Ruru, Jacinta --- "Kia Toitū te Kōrerorero: Imagining a Bijural Legal System. New Zealand Law Foundation Ethel Benjamin Commemorative Address 2023" [2023] OtaLawRw 1; (2022) 18 Otago LR 1

Last Updated: 5 December 2024

Ethel Benjamin Commemorative Address 2023

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Annual New Zealand Law Foundation Ethel Benjamin Commemorative Address 2023

Kia Toitū te Kōrerorero: Imagining a Bijural Legal System

Jacinta Ruru*

Tēnā tātou. Ki te whare e tū nei, te papa e tākoto nei, ngā rangatira hoki o ngā Kōti me ngā ture, tēnā koutou. He mihi kau ana ki te mana whenua o tēnei rohe, ki a koutou, me a koutou uri, e muri ake nei, tēnā koutou. It is a remarkable honour to be invited by the Otago Women’s Law Society (OWLS) to deliver the memorial lecture in this momentous year for legal education in Ōtepoti Dunedin as we mark our 150th origins. I wish to begin this commemorative address acknowledging the critical role of the then named Otago and Southland Law Society in the foundations of the LLB degree for the University of Otago and for the nation.

There is a long deep relationship between the Otago Law Society and undergraduate legal education at the University of Otago. One hundred and fifty years ago, in 1873, the University of Otago became the first university in Aotearoa New Zealand to teach law because of the work of the Otago and Southland Law Society. The University had been founded a few years earlier, in 1869 where its “material foundations were set deep in the residue of gold prosperity”¹ on the ancestral learning lands of Ngāi Tahu alongside the Ōwheo river. Law was one of the first degrees offered. The law school began with much of the curriculum being self- taught by the students (imagine that, students in the audience today!). They were assessed by exam at the:²

• end of second year in Latin, English or mental science, jurisprudence and constitutional history;
• end of third year in Roman law, international law and conflict of laws, contracts and torts; and

* Raukawa, Ngāti Ranginui. Distinguished Professor, Faculty of Law, University of Otago. Delivered 14 September 2023. My deepest thanks to OWLS and all who were with me at the Dunedin Public Art Gallery at the address, especially Judge Rachel Mullins and Bernadette Roka Arapere for so generously providing the introductory and concluding remarks.

1. WJ Gardner Colonial Cap and Gown (University of Canterbury, Christchurch, 1979) at 26 as quoted in Janet November In the Footsteps of Ethel Benjamin: New Zealand’s First Woman Lawyer (Victoria University Press, Wellington, 2009) at 41.
2. As set out in November, above n 1, at 45. See also Jeremy Finn “The Early Years of an Unregulated Profession: Lawyers in the Southern Districts of New Zealand 1850–1869” [1995] CanterLawRw 3; (1995) 6 Canta LR 56. For a general history of the University of Otago, see Alison Clarke Otago: 150 Years of New Zealand’s First University (Otago University Press, Dunedin, 2018).

– end of fourth year in the law of real and personal property, the law of evidence, criminal law, and equity.

Statute law and the practice and procedure of the courts were subjects subsequently added to the curriculum.

Apparently the “inadequacies” of the self-taught students came under “scrutiny”,³ so the Otago and Southland Law Society offered to contribute 100 pounds to the law school to establish one permanent and some part-time lecturer positions in return for retaining the law exam fees. The University did not take full financial responsibility for teaching law until 1919 – some 46 years after the law school had been established.

Of course it is within these formative years of the University of Otago’s Faculty of Law that Ethel Benjamin dared to enter its doors to study law. Coming from Otago Girls’ High School, Ethel started her university studies in 1893, confident and determined that she would be able to practice law by the time she had finished. She must have strongly believed in the Aotearoa New Zealand Parliamentary system – that it would amend the gender discrimination law – because at that time only men were able to enrol as a barrister or solicitor.⁴ Ethel graduated with her LLB degree in the winter on 9 July 1897. A year before she finished her LLB, on 11 September 1896 (125 years ago this week), the Female Law Practitioners Act was enacted removing the gender obstacle for admission to practice law.⁵ Following her graduation in July 1897, on 17 September 1897 (126 years ago nearly to the date today), Ethel became the first woman lawyer to appear in court as counsel in the British Empire.⁶

Twenty-five memorial lectures sit behind me, generously supported by the New Zealand Law Foundation and the outstanding leadership of OWLS. In these past months, as I immersed myself in reading those speeches, and located the impressive biography about Ethel, written by Janet November, in the Faculty of Law’s Sir Robert Stout Law Library in amongst a sea of books about and by men, I feel the privilege of this opportunity. Dame Silvia Cartwright commenced this Ethel Benjamin memorial address series in 1997 with a formidable speech about gender discrimination alongside of a few telling recollections from her own experiences of entering the legal profession some 70 years after Ethel. One comment that grabbed my attention: Dame Silvia, as a new a judge in the

3. November, above n 1, at 45.
4. Section 6 of the Law Practitioners Act 1882:

Every male person of the age of twenty-one years and upwards ... on complying with the other provisions of the Act, be entitled to be admitted and enrolled as a barrister of the Court ...

5. The Female Law Practitioners Act 1896. The long title read: “An Act to enable Women to practise the Profession of Law.” The preamble read: Whereas women are now prevented by statute from exercising their talents in the study and practice of the law, and it is desirable that such disabilities shall no longer continue ...

Section 2 made the amendment to the Law Practitioners Act 1882.

6. November, above n 1, at 56.

early 1980s said: “my usual changing room was the public toilet at the court”.⁷ In reflecting on Ethel, Dame Silvia said this: “I can only conclude that she was a woman of rare intelligence and enormous courage”.⁸ Two Māori women have stood here before me: Dame Georgina Te Heuheu (the first Māori woman to be admitted to the bar) and Dame Lowell Goddard (the first Māori person to be appointed to the High Court). I particularly wish to reflect on the powerful words Dame Georgina expressed in delivering her address back in 1999 (the year I graduated with my LLB and began my law academic career in the Faculty of Law). She said:⁹

Ethel Benjamin was interested in how the justice system served women and men alike. Many Māori women were equally interested and as advocates for their families and tribes, they were generally more experienced and knowledgeable about the workings of the justice system than non Maori women.

Dame Georgina went on to say:¹⁰

For those of us Maori women who have pursued careers in law over the past 25 years, the efforts and sometimes extraordinary achievements of our earlier female leaders is both stunning, and humbling. Stunning, because they stood firm to their position for their rights and dignity of their peoples, and the Treaty of Waitangi, at a time when there was little or no support either politically or legally for either. And humbling, because knowing what has been achieved in the past, and what still has to be done means that we have a responsibility to make our contribution, however great or small. We inherited their work and became part of it in a different way but always for the same cause, the wellbeing of our people. Our female ancestors were active in and around our legal and political system long before we made our formal entry into those systems, and we salute them.

I similarly stand here today in awe of the Māori women unadorned in national memory who spent their lives in contest with the Crown and the courts, deeply embedded in seeking restitution to the many injustices of the state law.

Turning back to Ethel, just as many of the woman who have paid tribute to Ethel in this memorial series have remarked, they do not recall learning about Ethel in their law studies. As Dame Sian Elias remarked in 2000, “I would like to have known of Ethel Benjamin. It would have encouraged

7. Silvia Cartwright, Justice of the High Court of New Zealand “The Trouble She Caused” (1st Annual New Zealand Law Foundation Ethel Benjamin Commemorative Address, Dunedin, 8 May 1997) at 30, available to view online at <https://otagowomenlawyerssociety.files.wordpress. com/2014/05/silvia-cartwrights-1997-address.pdf>.

8 At 32.

9. Georgina Te Heuheu, Minister for Courts and Minister of Women’s Affairs “Maori Women and the Law” (3rd Annual New Zealand Law Foundation Ethel Benjamin Commemorative Address, Dunedin, 8 July 1999) at 3, available to view online at <https://otagowomenlawyerssociety.files. wordpress.com/2014/05/georgina-te-heuheus-1999-address1.pdf>.
10. At 5.

me in some of my own troublemaking.”¹¹ I concur. Me too. We need to keep the brave, visionary, principled persons close by us, and especially close by the youth to inspire them too to dream the impossible. Legal education remains beyond the dream for many young New Zealanders.

I myself fell into law. I was unlike Ethel. Ethel said of herself:¹²

... even as a child, I loved the study of the law. When I was quite a little girl I used to pick up any law papers that came in my way, and for hours would read and ponder over their meaning, delighting in their many subtleties, marvelling at their logic and revelling in their intricacies.

Ethel grew up in urban Otago, here in Dunedin; I grew up in rural Otago/Southland.

I had no audacious dream to be a lawyer – I certainly did not know any lawyers growing up and no law papers came in my way. I stumbled into the study of law in my third year of humanities study. Despite being a bright secondary school student with a strong interest in English and history it is curious to me that tertiary study, let alone law, was never mentioned to me by any teachers. It was my parents who had strong aspirations for their children go to university even though neither of them had progressed far into their own senior secondary school education. My Mum and Dad had faith in me that I would get to university. Much to their amusement and bafflement, I am still at university!

I mention this because I think if we wish to grow the diversity of the legal profession, then we need to pay much more attention to providing the role models to the families who are not naturally ensconced in the professional middle class. And I think remembering Ethel more prominently can help us with this because, while she was certainly middle class, she did have pluck to stride out and do something remarkably different – she strode out of the female domestic sphere into a male-only career domain.

The anchor for my address today – this 26th memorial address – firmly lays in an article Ethel wrote herself, published on page 5 of The Press on 13 September 1897 (126 years and 1 day ago).¹³ Ethel writes generously and bravely about her desire to study law and the audacity to be the first woman to enrol in legal studies in Aotearoa New Zealand. She wrote:¹⁴

11. Sian Elias, Chief Justice of New Zealand “Diversity and Law” (4th Annual New Zealand Law Foundation Ethel Benjamin Commemorative Address, Dunedin, 18 May 2000) at 1–2, available to view online at <https:// otagowomenlawyerssociety.files.wordpress.com/2014/05/sian-elias- 2000-address.pdf>.
12. Ethel R Benjamin “Women and the Study and Practice of the Law” The Press (Christchurch, 13 September 1897) at 5, available to view online at

<https://paperspast.natlib.govt.nz/newspapers/CHP18970913.2.39>.

13. At 5.
14. At 5.

If ... women become lawyers, they must not expect to encounter no obstacles on their road to success, and when they find them blocking their progress they must not get disheartened ...

She went on to conclude her article:¹⁵

If life were all smooth sailing what a dull dreary journey it would be! It is life’s difficulties and its dangers which give it its zest. If we make up

our mind that all difficulties shall be overcome, half the battle is already won, and if our will be strong enough these difficulties will dwindle away one by one ...

I wish I had read those words emblazoned across the Faculty of Law when I began my studies 100 years after Ethel, in the 1990s. However, I do know I was fortunate in my studies to walk everyday into the foyer of the University of Otago Richardson Building where hung the commissioned three 5-metre high original artworks by Ralph Hotere incorporating the Hone Tuwhare poem “Rain”.¹⁶ That impressive work pulled on my heart and soul, words I whispered to myself every day, a majestic artwork that fuelled my love of Māori art and Māori poetry and gave me strength to know I too belonged on the tertiary campus. Even so, I would have also welcomed the words of Ethel as a student just as much as I have enjoyed being immersed in her sterling work these past few months. I have taken much courage in her words, her appreciation for the “zest” of life and the power of the mind to overcome “all difficulties”. And, so, in making up my mind that all difficulties shall be overcome, I turn to the topic of my address: kia toitū te kōrerorero: imagining a bijural legal system.

Toitū is a verb that means to be permanent, enduring, entire. It also means to be sustainable. This dialogue of imagining a bijural legal system

– that is where we acknowledge the full extent of the Māori legal system alongside our state New Zealand legal system – is and will continue to be ongoing, to be permanent and to be enduring as a feature of law in this country. We also need this dialogue to be sustainable and therefore we need to have care in how we do this dialogue. Kia toitū te kōrerorero.

It is well known that colonial state laws around the world have done an enormous amount of damage to destroy and disrupt Indigenous peoples’ laws, values and philosophies. I acknowledge the advances Aotearoa New Zealand has made towards a decolonised society where Parliament has begun to enact laws and policies to empower, rather than terminate, Māori legal practices. For instance, because of Māori insistence in negotiating with the Crown, legislation now recognises

15. At 5. This quote is also reproduced in November, above n 1, at 71.
16. For more information about Hotere, see Vincent O’Sullivan The Dark is Light Enough: Ralph Hotere – A Biographical Portrait (Penguin Books, Auckland, 2020). For more information about Tuwhare including hearing him read “Rain” see Poetry Archive “Hone Tuwhare” <https:// poetryarchive.org>. In 2007, the artwork was removed to another location on the University of Otago campus: University of Otago “Original Rain installed at the Hocken” (28 August 2018) <www.otago.ac.nz>.

some of the Māori ancestral embodiments in nature, including in rivers, forests and mountains.¹⁷ Likewise, because of persistent Māori action in the state courts, judicial decisions are becoming more respectful of Māori property, environmental and family laws and values.¹⁸ I applaud and honour the intellectualism, bravery and resilience of my Māori ancestors and relations: then and now. I am proud of the legal history that is being built in our country where there is growing widespread state recognition that since 1840 Aotearoa has been in fact a bijural legal system.

Māori laws were the first laws of these lands and waters. English law was introduced into these lands in 1840, becoming our second set of laws. As Churchman J in the Re Edwards Whakatohea case recently observed:¹⁹

Up until the assertion of sovereignty by Great Britain in 1840, the sole system of law in New Zealand was tikanga Māori. ... tikanga bore little resemblance to the legal system of Great Britain which had its origins in Greek and Roman law as developed by the common law. Tikanga reflected the belief systems, values and life experience of the tangata whenua.

And while there has also been a strong line of cases and legislation that sought to deny and destroy Māori laws – think of, for example, the Wi Parata 1877 Supreme Court case,²⁰ the Ninety-Mile Beach 1963 Court of Appeal case²¹ or for example the Tohunga Suppression Act 1907 – those precedents were wrong and unjust. We could turn to many of the modern senior court decisions over the past 40–50 years to appreciate the developing reconciliation jurisprudence. For example, if we turn to the case of the moment – the Supreme Court Ellis case decided last year

– these five points were clearly made by the Chief Justice:

1. “Tikanga was the first law”, it continues to regulate the lives of Māori, and “reflects values that are older than our nation”.²²
2. “[T]he core principles and values of tikanga are enduring and readily identifiable”.²³
3. Tikanga has shaped the broader values of society and regulates non-Māori lives at times too eg rāhui.²⁴

17. For example, see sch 14 of the Ngāi Tahu Claims Settlement Act 1998; s 8(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010; Te Urewera Act 2014; and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
18. For example, see Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239; Trans- Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801; and Ngawaka v Ngāti Rehua-Ngātiwai Ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1.
19. Re Edwards Whakatohea [2021] NZHC 1025, [2022] 2 NZLR 772 at [110].
20. Wi Parata v The Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72 (SC).
21. Re the Ninety-Mile Beach [1963] NZLR 461 (CA).
22. Ellis v R, above n 18, at [168] and [172]. 23 At [169].

24 At [173].

4. The common law must serve all in society including Māori.²⁵
5. Tikanga has been applied by the courts as a source of enforceable rights for over 150 years.²⁶

In reflecting on this growing bijurality of our legal system, I contemplate the movements we are making from recognition to realisation. I contend that to be brave in confidently realising the potential for the full operation of a bijural legal system, the state will need to relinquish some of its powers and do many things differently. As a country we will need to grow our trust in the Māori legal processes of, for example, whanaungatanga, manakitanga and rangatiratanga.²⁷ For decades now the Waitangi Tribunal has been setting out why and how we as a nation could and should make such change. For example, as the Waitangi Tribunal stated more than a decade ago in its Ko Aotearoa Tēnei report, new solutions are required that necessitate a fundamental governmental shift in philosophy and approach. The Tribunal stated:²⁸

... unless it is accepted that New Zealand has two founding cultures, not one; unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority, a problem to be managed with a seemingly endless stream of taxpayer-funded programmes, but never solved.

Even beyond the Waitangi Tribunal, right back since 1840, iwi, hapū and whanau have been consistently sharing ideas for a new relational way of sharing power in this amazing country many peoples together love and call home.

I think one of the best places for us to start today in overcoming the difficulties of colonisation and imagining a bijural legal system is in the Iwi Leaders Forum work led by Professor Margaret Mutu and the rangatira Moana Jackson where they captured the hopes and aspirations of Māori throughout the country in the 252 hui they chaired between 2012 and 2015. They set out:²⁹

25 At [174].

26 At [175].

27. For an introductory understanding of these Māori legal terms see Law Commission He Poutama (NZLC SP24, 2023). See also Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013).
28. Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity – Te Taumata Tuarua (Wai 262, 2011) vol 1 at xxiv.
29. He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa

– The Independent Working Group on Constitutional Transformation (2016) at 7 and 14.

To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.

Their work was produced in the easy to access online and read Matike Mai report that provides the values and frameworks for us as a country to discuss together the options to make the philosophical and structural change required. The proposed possibilities for constitutional transformation are set out in six different Indicative Constitutional Models utilising a notion of spheres of constitutional change. The first three Models are based on a tricameral three sphere model recognising the integrity and independence of the spheres of rangatiratanga and kāwanatanga with the third sphere providing for a relational joint deliberative body of decision-making. The other three Models set out options for a multi-sphere, unicameral and bicameral constitutional design.

Some three years after the release of Matike Mai, I was part of the nine- person Ministerial appointed technical advisory group, the Declaration Working Group that wrote He Puapua.³⁰ We came together in 2019 and had a few months to provide the Government with the first ideas for framing a chronological roadmap to become compliant with the United Nations Declaration on the Rights of Indigenous Peoples and te Tiriti o Waitangi by 2040 (2040 being the year that will mark 200 years since signing te Tiriti).³¹ We drew on existing work – work by Māori, the Government and others here and overseas, and especially Matike Mai and the tricameral constitutional model. He Puapua provides options and examples for the staggered and progressive realisation of the possibilities of truly giving effect to te Tiriti o Waitangi for the next 20 years.

I turn now to deliberately draw on the tricameral three-sphere frameworks set out in Matike Mai and He Puapua to consider what can we do as legal professionals to overcome obstacles to help realise the aspiration to work in a bijural legal system; kia toitū, to make permanent, enduring, entire the legal system of Aotearoa New Zealand. These are some of my preliminary ideas.

30. Claire Charters and others He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/ New Zealand (Te Puni Kōkiri, 14 October 2020).
31. Other countries were doing similar work at the time. For example, in Canada now see the United Nations Declaration on the Rights of Indigenous Peoples Act SC 2021 c 14 and the Department of Justice Canada United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan (2023).

1. Increase the Rangatiratanga Sphere

This is work for iwi and hapū to lead and design. What can we all do to help support a momentum to enable the sphere of rangatiratanga to grow? I note here these first three ideas:

a) Accept and be comfortable with Māori laws and philosophies when and wherever you encounter them. The rāhui is a great example of a Māori law that is already respected and adhered to by many New Zealanders.

b) Invest in the rebuilding of Māori laws. Afterall, the clear aim of colonisation was to destroy Māori laws.

c) Celebrate the legal work of iwi and hapū; be respectfully curious and commit to learning more about Māori laws and philosophies.

I wish to emphasise the second point here: in owning up to the painful colonial history of destruction, there ought to be an onus on the Government to substantially invest in the revitalisation of Māori laws. We can look to Canada for inspiration. In Budget 2019, the Federal Government of Canada committed $10 million over five years to Indigenous law revitalisation initiatives across Canada. The Canadian Department of Justice funds support projects to:³²

a) develop Indigenous laws through research into traditional or customary practices, including in modern forms or as modified over time;

b) support the use of Indigenous laws by Indigenous communities; and

c) increase the understanding of Indigenous laws within Indigenous communities and by all Canadians.

We must do something similar here in Aotearoa New Zealand. Just as we have a Māori Language Commission committed to the revitalisation of te reo Māori,³³ we need a Māori Laws Commission committed to the revitalisation of tikanga Māori.

2. Decolonise the Kāwanatanga Sphere

To move towards this bijural system, all the cogs in our kāwanatanga wheel need to be retrofitted together. The great momentum for progress is already well underway. For example, I acknowledge some of this transformation:

a) Parliament: statutory incorporation of the principles of te Tiriti o Waitangi the Treaty of Waitangi is standard practice in legislative design; more statutes are referencing tikanga Māori and some statutes are fully bilingual. With te reo Māori as an official

32. For more information see Government of Canada “Justice Partnership and Innovation Program” (modified 20 August 2021) <www.justice.gc.ca>.
33. Te Taura Whiri i te Reo Māori <www.tetaurawhiri.govt.nz>.

language, te reo is spoken in the House of Representatives and there are significant numbers of Māori Members of Parliament.

a) Courts: there is clear precedent that te Tiriti o Waitangi the Treaty of Waitangi is of constitutional significance; the common law recognises tikanga; in 2022 the Māori Land Court issued the first fully bilingual judgment; bicultural and bilingual court practices have been the norm in the Māori Land Court since inception in the 1860s and other courts are catching up; in recent years more Māori have been appointed to the judicial bench; and specialist education programmes run for judges to learn about colonisation and tikanga.

b) Legal Profession: many in the legal profession are upskilling and learning te reo Māori, learning about the colonial history of Aotearoa New Zealand and te Tiriti o Waitangi the Treaty of Waitangi.

More needs to be done and constitutional change is obvious to help cement and make durable these changes.³⁴

3. Grow the Relational Sphere

There are many opportunities to build on existing initiatives to grow the relational sphere. Specific to law, many distinguished people and entities have advanced useful ideas and metaphors to illustrate this connecting of the two legal systems. For example: Justice Sir Joe Williams has developed the notion of Lex Aotearoa and the third law;³⁵ the Law Commission has turned to the tukutuku design of poutama to symbolise “a process of two people working together”,³⁶ and lawyer Natalie Coates in the Ellis case chose the whāriki or the mat metaphor to describe how the Courts can weave threads into “the fabric of law in Aotearoa” from both the common law and tikanga Māori.³⁷

4. The Cog of Legal Education

With this year marking the 150th anniversary of the LLB degree at Otago, and because it was the law school that Ethel graduated from, my final remarks today focus on one essential component in imagining a bijural legal system: the cog that is legal education. All the Māori

34. See also the excellent action plan for the environment: New Zealand’s Biological Heritage National Science Challenge Ngā Koiora Tuku Iho, Adaptive Governance and Policy Working Group Me Tū ā-Uru: An Action Plan for a Flourishing and Abundant Environment (2023), available to view at <www.metuauru.co.nz>. See also Jacinta Ruru and Jacobi Kohu-Morris “‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/ The Treaty of Waitangi in Aotearoa New Zealand” (2020) 48 FL Rev 556.
35. Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1.
36. Law Commission, above n 27, at 16.
37. Ellis v R [2020] NZSC Trans 19 at 6.

law academics across the six law schools in Aotearoa New Zealand, developed a significant research programme where we first agreed on 10 key messages we wished to make to the law schools and the legal profession. We published this report in 2020. Our messages were these:³⁸

a) To realise the practice of Māori law as law in Aotearoa New Zealand’s modern legal system, systemic change in the legal profession needs to occur.

b) We call for a legal profession that is trained to work in a bijural, bicultural and bilingual Aotearoa New Zealand legal system.

c) Undergraduate legal education has an essential role in fulfilling this call for change.

d) Aotearoa New Zealand’s six law schools already have varying levels of competency in this area but should now move in a systemic formal manner towards preparing their graduates for a legal practice built on a bijural, bicultural and bilingual legal education.

e) A bijural legal education presupposes the existence of Māori law founded on tikanga Māori, which is taught as a legitimate and continuing source and influence on the rights, obligations, rules and policy in Aotearoa New Zealand’s legal system.

f) A bicultural legal education implements structures, develops processes and provides resources grounded in te Tiriti o Waitangi the Treaty of Waitangi, including the employment of Māori, and sharing of resources, leadership and decision-making with iwi, hapū and Māori academic staff.

g) A bilingual legal education would utilise te reo Māori broadly in general teaching and specifically in relation to Māori law concepts and principles such that all students have a working knowledge of Māori law in te reo Māori at the time of graduation. Where students are fluent in te reo Māori, they should be easily able to learn and be assessed in te reo Māori.

h) Strategically decolonising and Indigenising legal education is already underway in Canada and in development in Australia. Such changes are possible. Aotearoa New Zealand is well placed to catch up to these countries and accelerate our existing practices if the commitment is made in a deliberate formal manner with long-term significant resources made available.

38. See Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree Phase One: Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Michael and Suzanne Borrin Foundation, August 2020), available to view at <www.borrinfoundation. nz/wp-content/uploads/2020/08/Inspiring-National-Indigenous-Legal- Education-Phase-1-Report.pdf>.

1. Care will be required to progress this aspirational systemic change, especially in regard to ensuring mana whenua are supportive of these moves. The change should be Māori led and Māori designed, with substantial allied support from Deans of law schools and the legal profession, including the judiciary, law practitioners, law academics and law students.

j) To commence this journey for aspirational change we recommend we all (re)read and continue to upskill ourselves as much as possible on the extensive knowledge and research already shared by Māori scholars.³⁹ We recommended the 10 starter readings attached at the end of this address.

We then embarked on a qualitive and quantitative study to stress- test our recommendations. Was there support or not for such a bold transformation of legal education in Aotearoa New Zealand? We commenced our Phase Two work. The online survey was launched in May 2021 and was open for three weeks. We invited participants from a contact list of university law and Māori studies academics and law student organisations, community law centres and law firms, government agencies, iwi and Māori organisations. The survey was completed by 201 people. We also undertook a number of interviews in the first half of 2021 with people who had some specialist knowledge in law, legal education, and/or iwi and hapū affairs. Most of the interviews were with individuals, but some were held with groups. We conducted 32 interviews involving a total of 83 people. These reports are publicly available.⁴⁰ I just share here five of the online survey findings as a glimpse into this important work:

a) Seventy-one per cent of respondents supported law students being required to pass introductory te reo Māori papers as part of their law degree.

39. See also Jacinta Ruru “What we Read Matters in the Pursuit of Decolonising Law” (2022) 2 Legalities 22. For a more general reading list see Jacinta Ruru, Angela Wanhalla and Jeanette Wikaira “Read our words: An anti-racist reading list for New Zealanders” (15 June 2020) The Spinoff <https://thespinoff.co.nz>.
40. See Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree Phase Two: Consultation 2021

– Part I – Survey Report (Michael and Suzanne Borrin Foundation, February 2022), available to view at <www.borrinfoundation.nz/indigenising-llb- phase2-survey-report/>; and Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree Phase Two: Consultation 2021 – Part II – Expert Interview Report (Michael and Suzanne Borrin Foundation, May 2022), available to view at

<www.borrinfoundation.nz/report-inspiring-national-indigenous-legal- education-for-aotearoa-new-zealands-bachelor-of-laws-degree-phase-2- report-part-2/>.

b) The vast majority of the respondents (83 per cent) agreed that Māori law should be taught as a required part of an LLB degree and most (71 per cent) felt that Māori law should be taught in all law papers.

c) More than 85 per cent of the respondents agreed that law schools should have an action plan detailing commitments to a bicultural legal education; Māori leadership in law schools should be advanced and visible; the number of Māori law lecturers should increase; and Māori law lecturers should be involved in developing a bicultural curriculum.

d) Over 90 per cent of respondents believed the legal system would be moderately or very much improved by judges and lawyers having a greater understanding of tikanga Māori.

e) Most respondents thought that having more knowledge about te reo Māori (94 per cent), Māori law (89 per cent) and tikanga Māori (94 per cent) would be helpful for their work.

Earlier this year the New Zealand Council of Legal Education confirmed new requirements for all persons enrolling in a LLB degree. From 1 January 2025, the LLB legal education curriculum across all six law schools will include requirements for the teaching and assessment of Tikanga Māori/Māori laws and philosophy.⁴¹ All the compulsory law courses must include relevant content and assessment about Tikanga Māori (that is in The Legal System, Public Law, Contracts, Torts, Criminal Law, Property Law (or Land Law and Equity and Succession) and Legal Ethics) and there must also be a new compulsory law course on Tikanga Māori.

A slightly different LLB curriculum to the one Ethel had to work through in the 1890s!

At Otago, we are well underway in extending our legal education curriculum to meet these new requirements. For example, this year:

a) my colleague Metiria Turei designed and led the senior law students for a whole semester in Māori laws as a half part of the full year compulsory Jurisprudence course; and,

b) with Metiria and our colleague Mihiata Pirini, along with Koro Hata Temo and two teaching fellows from Te Tumu School of Māori, Pacific and Indigenous Studies, we created and led the LAWS 200 wānanga.

A little more on the wānanga because it has been celebrated as a landmark in legal education. The wānanga was run on the first seven days of semester one for all second-year law students. It was team taught by a core team of six Māori staff with teaching support from many Faculty colleagues and senior LLB students. The overall goal of the wānanga

41. New Zealand Council of Legal Education <https://nzcle.org.nz>.

was to reinforce the learning journey for our students so as they are better able to serve the legal needs of Aotearoa New Zealand, including:

a) appreciating that tikanga Māori includes a complete legal system in and of itself and comes into interaction with the state legal system in all practice areas;

b) gaining some basic preliminary understandings of Te Ao Māori (such as the Māori decision-making entities of iwi and hapū) and of te reo Māori, both as the language of Māori law and its importance for the administration of justice;

c) realising that lawyers will need to work more with trained tikanga experts; and

d) recognising that these skills are relevant in any practice area of law.

The seven days were incredible. We utilised different teaching techniques and venues, including on campus and at marae, to come together to deliberately learn in a collective fashion.

To begin to conclude: Ethel Benjamin sought to work as a woman in a male-controlled law profession; I seek a legal profession that welcomes the full potential of the first laws of this country. We as Māori, since 1840, have always sought to have our Māori laws thrive, flourish and shape the lives of our whanaunga. The open hearts and minds of our law students this year is testament to what can be achieved.

In this year of anniversaries, I close with a nod to an anniversary that is especially dear to my heart: this year marks the 30th anniversary of Te Rōpū Whai Pūtake – the Māori Law Students Association. The legacy of this association founded by Kristen Maynard and many others has been instrumental in creating a law school experience that inspires and supports Māori law students. And, so it is my wish, that this whole endeavour to realise a bijural legal system and in particular a bijural legal education must, in particular, be a positively transforming experience for our Māori law students, Māori lawyers and importantly Māori clients seeking refuge in the state law. Let’s remember Ethel’s words: “If life were all smooth sailing what a dull dreary journey it would be!” Let’s try our hardest to create a legal system that serves Māori well. Kia toitū te kōrerorero. Ngā mihi. Mauri Ora.

Appendix: The starter reading list (as prepared in 2020)

1. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013).
2. ET Durie “Will the Settlers Settle? Cultural Conciliation and Law” [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449.
3. Moana Jackson “He Whaipaanga Hou: Maori and the Criminal Justice System” (Ministry of Justice, 1987).
4. Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (University of British Columbia Press, Vancouver, 2016; republished by Victoria University Press, Wellington, 2016).
5. Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2^nd ed, Oxford University Press, Auckland, 2005).
6. Hirini Moko Mead Tikanga Māori: Living by Māori Values (rev. ed, Huia Publishers, Wellington, 2016).
7. New Zealand Law Commission Māori Custom and Values in New Zealand

Law (NZLC SP9, 2001).

8. Māmari Stephens and Mary Boyce (eds) He Papakupu Reo Ture: A Dictionary

of Māori Legal Terms (LexisNexis NZ, Wellington, 2013).

9. Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011).
10. Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato Law Review 1.