• Specific Year
    Any

Jones, Carwyn --- "Indigenous Legal Issues, Indigenous Perspectives and Indigenous Law in the New Zealand LLB Curriculum" [2009] LegEdRev 12; (2009) 19(2) Legal Education Review 257

[*] Lecturer, Faculty of Law, Victoria University of Wellington. Tribal affiliations to Ngāti Kahungunu and Te Aitanga-a-Mahaki.

[1] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641.

[2] See, eg, Stephanie Milroy and Leah Whiu, ‘Waikato Law School: An Experiment in Bicultural Legal Education’ [2005] Yearbook of New Zealand Jurisprudence 173; Leah Whiu ‘Waikato Law School’s Bicultural Vision — Anei Te Huarahi Hei Wero I A Tatou Katoa: This is the Challenge Confronting Us All[2001] Waikato Law Review 265; Jacinta Ruru, ‘Legal Education and Maori’ in Claudia Geiringer and Dean R Knight (eds), Seeing the World Whole: Essays in Honour of Sir Kenneth Keith (2008) 243.

[3] Milroy and Whiu, above n 2, 185.

[4] Ibid 188.

[5] Ibid 191–194.

[6] Christine Zuni Cruz, ‘[On the] Road Back In: Community Lawyering in Indigenous Communities’ (1998– 1999) 5 Clinical Law Review 557, 595.

[7] Gerald F Hess, ‘Heads and Hearts: The Teaching and Learning Environment in Law School’ (2002) 52 Journal of Legal Education 75, 84.

[8] Christine Parker and Andrew Goldsmith, ‘“Failed Sociologists” in the Market Place: Law Schools in Australia’ (1998) 25 Journal of Law and Society 33, 50.

[9] Courses taught at Victoria University of Wellington which specifically address Indigenous legal issues include the core papers ‘Introduction to the New Zealand Legal System’ and ‘Public Law’; elective papers such as ‘Māori Land Law’ and ‘Family Law’; and postgraduate seminars such as ‘The Treaty of Waitangi: Claims, Settlement and Reconciliation’. These cover a range of issues relating to the Treaty of Waitangi as well as particular topics such as legal rights associated with Māori land and aboriginal title.

[10] There is significant debate around the appropriateness of the term ‘customary law’ to describe indigenous legal orders. For an overview of this debate see Sally Engle Merry, ‘Legal Pluralism’ (1988) 5 Law & Society Review 869, 875–879. The term is used in this article to describe a dynamic legal order which includes the rules and values developed by Māori to govern themselves and also rules and processes that have developed in conjunction with state institutions such as the Māori Land Court and the Waitangi Tribunal. See, eg, New Zealand Law Commission, Māori Custom and Values in New Zealand Law, Study Paper No 9 (2001) 1–7.

[11] See, eg, Wildlife Act 1953 (NZ) s 63. This section makes it an offence for any person to have in their possession any skin or feathers from protected wildlife and effectively prohibits Māori from exercising their own laws and practices in relation to the protection and/or taking of wildlife.

[12] New Zealand Law Commission, Waka Umanga: A Proposed Law for Māori Governance Entities, Report No 92 (2006) 12.

[13] For example, an analysis of whether the Māori Land Act 1993 (NZ) appropriately reflects Māori customary land tenure requires a technical understanding of the effect and interpretation of that legislation.

[14] Matthew Palmer, The Treaty of Waitangi in New Zealand’s Law and Constitution (2008) 359.

[15] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641, 663.

[16] Treaty of Waitangi Act 1975 (NZ) s 4.

[17] See, eg, State Owned Enterprises Act 1986 (NZ) s 9; Conservation Act 1987 (NZ) s 4; Resource Management Act 1991 (NZ) s 8: New Zealand Public Health and Disability Act 2000 (NZ) s 4; Local Government Act 2002 (NZ) s 4.

[18] See, eg, New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641; Attorney-General v New Zealand Māori Council [1990] NZCA 352; [1991] 2 NZLR 129; Ngai Tahu Māori Trust Board v Director General of Conservation [1995] 3 NZLR 533; Barton-Prescott v Director General of Social Welfare [1997] 3 NZLR 179.

[19] Philip Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, 2007) 83–91.

[20] See, eg, Constitution Act 1982 (Canada) s 35, which provides express constitutional recognition of the existing aboriginal and treaty rights of aboriginal people.

[21] See Jana Bradley, ‘Methodological Issues and Practices in Qualitative Research’ (1993) 63 Library Quarterly 431, 434–437.

[22] See Parker and Goldsmith, above n 8, 49.

[23] Karl Upston-Hooper, ‘Slaying the Leviathan: Critical Jurisprudence and the Treaty of Waitangi(1998) 28 VUWLR 683, 692–4.

[24] See, eg, Moana Jackson, ‘The Treaty and the Word: The Colonization of Māori Philosophy’ in Graham Oddie and Roy Perrett (eds), Justice Ethics and New Zealand Society (1992) 1, 1–26.

[25] See, eg, John Borrows, ‘Fourword: Issues, Individuals, Institutions and Ideas’ (2002) 1 Indigenous Law Journal ix.

[26] Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1988– 1989) 87 Michigan Law Review 2411, 2412–13.

[27] See, eg, Jackson, above n 24, 1–26.

[28] See, eg, 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 (2005) 330, 330–348.

[29] See, eg, F M (Jock) Brookfield, Waitangi and Indigenous Rights: Revolution, Law and Legitimation (1999); Paul G McHugh, The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (1991).

[30] See, eg, Eddie Taihakurei Durie, ‘Custom Law: Address to the New Zealand Society for Legal and Social Philosophy’ (1994) 24 Victoria University of Wellington Law Review 325; Joe Williams, ‘Colonization Stories from Across the Pacific’ (2006) 7 Asia Pacific Law and Policy Journal 65.

[31] For example, mana, whanaungatanga, and tapu all play a role in determining how hosts and visitors should interact as well as how disputes should be resolved and social conflict addressed: see Hirini Moko Mead, Tikanga Māori: Living by Māori Values (2003) 11–24.

[32] Jackson, above n 24, 6.

[33] David Williams, ‘Unique Treaty-Based Relationships Remain Elusive’ in Michael Belgrave, Merata Kawharu and David Williams (eds), Waitangi Revisited: Perspectives on the Treaty of Waitangi (2005) 366, 381.

[34] Richard Hill, State Authority, Indigenous Autonomy: Crown–Māori Relations in New Zealand/Aotearoa 19001950 (2004) 88–103.

[35] Jackson, above n 24, 6.

[36] Ibid 5.

[37] Christine Zuni Cruz, ‘Toward a Pedagogy and Ethic of Law/Lawyering for Indigenous Peoples’ (2006) 82 North Dakota Law Review 863, 879.

[38] See, eg, Resource Management Act 1991 (NZ) s 7(a) which requires anyone exercising functions or powers in relation to ‘resource management activities’ as defined under the Act to have particular regard to ‘kaitiakitanga’ (the Māori concept of guardianship), amongst other matters.

[39] Ibid.

[40] New Zealand Law Commission, Māori Custom and Values in New Zealand Law, Study Paper No 9 (2001) 55.

[41] See, eg, Re Lundon & Whitaker Claims Act 1871 (1871) 2 NZCA 41, 49, which provides an early instance of the courts recognising Māori customary law.

[42] Richard Boast, ‘Waitangi Tribunal Procedure’ in Janine Hayward and Nicola R Wheen (eds), The Waitangi Tribunal: Te Roopu Whakamana I te Tiriti o Waitangi (2004) 53, 54, which demonstrates that it is not only Indigenous legal issues which are relevant to the study of the Treaty of Waitangi, but that a familiarity with Indigenous law is also of assistance to lawyers working in this field.

[43] See Leon Sheleff, The Future of Tradition: Customary Law, Common Law, and Legal Pluralism (2000) 79–92.

[44] See, eg, Sebastien Lebel-Grenier, ‘What is Transnational Legal Education?’ (2006) 56 Journal of Legal Education 190; Jan Klabbers, ‘Legal Education in the Balance: Accommodating Flexibility’ (2006) 56 Journal of Legal Education 196.

[45] John Borrows, ‘Ground-Rules: Indigenous Treaties in Canada and New Zealand’ (2006) New Zealand Universities Law Review 188.

[46] Ibid 162.

[47] See, eg, Mikaere, above n 28, 333–4.

[48] Wi Parata v Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72.

[49] See, eg, John L Robson (ed), New Zealand: The Development of its Laws and Constitution (2nd ed, 1967) 3–5.

[50] See, eg, Kenneth J Keith, ‘The Treaty of Waitangi in the Courts’ (1990) 14 New Zealand Universities Law Review 37.

[51] Palmer, above n 14, 154–68.

[52] Mikaere, above n 28, 343.

[53] Ibid 331–4.

[54] Eddie Taihakurei Durie, ‘Will the Settlers Settle? Cultural Conciliation and Law’ [1996] OtaLawRw 1; (1996) 8 Otago Law Review 449, 461.