Te reo in the courts and ‘language trauma’
The legal fraternity says wider use of te reo in court is a positive step towards normalisation, but some lawyers warn of the risk of language trauma for those disconnected with their reo.
Under the Māori Language Act, passed in 2016, lawyers, judges and witnesses have the right to speak Māori in the country's courts.
Te reo is often used in the Māori Land Court, and Crown Law has been championing the use of te reo in other courts by all Crown counsel and other lawyers.
A Crown Law spokesperson said te reo was increasingly being heard everywhere, “as it should be”, and Crown Law was “proud to be part of the modern resurgence and pride in the reo”.
“This practice is encouraged as part of the Crown’s commitment to protect and promote the taonga that is te reo Māori.”
However, some lawyers said their clients have experienced a form of language trauma when appearing in court, related to their disconnection from their language through oppression and colonisation.
Normalisation of the reo
In November, the use of te reo in court made headlines after Justice Timothy Brewer told Crown lawyer Zannah Johnston she had the right to speak Māori in court but the rules required her to give three days’ notice.
The comments were made after Johnston gave her brief welcome, or introduction, in te reo.
A Stuff report said Brewer questioned whether Johnston was trying to make a political point, and raised the issue of his lack of knowledge of te reo.
Solicitor General Una Jagose explained the intent behind the use of te reo in the court, and Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) praised the use of the language by the Crown as a step towards achieving its duty to protect and promote the language.
Following the coverage, Crown Law was inundated with requests from lawyers in all parts of practice and all parts of New Zealand asking for te reo expressions used by Crown law.
"We’ve gotta get over this thing of just restricting Māori to certain ceremonial uses, get rid of the presumption that it’s a language only fit for the marae."
Many in the legal fraternity have praised it as a step towards normalising the language and bringing it more into the mainstream.
Victoria University reader of law Māmari Stephens said Māori was an ordinary language and had been used in a legal sense for over a century.
"It's not a sacred language - it never has been. We’ve gotta get over this thing of just restricting Māori to certain ceremonial uses, get rid of the presumption that it’s a language only fit for the marae.
“There’s nothing better than hearing Māori spoken in the playground, or hearing Māori spoken at the airport, or hearing Māori spoken in a business meeting, or hearing Māori spoken in a court of law. It’s because it belongs everywhere."
Stephens said it was important people felt comfortable in court and that the judicial system reflected the makeup of society.
Auckland barrister and Māori Law Society member Echo Haronga said Jagose had shown genuine leadership by encouraging Crown solicitors to use the language in their workplace.
“It is a clear and positive attempt to normalise the use of reo Māori in government spaces which should be supported by Māori and non-Māori alike.”
As a defence lawyer, Haronga said if her client understood te reo Māori, she used it in her submissions - at their instruction - and advised the Court in advance, with judges normally supportive.
Her Māori clients enjoyed her participation in karakia and mihi practices with their whānau outside of court. If she saw a judge who was a speaker or learner, she would greet them in te reo, as she believed it was more respectful.
However, Haronga had “conflicted feelings” about lawyers representing the Crown – “the historic oppressor of te reo Māori” – using the language to present their case, when much of the criminal justice system worked against Māori, many of whom could not speak their own language
“There’s an issue of language trauma. Historic and present-day factors, which have worked to dispossess Māori of their reo, are the same factors which contribute to the overrepresentation of Māori in the criminal justice system.”
“Most Māori that I’ve ever come across who’ve been disconnected from their language, they feel it as a lack, and like a kind of heart sickness."
Haronga said their lack of understanding of the language may be due to institutionalisation, systemic racism, poor education outcomes, or if those affected were part of a generation where they were physically prevented from using the language.
While learning and upskilling in te reo should be celebrated, she suggested more tact and consultation could be applied to individual cases.
Lawyers should work together to assess the possibility of language trauma of any defendants, victims or family present, and take an approach which was inclusive and made the court a more comfortable place.
Stephens said this disconnection with the language could lead to whakamā (shame), but most of those people still yearned for their reo.
“Most Māori that I’ve ever come across who’ve been disconnected from their language, they feel it as a lack, and like a kind of heart sickness. And therefore normalised te reo Māori in the world around them – and the world around all of us – is actually really important.”
It came down to how the judge wanted to run the courtroom, their level of knowledge and education, as well as how lawyers prepared their clients so they felt comfortable.
‘Symbols mean something’
Kahui Legal partner Matanuku Mahuika said when people were disconnected from their language it highlighted wider issues, but their suffering should not stop others using the language.
“Those with strong cultural roots are much less likely to fall into the criminal justice system."
Mahuika advocated for te reo being integrated into all courts, and across the criminal justice system, rather than having separate Māori courts.
There also seemed to be a genuine intent by the Crown to normalise te reo in the courts which could only be a positive thing, he said.
"It's only virtue signalling if you don't follow up on the signal."
Stephens said to some degree the use of the language by the Crown was symbolic, “but symbols mean something”.
“It’s only virtue signalling if you don’t follow up on the signal.”
All staff at Kahui Legal took te reo lessons in order to gain a better understanding of the language and the culture and to best represent their clients. who were 95 percent Māori.
Stephens suggested this approach should be more widespread, both through practices and training institutions.
Currently, the use of te reo in law courses was on an ad hoc basis, but having a good understanding of both te reo and English would help better prepare lawyers and law students for an increasingly bilingual environment.