Sustained and systematic breaches of the Treaty of Waitangi by the Crown in taking young Māori into state care are cited by the Waitangi Tribunal in calling for a new Maori-led authority
The Waitangi Tribunal has found the Crown's removal of Māori children into state care and the structural racism of Oranga Tamariki to be a profound and ongoing breach of the Treaty of Waitangi - and recommends a new Māori authority to oversee care and protection of tamariki.
The authority's function would be to identify changes needed "to eliminate the state sector care of tamariki Māori" and it should be established and funded as a priority.
In a damning report issued today after an urgent hearing following Newsroom's documentary detailing an attempt by OT to remove a baby from his mother at Hawkes Bay Hospital, the Tribunal says:
"The signatories to the Treaty did not envisage any role for the Crown as a parent for tamariki Māori, let alone a situation where tamariki Māori would be forcefully taken into state care - in numbers vastly disproportionate to the numbers of non-Māori children being taken into care."
It recommends "the Crown steps back from further intrusion into what was reserved to Māori under te Tiriti/the Treaty and allow Māori to reclaim their place."
"Nothing could be more fundamental to te Tiriti/the Treaty relationship and its future success than the right of Māori to raise their tamariki to be healthy, happy and grounded in te ao Māori."
And: "The Crown has not been a good provider of a safety net for tamariki Māori."
It says the Crown, through Oranga Tamariki, breached its obligation to honour the right of Māori to exercise tino rangatiratanga over their kāinga (home, village, people) in eight different ways up until 2017 and in six ways after new legislation in that year was supposed to change the way the children's agency interacted with Māori.
The use of urgent 'uplift' orders without notice to whānau - known as Section 78 orders - is found to have "both demonstrated and perpetuated issues of structural racism and contributed to disparate rates of Māori and non-Māori tamariki being taken into care."
"It is difficult to overstate the severity of the breaches we have found of the guarantee of tino rangatiratanga over kāinga and of the principles of partnership, active protection and options. The prejudice arising is profound...The impacts are felt over generations.... The case for substantial redress is obvious."
The Tribunal wants oversight of care and protection of tamariki shifted to a Māori Transition Authority made up of a group of elders who initiated and drove the Māori-led inquiry into OT and its practices in 2020. It has also endorsed the community and legal figures who took the urgent claim to the Tribunal as those whom the Authority should work with, alongside the Crown.
It says such a move is not separatism but rather what was originally guaranteed to Māori under the Treaty.
The report lays out statistics showing the imbalance: Māori tamariki have been removed into state care at a rate five times more than non-Māori. Around 4000 Maori children are in care. Māori children were subject of reports to OT at a rate far higher than non-Māori. Although Māori are 25 percent of children they make up 60 percent of those in care. And almost 70 percent of those in the youth justice care of OT were Māori.
During the claim hearings, Crown lawyers were asked by the Tribunal if the state accepts the disproportionality of such figures was inconsistent with the Treaty. However the Crown, while acknowledging "the disproportionate number of tamariki Māori entering and remaining in care is undesirable and unacceptable" went no further than accepting the Treaty requires the Crown to take all reasonable steps to address inequity.
The Tribunal says: "We find compelling the claimants' argument that asymmetrical control of the care and protection system perpetuates structural racism and therefore causes significant disparity in the number of Māori and non-Māori entering care.
"We accept this imbalance has caused and continues to cause, prejudice to Māori tamariki, whānau, hapū and iwi."
It argues the principle of 'active protection' of Māori rights and interests under the Treaty means the Crown must not only return power and control to Māori but also "direct reliable and proportionate resources towards laying a durable foundation for whānau Māori to thrive as Māori."
It notes: "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."
The Tribunal report is the latest of five inquiries into OT, the removal of Māori pēpi and tamariki and the system of uplift orders. The others are:
After defending the agency and criticising Newsroom's video documentary, the former chief executive of Oranga Tamariki, Grainne Moss, appeared before the Tribunal hearing and accepted her agency had been structurally racist. When the new Government was elected late in 2020, with intent to change the system, she quit the role. Children's Minister Kelvin Davis installed Māori leader Sir Wira Gardiner as interim chief executive and appointed an advisory group including two of the leaders of the 2020 Māori-led inquiry.
The Tribunal does not think OT can be transformed from within. "It is our conclusion that the systemic problems inherent in the current system are too powerful for truly transformational change to emerge...." and "Piecemeal reform of Oranga Tamariki, no matter how well designed, will ultimately fail another generation of children."
Its new recommendation of a Māori Transition Authority would aim to leave the state with its coercive legal power to intervene to protect children, and leave Oranga Tamariki in place for now, but hand oversight and the direction of care and protection to the new body.
The Tribunal urges the Crown "to trust the judgment" of the authority "and be guided by them".
"It is for Māori to determine how the prejudice should now be addressed and how rangatiratanga is to be restored."
Interestingly, the tribunal notes that the widely-respected Puao-Te-Ata-Tu report of 1988, which contained a sweeping vision for change, "withered on the vine".
"If a report of the calibre of Puao-Te-Ata-Tu is left to wither, what does it take to convince the Crown that it must now relinquish a degree of power and control to Māori? How could the Crown be convinced that to do so is not separatism but simply what was originally granted to Māori under the Treaty?
"The disparities we have examined reflect decades of dispossession, alienation and sustained attempts to suppress and assimilate, rather than respect, the Māori way of life."
It says: "Simply put, the gatekeepers are no longer Māori, whānau and hapū as envisaged under the Treaty, but statutory social workers, court-appointed lawyers, psychologists and judges."
The Tribunal finds the Crown and Oranga Tamariki breached the Treaty systematically and in a sustained way, in its uplifts, its system of notifications over children, its variable practice nationwide, its lack of training and cultural competency of staff and its failure to repeal unjust laws.
Crown lawyers told the Tribunal that since 2017's law change and after the 2019 Newsroom documentary statistics show an improvement in the numbers of tamariki removed or in care. But lawyers for claimants said the statistics were from too short a timeframe to be meaningful. They said the Crown's proposed transformation of OT over a 10 year period was cosmetic and not durable.
The Tribunal report says: "It is clear to us that Māori must lead and direct the transformation now required. This is because the essential long-term solution lies in strengthening and restorying whanaungatanga.
"While the Crown has a significant ongoing role, this is not something that it can or should lead."
It writes that the Treaty's guarantee of tino rangatiratanga over kāinga, the continuity of chiefly authority over the village, over the home "is a guarantee of the right to continue to organise and live as Māori.
"Put another way, it is a guarantee of the right to cultural continuity. Fundamental to that is the right to care for and raise the next generation....”
