I have read the pre-publication Report of the Waitangi Tribunal (Wai 2915) – Oranga Tamariki Urgent Inquiry – with great interest. It is, at least potentially, a ground-breaking report. It signals the possibility of significant systemic change to the child protection system in Aotearoa – especially for Māori. The report should, I think, be read by everyone with an interest in this future. The core recommendation for a transformational transition authority is, I believe, a challenge and an opportunity which must be grasped by the state.
Contemporary Tiriti / Treaty Claims
It is useful to set out some conceptual building blocks. The Waitangi Tribunal is concerned with the rights and obligations which flow from te Tiriti / the Treaty. The tribunal is a legal body and, as such, is obliged to consider claims through a legal lens – with reference to precedent and understandings of te Tiriti that have been clarified over time. The Tribunal is concerned with questions of sovereignty, authority, harm, and redress. This rights-based approach generates important insights although it also risks paying insufficient attention to the economic and political drivers of racism and class-based oppression. Having said that, this report goes some way to acknowledging these intersections.
The report recognises that disparities for Māori are rooted in colonial dispossession, and in “a failure by the Crown to honour the guarantee to Māori to the right of cultural continuity embodied in the guarantee of te tino rangatiratanga” (Report, p.xiii ). In other words, “indigenous people have a right to a particular way of life”, which is protected by the promise of te Tiriti. The Crown’s failure to uphold this right is linked with “hostility to the promise itself” (p.12): in that “efforts to assimilate Māori to the Pakeha way – is perhaps the most fundamental breach of the Tiriti / the Treaty and its principles” (p. xiii).
Political and Economic Context
Cultural assimilation has been the primary driver of state policy towards Māori over time and this regime has been continuously resisted (Harris, 2007). However, it is a potentially misleading to see this as a simple process of cultural imperialism. Colonisation involved the violent imposition of a particular ‘Pakeha way’: liberal capitalism (Poata-Smith, 2002). Individual title to private property is the cornerstone of the liberal capitalist system. The destruction of communal land ownership was, accordingly, the main objective of colonial policy.
Those early Pakeha power brokers knew exactly what they were doing. It was summed up by the distinguished 19th century politician Sir Francis Dillon-Bell when he said, ‘The first plank of public policy must be to stamp out the beastly communism of the Maori’.
(Puao te Ata Tu, 1986, p. 57)
Once Māori were effectively alienated from their traditional means of subsistence they were ‘free’ to provide wage labour for the colonial economy. This process spurred the urban migration of Māori from the 1960s.
The intensity of Māori migration to cities remains one of the most significant experiences of rapid urbanisation seen by a people anywhere in the world. Individuals, whānau, hapū and iwi were affected by the speed at which whānau structures, cultural ties, economic underpinnings, and community were eroded. (Cook, 2020, p. 7-8)
Poata-Smith (2002) connects urbanisation with the larger story of land alienation and the associated destruction of an economic base outside of capitalist social relations.
The assimilative ideology of ‘one people’ functioned to conceal the reality for the majority of Maori. Although drawn into the working class, Maori workers found themselves in the worst jobs, crammed into inadequate housing, and with inferior technical education that limited their opportunities for economic advancement. Moreover, finding employment was not a forgone conclusion.
(Poata-Smith, 2002, p. 149)
Urban migration exposed Māori to the ravages of the state care system. We should all know the sorry abusive history associated with this. The policy shift from the late 1980s to the placement of children with whānau was never adequately supported or resourced. Real authority was not provided to hapū, iwi or kaupapa Māori organisations. Māori were expected to assume responsibility for their own at the same time as they bore the brunt of economic restructuring. Trade unions were weakened by strategic legislation and traditional working-class industries were outsourced to the global labour market.
Following the 1987 crash, at its worst, New Zealand had sustained unemployment of 10.5% in 1992 (StatsNZ n.d.). However, Māori unemployment at the same time was 26%, with Non-Māori unemployment, including Pasifika, at around 7–8% (StatzNZ n.d.). Mainstream Aotearoa New Zealand shifted the pain of its restructuring from itself to the Māori population and, to a growing extent, to its Pasifika population. (Eketone, 2020, p. 37)
This is what I mean by the importance of understanding the economic and political context within which the argument for cultural recognition is framed. Importantly, although capitalism does not get a mention, the Tribunal report accepts that racist outcomes have arisen from external drivers (within a Treaty framework) as well as factors internal to the OT system.
Active protection means recognising that Māori parents struggling in poverty have an equal right as citizens to meet their children’s needs as do the better-off in society. Active protection means recognising that the vast majority of whānau in contact with Oranga Tamariki are not out to harm their tamariki, but they may have ongoing needs that place stress on the whānau. These include factors such as poverty, poor housing, poor mental health, substance abuse, intimate partner violence, or children with high needs. Growing inequality and the disparities in child protection, education, justice, and health that result are not the inevitable outcomes of individual choice. They are substantially the outcomes of legislation, policy, and economic settings about which a society has choices. Active protection requires substantive changes designed to address these structural conditions.
Institutional Racism – Internal Drivers
This is not to say that our society is not riddled with institution racism as captured in the following excerpt from the Tribunal report: “Johnny Apatu, a witness providing evidence in support of claimant Rex Timu, notes that ‘we [Māori] are the living result of that racism … every Māori person knows what racism feels like’”(p.51). The Crown, in the evidence provided by Gráinne Moss, conceded that “structural racism is a feature of the care and protection system which has adverse effects for tamariki Māori, whānau, hapū and iwi” (p. 175) and asserted that efforts to partner and engage with Māori are beginning to bear fruit.
However, the Tribunal upheld claimant concerns that a range of factors inherent to the operation of Oranga Tamariki contribute to profoundly unequal outcomes for Māori in the statutory child protection system.
These concerns can be summarised as concerns about Crown control ; legislative and policy coherence ; the notify-investigate model ; cultural competency ; variable practice ; family group conferences ; section 78 (with or without notice uplift) practices ; and monitoring and accountability. (Report, p. 56)
Issue and Findings
The specific issue for the Tribunal was whether “policies and practices inconsistent with te Tiriti / the Treaty have caused significant and irreversible prejudice to tamariki Māori taken into State care, as well as their whānau, hapū, and iwi?’ (p. 1) The inquiry found that the policy and practice of the state child protection agency has resulted in significant harm to Māori.
The prejudice arising is profound. In confidential sessions we heard directly from those who had tamariki taken from them by Oranga Tamariki. The impacts are felt over generations. We heard from those who had been in care about the effects of disconnection and we heard from a range of remarkable individuals and organisations working to help whānau in contact with the system. The case for substantial redress is obvious, but its form less so. (Report, p.25)
The Tribunal report documents a violation of the partnership principle: “a failure of both process (insufficient engagement with Māori in the design of the legislation and policy), and substance (significant intrusion into the sphere of Māori rangatiratanga without consent)” and argues that “the principle of active protection requires the Crown to not only return power and control to Māori – but to direct reliable and proportionate resources towards laying a durable foundation for whānau Māori to thrive as Māori” (p.99).
The Tribunal finds that the legislative policy and practice changes introduced since 2017 are not sufficient to secure outcomes consistent with te Tiriti / the Treaty and its principles.
In addition to a range of operational shortfalls the Tribunal challenges the appropriateness of the notify / intervention child protection paradigm.
Claimants support Associate Professor Keddell’s arguments that the notify investigate model reproduces social inequities and compounds societal racism and exposure bias at every decision point. Counsel for claimants submit that the Crown, in maintaining this model, despite evidence that it perpetuates and even worsens inequities, has breached its duty to actively protect Māori rangatiratanga over their kāinga … Counsel submit that a paradigm shift must be implemented to move from the notify-investigate model to a preventative model, with a genuine transfer of power and resources to a ‘by Māori for Māori’ approach being a prerequisite of any such model. (Report, p. 65)
Importantly the ‘report and detect’ child protection juggernaut is now being questioned internationally.
The modern child protection system emerged from a concern to stop babies dying or being “battered” by parents who were considered to be suffering from a lack of empathic mothering in their own lives. Poverty, bad housing and so on were screened out as holding helpful explanatory value (Parton, 1985). … Despite all the changes, the story honed in the 1960s has proved remarkably resilient in its stress on the actions of individual parents/carer, and its focus on the intra-familial as the locus of cause and consequence.
(Featherstone, Gupta and Morris, 2017, p.191)
A ‘notify and investigate’ medico-legal focus locates causation in the abusive behaviour of individuals and families. It is increasingly driven by risk and surveillance (and associated racial and class-centred bias) and effectively conceals the significance of the socio-economic inequality produced by contemporary neoliberal politics and market economics.
These factors include poverty, alienation, transience, income and housing insecurity, health and education disparities, involvement with the criminal justice system, and drug and alcohol dependency. Addressing these issues will require a bold and comprehensive all-of-government approach. Piecemeal reform of Oranga Tamariki, no matter how well designed, will ultimately fail another generation of children (Māori and non-Māori), if the same factors placing inhumane stress on families continue unabated. (Report, p.179)
Although it identifies and explores matters which need to be rectified for Treaty compliance, the Tribunal is cautious about prescription. It is very specific, however, about how the process of transformation should be initiated and led. A Transition Authority is recommended: “with a clear mandate to design and reform the care and protection system for tamariki Māori, coupled with authority to work in genuine partnership with the Crown to ensure a modified system is properly implemented” (p. xiv).
It is recommended that this authority should (initially) be comprised of the governance group associated with the recent Māori Inquiry (Ko Te Wā Whakawhiti): namely Sir Toby Curtis, Sir Mason Durie, Dame Areta Koopu, Dame June Mariu, Lady Tureiti Moxon, Merepeka Raukawa-Tait, the Honourable Sir Pita Sharples, Sir Mark Solomon, Dame Iritana Tāwhiwhirangi, and the Honourable Dame Tariana Turia. It is noted that two of the members of the governance group (Dame Naida Glavish and Sir Mark Solomon) were recently appointed to a panel to advise the minister on possible reforms to Oranga Tamariki and that this process will need to be integrated with the new, larger and independent initiative that is proposed.
Power, Trust and Future Vision
The Tribunal urges the Crown to “trust the judgement of this group and be guided by them on what is appropriate in terms of the next steps towards the establishment of a Transition Authority and the process by which its composition and functions can be settled” (p. 188).
The Crown can and should assist the Transition Authority with information and advice as required, but it must trust the Transition Authority with the task of overall design. (p.190)
This begs the question of the countless occasions where the Crown has asked for trust from Māori and subsequently failed to deliver. I am hoping that the state has the guts to accept and adopt the recommendation/s set out. This time there really might be a chance for a world leading Tiriti-compliant and (more) socially just child protection system. There is a great deal of work to be done but a pathway has been set. It is now a question of political courage.
Image Credit: Colin Hansen
Cook, L. (2020). A Statistical Window for the Justice System: Putting a Spotlight on the Scale of State Custody of Generations of Māori, Brief of Evidence Wai 2915, A040. Available from: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_161895442/Wai%202915%2C%20A040(a).pdf
Eketone, A. (2020). ‘The “Hidden Depression” that never really went away’, Aotearoa New Zealand Social Work, 32(3), 37–40.
Featherstone, B., Gupta, A. and Morris, K. (2017). ‘Bringing back the social: the way forward for children’s social work?’, Journal of Children’s Services, 12(2–3), 190–196.
Poata-Smith, E. S. (2002). The political economy of Māori protest politics, 1968-1995 : a Marxist analysis of the roots of Māori oppression and the politics of resistance (Thesis, Doctor of Philosophy). University of Otago. Retrieved from http://hdl.handle.net/10523/151
Puao Te Ata Tu (Day Break) (1988). The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare, Wellington, New Zealand, Department of Social Welfare.