This article originally appeared in LawNews (ADLS) and is here with permission.
The biggest shake-up in legal education in a generation has begun, with unanimous approval by the New Zealand Council of Legal Education (CLE) to include concepts of te ao Māori and tikanga in all core law degree courses.
And it’s likely a new core subject, tikanga, will be added to the curriculum as well.
One of the movers and shakers behind the change is Khylee Quince, Ngāpuhi, an associate professor and interim Dean of Law at AUT. She says it’s a watershed moment.
“This is a real game changer,” says Quince, New Zealand’s first Māori dean of law, though some aspects of te ao Māori have already found their way into public, environmental and constitutional law.
“The game changer really is the fact that it’s across-the-board and it’s mandatory.” It will now be formally incorporated in contract, torts, criminal, public and property law core courses.
The CLE vote was unanimous. In a Facebook post late last week, Quince noted the importance of advocacy by Māori members of the council, especially Natalie Coates, David Green, Maia Wikaira and the chairman, Justice Mark Cooper. “Ngā mihi tino nui ki a koutou e hoa mā,” Quince wrote.
Pākehā members of the council also supported the move, including Judge Bill Hastings, Justice Gerard van Bohemen, Kathryn Dalziel, Helen Bowie and two young male law students.
The formal resolution, on May 7, was that te ao Māori concepts, particularly tikanga Māori, would be taught in each of the core law subjects within the Bachelor of Laws and Bachelor of Laws with Honours degrees at all New Zealand universities. The council will meet in November to consider adding the new core subject of tikanga as well.
The country’s law schools had already been under the microscope prior to this month’s decision, thanks to increasing awareness that legal education is not meeting the needs of Māori and students from diverse backgrounds.
Most recently, Chief Justice Dame Helen Winkelmann voiced her concerns at an ADLS breakfast in March by saying law schools’ approach to teaching should be ‘blown up and reconstructed’. Legal education was the most significant structural issue the legal profession faced, Justice Winkelmann said.
Several times since being sworn in (in March 2019) she has addressed the issue, saying it’s “not without legal and academic controversy”. Nevertheless, Justice Winkelmann says in her view judges must be aware of, and comfortable with, the principles of tikanga and there is an ever-increasing recognition in statute that there is a place for it in our law.
Likewise, earlier this year the Supreme Court’s Justice Sir Joe Williams, Ngāti Pūkenga, Waitaha and Tapuika, gave a lecture at the University of Otago entitled Decolonising the law in Aotearoa: Can we start with the law schools? He said the law schools needed decolonising because they map and replicate the status quo, ensuring the continued dominance of the ruling class.
Practising law has not always been that attractive to Māori, Quince says. She notes the first wahine to graduate, Dame Georgina te Heuheu, Ngāti Tūwharetoa, was as recent as the 1970s.
It’s not surprising, therefore, says Quince, that we didn’t have our first Māori Supreme Court judge (Justice Williams), the first Māori Chief District Court judge, Heemi Taumaunu, Ngāti Pōrou, until 2019 and the first Māori Dean of Law, herself, until 2021.
Law schools are changing and are no longer the mono-cultural places of old. At AUT, for example, the student population in the law school is diverse. “That’s a massive shift,” Quince says. “I started in this job 23 years ago, where the students that would look back at me were overwhelmingly Pākehā.”
But all roads led to the need for a bicultural legal education system.
Quince says that along with the increasing influence of Māori in the profession, the growing importance of tikanga is also boosted by key allies, including Justice Winkelmann and her predecessor, Chief Justice Dame Sian Elias. “Women with a very strong social justice ethos. So, a lot of the change is coming from the practice end which is really interesting.”
Until now, one of the difficulties with Māori entering the legal profession has been their collective and intergenerational experience of the law and lawyers, and the harm caused to Māori by the profession, Quince says.
“We’re not represented well in other professional industries (such as business and medicine), but those industries don’t evoke the same reaction and distaste [as] the law. When Māori think of the law, they think of injustice. They think of confiscations. They think of imprisonment and incarceration. Law is problematic for Māori as a discipline and a practice. Because of that it’s not that attractive to be in this business.”
The Supreme Court’s decision to allow the appeal against the conviction of sex offender and former Christchurch Civic Creche worker Peter Ellis to continue after he died was a practical example of the need for tikanga to be integrated into legal education and the common law.
The cultural significance of the precedent is highlighted by the decision. Ellis’ lawyer Natalie Coates used an argument, based on tikanga, that both Māori and Pākehā retain mana even after death.
Moving to a bicultural legal education is about catchup, Quince says. It’s also being a good treaty partner. She says tikanga is becoming increasingly important at all levels in the courts, especially in the district court. Yet judges and lawyers don’t necessarily understand it. “They just don’t have the tools from their own legal education.”
Quince has taught professional development courses and programs to educate judges on tikanga. She says they can face issues such as the factors to consider when uplifting a child from its whanau. “You are required by statute to consider the mana of that child and its whakapapa. They need to know what those things mean. They’re not just words. You can’t just look them up in the statute and find the meaning. They need to be fleshed out.”
Likewise, Linda Te Aho, associate dean Māori for the Division of Arts, Law, Psychology and Social Sciences at Waikato University, says lawyers need to understand the meaning of terms such as mana tamariki in the Oranga Tamariki Act. “How can judges and lawyers argue that something is in the interest of mana tamariki if they have no idea what ‘mana’ means or mana, related to tamariki, means,” she says.
Speaking at the ADLS breakfast, Justice Winkelmann said lawyers needed to think of themselves as caregivers, especially those in the criminal and family jurisdictions who were dealing with people with shredded, broken lives. “We need to understand the impact and the engagement of the services we provide on their lives,” she said. “So yes, I’d blow the law schools up and redesign.”
The move to inject tikanga into the core courses is also pragmatic, Quince says. “You know 17% of the population is Māori [and] a much bigger percentage of the young population. So partly it’s also changing demographics.”
She adds: “In those particular pain points of family law and criminal law, we know that overrepresentation of Māori is stark. The only way you can really respond to those structural long-term systemic problems is to come to the table.”
The changes to legal education will fit with evolving legislation. As examples, Quince cites the new Oranga Tamariki Act, which incorporates tikanga Māori concepts. “Lawyers need to be able to make those arguments and respond for the client, whichever side they’re on.”
Whatever avenue of law, business or other professions law graduates choose, they will see the benefits of understanding and appreciating how to respond to Māori clientele, she says. “It’s not just tikanga in relations to rules and regulations but also the soft skills.
“I think it’s okay to make a generalisation that most law schools have traditionally focused on hard knowledge. What is the law in relation to conveyancing? How do you buy and sell a house? What they haven’t focused on necessarily is the soft skills – stuff about establishing and managing relationships with people. How should you advocate for and represent people appropriately?”
The added benefit of integrating tikanga into legal education is that it will boost soft skills and, as a result, fill holes in good effective legal practice, says Quince. Anyone could look up the answer to a tikanga question in a book or read cases. Being able to understand the cultural context is taking the law to the next level. “That’s pretty exciting.”
Work in progress
It is not yet known how the process will evolve, what the content will include, how consistency can be ensured and who will deliver the education.
Most likely students will get regional flavours of tikanga in their core subjects, says Quince. “There will need to be consistency across the universities, but it will not always be identical. If you go to Waikato University you will get something that will be centred on Tainui tikanga. Similarly, in Auckland you will get an influence from Ngāti Whātua and the other tribes of the Auckland Tāmaki isthmus.
So, how the tikanga content will be melded into existing core papers is a work in progress. “We’re talking about tikanga as it relates to law,” says Quince. It could be delivered by specialist tikanga practitioners in local iwi or Māori lawyers, but academic staff from Māori departments at the universities could also assist, she says.
The move to incorporate tikanga into core courses doesn’t require any formal change to the regulations. It will, however, take some time to source the content and to form and foster relationships, she says.
But adding a separate core paper in tikanga will require regulatory changes, which will be discussed at the council’s next meeting in November. A curriculum will need to be developed for the tikanga core course, once it is approved.
“The new, substantive course will likely include some sort of shared fundamental principles, with regional variations on examples of how it plays out in this territory,” says Quince.
Te Aho points out that her law school, at Waikato, was founded on bicultural legal education 25 years ago.
Apart from anything else, it was a necessity. When the bid was made to create a new law school, the existing schools were jealously protective of their territory, she says. The new approach enabled the school to differentiate itself.
“For Te Piringa Faculty of Law, recognising the importance of a bicultural, bilingual and bijural legal education is not new. There’s this narrative that it’s the new thing and it’s an exciting thing but actually it was a new and exciting thing when the law faculty was established at Waikato many years ago,” says Te Aho.
“One of the founding principles of our faculty was to teach law in a different way and that included with a specific goal of bicultural legal education.
“In 1988, the University of Waikato published Te Matahauariki, a report arguing for the establishment of a new law school at Waikato and recognising the need for a legal education that reflected the needs and concerns in a bicultural society.
“Remarkable for the time, the new law school would provide an opportunity to give meaning to the notion of partnership in good faith that was central to the Treaty of Waitangi.”
So, not just teaching ‘here’s the law, remember it and regurgitate it’, says Te Aho. “But this is why law is important in its social context. Tikanga and kaupapa Māori have been woven into the structures and processes of the law school, enabling staff and students to understand and know about Māori and other indigenous legal systems.
“Over time, Te Piringa became instrumental in encouraging students to use te reo Māori in assessment, paving the way for the university and other law faculties to follow suit. The faculty has also promoted te reo Māori mooting and alternative dispute resolution skills.”
Other law schools may be able to learn from the Waikato experience. “It is imperative that faculty staff comprise tikanga and reo experts,” says Te Aho. “Since establishment, Te Piringa has retained a pou tikanga (elder in residence) to enhance the contribution of staff members.”
Waikato has produced a large number of graduates with a specialist knowledge of Te Tiriti o Waitangi.
This article originally appeared in LawNews (ADLS) and is here with permission.