Waikato Law Review
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BY LEAH WHIU[*]
I. INTRODUCTION
Since 1984, New Zealand has undergone what Jane Kelsey refers to as “the New Zealand experiment”,[1] where first a Labour Government,[2] and then the 1990 National Government,[3] “applied pure economic theory to a complex, real-life community, with generally cavalier disregard for the social or electoral consequences”.[4] In contrast to the anti-community nature of the government’s structural adjustment programme, MŠori collective activism was in a resurgent period as characterised by the following events:
the Land March of 1974, Waitangi Day protests from 1971, the occupation of Bastion Point (1978) and of Raglan Golf Course (1978), the disruption of the Springbok Rugby Tour (1981), te Kohanga Reo (1982), the MŠori Education Development Conference (1984), the MŠori Economic Development Conference (1985) and Kura Kaupapa MŠori (1986).[5]
Meanwhile, at the University of Waikato (the “University”), various discussions during the 1960s-1980s, amongst the Hamilton legal profession, academics and University management, had coalesced in the formation of a Law School Establishment Committee (the “Committee”).[6] This Committee was to consider the viability, resourcing, character and philosophy of a law school to be established at the University. The name of the Committee’s report, Te Matahauariki, provided an appropriately spiritual starting place for the Committee’s development of the unique philosophy of Waikato Law School (the “Law School”). The Committee reported that:
Te Matahauariki conveys in a literal sense, the horizon where earth meets the sky; in a practical sense, a meeting place of people and their ideas and ideals; in a spiritual or metaphysical sense, aspiring towards justice and social equity. It alludes to a philosophy which reflects concerns that humans have for each other. It aspires to an environment of participation, of challenge, debate, and justice in the world as it was, as it is, and as we want it to be. ...
New Zealand is a society that needs not only more lawyers but lawyers who must respond to the needs and concerns of people in a bicultural society. ... the Law School provides the opportunity to give meaning to the notion of a partnership of good faith that is central to the Treaty of Waitangi. ... A Law School will provide a meeting place where the work of its staff and students and its dialogue with the wider community will enable the metaphysical sense of Te Matahauariki to become a living reality.[7]
Out of the tumultuous economic and political environment of the 1980s, the Law School was established. Despite the neo-liberal underpinnings of the structural adjustment programme, not only was the University expanding to develop a Law School, but the philosophy guiding that School into being was imbued with notions of social justice, partnership and biculturalism.[8]
With such aspirations, it was not surprising that the Law School would become a site of struggle for the wider indigenous peoples’ project of self-determination. In her discussion of an agenda for indigenous research, Linda Smith clearly enunciates the goal and processes involved in such a project:
The agenda is focused strategically on the goal of self-determination of indigenous peoples. Self-determination in a research agenda becomes something more than a political goal. It becomes a goal of social justice which is expressed through and across a wide range of psychological, social, cultural and economic terrains. It necessarily involves the processes of transformation, of decolonization, of healing and of mobilization as peoples. The processes, approaches and methodologies - while dynamic and open to different influences and possibilities - are critical elements of a strategic research agenda.[9]
This project considers various critical elements of the Law School’s attempts to develop a legal education which reflects the philosophy outlined by Te Matahauariki, and in particular the bicultural vision. In part two I briefly introduce some background to this project and situate myself before developing the theoretical bases for this research.
Part three discusses the local and national political contexts in which the Law School has developed. In particular, it considers the detrimental impact of the government’s structural adjustment programme, and the University’s restructuring plan.
Part four critiques a number of articles written by the foundation Dean, Margaret Wilson, about tino rangatiratanga, the Treaty of Waitangi and the Law School’s bicultural objective. This critique demonstrates that the foundation Dean’s approach is at best a tinkering with the status quo, and at worst it reflects acceptance of the unitary colonial state, its constitutional arrangements and institutions, and its disregard for MŠori claims to self-determination.
Finally, in part five, I gather together some of the possible solutions or steps in the various processes of working towards a legal education that contributes to the wider project of self-determination of indigenous peoples and, in so doing, begins to fulfil the bicultural vision.
This article follows on from a research project initiated by Ani Mikaere and Stephanie Milroy[10] in 1993 which was “intended to gather information on the employment and status of MŠori law graduates from Waikato Law School”.[11] This project was conducted by Makere Papuni-Ball,[12] and formed the basis for two Masters of Laws theses. One was written by Makere Papuni-Ball who “examines the first Waikato MŠori Law Graduates’ experiences at law school and [their] employment choices”,[13] and reveals the devastating consequences for the MŠori students of a Law School, ill-prepared to meet the expectations of one of its significant client groups.[14] The other thesis written by Stephanie Milroy focuses on “the whole issue of biculturalism in the Law School”.[15]
The theses of Papuni-Ball and Milroy demonstrate that, while the Law School was established with a vision of biculturalism, that vision is still largely aspirational, and that MŠori students and staff of the Law School are still subjected to racism and intolerance of MŠori and Treaty of Waitangi issues at worst or bare politically correct tolerance of those issues at best. In the context of the establishment of a Law School with an avowed commitment to biculturalism, this reality for some MŠori students and staff has been the source of concern, distress and not surprisingly criticism and challenge. This project responds to those concerns, and contributes to the challenges of building a truly bicultural vision.
The impetus for this project is somewhat connected to my own internal dichotomised experience of being a graduate of Waikato Law School, and a recently employed current staff member.[16] Upon return to the Law School in 1999 as a lecturer, I was once again personally, and now professionally, confronted with the issues of realising and/or working towards what this Law School has referred to since its inception as the bicultural objective. Previously as a student of this Law School I had contributed to the “bicultural discourse” in my involvement with Te Whakahiapo,[17] participation in classes and courses, and in sharing my experience as the sole MŠori woman student in a fourth year course, “Woman, Law and Policy”.[18]
As a student, I fervently took up the role of constructive critic in the context then, as now, that I strongly believed that the Law School was the most likely law school in Aotearoa to offer an opportunity for MŠori law students to engage in a meaningful[19] legal education. By that, I mean that I had anticipated a legal education that would actively and deliberately centre and normalise MŠori whakaaro, aspirations, dreams, traditions and kaupapa. This education would be one where we would not have to deal with the usual, day-to-day, ignorant racism that generally permeates discussions relating to the Treaty of Waitangi and issues that are often loosely referred to as “MŠori issues”.
As a staff member, I have consciously and deliberately taken up the challenge of contributing to the development of a meaningful legal education for MŠori at this institution. It is the transformative potential of a bicultural legal education that has attracted me to this law school as a student, teacher and researcher. It is our quest to realise that potential, and live into it, that constantly engages me. Linda Smith captures the nature of this commitment:
The reality of our struggle is that we are caught in crises which will engage our minds and energies for all our lives. Permanent and ongoing, this struggle is an unwritten condition of belonging to an indigenous and colonised ethnic minority. Because of the permanent nature of the struggle there will always be a need for MŠori people generally to contest issues of relevance to MŠori survival.[20]
This project is very much an insider’s critique and challenge. It is shared partially to highlight the ongoing nature of the challenge of building a bicultural legal education and jurisprudence. It is also shared to focus attention upon some of the difficulties and possibilities of such a journey so that we can continue to progress the broader vision of liberation from oppression.
First, in “privileg[ing] indigenous concerns, indigenous practices and indigenous participation as researchers and researched”,[21] this project is firmly located in a wider indigenous peoples’ project of self-determination and survival. Linda Smith has noted that:
While rhetorically the indigenous movement may be encapsulated within the politics of self-determination it is a much more dynamic and complex movement which incorporates many dimensions, some of which are still unfolding. It involves a revitalization and reformulation of culture and tradition, an increased participation in and articulate rejection of Western institutions, a focus on strategic relations and alliances with non-indigenous groups.[22]
Smith has developed a model for an indigenous research agenda which uses the metaphor of ocean tides.[23] She identifies “four directions ... - decolonization, healing, transformation and mobilization - [which] represent processes”,[24] and “[f]our major tides ... represented ... as: survival, recovery, development, self-determination”.[25] The four major tides are the “conditions and states of being through which indigenous communities are moving”.[26]
This project is primarily concerned with focussing attention and discussion upon the various processes, conditions and states which we as indigenous people are journeying through, particularly in the context of developing and engaging with the Law School’s bicultural journey.
The second theoretical basis for this research is Paulo Freire’s transformative theory of “dialogical cultural action”[27] which presents some of the elements of a theory of action by which the oppressed may free not only themselves from the dehumanising effects of oppression, but also the oppressor.[28] The emancipatory nature of this theory parallels the aims and aspirations of this project.
This project has always been seen as part of a wider project of celebrating our survival and contributing to the self-determination goal of the indigenous peoples’ project. It was also a clear and understandable expectation of MŠori students that the Law School, with its self-pronounced commitment to biculturalism, must be committed to an emancipatory or liberating theory and practice of education. Freire has explained that such a theory must:
come, however, from the oppressed themselves and from those who are truly with them. By fighting for the restoration of their humanity, as individuals or as peoples, they will be attempting the restoration of true generosity. Who are better prepared than the oppressed to understand the terrible significance of an oppressive society? Who suffer the effects of oppression more than the oppressed? Who can better understand the necessity of liberation? It will not be defined by chance but through the praxis of their quest for it, through recognizing the necessity to fight for it.[29]
The third theoretical framework that underpins this research project is the feminist critique of the western model of knowledge. Margaret Davies and Nan Seuffert contend that:
Western knowledge has traditionally been built upon the premise that knowledge can be “objective”, meaning that it emanates from the object, and that the identity of the human subject who knows is irrelevant to the knowledge itself.[30]
They suggest three approaches to valuing knowledge. The first approach is taken from Donna Haraway’s work,[31] where she suggests that “we might value knowledge claims that explicitly acknowledge location, rather than valuing the traditional claims of unsituated objectivity”.[32] The second approach is based on feminist standpoint epistemology as developed by Haraway and Sandra Harding amongst others.[33] Davies and Seuffert state that:
Feminist standpoint epistemology argues that members of oppressed groups who engage in struggles against oppressors produce “truer” knowledge than members of the oppressor groups. This is because in order to survive, the oppressed group must understand the dimensions of the oppressive discourse and practices, as well as their own position in it.[34]
The third approach for valuing knowledge follows on from the “situated knowledge” approach. Davies and Seuffert argue that:
As all knowledge arises within a particular location, in an unequal society all knowledge will be implicated in challenging or upholding inequalities. Knowledge that challenges existing inequalities should be valued over knowledge that perpetuates inequalities, or that assumes that there are no existing inequalities. Valuing knowledge because it has a strategic usefulness - because it helps us to make sense of the world and provides us with a way to move forward - explicitly recognises the connection between knowledge and politics.[35]
I am firmly located in this project, as I have explicitly discussed in the preceding section. Further, underpinning this project is an explicit acknowledgement and recognition of the inequalities that exist in New Zealand and global societies as a result of various oppressive practices such as colonisation, patriarchy and class. This project explicitly challenges the inequalities and the legitimacy of the basis of those inequalities that continue to subjugate and marginalise MŠori and women in particular.
All three of these theoretical frameworks have informed the conceptualisation and development of this project. There are parallels across all three models. For instance, each model has a core belief in the emancipation of oppressed groups, be they indigenous peoples, other oppressed peoples, or women; and all three provide models for direct action and transformation of oppressive practices.
Despite the change from the first past the post electoral system to the mixed member proportional representation system, and a new government in 1996, it is not surprising that very little has changed in producing a more accountable, responsive and representative government. Kelsey explains that this is due in large part to the reality that since the economic reforms begun in 1984 by the Labour government, key elements of the structural adjustment programme were designed to outlast a shift in political power and have been systematically embedded against change.[36] These elements include:
∑ sale of state assets and operations;
∑ the deep infiltration of foreign capital;
∑ the binding commitments to free trade under the GATT/World Trade Organisation;
∑ dismantling the institutional structures of the welfare state; and
∑ dispersing former government functions, powers and funds across a wide range of public, quasi-autonomous and private agencies.[37]
Incorporating these changes into legislation, together with the common law protection of the “inviolability of private property rights ... [as against any] ... reassertion of collectivism”[38] by (say) indigenous peoples or the state, have played key roles in erecting further barriers to change.
The impact of the government’s radical structural adjustment programme has been particularly devastating for those “who already had least”.[39] As Kelsey observes:
The traditionally marginalised had been joined by growing numbers of newly poor. The social structure was severely stressed. Hundreds of thousands of individuals, their families and communities had endured a decade of unrelenting hardship.[40]
Not surprisingly, “MŠori were the most marginal of the marginalised”.[41] Women generally also shared the burden of the structural reforms,[42] along with the elderly,[43] and children and families.[44]
Whether the negative impact of the government’s structural adjustment programme on MŠori and women had a direct influence on the development of the Law School’s philosophy is uncertain. However, that philosophy underscored the entrenched inequalities of those groups, particularly MŠori and women, who had been further marginalised by the government’s economic and structural reforms, and attempted to address those inequalities with its focus on contextualism and biculturalism. That the National government withdrew the establishment funding for the Law School only two months before the beginning of the 1991 academic year[45] is particularly revealing. Margaret Wilson’s analysis of this event is that:
... the action has been interpreted as an attempt to prevent a form of legal education that would have been challenging to policy decision-makers. It could be argued that the emphasis on biculturalism, and introducing new legal analyses such as feminist legal theory, were not consistent with the National Government’s priorities.[46]
Upon arriving at Te Whare Wananga o Waikato early in 1999, I walked into a University and a Law School in structural upheaval, with the Vice-Chancellor having just recently announced his restructuring conclusions.[47] Out of this uncertainty emerged several strategies for active opposition to the Vice-Chancellor’s ill-considered restructuring process and proposals. The Association of University Staff of New Zealand Incorporated, Professor Margaret Wilson, Professor Wharehuia Milroy and Linda Ward together filed an action against the University and the Vice-Chancellor claiming that:
... the Vice-Chancellor has misconceived his powers, and has no such authority as he has asserted; [and] ... that in administrative law terms, the consultation which took place was not adequate.[48]
In that case, Hammond J found that:
the Vice-Chancellor and the Council had no power to implement a decision to reduce the University of Waikato from seven Schools of Study to four Schools without that proposal for restructuring having first been referred by the Council to the Academic Board, and the Academic Board having tendered its views on the issue to the Council. The ultimate decision would be for Council.[49]
Since the High Court judgment on 31 March 1999, the Vice-Chancellor appealed Hammond J’s decision “that only the university’s council had the power to revamp the university’s seven schools into four super faculties”.[50] It was reported that “[h]e appealed because Justice Hammond’s decision had left other vice-chancellors and the tertiary education sector uncertain of the law and powers of university chief executives”.[51] Subsequently, the University Council “passed a resolution saying it did not support appealing a court ruling which stopped the restructuring in its tracks”.[52] Finally, in November of 1999 the Vice-Chancellor decided against appealing Justice Hammond’s decision stating that “while the High Court ruling had made his job harder, there was now no point in appealing”.[53]
Meanwhile, various meetings throughout the management structure of the University and its Schools took place to address the effects, if any, of Hammond J’s decision. The outcome for the Law School at this stage is that it will remain a stand alone, autonomous unit and will be encouraged to make administrative savings.
Over the same period, the MŠori community of the University held several hui to discuss the implications of the Vice-Chancellor’s restructuring process and proposals for MŠori. At one of those hui, on 18-19 March 1999, at Kirikiriroa Marae, the Declaration of Kirikiriroa[54] was developed by the attendees (who comprised over 150 students, staff and others associated with the University), who resolved to be known as Te Whakaminenga. The Declaration sets out the collective understanding of Te Whakaminenga, that Te Tiriti o Waitangi “represents the affirmation of MŠori tino rangatiratanga, ultimate authority, in Aotearoa”.[55] It further states that:
[Te Whakaminenga] recognise[s] that the Crown and its agents presently operate on the basis of an incorrect understanding of Te Tiriti o Waitangi, namely that the Crown, in exercising Kawanatanga holds ultimate authority and that MŠori tino rangatiratanga is subject to that overriding authority. ... [Te Whakaminenga] hereby state our commitment to working towards the reinstatement of our collective understanding of Te Tiriti o Waitangi.[56]
One of the outcomes of that hui was the formation of two working groups. One group was charged with working out an action plan to progress Te Whakaminenga’s resolution that there should be two governing bodies, a MŠori Council and the University Council, and two Vice-Chancellors. The other group was charged with developing an action plan to address the need for more effective educative programmes which would progress the reinstatement of Te Whakaminenga’s collective understanding of Te Tiriti o Waitangi. The work of Te Whakaminenga is ongoing throughout the University and the various schools and faculties.
In such highly political local and national contexts, and with the national policy shift from ethical values, social responsibility and moral leadership to principles of fairness, efficiency, self-reliance, greater personal choice, realism, and change movement,[57] the Law School’s survival is perhaps a testament to the tenacity, political acumen and commitment of its foundation Dean and staff. While the Law School has survived, questions about the development of its founding bicultural objective have been a necessary element of holding the Law School accountable, and, in doing so, shaping the future development of that objective. The next part of this article explores the role of the foundation Dean in shaping the Law School’s bicultural vision.
From the Law School’s inception, Margaret Wilson has played a significant role in the interpretation and implementation of the Law School’s “original objectives of a professional, contextual and bicultural legal education”.[58] Over nine years, Wilson’s published discussion of, in particular, issues concerning the bicultural objective, the Treaty of Waitangi, and tino rangatiratanga, have revealed her underlying acceptance of the legitimacy of the unitary colonial state, its constitutional arrangements and its flagrant disregard for MŠori claims to self-determination.
This acceptance is apparent in her discussion of “MŠori political representation, under the New Zealand mixed member proportional representation system (MMP), as an expression of tino rangatiratanga”.[59] In this article, Wilson discusses the “possibilities and limitations of MMP as a site for struggle for the recognition of tino rangatiratanga”.[60] First, she asks:
If the principles on which the new MMP system was founded are the incorporation of diversity within the formal institutions of political decision-making, and if the expectation of the need to negotiate and mediate political decision-making through forming a consensus is fulfilled, it may be possible to construct a site that is willing to look at tino rangatiratanga on its own terms, that is, as a source of authority separate and distinct from the authority of Parliament.[61]
From reading this analysis, the following questions arise: where would that site be constructed?; who would construct it?; and whose paradigm would it be based on and in? Is it possible to “look at tino rangatiratanga on its own terms” within the formal (read in Western-Liberal) institutions of political decision-making?
Wilson begins to address some of these questions when she discusses the approach of the 1986 Royal Commission on Electoral Reform to the issue of effective MŠori representation and observes that:
The Commission’s approach avoided the issue of tino rangatiratanga in terms of a competing sovereignty, because it affirmed that there was only one sovereign, Parliament. ... MŠori political representation was therefore constructed in terms of the European/PŠkehŠ political experience. Although the Commission correctly analysed the weaknesses of the existing system for MŠori political representation, it provided a European/PŠkehŠ solution.[62]
Here she acknowledges the culturally-defined and culturally-specific approach taken by the Royal Commission which inevitably leads to the Western-liberal ideological position that there can only be one sovereign, Parliament. However, in her own conclusion, Wilson makes exactly the same mistake in claiming that the site of struggle for the recognition of tino rangatiratanga can be provided by Parliament. She concludes that:
The developments under MMP have highlighted the fragility of the recognition of the claim of MŠori under the Treaty of Waitangi to rangatiratanga. However difficult the current political conditions for advancing the claim, I argue that it is a claim which is on the political agenda, and it is one that will eventually have to be dealt with. If MŠori separate political representation can survive the current coalition government, Parliament can provide the site for the development of a process through which the MŠori concept of sovereignty, rangatiratanga, can be given practical expression. Both MŠori and European/PŠkehŠ will have to work on their understandings of the concept of sovereignty, and the nature of the citizenship that flows from a mutual recognition of two people’s right to sovereignty within one country occupied by them both.[63]
Wilson does acknowledge the National MŠori Congress submission in support of the retention of separate MŠori representation as a “practical example of an attempt to construct the right to rangatiratanga within the context of a parliamentary democracy”.[64] On this basis it could be argued that, likewise, she is also situating her discussion of rangatiratanga within the same context. However, further reading and analysis of her previous articles demonstrate that the process of situating her discussion, analysis, and solutions within the context of a Euro-centric, Western-derived paradigm is her modus operandi.
Wilson also situates herself as a “political realist”.[65] This tactic effectively masks her own conservatism and adherence to the status quo with these benchmark, white, male[66] notions of rationality, practicality and realism. By implication, views and approaches that may lead to the outcome of challenging the legitimacy of the unitary, colonial state and its constitutional arrangements are situated as politically unrealistic, impractical and irrational.
Ultimately the questions that were raised above (where would that site be constructed?; who would construct it?; and whose paradigm would it be based on and in?) are answered by implication only in the solution proposed by Wilson.
In another article about the constitutional recognition of the Treaty of Waitangi,[67] Wilson:
... argues that the legal recognition of the constitutional status of the Treaty of Waitangi is necessary if MŠori are to attain not only reparative justice, in the guise of appropriate compensation for past wrongs, but, just as important, social and political justice.[68]
However, she then goes on to prescribe what this will mean for MŠori by stating that:
This form of justice will, however, require MŠori to be part of the decisions made by state agencies that affect citizens’ rights, obligations and freedom.[69]
This is another illustration of Wilson’s preferred solution of the dominant state’s accommodation of MŠori rather than any real power sharing.
Wilson however does suggest that:
... if the treaty is to be taken seriously as the founding constitutional document, then some practical reality has to be given to this assertion. Legal recognition of the treaty’s constitutional status would appear to be a necessary first step in that process. Considering the precise nature of the legal expression to be given to the treaty is beyond the scope of this essay.[70]
She then concludes by observing that:
Although including the treaty itself in legislation is unlikely to be supported by those who seek recognition of MŠori sovereignty under the treaty, it does seem the most achievable outcome in the foreseeable future. It would have the advantage of enabling the whole issue of MŠori sovereignty to be debated in the courts in a variety of circumstances. It would also give the courts an opportunity to judge all legislation against the provisions of the treaty to see if it conformed with its terms. Although such a measure may appear timid in the light of the overwhelming evidence in support of constitutional recognition, it may be the best that can be achieved in the current political environment.[71]
First, once again Wilson has masked her solution with her “practical reality speak” as discussed above. Secondly, while Wilson’s article concerns the basis for recognising the constitutional status of the Treaty of Waitangi, she concludes by suggesting that the Treaty should only be included in legislation. She does not even suggest that such legislation should be entrenched or paramount, as she relies upon her “best that can be achieved” approach.
Most disturbingly, she has again arrived at a solution that does nothing to challenge the legitimacy of the present constitutional arrangements. Instead, her solution actually entrenches those arrangements by suggesting that the Treaty of Waitangi ought to be included in PŠkehŠ law made by Parliament, which will then be interpreted, applied and adjudicated upon by PŠkehŠ courts with predominantly PŠkehŠ judges: notwithstanding that the legitimacy of both institutions is highly contestable and has been consistently contested by MŠori. Wilson actually acknowledges this point in noting that “including the treaty in legislation is unlikely to be supported by those who seek recognition of MŠori sovereignty”.[72] However, she dismisses that opposition, preferring instead to pursue codification of the Treaty on the basis that it is “the most achievable outcome in the foreseeable future”.[73] This statement begs the questions: while codification of the Treaty may be an achievable outcome, is it a desirable outcome? And for whom? Or is it a further act of containment of MŠori claims for tino rangatiratanga?
It is interesting to note that, in both of these articles, Wilson makes and even appears to support arguments made by MŠori for self-determination and tino rangatiratanga. However, she ultimately provides a solution that reinforces the status quo with some peripheral tinkering. She does not challenge the underlying legitimacy of the colonial state and its constitutional arrangements. As such, Wilson’s vision provides very conservative and limiting outcomes as demonstrated in the previous two articles. Her solutions are far from radical and fail to grapple with the very difficult issues inherent in discussions of tino rangatiratanga, the Treaty and indigenous peoples’ claims to self-determination. At the heart of this discussion is the central issue of power-sharing and the mechanisms to achieve this, such as resource sharing, a separate MŠori parliament, or a MŠori veto on decision-making of the present Parliament.[74] Wilson’s omission even to raise these possibilities, let alone discuss them in any substantive way, is revealing, and confirms her acceptance of the legitimacy of the unitary colonial state and its self-derived constitutional arrangements.
However, this self-legitimating response is an inevitable by-product of what Moana Jackson refers to as the “dialectic of colonisation”[75] whereby “the forces which shape the relationship between indigenous people and the state” are ignored in the process of legitimation of the “status quo as an unchallengeable given”.[76] As Freire points out:
The oppressors, who oppress, exploit, and rape by virtue of their power, cannot find in this power the strength to liberate either the oppressed or themselves. Only power that springs from the weakness of the oppressed will be sufficiently strong to free both. Any attempt to ‘soften’ the power of the oppressor in deference to the weakness of the oppressed almost always manifests itself in the form of false generosity; indeed, the attempt never goes beyond this.[77]
With this conservative, self-justifying reinforcement of the hegemonic political and constitutional institutions, structures and ideology in this country, Wilson’s vision sadly lacks the capacity to conceptualise the potential and develop the reality of either a bicultural country or even a bicultural legal education. This is sad because, as the foundation Dean, Wilson’s impact on the establishment of this Law School has been phenomenal, affecting all aspects of the development of this Law School. It is also sad, because as the current Attorney-General and the Minister in Charge of Treaty of Waitangi Negotiations, Wilson has significant power to influence, develop and address these issues in Aotearoa today. What that means for the progression of MŠori claims to self-determination is alarming, but the result will not be surprising given the conservative outcomes that Wilson has developed in her scholarship on these issues.
Wilson’s vision or conceptualisation of what the bicultural objective may mean is partially obscured in her speech at the opening of the Law School, where she warmly acknowledged the generous financial contribution and commitment made by Tainui to the Law School. However, her vision becomes evident in her response to that generous gift, when she said that:
[i]t is now the task of the School to justify that faith within the School. We intend to do that through the graduation of Maaori graduates, undertaking research that will assist the Iwi of the region to pursue their rights under the Treaty, and contributing to the debate on the development of a legal system that reflects the values and aspirations of both Maaori and PŠkehŠ cultures.[78]
Later on in her speech she observes that MŠori, women and the unemployed have been marginalised and excluded from decision making, and concludes that “[i]t is time to share the responsibility of power and invite in those previously excluded”.[79]
These statements illustrate two things: first, that Wilson’s vision of how to address the exclusion of MŠori, women and the unemployed is confined to strategies of accommodation and reflection of these marginalised groups within the dominant legal and decision-making systems; and secondly, that she assumes that marginalised and excluded groups like MŠori and women wish to be “invite[d] in” and wish to develop the present legal system rather than radically transform it.
Once again Wilson delivers a conservative, ‘let’s tinker with the system’ response to fundamentally flawed systemic and institutionalised oppression of MŠori and women. That this was considered a sufficient or adequate response to the commitment and financial gift provided by Tainui illustrates Wilson’s conservatism and adherence to the status quo.
Wilson has been willing to identify and name overt racism in relation to the Law School. For example, she recalls that as the Dean she had received requests for reassurance that the Waikato LLB was of the same standard as that of other law schools, despite the number of MŠori students and the Law School’s commitment to develop a bicultural approach to legal education.[80] In response to these criticisms and the questioning of the competency of MŠori students, Wilson states that “[t]his is a form of racism and must be condemned”.[81]
Wilson also appears supportive of MŠori challenging the legal system, but only in regard to the existing legal system’s exclusion of MŠori. For instance she states that:
[t]he purpose of [the School’s bicultural] approach is to enable students more effectively to challenge the existing legal system’s exclusion of MŠori, while also enabling them to use the system, where possible, for the benefit of MŠori. A difficult task is facing this generation of young MŠori lawyers, who must be both proficient users of the system and continually challenging it.[82]
However, these outwardly supportive comments fail to mask Wilson’s underlying belief that the Law School’s bicultural commitment means little more than adding some MŠori component to the present inequitable situation. This belief is apparent in her discussion of “the reconciliation of the demands of professionalism and biculturalism”.[83] She concludes that:
It may be that they are irreconcilable, but all the same progress may be made in acknowledging the legitimacy of MŠori values and lore in the context of MŠori life.[84]
There are two points I want to make about this statement. First, what is suggested by Wilson’s statement that the Law School’s goals of biculturalism and professionalism are or may be irreconcilable? One reading is that biculturalism is not professional and/or vice versa.
Secondly, why does Wilson only locate the legitimacy of MŠori values and lore “in the context of MŠori life”? MŠori do not require PŠkehŠ to legitimate MŠori values for them. What we require is that MŠori values, law, aspirations, whakaaro and self-determination are recognised as legitimate and valid per se, in the context of Aotearoa. This statement illustrates Wilson’s apartheid-like approach to the bicultural commitment.
Further, in response to MŠori students’ criticism of the Law School’s attempts to implement its founding objective, Wilson patronisingly notes that:
While as a political tactic this was conventional behaviour, it was somewhat ironic that the criticism and campaign was launched against the one University and Law School in New Zealand that has seriously attempted to redress the injustices inflicted on MŠori.[85]
Wilson’s statement that this Law School and University are the only University and Law School in the country seriously to attempt “to redress the injustices inflicted on MŠori” is self-congratulatory and demonstrates that Wilson clearly failed to hear those MŠori students’ criticisms and to take them seriously.
How does Wilson consider that the Law School and the University have seriously attempted to redress the injustices inflicted on MŠori? By including MŠori content and perspectives, employing MŠori staff, and admitting and graduating MŠori students? According to whose assessment are the Law School’s and University’s attempts to be measured? PŠkehŠ or MŠori?
Comparing the Law School’s and University’s bicultural approach to other Law Schools and Universities is totally inappropriate and only reveals the appalling and sub-standard record of those other Law Schools and Universities. With its commitment to provision of bicultural education, this University and this Law School must set a new standard that addresses and reflects the aspirations and concerns of MŠori. So it is far from ironic that MŠori should criticise this Law School and University, rather in the wider context of MŠori and Indigenous Peoples’ projects of self-determination, it is to be expected.
Later in the article, Wilson also attempts to explain the Law School’s response to an incident in 1991, when two MŠori students wrote one question of their Public Law A examination paper in te reo MŠori.[86] In her explanation, first Wilson notes that “[b]iculturalism was interpreted as bilingualism by these students”.[87] This statement reflects the monocultural and Western-derived pre-occupation with separating and categorising components of an entity. For MŠori, te reo MŠori is an integral component of who we are and as such it cannot be separated from any consideration of biculturalism.
Wilson then makes the fatal mistake of attempting to align herself and the Law School with the MŠori students and their challenge. She states that:
[i]n essence the differences [between the challenge issued by the MŠori students and the Law School’s position] appear to centre on methods and tactics, rather than ultimate objectives, though the objectives of the Law School it may be argued are not entirely clear ...[88]
Freire has described this phenomenon as cultural invasion. He explains that:
Cultural invasion, which serves the ends of conquest and the preservation of oppression, always involves a parochial view of reality, a static perception of the world, and the imposition of one world view upon another. It implies the ‘superiority’ of the invader and the ‘inferiority’ of those who are invaded, as well as the imposition of values by the former, who possess the latter and are afraid of losing them.[89]
Perhaps Wilson’s most glaring example of assimilative adherence to the status quo is her joint statement with Anna Yeatman that:
In general, biculturalism may be said to represent some kind of accommodation on the part of white settler (PŠkehŠ) dominance to MŠori claims on justice.[90]
While one reading of this joint statement may reflect the authors’ perceptions of how biculturalism is considered by the dominant culture in Aotearoa, another reading, which is consistent with my preceding analysis of some of Wilson’s other scholarship, is that the authors themselves consider biculturalism to amount to accommodation. This is particularly concerning due to Wilson’s significant roles as first the foundation Dean of Waikato Law School and now as the current Attorney-General and Minister in Charge of Treaty of Waitangi Negotiations.
He aha te mea nui o te ao?
He tangata, he tangata, he tangata.
This whakatauaki captures the essential component in the future direction and development of the Law School. People will create, contribute to, progress and realise the myriad of aspirations that they seek. At this Law School, those people are the staff and students who arrive and leave, at different times, in the life of the school. As such, we are the critical part in any successful development and realisation of this Law School’s aspirations, including of course, the commitment to provide a bicultural legal education. While this may sound obvious, trite even, it is fundamental and requires unequivocal restatement. As Patricia Monture-Angus has observed in her discussion of Canadian legal education:
it is disappointing to note that change within law faculties appears to rely on the initiative of individual professors and not on the commitment of the institution as an institution.[91]
What the bicultural commitment means explicitly is, as many commentators have documented, a highly contestable concept.[92] However, its contestability is irrelevant and a useful smokescreen for apathy and inaction. For of course, if no-one can explicitly define what exactly this bicultural commitment is or may mean, then how can institutions be held accountable, and their performance of that commitment be measured. In some ways, too much of our energy has been directed to answering the wrong questions, that is: what is biculturalism?; is this Law School bicultural or providing a bicultural legal education?; how can it become bicultural? Whether the project is called bicultural legal education or meaningful education for Aboriginal Peoples is irrelevant. What counts is that we are consciously and deliberately engaged in the struggle for freedom from inequality and oppression for all peoples and groups.
While the bicultural commitment does have many meanings to many people, what is striking is that MŠori tend to see the bicultural commitment as indicative of the Law School’s commitment to fight alongside MŠori for the wider indigenous peoples’ goal of self-determination.[93]
Not surprisingly, this means that MŠori see this Law School as not just a site for struggle, but also an ally and advocate for MŠori self-determination. In contrast, part four has demonstrated that the foundation Dean’s conceptualisation of the bicultural commitment means little more than what Graham Smith has described as:
culturalist [or] ... traditional liberal type intervention strategies such as adding MŠori staff, adding MŠori dimensions to existing courses, adding tokenistic pedagogical measures such as marae visits.[94]
A glaring gap is revealed between the foundation Dean’s conceptualisation of the bicultural commitment and that of MŠori as described in research conducted by past and current staff and students.[95] What is to be done about that gap is this Law School’s task in its future development and expansion of the bicultural commitment.
In her landmark thesis, Milroy presents a number of suggestions for action to further the development of the bicultural vision of the Law School.[96] The basis of those suggestions is Ranginui Walker’s notion of the:
establishment of kaupapa MŠori ... [by increased numbers of MŠori staff and students] to achieve genuine social transformation from monoculturalism to biculturalism.[97]
Milroy suggests that this basis must be extended by: ensuring that MŠori staff are appointed at higher levels, and that they obtain a “greater share of decision-making power”;[98] significant MŠori content in all courses; and development of parallel teaching spaces for PŠkehŠ and MŠori students, which would facilitate the creation of culturally appropriate pedagogical space and practices for MŠori, while at the same time PŠkehŠ (or tauiwi) lecturers could address the issues that arise for PŠkehŠ (or tauiwi) students.[99]
Ultimately, Milroy calls for the establishment of a “kaupapa MŠori programme specifically for MŠori students, run by MŠori staff: education by MŠori for MŠori”.[100] She envisages that such a programme would be developed out of the needs and wants of the MŠori students and their communities, and so culturally appropriate decision-making and accountability systems would also need to be developed.[101] Alongside this programme, Milroy identifies the need for “ongoing and intensive research into MŠori law and issues which could then be incorporated into the MŠori programme”.[102] She considers that such research:
should include researching ways in which the existing law can be transformed into an appropriate system for MŠori ... [and] ... the effect of PŠkehŠ law on MŠori.[103]
To achieve these aims, Milroy proposes an action plan, which is summarised as follows:
1. the MŠori staff should form a unit with clearly defined duties such as “admissions to the Law School, liaison with the MŠori community, recruitment of MŠori students, staff appointments, and the kaupapa MŠori research programme”;[104]
2. curriculum content review by the MŠori unit should be conducted to “establish the levels of MŠori content in the courses”;[105]
3. the Law School should instigate regular data gathering on MŠori students’ performance to establish “reasons for drop out or failure”[106] where this occurs;
4. orientation programmes should be established for MŠori students “to come to grips with the reality of the Law School as it currently is”,[107] and for PŠkehŠ students to develop their understanding of the bicultural vision of the Law School;
5. the University should provide formal training to MŠori and PŠkehŠ staff in MŠori language and culture, and where necessary provide teaching or administrative relief to encourage staff to take up this opportunity;
6. the Law School must develop a medium term plan with specific goals and timeframes by which those goals must be met. Such a plan must be developed with the Law School’s communities, and should address:
sharing of decision-making powers, resource allocation and the creation of the kaupapa MŠori programme for both teaching and research ... [the] barriers to achieving the[se] objectives as well as the strategies for overcoming such barriers[108]
So far steps 1, 3 and 5 have and are being developed or implemented on an either formalised or ad hoc basis, however the Law School is still grappling with steps 2, 4 and 6 and yet to implement any of these in a substantive fashion.
Patricia Monture-Angus has developed an inexhaustive list of ways that Law Schools as institutions can begin to address racism. As this research project has confirmed, racism was identified by MŠori staff and students,[109] and also by the foundation Dean, as a significant obstacle in the MŠori students’ experience of the legal education provided by this Law School. That this is so in a Law School aspiring to provide a bicultural legal education is even more alarming. However, it is a reality that both staff and students must continue to address. For, as Monture-Angus contends:
Law schools must begin to affirm the message that racism will not be tolerated in any circumstances or under any conditions. There are a number of ways in which this message can be sent: institutional financial support for ‘minority’ initiatives, including scholarships (rather than continuously using this type of program as a source of outside funding), immediate academic sanctions against students who engage in racist activity and clear policies which set out these sanctions, careful attention to ensure that so-called special programs do not become ghettoized but are seen as central to the law school program (that is, the formal rejection of the ‘missionary’ approach to legal education), administrative action (as opposed to the usual inaction including the apology for racist incidents) which supports the perceptions of ‘minority’ students and professors, the hiring of more ‘minority’ professors and support staff, an ombudsperson, sympathetic faculty which means a faculty educated on issues of racism, inclusive curriculum development, the reassessment of the admission criteria ... and the inclusion in the law schools of symbols to which we identify.[110]
Monture-Angus also provides a list of other initiatives that address participation issues. They include:
establishment of clinical programs. Existing law clinics should embrace the concerns and desires of local Aboriginal communities. This should be happening in a systematic and formalized way. Further clinical programs could be developed to address the over-representation of Aboriginal people in the criminal justice system .... Issues of self-government from a traditional Aboriginal perspective demand research now and could be incorporated in existing clinical and community programs. Programs in poverty law would also seem to bear a significant relationship to Aboriginal Peoples and the specifics of our experience should be incorporated into these programs.
Graduate studies programs in law need desperately to be developed, and Aboriginal involvement in graduate studies needs to be encouraged.[111]
Some of Monture-Angus’ initiatives overlap with the suggestions made by Milroy. Together, these suggestions provide enough ideas to develop a medium-long term plan for the Law School’s fulfilment of its bicultural commitment. There are only two aspects of the strategies for liberating action that I wish to emphasise, that is: first, we must develop a medium-term plan for implementation of these strategies; and secondly, we must continue to act with urgency.
In the ideal world, the Law School would attract self-reflexive MŠori and PŠkehŠ (or tauiwi) who were actively engaged in oppressed peoples’ projects of liberation from oppression. All of these people would be active practitioners of a transformative model of education. They would all be bilingual, and maybe even multi-lingual. In a utopian vision, they would be truly bicultural. The necessary pre-requisites to achieve this utopia are: people; capacity to see the existing inequalities; and commitment to struggle to transform those inequalities.
It is inevitable that MŠori must and will lead such a journey in Aotearoa. For, as Freire has pointed out, it is the oppressed who can see and name the oppression, as they have lived it fully. Through this process of seeing the reality of our lives, we must ultimately face the source of oppression with the sole purpose of transforming ourselves, our lives and the fundamental basis of our inauthentic existence.
In part two of this article, I situated myself, to bring to this project who I am. I also briefly outlined three theoretical bases for this article: an indigenous research agenda; transformative theory of action; and feminist critique of how knowledge is valued.
In part three, I set the national and local political scene for the establishment and development of the Law School and its founding bicultural objective. At a national level, this section briefly touched upon the key elements of the government’s structural adjustment programme and its detrimental impact on MŠori and women in particular. At the local level, there have been various challenges to the University’s restructuring plans, by the staff and its union who took a successful action to the High Court. Further, the MŠori community, Te Whakaminenga, have also issued their wero to the University and are continuing to strategise and develop governance models and processes, and Treaty of Waitangi education programmes, with the ultimate aim of transforming this University from the monocultural institution that it is currently to one which is truly bicultural.
Part four presented my critique of Margaret Wilson’s scholarship on the Treaty of Waitangi, tino rangatiratanga and the bicultural objective. I unmasked Wilson’s conservative, patronising adherence to the status quo and her limiting vision which fails to challenge the legitimacy of the dominant Western-liberal constitutional, political and legal paradigm. Wilson’s bicultural vision was explored and I argued that Wilson adopts an “add-on” approach of status quo plus MŠori learning about MŠori issues.
Finally, part five gathered together some of the ideas and plans of action developed by Milroy, Monture-Angus and Mikaere for the journey of liberation. I emphasised that what is needed now is, first, a medium term plan for development of the Law School’s bicultural commitment, and secondly, action.
MŠori students and staff, since the inception of the Law School, have critiqued its attempts to develop the bicultural objective. In doing so, we have engaged in the process of change and action, both of which are necessary for the development of an emancipatory model for education, and, in particular, bicultural education. While this has been painful at times, it was also inevitable in a country intent on suppressing its colonial roots. The bicultural objective is not just a site for struggle, it is symbolic of a much bigger project of transformation and liberation from oppression. As such, despite its many shortcomings, the bicultural commitment and its accompanying challenges continue to provide a way forward.
hui (gathering) wero (challenge)
kaupapa (purpose) whakaaro (ideas)
tauiwi (non-MŠori) whakatŠuki (proverb, saying)
[*] Ngatihine, Ngapuhi; BSc, Dip Tchg (Auckland); LLB(Hons), LLM(Hons) (Waikato); Lecturer in Law, University of Waikato.
[1] Kelsey, J The New Zealand experiment - A World Model for Structural Adjustment? (2nd ed, 1997) 1.
[2] The Labour political party in New Zealand has historically been associated with socialist, left-wing policies.
[3] The National political party in New Zealand has historically been associated with liberal, right-wing policies.
[4] Supra note 1, at 1.
[5] Smith, L Decolonizing Methodologies - Research and Indigenous Peoples (1999) 109.
[6] Wilson, “The Law School: A New Beginning” in Goldring, J, Sampford, C, and Simmonds, R (eds) New Foundations in Legal Education (1998) 195-197.
[7] Report of the Law School Committee, Te Matahauariki (1988) 1.
[8] See the University of Waikato School of Law Handbook (2001) 4, where the current Dean, Professor David Gendall, states: “In addition, the School aims to give meaning to the notion of partnership that is central to the Treaty of Waitangi. The School of Law provides, through its curriculum, research activities and its own structures, both a reaffirmation and a professional extension of the University’s commitment to biculturalism. It is a goal of the School to be in the forefront of the development of a new bicultural legal philosophy”. Also, see the University Charter in the University 2001 Calendar (2001) 59, where clause 1.2 states: “The University/Te Whare Wananga o Waikato seeks: To create and sustain an institutional environment in which ... the educational needs of MŠori people are appropriately catered for outside a formally constituted whare wananga, MŠori customs and values are expressed in the ordinary life of the University, and the Treaty of Waitangi is clearly acknowledged in the development of programmes and initiatives based on partnership between MŠori and other New Zealand people”.
[9] Supra note 5, at 116.
[10] Ani Mikaere and Stephanie Milroy were both foundation MŠori academic staff members at Waikato Law School. Ani, of Ngati Raukawa ki te Tonga who left the Law School in March 2001 was a Senior Lecturer, and Stephanie, of Tuhoe and Te Arawa, is a current Senior Lecturer at Waikato Law School.
[11] Milroy, S Waikato Law School: An Experiment in Bicultural Legal Education (unpublished LLM thesis, Waikato Law School, 1996) 1.
[12] Makere was a student who was part of the first intake of MŠori students, and was employed as a research assistant. Her iwi affiliations are Ngati Porou and Te Whakatohea.
[13] Papuni-Ball, M The Realities of MŠori at Law School (unpublished LLM thesis, Waikato Law School, 1996) i.
[14] Ibid.
[15] Supra note 11.
[16] I graduated with an LLB (Hons) in 1995 and after my return as a staff member in 1999 I completed an LLM (Hons) in 2001. This article is part of a research project completed in partial fulfilment of the LLM degree.
[17] Te Whakahiapo is the MŠori Law Students’ Association.
[18] Whiu, “A MŠori Woman’s Experience of Feminist Legal Education in Aotearoa” [1994] WkoLawRw 8; (1994) 2 Waikato Law Review 161.
[19] See Monture-Angus, P Thunder in my Soul - A Mohawk Woman Speaks (1995) 91, where she notes that “I would argue that numerical equality may only be one of the relevant goals [for Aboriginal education]. Equality of numbers alone will not be enough. Numbers cannot act as an indicator of the meaningfulness of the educational experience. It is against this single criterion, meaningfulness, that the greatest inequality has been perpetuated against Aboriginal Peoples. ... Education is a significant gatekeeper to the opportunities we are able to access. This is the first way in which education can be defined as meaningful. ... It is in this second way of defining meaningful education, as a tool of cultural survival and as a means of reaffirming the validity of Aboriginal culture, that the worst injustices have been committed against Aboriginal Peoples and our distinct cultures”.
[20] Smith, “MŠori Women: Discourses, Projects and Mana Wahine” in Middleton, S and Jones, A (eds) Women and Education in Aotearoa 2 (2nd ed, 1997) 50.
[21] Supra note 5, at 107.
[22] Ibid, 110.
[23] Ibid, 116.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Freire, P Pedagogy of the Oppressed (1972) 135.
[28] Ibid, 21.
[29] Ibid, 22.
[30] Davies and Seuffert, “Situated Knowledges, Identity Politics, and Policy Making” in Diminished Responsibility The Changing Role of the State, Papers Presented at the 1996 Annual Conference of the Australasian Law Teachers’ Association 2 (1996) 566.
[31] Haraway, D Simians, Cyborgs, and Women (1991) 191.
[32] Ibid.
[33] Supra note 31, at 193-196; Harding, S Whose Science? Whose Knowledge? (1991) 139-142; Hartstock, “The Feminist Standpoint: Developing the Ground for a Specifically Feminist Historical Materialism” in Harding, S (ed) Feminism and Methodology (1987).
[34] Supra note 30, at 567.
[35] Ibid, 568.
[36] Supra note 1, at 1-2, 384-385.
[37] Ibid.
[38] Ibid, 354.
[39] Ibid, 271.
[40] Ibid.
[41] Ibid, 283.
[42] Ibid, 285.
[43] Ibid, 287.
[44] Ibid, 289.
[45] Wilson, “The Making of a New Legal Education in New Zealand” (1993) 1 Waikato Law Review 14-15.
[46] Ibid, 16.
[47] Gould, B Memorandum to all members of Management Forum - Restructuring 20 January 1999. After a preliminary consultation process, the Vice-Chancellor had concluded that the current structure of seven schools would be reduced to four faculties. One of the proposals was that the School of Law would merge with the School of Management to form a Faculty of Law and Management under the leadership of the current Dean of the Management School.
[48] The Association of University Staff of New Zealand Incorporated & Ors v The University & Ors, unreported, High Court, Hamilton, 31 March 1999, CP 12/99, Hammond J, 19.
[49] Ibid, 38.
[50] Inglis, “University vice-chancellor lodges appeal”, Waikato Times, 29 June 1999, 3.
[51] Ibid.
[52] Beston, “Gould contract queried as row erupts over legal battle”, Waikato Times, 8 July 1999, 1.
[53] Inglis, “Vice-chancellor won’t appeal ruling”, Waikato Times, 25 November 1999, 3.
[54] Declaration of Kirikiriroa Te Whakaminenga, 18-19 March 1999.
[55] Ibid.
[56] Ibid.
[57] Supra note 1, at 272.
[58] Supra note 45, at 17.
[59] Wilson, “The Reconfiguration of New Zealand’s Constitutional Institutions: The Transformation of Tino Rangatiratanga into Political Reality?” [1997] WkoLawRw 2; (1997) 5 Waikato Law Review 17.
[60] Ibid.
[61] Ibid, 26.
[62] Ibid, 29.
[63] Ibid, 34.
[64] Ibid, 31.
[65] Ibid, 26.
[66] Margaret Thornton has defined “benchmark men” as those “who are white, Anglo-Celtic, heterosexual, able-bodied and middle class, and who support a mainstream religion and a right-of-centre politics” in Thornton, “Technocentrism in the Law School: Why the Gender and Colour of Law remain the same” (1998) 36 Osgoode Hall Law Journal 369.
[67] Wilson, “Constitutional Recognition of the Treaty of Waitangi: Myth or Reality?” in Wilson, M & Yeatman, A (eds) Justice & Identity Antipodean Practices (1995) 1.
[68] Ibid, 4.
[69] Ibid.
[70] Ibid, 15.
[71] Ibid.
[72] Ibid. Wilson also discussed the issue of MŠori opposition to codification of the Treaty at p 6 where she states that “... MŠori have been reluctant to allow the treaty to become part of a legal system over which they have little influence or control. There has been an understandable fear that the mana (status) of the treaty will be diminished if it is incorporated into a legal system that does not acknowledge their rangatiratanga (authority). This was apparent when an opportunity was provided to incorporate the treaty into the Bill of Rights Act; MŠori were reluctant to agree to the treaty becoming part of that act (Kelsey, 1990, 51). A document of such importance and symbolism requires the special legal status often associated with the laws containing the constitution of a country”.
[73] Ibid.
[74] See Wickliffe and Dickson, “MŠori and Constitutional Change” (1999) 3 Yearbook of New Zealand Jurisprudence 9, for a recent and detailed discussion of models for constitutional change that are based on the Treaty of Waitangi.
[75] Jackson, “Justice and political power: Reasserting MŠori legal processes” in Hazlehurst, K (ed) Legal Pluralism and the Colonial Legacy – Indigenous experiences of justice in Canada, Australia, and New Zealand (1995) 244.
[76] Ibid.
[77] Freire, supra note 27, at 21. I thank Stephanie Milroy for her very helpful comments on an earlier draft of this article which highlighted the connection to Freire’s discussion of “false generosity”.
[78] Wilson, M “Speeches from the Opening of the School of Law” (unpublished speech, Waikato Law School, 1991) 10.
[79] Ibid, 13.
[80] Supra note 45, at 19.
[81] Ibid, 21.
[82] Ibid, 21-22.
[83] Ibid, 24.
[84] Ibid.
[85] Ibid, 22.
[86] Public Law A is the constitutional law paper and is a compulsory paper for second year LLB students. This was a controversial issue at the time as the Law School and the University did not have a policy or process for dealing with assessment provided in te reo MŠori. This particular situation galvanised the University and Law School into action to develop such a policy.
[87] Supra note 45, at 22.
[88] Ibid, 23.
[89] Supra note 27, at 129.
[90] Wilson and Yeatman, supra note 67, at viii.
[91] Supra note 19, at 114.
[92] See Milroy, supra note 11, at 18-69; and Wilson and Yeatman, supra note 67.
[93] See Linda Smith’s description of the indigenous peoples’ goal of self-determination at supra note 5 and accompanying text.
[94] Smith, G “Tane-nui-a-rangi’s Legacy ... Propping up the Sky ... (Kaupapa MŠori as Resistance and Intervention)” a paper presented at the NZARE/AARE Joint Conference (1992) 29.
[95] Supra notes 11, 13 and 18, and accompanying text.
[96] Supra note 11, at 96-105.
[97] Walker, R “Liberating MŠori from Education Subjection” Matawhanui hui-a-tau (1991).
[98] Supra note 11, at 97.
[99] Ibid, 97-99. Also see Mikaere, “Taku Titiro: Viewpoint Rhetoric, reality and Recrimination: Striving to Fulfil the Bicultural Commitment at Waikato Law School” (1998) 3(2) He Pukenga Korero 12.
[100] Supra note 11, at 99.
[101] Ibid.
[102] Ibid.
[103] Ibid.
[104] Ibid, 102.
[105] Ibid.
[106] Ibid.
[107] Ibid, 103.
[108] Ibid, 104.
[109] Supra notes 11, 13 and 19 for discussion of these issues.
[110] Supra note 19, at 115.
[111] Ibid, 116.
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