February 2019 Māori Law Review
Sir Edward Taihakurei Durie student essay competition 2018
He Taonga Te Tamariki
Foreword by Dr Carwyn Jones, Māori Law Review co-editor
This year, in addition to the winning essay, we are publishing a further entry from the 2018 Sir Edward Taihakurei Student Essay Competition.
The Māori Law Review sponsors the student essay competition each year and publishes the winning essay, as determined by the competition judges, who are drawn from our board of consulting editors.
Last year, our panel of judges indicated that they wished to highly commend the essay submitted by Eru Kapa-Kingi. Eru (Ngāpuhi, Te Aupōuri, Waikato-Taunui, Te Whānau-a-Apanui) is in his fifth year of study at Victoria University of Wellington, completing an LLB (Hons) and a BA (majoring in Māori Studies and Te Reo Māori).
Eru’s essay is titled ‘He Taonga Te Tamariki’ and focuses on the recent Oranga Tamariki reforms.
Our judges noted not only the very high quality of this essay, but also the importance of the subject matter it addresses and were keen to see it published. We are very pleased to be able to include Eru’s essay in this issue.
He taonga te tamariki
Tamariki, rangatahi and whānau Māori have long suffered at the hands of a system which rejects their right to exercise power for their own best interests through a uniquely Māori framework. Since the 1980s Māori have called upon the state system to provide the necessary tools to look after their own. This desire is yet to be realised. However, this essay will explore an amendment that will affect the operation of the Oranga Tamariki Act 1989 (the Oranga Tamariki Act). From 1 July 2019 at the latest, a new Treaty of Waitangi-based duty, owed by the Chief Executive of Oranga Tamariki Ministry for Children (Oranga Tamariki), will come into force. This new duty was introduced by s 14 of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (the 2017 Act). This essay will analyse this forthcoming duty and outline its significance to Māori.
Overall, the new duty, although inhibited by the absence of a direct obligation on the Chief-Executive, has the potential to give life to a genuine Crown-Māori partnership in the oranga (wellbeing) of tamariki Māori. This potential is through the devolving of power to iwi and other Māori organisations in state care and youth justice where Māori are involved. Such a devolution of power will improve the situation for Māori and could lead to a reduction of the gross over-representation of Māori in the systems of state care and youth justice.
Kua muia e te Māori – the over-representation of Māori
The Ministry of Social Development has noted the over-representation of Māori children and young people in the state system and further noted that this over-representation has worsened over time. In 2001, Māori made up 45 percent of Oranga Tamariki’s total client group, being 55 percent of those in state care and 48 percent of those in youth justice. Presently, 60 percent of children in state care are Māori. This is despite the fact that only 30 percent of all children born in New Zealand now are Māori.
As to the youth justice system, Māori currently comprise 60 percent of all young people involved, and 70 percent of young persons placed in secure youth justice residences, while only making up 25 percent of children and young people aged 10 to 16 years in New Zealand. Māori-related figures have also increased in other respects. Up to 40 percent of initial intake inquiries, and 50 percent of all investigations involve Māori.
These statistics highlight the grossly disproportionate representation of Māori in the system. The fact that these figures have only increased since 1989 reinforces that the legal regime introduced at that time has failed Māori and achieved nothing in reducing these statistics.
He ture hou – the new duty
Generally, the amendments to this regime are intended to overhaul the old system. The Expert Panel which contributed to the policy of the amendments reported that a fundamental shift in the original scheme is necessary to achieve better outcomes for vulnerable children, especially Māori. The Panel also stated that the social sector should recognise the value in the Treaty of Waitangi partnership within its new operating model.
Specifically, under s 7AA, the Chief Executive must meet three duties: The Chief Executive must ensure that:
- 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.
- Policies, practices, and services 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.
- The department seeks to develop strategic partnerships with iwi and Māori organisations (including iwi authorities), to innovate proposals and set expectations to improve outcomes for Māori, as well as provide opportunity to delegate functions under the Oranga Tamariki Act to appropriately qualified people within those organisations.
The purpose of s 7AA is to recognise and provide for practical commitment to the principles of the Treaty. The first two parts of the duty are directed at decisions of policy, practice and service, while the last part is directed at forming partnerships with iwi and Māori organisations to better provide for tamariki Māori (the Partnership Duty).
The Partnership Duty and its significance to Māori is the focus of this essay. This essay will show that the Partnership Duty could lead to positive developments in practice, which in turn would reduce the over-representation of tamariki Māori in state care and youth justice.
However, it's important to note that the section's statutory wording poses some threat to its effectiveness. This threat is because the duties under s 7AA(2), although mandatory, are drafted in weak terms, thereby potentially diluting their effectiveness. The Chief Executive is only bound to “seek to develop” strategic partnerships with iwi, Māori organisations and iwi authorities. By simply contacting these entities with a view to forming a partnership, the Chief-Executive would discharge this duty. The Chief Executive is not statutorily bound to see through the formation, nor the continuation, of a strategic partnership with any of these entities, nor the delegation of power. The Human Rights Commission criticised this aspect of the Partnership Duty, claiming it made it nebulous and recommended strengthening the provision by placing a more direct duty to develop and implement strategic partnerships. The state needs to remedy these weaknesses in order to guarantee better social outcomes for whānau and tamariki Māori.
Nonetheless, the Partnership Duty has significant potential to reduce the number of Māori in state care and youth justice, assuming the Chief Executive is proactive in pursuing Crown-Māori partnerships with Māori entities under s 7AA. The value of this duty rests on importing the expertise and natural attributes of iwi and other Māori organisations who are best placed to deal with tamariki and whānau Māori. The law has never made way for Māori to manage their own affairs in this area, despite the gross over-representation of Māori. In other words, a by Māori, for Māori model has never been realised. However, this Partnership Duty could be the means to achieve such a model.
Ki tua o te awe māpara – looking to the future
The Partnership Duty has the potential to address fundamental issues with the state care and youth justice system which unduly affect Māori. Namely, it can respond to the fact that the system is not designed in a way that understands Māori ways of being. This section will explain how the Partnership Duty might be used to reduce the over-representation of tamariki Māori in Oranga Tamariki's care, demonstrate its significance for te iwi Māori, and outline what a Crown-Māori partnership might look like.
Oranga Tamariki could use the Partnership Duty provision to devolve more control to iwi or other Māori organisations who are willing and able to provide services in the care of tamariki Māori and the sentencing and rehabilitation of young Māori offenders. Specifically, s 7AA(2)(c)(iv) allows the Chief-Executive to delegate functions under the Oranga Tamariki Act to Māori entities. This power of delegation would be the primary means of devolving these powers and functions.
Greater scope ought to be provided to devolve state power to Māori who are willing and able to exercise such power, particularly in policy and decision-making about the welfare of tamariki and rangatahi offenders because Māori entities can provide for and deal with tamariki and rangatahi within a uniquely Māori and more culturally-appropriate framework. This submission echoes that of the New Zealand Māori Council in its scrutiny of the 2017 Act, and reflects the aspirations of the Puao-te-ata-tu Report of 1988 which stated that: the state should recognise that Māori are best placed to exercise power, provide services, and form policy for the betterment of Māori.
However, devolution can and should be based on the principle of partnership because the state should not relieve itself entirely of its duty to provide for the equality of Māori, as promised under Article III of the Treaty. The Crown must provide the infrastructure and resources to iwi and Māori organisations for this proposed framework.
State and judicial services contain current examples of where the recognition of mana Māori has been realised leading to better outcomes for Māori. One example is the Rangatahi Court system, an initiative of the judiciary. This system is a form of Youth Court which often takes place on marae and implements tikanga Māori process. According to a 2012 report by the Ministry of Justice, this Court has been successful in:
- engaging young Māori;
- encouraging more positive behaviour by young Māori; and
- connecting young Māori with their wider community and building a sense of Māoritanga within the rangatahi who participate.
This Court provides a good example of more culturally-appropriate practice influencing real change.
The Whānau Ora initiative, established in 2010 by the New Zealand Government, provides a platform for whānau Māori to become more self-managing and independent. Implementation powers were given to Te Pou Matakana, and Te Pūtahitanga o Te Waipounamu (both Māori commissioning agencies) to invest directly into Māori communities across Aotearoa. This initiative was formed as the state recognised that these agencies are better placed to make funding decisions for Whānau Ora provider collectives, iwi and marae. There is also evidence that Whānau Ora has delivered many positive outcomes for whānau Māori.
These examples provide evidence of two things. First, structures that are more cognisant of Māori ways of being work better for Māori. Second, Māori are best placed to provide for and make decisions which involve Māori and, therefore, Māori should not be inhibited from doing so. Section 7AA could be used to build on and empower this type of service.
Recent cases also show there is a growing willingness by the Crown to devolve decision-making power and resources to iwi Māori in state services involving tamariki and rangatahi Māori. In 2012, Ngāi Tūhoe formed a partnership with the Crown as part of the settlement of their historical Treaty claim, whereby specific agencies of the Crown recognised the mana motuhake of Tūhoe. This partnership effectively allows Tūhoe to provide services to their own people, some of which are provided by Oranga Tamariki within state care and youth justice. This instrument marks the beginning of devolution of authority to iwi Māori and the Crown’s realisation that iwi Māori and like entities are best placed to provide for their constituencies.
Another Crown-Iwi partnership example concerns Ngāti Tūwharetoa, who have formed a relationship with Oranga Tamariki and the Police whereby Tūwharetoa provide advice on major issues involving whānau Māori in the area, as well as guidance on the formation of strategies in working with these whānau in general practice. This relationship has been positive for all parties involved and shows the benefits of the Crown and iwi working together.
A partnership framework
The devolution of power and its wider framework will be discussed in greater detail below, drawing inspiration from the examples above and balancing what will be most effective and representative of partnership.
Iwi or other Māori organisations who are willing and able should be delegated functions and powers through the Partnership Duty provision within state care and youth justice. These powers and functions devolved from Oranga Tamariki would be limited to cases where tamariki Māori are involved. An iwi or other Māori authority receiving these powers, for example, could take the form of a social services arm as a part of a wider post-settlement governance entity or other type of Māori organisation. There could also be Māori organisations set up specifically to exercise these powers and functions, for example, an entity which represents urban Māori. Oranga Tamariki should fund the creation and maintenance of the infrastructure for Māori entities to exercise these functions and powers, with the Crown providing administrative support.
This devolution of power recognises the utmost importance of tamariki to Māori. It also recognises that Māori are best placed to make these decisions as well as consider tikanga Māori in exercising these functions. This model will go further in reducing the disproportionate harms suffered by Māori within the state care and youth justice system as well as striking a balance between practice on the ground and having an appropriate legal infrastructure. It also reflects the principle of partnership as the Crown would maintain a vital support role.
As shown, recent developments in government policy suggest that the legal and political recognition of rangatiratanga Māori is becoming a reality. However, some oppose devolution, arguing these responsibilities should remain with the Crown. The Hon Pita Sharples during his time as Minister of Māori Affairs stated that devolution of power to iwi reflects badly on the state, criticising it as “symptomatic of a failure of successive governments to provide for the social needs of iwi and Māori”. However, so long as the principle of partnership remains central, optimal outcomes can be achieved. Further, the Crown will not be fully relieved of its duties to Māori.
A power shift is also in the best interests of Māori, as history shows the Crown has been failing, and is likely to continue doing so. Mā te iwi Māori kē tātou anō e whakaora. Māori and only Māori will improve our current situation.
There has been a long and continuing failure by the Crown in respect of tamariki and rangatahi Māori. A new approach where the Crown can devolve authority to Māori to provide services and make decisions involving tamariki and rangatahi Māori, whilst also providing resources and support to uphold the principle of partnership, is required for real change. This legal development can make this a reality. It is true the Crown holds primary responsibility. However, this does not preclude the opportunity for the Crown and Māori to work together for the oranga of tamariki and rangatahi Māori through s 7AA.
Hei whakatepe – conclusion
This essay has shown the significance of new duties that will be owed by the Chief Executive of Oranga Tamariki for te iwi Māori from July 2019 under s 7AA of the Oranga Tamariki Act. It potentially opens a new path, making way for the rangatiratanga of Māori entities to exercise powers and functions concerning tamariki and rangatahi Māori through a Crown-Māori partnership model. This model will be more effective in the endeavour to improve the situation for Māori and thereby Aotearoa whānui in state care and youth justice.
For too long the Crown has rejected the mana of the wider Māori collective in respect of caring for and nurturing the younger generations. This neglects the importance of those generations to Māori. Kei wareware, he taonga te tamariki.
 The Modernising Child, Youth and Family Panel Modernising Child, Youth and Family Expert Panel: Interim Report (Ministry of Social Development, Version 1.0, July 2015) at 8.
 At 34.
 The Modernising Child, Youth and Family Panel Expert Panel Final Report: Investing in New Zealand’s Children and their Families (Ministry of Social Development, December 2015) at 49.
 Ministry of Social Development Regulatory Impact Statement Investing in Children: Foundations for a child-centred system (New Zealand Government, August 2016) at .
 The Modernising Child, Youth and Family Panel Modernising Child, Youth and Family Expert Panel: Interim Report, above n 3, at 79.
 At 8.
 At 61.
 Oranga Tamariki Act 1989, s 7AA(2)(a).
 Section 7AA(2)(b).
 Section 7AA(2)(c).
 New Zealand Human Rights Commission “Submission on Children, Young Persons and their Families (Oranga Tamariki) Amendment Bill” at 8.
 The Modernising Child, Youth and Family Panel Expert Panel Final Report: Investing in New Zealand’s Children and their Families, above n 3, at 61.
 New Zealand Māori Council “Our Children, Our Right: The Māori Council submission” at 1.
 Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare Puao-Te-Ata-Tu (Day break) (New Zealand Government, September 1988) at 18 and 24.
 New Zealand Māori Council v Attorney-General  NZSC 6,  3 NZLR 31.
 Judge Heemi Taumanu “Rangatahi Courts of Aotearoa New Zealand – an update” (November 2014) Māori Law Review <http://Māorilawreview.co.nz/2014/11/rangatahi-courts-of-aotearoa-new-zealand-an-update/>.
 Kaipuke Consultants Evaluation of the Early Outcomes of Ngā Kooti Rangatahi Final Report (Ministry of Justice, 17 December 2012) at [8.4].
 Te Puni Kōkiri “Whānau Ora” <https://www.tpk.govt.nz/en/whakamahia/whānau-ora>.
 Te Puni Kōkiri “Our Whānau Ora Stories” <http://www.tpk.govt.nz/en/whakamahia/whānau-ora/our-whānau-ora-stories>.
 Ngāi Tūhoe and Government of New Zealand Service Management Plan (November 2012) at 32.
 New Zealand Law Foundation and Henwood Trust Rangatahi Māori and Youth Justice: Oranga Rangatahi (Research Paper prepared for the Iwi Chairs Forum) (Iwi Chairs Forum, March 2018) at 30-31.
 Leadership, autonomy.
 Hon Pita Sharples “Treaty relationships need rebalancing: Sharples” (22 October 2010) Beehive.govt.nz <https://www.beehive.govt.nz/release/treaty-relationships-need-rebalancing-sharples>.
 New Zealand as a whole/generally.