Oranga Tamariki found to breach Treaty

By Rukuwai Tipene-Allen

The Waitangi Tribunal has found tamariki Māori suffer significant and irreversible prejudice as a result of Oranga Tamariki's actions.

The tribunal conducted an urgent inquiry and has just released the He Pāharakeke, He Rito Whakakīkinga Whāruarua Oranga Tamariki Urgent Inquiry report.

The tribunal concludes persistent and significant disparity can be attributed to the effects of alienation and dispossession.

It finds disparities are a direct consequence of the Crown’s intrusion into the rangatiratanga of Māori over their kāinga. 

The tribunal says that there have been breaches of the principles of a Treaty of Waitangi partnership, active protection and options.

It says these breaches cause significant prejudice.

Article 2 of Te Tiriti o Waitangi guarantees to Māori the right of cultural continuity embodied in the guarantee of tino rangatiratanga over their kāinga. The tribunal has found the Crown has failed to honour that guarantee. 

The Crown's failure

In the inquiry, the Crown has acknowledged there was a significant disparity between the number of tamariki Māori and non-Māori being taken into care.

The Crown accepted colonisation, structural racism and historical injustices for whānau, hapū and iwi contributed to this disparity.

The Crown recognised it had failed to comprehensively implement the recommendations of the 1988 Ministerial Advisory Committee report Puao-Te-Ata-Tu, a report on aspects of the Social Welfare Department that were detrimental to the Maori people.

The tribunal recommends the Crown steps back from further intrusion into what was reserved for Māori under te Tiriti and allow Māori to reclaim it.

It says Māori should be given the right to realise rangatiratanga over their kāinga.

Many submitters had argued that Oranga Tamariki should be shut down but the tribunal has not supported that view.

Māori to take control

Instead, it recommends that a Māori transition authority be established. This body must be independent of the Crown and its departments. Its primary function will be to identify the changes necessary to eliminate the need for state care of tamariki Māori. This body should be established as a priority and given a wide mandate to consider system improvements both within and outside of the legislative and policy settings for Oranga Tamariki. 

The establishment of such authority has been driven by the likes of Lady Tureiti Moxon who welcomes the recommendation and challenges the government to take up the opportunity. She said: "The question is whether the minister is going to be just as brave and enable Māori to take control of our own mokopuna, tamariki ourselves."

The tribunal also recommends the Crown assists the transition authority with information and advice as required, and that the Crown ensures the transition authority has sufficient financial and administrative support to undertake and deliver reform of this scope.

The tribunal recommends the transition authority has a clear mandate to design and reform the care and protection system for tamariki Māori, coupled with the authority to work in genuine partnership with the Crown to ensure a modified system is properly implemented.

Systemic change

The Tribunal says the Crown must support this transformation but it should not lead it.

The tribunal's recommendations closely resemble actions urged in the Children's Commission report after investigation of an Oranga Tamariki.

Children's Commissioner Judge Andrew Becroft today called the tribunal's report "seminal", saying it has the potential to "reverberate' throughout government and says it could lead to fundamental and systemic change to the care and protection system. 

National Urban Māori Authority chair Lady Tureiti Moxon, who was a member of the governance group for the Māori-led Inquiry says, “I am absolutely mind blown by it – because everything we’ve been pushing hard for in terms of ‘by Māori, for Māori’ or mana motuhake and an independent Māori authority has been validated.”

The Waitangi Tribunal  inquiry covered three issues:

  • Why has there been such a significant and consistent disparity between the number of tamariki Māori and non-Māori children being taken into state care under the auspices of Oranga Tamariki and its predecessors?
  • To what extent will the legislative policy and practice changes introduced since 2017, and now being implemented, change this disparity for the better?
  • What (if any) additional changes to Crown legislation, policy or practice might be required to secure outcomes consistent with Te Tiriti/the Treaty and its principles?