancestors and future generations to come and he had no right to give away his body parts. Donald felt confused and told his parents that he would have to “think about all this and in the meantime I’ll put my organ donation indication on my licence ‘on hold’ until I make up my mind”.
However, before Donald could change the indication on his licence he was involved in a serious car accident. He was taken to Cambrook Hospital in a coma with serious head injuries, broken ribs, a punctured lung, trauma to his heart and broken legs. At the hospital the doctors put him on life support but noted that brain function had ceased and that he had entered a persistent vegetative state. Dana was contacted by the police and, after she had rung Donald’s parents to tell them what had happened, she rushed to Donald’s bedside. The doctors advised Dana that there was nothing more they could do for Donald and that without the life support he would die almost immediately from the injury to his heart. They asked Dana if she would consent to the turning off of the life support equipment and to the removal of Donald’s undamaged liver, which was urgently needed for transplant into a 13-year-old Maori child. Dana, although distraught, said that she would consent to the organ removal but that she could not make the decision to remove life support without Donald’s parents being there. Donald’s parents arrived shortly thereafter and, together with Dana, they all agreed that there was no point prolonging Donald’s life, but they decided to sit with Donald awhile until they felt ready to let him go. Eventually the family withdrew and the hospital turned off the life support and removed the liver. Donald’s parents were extremely upset when they found out about the removal of his liver. They approach their lawyer for advice as to what action they can take.
On one level this is a typical problem-solving exercise that may be used to introduce students to the study of law by providing students with basic skills in legal research and writing, case analysis, problem solving, statutory interpretation and legal reasoning on issues relating to ownership of body parts, organ donation, drivers’ licensing, consent to medical procedure, lack of consent, damage or loss, and Maori cultural perspectives such as tapu (sacredness) and whakapapa (genealogy).
On another level, the problem encourages students to understand that although Legal Method may seem, as they go through the course, to be divorced from “real life” they will need these tools of legal method to help clients in situations like this. Law, then, is not merely a series of rules which they are going to learn. The legal system and lawyers operate within the context of wider society and, as lawyers, policy analysts, advisers and researchers, students will come to face situations which are not just legal problems but which contain a whole range of issues from ethical to cultural to political to economic which they as lawyers will be asked to deal with. In this it is hoped that they recognise their “other” knowledge about these sorts of issues, and which they will also need to bring to bear in their legal careers. It may also get them thinking that law may not hold all the answers.
Fact situations similar to the above-mentioned problem have been incorporated into the compulsory Law I Mooting Programme - the culmination of the Legal Method course. This mooting programme requires students to write a joint synopsis with a mooting partner, and make an individual oral presentation.
The objectives of the moot are to encourage students to work as a team, and to give students an opportunity to demonstrate research skills, case analysis skills, statutory interpretation skills, critical thinking and reasoning skills and writing skills, and present legal argument in a situation that approximates an appellate court oral presentation.
The Legal Method team has long recognised that students may have skills in Te Reo Maori (the Maori language) and may wish to use Te Reo Maori for both their written synopsis and their oral arguments. In consideration of this, students are able to present their written synopsis and oral presentation in Te Reo Maori so long as specific procedures are followed.[43] All documents and proceedings for a Te Reo Maori Moot are written and conducted primarily in Te Reo Maori. This includes the written synopsis, the oral presentation and the proceedings for the moot hearing.
The inauguration of the Te Reo Mâori Moots was not without problems. The very first te reo mooting experience involved an amusing situation in which two arguments and synopses were presented in te reo Mâori and while the other two arguments were presented in English. The introduction of Mâori protocol into the proceedings meant that the moot took considerably longer than anticipated to run.
The effort to embrace different approaches to mooting within a bicultural framework was commendable, but it was immediately obvious that there needed to be a special space and context within which Mâori mooting would take place, and that this needed to be facilitated by those faculty members with the requisite knowledge and expertise of the necessary Mâori protocols – Te Piringa. These early moots have paved the way for more sophisticated Mâori Mooting competitions open to all students and conducted either in te reo Mâori or English, with a fact problem based on kaupapa Mâori.
Another Maori dimension that has come to be incorporated into the Legal Method paper over time is a short series of lectures that explore the role of the Maori oral tradition in the legal research process. We have summarised in some detail elsewhere the content of and rationale for these lectures.[44] However, this article retraces some of that material in this final case study, which provides a further example of the impact of the School’s bicultural mission and our commitment to the Treaty of Waitangi on teaching and learning in our Law I Legal Method paper.
The increase in the intermingling of Treaty of Waitangi jurisprudence and Maori customary law in the legal system has in turn heightened appreciation for oral knowledge retained in the minds and memories of the indigenous Maori. We have introduced into the teaching syllabus a series of lectures and material about this oral tradition because it provides a world-view about knowledge and of the intricacies of Maori beliefs and understandings of the world. We also stress that a researcher who has an understanding of the oral tradition also understands that the research path must be structured in a way that recognises that people who are asked to share knowledge (the sources of the knowledge) are important participants in the research project. This is in contrast to written sources of law that are the subjects of research and are used by the researcher, and accordingly the introduction to the Maori oral tradition includes recommendations as to culturally appropriate research protocols and methodologies such as obtaining necessary permissions, and adopting appropriate methods of conducting and recording interviews.[45]
In Maori tradition the retention of knowledge and its use is a very spiritual discipline. Knowledge would only be entrusted to those who had been carefully selected as worthy recipients, individuals who would assume the responsibility of looking after such knowledge on behalf of the collective, and these students were taught in whare wananga or traditional schools of higher learning. Whare wananga have been likened to medieval monasteries where practical skills were taught based on strongly-held esoteric principles, moral codes, and strict adherence to prescribed rituals.[46]
The oral tradition embodies some of the fundamental values and principles upon which Maori society is based. One such principle is that knowledge is a taonga, something of great value, which must be respected. As noted above, particular kinds of knowledge, such as whakapapa (genealogy) for example, are not considered freely accessible because of their spiritual power.
The practical significance for students lies in the fact that oral histories and the recitation of information form a large and important part of claimant cases to the Waitangi Tribunal and that the Treaty of Waitangi and Maori customary law are increasingly being seen as important sources of law in the legal regime of Aotearoa/New Zealand.
As has been traversed elsewhere, the Waitangi Tribunal was established in 1975 against a backdrop of increasing pressure from Maori to have Treaty grievances addressed by the Crown.[47] Under its establishing statute, the Treaty of Waitangi Act 1975, any Maori person who claims to be prejudicially affected by the actions, policies or omissions of the Crown in breach of the Treaty of Waitangi may make a claim to the Tribunal.[48] The Tribunal has the power to inquire into claims made by Maori under the Treaty of Waitangi, and then make recommendations to the Crown.
The Tribunal’s inquisitorial approach brings together Maori and European concepts of law, history, research and procedure: its objective is to resolve claims and provide for lasting or enduring settlements. It will often travel to tribal meeting places to hear the evidence of claimants and such hearings often include a site visit to the rivers, land, lakes, and homes that are often the subject of the grievance that Maori have with the Crown.
The specialist Mâori Land Court frequently refers to Mâori concepts of law when interpreting and applying Mâori land legislation.[48] New Zealand’s Resource Management Act 1991 stipulates that, in achieving the purposes of that Act, certain matters of national importance must be recognised and provided for, including “the relationship of Mâori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”.[49] Persons exercising functions and powers under the Act must have particular regard to “kaitiakitanga”.[50]
There has been a growth in the number of statutes that incorporate reference to the Treaty of Waitangi. For example, the Conservation Act 1987 provides that “this Act shall be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi”.[51] And in the Education Act 1989 “it is the duty of the Council of an institution, in the performance of its function and the exercise of its powers, - (b) to acknowledge the principles of the Treaty of Waitangi”.[52]
On increasing occasions, too, courts are looking to the Treaty of Waitangi as an aid to interpret statutes even where there is no explicit reference to the Treaty in the statute, because the Treaty has been said to be part of the “fabric of New Zealand society”,[53] and viewed as being of constitutional importance.[54]
The number of references to Maori customary law in the courts also continues to grow. The notorious cases concerning the disposition of fisheries assets following the Sealord’s Deal, whether the fishing of imported species falls within customary Maori fishing rights[55] and, most recently, the aftermath of the Court of Appeal’s decision in Ngati Apa v Attorney General[56] (the Marlborough Foreshore case) are but a few examples.
While the Mâori oral tradition provides a world-view about knowledge and of the complexity of Mâori beliefs and understandings of the world, it also plays a significant role in our legal system, particularly in relation to the proceedings of the specialist Mâori Land Court, the Environment Court and the Waitangi Tribunal. The oral tradition is an important legal context and must be made accessible, in an appropriate way, to our students whether as future lawyers or citizens. On another level, it serves as a point of resistance for Mâori academics who seek to challenge the established understandings of our colonial past and reassert the legitimacy of Mâori knowledge and the mode of transmission of that knowledge. For these reasons we have introduced students in the Legal Method paper to the ways of the oral tradition in our attempt to promote understandings of both Mâori and European conceptions of justice and law and thus fulfil, at least in part, our promise of teaching law in the context of a bicultural society.
Our efforts have not always been appreciated. Maori students have generally embraced the lectures on the oral tradition and Maori knowledge. And, on the whole, the lectures have generally been well received by Pakeha. On one occasion however, during the introduction to the first lecture on the oral tradition, a student questioned how an oral tradition could possibly be credible: surely it was too prone to exaggeration and partiality. The tone in which the question was asked triggered an uneasiness in the lecture room, requiring a measured response.
It was explained that the resilience of the oral tradition in the face of many negative influences is remarkable, and that the student’s question mirrored the lack of recognition that the oral tradition faces as a form of information transfer and retention or as a legitimate source of law by the academic research community, and the legal system.[57] Rather than being an introduction as intended, the lecture had to jump forward to explain that culturally bound assumptions have constructed the printed word as the official record. However, the recorded histories of this country contain countless flaws as a result of early ethnographic and historical records being influenced by a foreign set of values. For example, during times of early settlement, land transactions in the far north were known as “tuku whenua”. European settlers who became relatively bilingual translated the words “tuku whenua” to mean land sales. Yet it has been established through oral tradition that, at the time the translations were written, Maori in the far north had no concept of selling land. Tragically for the people of the far north, the Crown used the translations of the transactions to assert its right of ownership over lands.[58]
On another occasion a Pakeha student walked out of a lecture theatre in obvious and disruptive fashion whilst a guest lecturer was sharing his expertise on the oral tradition of the Maori. In order to avoid such situations, we have learned to give students explicit forward notice of lectures and classes that are going to address any kaupapa Maori issues, so that students may choose not to attend. On a handful of occasions, some have chosen to leave soon after they are reminded what the topic is for the lecture – in these situations, skilful navigation is required by the lecturer to minimise inevitable distraction.
Such negative reactions have caused some academics to question why they should share certain types of knowledge with these students, and why they should expose themselves and expose Maori students to such blatant racism.[59] The authors cannot say that their willingness to further the School’s tripartite mission has always resulted in successful teaching and learning experiences. The values and goals of tertiary education in Aotearoa/New Zealand, however, make it necessary to continue to strive for success through dialogue with colleagues and students. Such dialogue is itself an education.
According to Maori oral tradition, the Maori ancestors, Tawhaki[60] and Tane, overcame a number of obstacles to ascend the heavens in search of knowledge. The following oft-cited proverb or whakatauaki reminds us that the importance of higher knowledge cannot be overstated:
He manu kai miro, nona te ngahere,
he manu kai i te matauranga, nona te ao.
A bird that feasts on miro berries, his or hers is the forest,
a bird that feasts on knowledge, his or hers is the world.
Through this article we join a number of our current and former colleagues in having reflected upon our experiences within the framework of the Waikato Law School’s tripartite mission to provide a professional, bicultural and contextual legal education. Such a level of self-reflection underscores the significance of that mission to many of the people involved in fulfilling it.
We have referred briefly to some of the obstacles that we have faced, and realise that there will continue to be challenges on the horizon. In the spirit of sharing, we include some of the lessons learned and models that we have designed along the way in our attempt to promote the creation of knowledge that reflect society’s values and goals, and to develop a classroom environment which reflects appropriate social, cultural and spiritual values. These values and goals made it imperative for us to rise to the “challenge” of biculturalism in the design and delivery of the Legal Method paper by promoting understanding of both the English legal tradition and that of tangata whenua.
[*] Jacquelin Mackinnon: Senior Lecturer in Law, University of Waikato and a Scottish solicitor; Linda Te Aho: Raukawa and Waikato, and Senior Lecturer in Law, University of Waikato
[**] In the ensuing article, reference is made to “kaupapa Maori”. This term includes Maori perspectives on legal issues, including those relating to the Treaty of Waitangi. This Treaty was signed in 1840 between many Maori tribes and the British Crown and marks the beginning of colonization of Aotearoa by the British settlers. The Treaty is considered the basis of legitimate government in New Zealand and has been interpreted by the courts to create a “partnership” between Maori and the Crown.
[1] Wilson, “The Making of a New Legal Education in New Zealand: Waikato Law School” (1993) 1 WLR 1.
[2] Te Matahauariki, University of Waikato (1988) 1.
[3] Goldring, J, Sampford, C, Simmonds, R New Foundations in Legal Education (1998); Seuffert, Milroy and Boyd, “Developing and Teaching an Introduction to Law in Context: Surrogacy and Baby M (1993) 1 WLR 27; Havemann, “Law in Context-Taking Context Seriously” (1995) 3 WLR 137, 145 et seq; Wilson, M supra note 1.
[4] Kelsey, J The New Zealand Experiment (1995) 20. Examples of such challenges include the Land March of 1974 and the occupation of the Raglan Golf course which was situated on land taken by the New Zealand Government for certain public purposes, and not returned to the original Maori owners when no longer needed for those purposes. See also Smith, L T Decolonising Methodologies infra note 43, at 109 cited in Whiu, infra note 17, at 265.
[5] For a detailed analysis of the impacts of and alternatives to that restructuring ‘experiment’ see Kelsey, J ibid.
[6] Kohanga Reo or immersion language nests for preschool age children were established in 1982, and Kura Kaupapa Maori or Maori language immersion primary schools were established in the mid 1980s.
[7] Maori Language Act 1987.
[8] Te Matahauariki, supra note 2, at 14-17.
[9] Te Matahauariki, ibid, at 22-24.
[10] Such as those at Warwick and Keele in the United Kingdom, and Monash and Macquarie in Australia.
[11] Te Matahauariki, supra note 2, at 1.
[12] Law Practitioners Act 1982, Law Practitioners Admission Rules 1987, Professional Examinations in Law Regulations 1987 made under s 39 of the Law Practitioners Act 1982.
[13] Te Matahauariki, supra note 2, at 1.
[14] Wilson, supra note 1.
[15] University of Waikato School of Law Handbook (2001) 4.
[16] Milroy, S “Waikato Law School: An Experiment in Bicultural Legal Education” (unpublished LLM thesis, Waikato Law School, 1996); Papuni-Ball, M “The Realities of Maori at Law School” (unpublished LLM thesis, Waikato Law School, 1996).
[17] See, for example, Mikaere, infra note 39, and Whiu, “Waikato Law School’s Bicultural Vision” (2001) 9 WLR 265, who concludes that, for all its shortcomings, the bicultural commitment of Waikato Law School continues to provide a way forward.
[18] Te Piringa was the name given to the Law School building by the paramount chief of the local tribe, Te Arikinui Dame Te Atairangikaahu, often referred to as the ‘Maori Queen’. Te Piringa literally means to be close together, or a gathering place where this can occur. The Maori staff have adopted this as their collective name.
[19] Wilson, “The Making of a New Legal Education in New Zealand: Waikato Law School” (1993) 1 WLR 1, 19 note 22.
[20] Now Maori Land Court Judge Stephanie Milroy.
[21] Seuffert, Milroy and Boyd, supra note 3, at 42.
[22] Ben-David and Zloczower, “Universities and Academic Systems in Modern Societies” (1962) 3(1) Archives Europeennes de Sociologie 45 - 54.
[23] Cerych, Furth and Papadopoulos, “Policies for higher education: General report on the conference on future structures of post-secondary education” in Smith, R The Transition from Elite to Mass Higher Education (1993).
[24] <http://calendar.waikato.ac.nz/organisation/theuniversityofwaikato.html> .
[25] <http://calendar.waikato.ac.nz/organisation/commitmenttotow.html> . “Tihë mauriora ki te Whaiao ki te Ao Märama” is used as an announcement that something important is to follow. Tainui is the tribal confederation with “mana whenua” or rights as first people of the lands within which the university is located. Iwi means tribe and hapu means sub-tribe.
[26] <http://www.waikato.ac.nz/charter/> . Tikanga Maori embodies the values, standards and norms which indigenous Maori societies have developed to govern themselves.
[27] University of Waikato Act 1963, s 3(1).
[28] Education Act 1989, s 162(4)(a)(v).
[29] Goldschmid, “Strengthening Traditional Academic Values and Increasing Efficiency and Quality in Higher Education: Is It Feasible?” in 23rd International Conference on Improving University Learning and Teaching Contributed Papers (1998) 459-469.
[30] A Future Tertiary Education Policy for New Zealand: Tertiary Education Review (1997) 7-9.
[31] Ibid, at 7.
[32] Ibid, at 9.
[33] Hon Steve Maharey, Associate Minister of Education, Tertiary Education Advisory Commission, Nation-Building: Lifelong Learning in a Knowledge Society (2000).
[34] Ibid, at 3.
[35] Ibid.
[36] Legal Method Paper Outline 2004.
[37] Kaupapa Maori and Treaty Content in Waikato Law School Courses 2002-2003, infra note 40.
[38] Supra notes 16 and 17.
[39] Mikaere, “Rhetoric, Reality and Recrimination: Striving to Fulfil the Bicultural Commitment at Waikato Law School” (1998) 3 He Pukenga Korero 4, 11; “On Being Maori and Being a Lawyer: Musings of a Maori Legal Academic” in Ki Te Ao Marama: 1998 Te Hunga Roia Maori o Aotearoa Conference Proceedings 70; Kaupapa Maori and Treaty Content in Waikato Law School Courses 2002-2003.
[40] Kaupapa Maori and Treaty Content in Waikato Law School Courses 2002-2003.
[41] This was noted as an EEO concern in the School of Law Business Plan 2003.
[42] Designed by Stephanie Milroy.
[43] Legal Method paper outline 2004.
[44] Te Aho, Mackinnon and Greville, “Bicultural Perspectives on Maori Legal Research” Greville, M et al Legal Research and Writing in New Zealand (2 ed, 2004) 259.
[45] Smith, L Decolonising Methodologies (1999) 172.
[46] Hemara, W Maori Pedagogies A View from the Literature (2000) 17.
[47] Te Aho, Mackinnon and Greville, supra note 44.
[48] Treaty of Waitangi Act 1975, s 6(1).
[48] This has particularly been the case since the passing of Te Ture Whenua Maori Act 1993 (Maori Land Act 1993).
[49] Resource Management Act 1991, s 6(e); waahi tapu are sacred sites, and taonga are treasures.
[50] Resource Management Act 1991, s 7, kaitiakitanga is a Maori concept of guardianship of natural resources.
[51] Conservation Act 1987, s 4.
[52] Education Act 1989, s 181.
[53] Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188, 210.
[54] Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179.
[55] McRitchie v Taranaki Fish and Game Council [1998] NZCA 203; [1999] 2 NZLR 139.
[56] Attorney General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643.
[57] Mutu, M “Barriers to Research: The Constraints of Imposed Frameworks” Proceedings of Te Oru Rangahau Maori Research and Development Conference, 7-9 July 1998, Massey University, 51, 57.
[58] Mutu, ibid; and see also Yates-Smith, A Hine! E Hine! Rediscovering the Feminine in Maori Spirituality (1998) (unpublished PhD Thesis, University of Waikato) 4.
[59] Mikaere, supra note 39.
[60] According to Tainui oral tradition it was Tawhaki who ascended the heavens, in the oral tradition of other iwi, it was the ancestor Tane.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/WkoLawRw/2004/4.html