The Treaty of Waitangi and Oranga Tamariki

For Court watchers there has been some interesting recent developments.

The Waitangi Tribunal has been considering complaints that the removal of reference to te Tiriti o Waitangi is a breach of te Tiriti.

Section 7AA of the Oranga Tamariki Act, which was introduced by the last National Government, is the provision in question. It places a number of obligations on Oranga Tamariki’s chief executive.

He is obliged to ensure that the policies and practices of Oranga Tamariki that impact on the well-being of children and young persons have the objective of reducing disparities by setting measurable outcomes for Māori children and young persons who come to the attention of the department.

He has to ensure that OT’s policies, practices, and services must have regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga responsibilities of their whānau, hapū, and iwi.

OT is also required to seek to develop strategic partnerships with iwi and Māori organisations, including iwi authorities, in order to provide opportunities to, and invite innovative proposals from, those organisations to improve outcomes for Māori children, young persons, and their whānau who come to the attention of the department.

It must set expectations and targets to improve outcomes for Māori children and young persons who come to its attention. There is to be a robust, regular, and genuine exchange of information between the department and those organisations and some devolution of functions is anticipated.

Regular reporting on progress is required.

The latest report highlights that the frequency of Māori tamariki and rangatahi being placed into care outside of their whanau is decreasing.

This is an important process to get right. Being placed outside of extended whanau is damaging. The sense of loss and displacement is palpable. As a lawyer I have acted for many young people for the past 35 years and the feelings of loss and hopelessness that I have seen in my clients is seared into my memory. And the restorative effect of exposure to Te Ao Maori is very clear.

If you want to get a sense of what is going wrong how about this statistic? Māori rangatahi are 68% of all rangatahi in custody but only 16.5% of the total population. Pakeha is only 13% despite comprising 72% of the population. This is an appalling statistic. It shows how damaging colonialisation and poverty are.

Iwi Social Services perform important work. I would like to single out Ngapihi Iwi Social Services who in my experience have done outstanding jobs with a number of young people.

The Act Party and its MPs do not like the provision.

They ran a campaign against it last year claiming that children were being taken out of safe, loving foster homes because their foster parents are the ‘wrong’ race. The subtext of the campaign was that Māori were being treated in a privileged manner.

No examples were provided which at one level is understandable. Both the Youth Court and the Family Court have restrictions on what can be published about cases.

Some cases get reported like this one but the decision is always more nuanced than what is made out. The case I linked to clearly shows that the Judge placed importance on children continuing with their immersion in Te Ao Māori . This is entirely different to proving that Maori children being fostered with Pakeha families has been stopped.

Karen Chhour who has more recently fronted the work for Act is in her capacity as Minister for Children progressing the efforts to repeal section 7AA. She claims, because she was in Oranga Tamariki care when she was a child, to have special expertise in the area. Her time with Oranga Tamariki was well before the Treaty clause was inserted and her ability to comment authoritatively on the effect of the provision is questionable.

The Waitangi Tribunal decided in an unusal move to summons Chhour to give evidence. The rationale for this was that “it would assist our inquiry to have the opportunity to hear from the Minister, to better understand the reasons for the policy, and, as appropriate, test both the philosophical and empirical premises for the policy against consistency with the Treaty and its principles”. It did not think that officials could answer these questions adequately as it thought that the impetus behind the proposal was political rather than departmentally driven.

The Tribunal’s jurisdiction allows it to “inquire into the Treaty-consistency of actions and policies of the Crown and Acts of the legislature, as well as failures to act, develop policy or enact legislation from 1840 onwards”. It has powers to make recommendations which are not binding on the Crown but clearly a finding by the Tribunal has to be given serious consideration.

Choor applied to cancel the warrant and proceedings were filed in the High Court at Auckland.

Judge Isac has heard the case and has concluded that the requirements of comity between the Crown and the Courts meant that the summons should be overturned. His view is that the Tribunal had adequate information to continue with its hearing. He considered that Chhour’s refusal to attend could be reflected by the making of adverse findings.

The parties have appealed. This could be a tricky case for the Court of Appeal.

This incident has given the usual suspects to jump up and down and seek to convert the dispute into another culture war.

Shane Jones and David Seymour were both criticised for breaching Section 4.13 of the Cabinet Manual after criticising the Waitangi Tribunal’s actions. Jones previously described the Tribunal as operating as a Star Chamber and Seymour accused it of “race fanaticism”. Seymour went as far as to claim that Choor had more mana than the Waitangi Tribunal. He really has this innate ability to say the most stupid of things.

Luxon showed his weakness by saying their comments were ill considered but taking no further action. In other cabinets Ministers have been sacked for such behaviour.

This is another issue that is really rankling Māori. The thought processes behind the proposal are confused and lacking in clarity. The section is having a practical and beneficial effect. Repealing it involves nothing more than hubris and a deep disrespect for Te Ao Māori and the interests of the young people.