Transforming our ideas of justice

There’s overwhelming support for bicultural legal education among law students and the legal profession, writes Professor Jacinta Ruru of Otago University — and that shows systemic transformational change is possible, and is coming.

 

Many of our students coming into first year law are super keen to know more about te ao Māori. While some students are now arriving with te reo as their first language, most others simply know there’s a Treaty and they know a few te reo words such as “whānau”, but they don’t know much more than that.

While it’s disheartening that this is still the case 20 years on from when I started teaching law, what has changed is that these university students now have their hearts and minds wide open to learning about our Māori legal system. 

This is exciting for us as a nation.

Māori law is the first law of Aotearoa. In 1840, we’d been here for a thousand years and our tikanga was a highly workable and adaptable system of law. Trade, exchange values, access to environmental resources, inheritance, infringements, punishment, disputes, transfers, restitution, authority, governance and leadership were all part of our complex legal system.

Te Tiriti o Waitangi guaranteed that this system would remain in place. But parliament and the judiciary have been such powerful instruments for the aims of colonisation. It’s easy to show our students the historical words in legislation and the old words of judges as they sought to eliminate tikanga and destroy our Māori way of being. 

But the law is changing. Today there’s lots of inspiring legislation referring positively to our tikanga and using te reo to express these commitments. There are amazing judgments by our courts where the judges are really interested in te Tiriti o Waitangi compliance and understanding our tikanga.

So, we can now teach our students that our legal system today can reflect whatever society wishes it to be, and therefore we can turn that history around. The law can be empowering for all of us. It can be a tool for positive reconciliation.

To get there, our whole legal education should move towards trying to be more bilingual, bijural and bicultural. Our ancestors who signed te Tiriti o Waitangi would have expected at least this of our country. Our modern commitment to the United Nation’s Declaration on the Rights of Indigenous Peoples certainly anticipates this happening.

Such changes are possible. It’s instructive to look at what Canada is doing because they’re a few years ahead of us in making these changes to their legal education, and the Ministry of Justice there recognises that colonisation destroyed the legal base of their Indigenous laws, and that fixing it requires major funding. 

So, they’ve made multimillion-dollar investments into the revival of Indigenous laws, often in partnership between Indigenous first nations and law schools.

Canada is also a place where you can’t get a government job without being bilingual, mastering both French and English to a high level. We could be taking these stances here in Aotearoa New Zealand to invest in a bijural system and set bilingual expectations. 

There are many encouraging signs that we are ready for this. We’ve just conducted a survey that was designed to determine support for a move towards a bicultural legal education system. It showed overwhelming support among a wide range of legal professionals for greater understanding of tikanga and te reo Māori, and incorporation of these into our legal education.

There’s also increasing demand from the judiciary for advice on Māori law, especially since the Supreme Court accepted in 2012 that “Māori custom according to tikanga is therefore part of the values of the New Zealand common law”.

For me, the survey results were quite emotional. It was an anonymous survey and you never know what people are going to reveal. For such a long time, I was the only Māori at my law school — and for such a long time, trying to do anything like this seemed insurmountable.  

But the results show that there’s strong support to now graduate students with  knowledge of Māori laws and te Tiriti. Because, no matter what area of law our students go into, they will be working with Māori clients. And, often, a high competency level will be required, including in areas like commercial law, where they’ll be working with iwi clients who have sophisticated te reo and expectations about the use of Māori law to help navigate legal issues. 

We need to, and can, graduate every year our LLB cohort ready to better work with and represent Māori clients, without the Māori clients first having to educate their lawyers about the basics of te ao Māori before they can represent them adequately. 

A bicultural legal education would put in place structures, processes and resources grounded in te Tiriti o Waitangi, including increased employment of Māori, and the sharing of resources, leadership and decision-making with iwi, hapū and Māori academic staff. 

A bilingual legal education would utilise te reo Māori broadly in general teaching and specifically in relation to Māori law concepts and principles. If I think again about my first-year students who have maybe heard of the word “whānau”, they might use it to refer to their mum and dad and immediate family. 

But it’s important that they understand the meaning of the word from a far broader Māori legal perspective — that is, that whānau as a word is part of the glue that holds Māori legal order together and underpins our tikanga concepts of justice and fairness. So, we teach them that whanaungatanga refers not just to our immediate family relationships, but to our relationships with, and responsibilities to, our mountains and our lakes, for example. 

I also talk to them about how that works in practice, so I tell them about Aoraki, our tallest mountain, and the agreements now with the New Zealand climbing fraternity that you no longer climb to the very top of his head. I can talk about the importance of rāhui. They need these examples of how Māori law is already operating. 

We can build an enormous amount of te Tiriti, te reo and tikanga knowledge in the four to five years we have our students at law school. We can develop a deep respect for both systems of law — and show them there are important meeting points between the two. 

This will contribute towards and enable much more nuanced and sophisticated thought by more of us in Aotearoa around some of the biggest issues we’re all facing — like climate change, biodiversity loss, and poverty.

An introduction to Māori law can and should be taught in our law schools. We can train a workforce that can help transform our ideas of justice so we can tackle some of these bigger issues facing us as a nation.

Sometimes these things seem lofty and aspirational. But, when I see how open and receptive our law students and the legal profession are now to the Māori way of practising and understanding justice, I know that systemic transformational change is possible, and change is coming.

 

Professor Jacinta Ruru (Ngāti Raukawa ki Waikato, Ngāti Ranginui ki Tauranga,  Ngāti Maniapoto me Pākehā) is a professor in law at Otago University. She is the inaugural University of Otago Sesquicentennial Distinguished Chair, a fellow of New Zealand’s Royal Society Te Apārangi, winner of the Prime Minister’s Supreme Award for Excellence in Tertiary Teaching, and immediate past Co-Director of Ngā Pae o te Māramatanga New Zealand’s Māori Centre of Research Excellence.

As told to Connie Buchanan. This piece was made possible by NZ On Air through the Public Interest Journalism Fund.

© E-Tangata, 2022