On the 21st of May 2024, the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill had its first reading in Parliament. The Bill seeks to repeal section 7AA of the Oranga Tamariki Act 1989, which is the Treaty of Waitangi provision within that legislation. Section 7AA requires the government to take a number of steps aimed at upholding Te Tiriti and reducing disparities for Māori within the child protection system. As a result, its planned repeal has been met with widespread opposition from Māori, including a claim to the Waitangi Tribunal.

In this article, Luke Fitzmaurice-Brown* argues that those advocates are right to oppose the repeal of section 7AA, but that equally, we should not equate section 7AA with the full realisation of tino rangatiratanga over kainga protected by Te Tiriti. The provision falls far short of that. In light of broader efforts to diminish the influence of Te Tiriti o Waitangi in law and policy, the damage the current child protection system does to Māori, and the possibility that section 7AA provides a pathway for tino rangatiratanga to be realised in future, section 7AA is still worth saving, but we must keep that wider context in mind.

Hei timatanga kōrero – Introduction

Recent developments in child protection law as it affects tamariki and whānau Māori have moved at pace. In late 2023, the incoming coalition government announced as part of it’s coalition agreement[1] that the government would repeal section 7AA of the Oranga Tamariki Act 1989. This came as no surprise given the previous year Karen Chhour, then an opposition MP and now the Minister for Children, introduced a Member’s Bill[2] to Parliament which also sought to repeal section 7AA.[3] The majority of MPs voted against that Member’s Bill at its first reading, but it showed that section 7AA would likely come under scrutiny in the event of a change of government

Nevertheless, the speed with which the Minister has moved to repeal the provision has been a shock, given that the relevance of Te Tiriti o Waitangi to child protection issues has been recognised since at least the 1990s.[4] An urgent Waitangi Tribunal inquiry on the repeal of section 7AA criticised the process as “rushed and arbitrary” (just one of a number of criticisms from the Tribunal discussed within this article).[5] In particular, the Tribunal highlighted the lack of consultation with Māori on the proposed repeal, the lack of evidence supporting the change, and “the significant risk of actual harm to vulnerable tamariki” among its primary concerns (at p 35). The release of that report was followed shortly afterwards by the introduction of the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill 2024 (the repeal Bill).

Section 7AA imposes a set of obligations on the Chief Executive of Oranga Tamariki “in order to recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)” (s 7AA(1)). It is not the only reference to Te Tiriti o Waitangi/The Treaty of Waitangi in the Act,[6] but it is the central Tiriti/Treaty provision within the legislation.[7] The enactment of section 7AA in 2017 marked a shift from the previous law, which did not mention Te Tiriti/The Treaty at all and had never done so previously.[8] This was despite the longstanding acknowledgement of the failures of the child protection system from a Māori perspective,[9] and the recognition of the legal relevance of Te Tiriti o Waitangi to child protection issues.[10]

Given the absence of a Tiriti/Treaty provision in the law prior to 2017, and the broader context in which the Tiriti/Treaty rights of Māori are currently seen by many as being under threat, the vocal opposition from Māori to the repeal of section 7AA is understandable.[11] However, this article argues that in seeking to defend section 7AA, advocates for tamariki and whānau Māori should exercise caution, as section 7AA falls short of the realisation of tino rangatiratanga guaranteed to Māori under Te Tiriti o Waitangi. The Waitangi Tribunal in 2021 stated that child protection issues fall squarely within the guarantee of tino rangatiratanga over kainga in Article 2 of Te Tiriti, which they described as “nothing less than a guarantee of the right of Māori to continue to organise and live as Māori.” [12]

As a result, many advocates for the Tiriti/Treaty rights of tamariki and whānau Māori find ourselves arguing against the repeal of something we know to be inadequate. This article explores that tension, acknowledging that it is currently playing out in many different areas of law and policy, not just child protection law. I argue that we can, and should, seek to protect the gains that have been made so far in upholding the guarantees of Te Tiriti/The Treaty. The Waitangi Tribunal has characterised the right of tino rangatiratanga over kainga as an overarching “right of cultural continuity,” emphasising its importance to Māori and giving further context to efforts to prevent the repeal process currently underway.[13] But we should also recognise that effort for what it is, and what it is not. In short, I argue that section 7AA is still worth saving, but we must remember that it is not tino rangatiratanga.

Kōrerorero – Discussion

The whakapapa and the substance of section 7AA

Section 7AA was introduced in 2017, in response to a widespread review of the child protection system in 2015.[14] That review reaffirmed previous review findings[15] that the child protection system was failing tamariki and whānau Māori and needed to be improved.  Specific improvements recommended in 2015 included the introduction of an ‘investment approach’, a stronger emphasis on the cultural connections of Māori children, improved cultural expertise across the child protection workforce, and the further development of partnerships with iwi and Māori organisations.[16]

The initial proposal for legislative change in response to the report fall far short of what eventually became section 7AA. Alongside the aforementioned changes relating to tamariki Māori, the 2015 review of the child protection system also identified the issue of placement instability (whereby children removed from their parents are subsequently moved from one home to another, often several times over a number of years) as causing further harm to children in state care once they were removed from their families.[17] Initially, in response to that issue, the government proposed removing the legislative requirement to consider how decisions regarding a child would affect their whānau, hapū and iwi, as well as the requirement to give placement preference to those groups when a child was required to be removed. These proposals were strongly opposed by many Māori, who saw these legislative requirements as essential to preserving the whakapapa (genealogical kinship) connections of Māori children in care, widely seen as an essential aspect of Māori wellbeing.[18] This included opposition from the Māori Party (now Te Pāti Māori), a government confidence and supply partner at the time.[19]

Section 7AA was part of a partial backdown from those proposals amidst opposition from Māori, both within and outside of Parliament. This context is important, because it illustrates that fully upholding Te Tiriti was never the starting point for section 7AA. The provision came amidst a wider set of reforms, the initial intent of which, in the view of many people at the time, remained hostile to Māori. This is not to suggest that the eventual passage of section 7AA was a bad thing, or that six years later it is not worth fighting to retain. But it is to suggest that, given the wider context, section 7AA alone was never going to fix the long-term issues faced by Māori in contact with the child protection system. As will be further argued in this article, advocates for tamariki and whānau should be aware of this history even as we mobilise in an attempt to prevent the provision’s repeal.

As for what the provision says, it is intended “to recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)” (s 7AA(1)). The obligations imposed on the Chief Executive include reducing disparities by setting measurable outcomes for Māori children and young persons (s 7AA(2)(a)), ensuring that the policies, practices and services of Oranga Tamariki have regard to the principles of mana tamaiti,[20] whakapapa[21] and whanaungatanga,[22] (s 7AA(2)(b)) developing strategic partnerships with iwi and Māori organisations, and publicly reporting on these matters (s 7AA(2)(c) and s 7AA(5)).

Each element of section 7AA is important, but the strategic partnerships subsection of the provision is worth examining in closer detail. It requires the Chief Executive of Oranga Tamariki to “seek to develop strategic partnerships wtih iwi and Māori organisations, including iwi authorities,” (s 7AA(2)(c)) in order to achieve a number of specified purposes. Those purposes include inviting innovative proposals from those organisations to improve outcomes for Māori children, young persons and their whānau, setting expectations and targets for Oranga Tamariki in regards to Māori children, enabling the exhange of information between those organisations and Oranga Tamariki, providing opportunities to delegate functions under the Oranga Tamariki Act 1989, and providing guidance to Oranga Tamariki to improve the cultural competency of the agency’s workforce (s 7AA(2)(c)(i)-(v)). The Chief Executive of Oranga Tamariki is required to consider and respond to any invitation from an iwi or Māori organisation to enter into a strategic partnership, but retains the discretion whether to actually accept such invitations (s 7AA(3)-(4)).

The latter, in my view, is a major shortcoming of section 7AA in terms of Te Tiriti o Waitangi. The significant discretion retained by Oranga Tamariki in terms of deciding whether to partner with Māori falls short of the type of relationship between the Crown and Māori that Te Tiriti envisaged.[23] In suggesting a number of purposes for strategic partnerships, section 7AA risks further imposing conditions on such such partnerships which fall short of what upholding tino rangatiratanga would require. Crown recognition of Māori tino rangatiratanga should not require a precondition of ‘innovation’, ‘target-setting’, or supporting the Crown to improve it’s own cultural competency. Establishing hoops which iwi and hapū must jump through to have their Te Tiriti rights realised fundamentally misunderstands the Tiriti relationship. Iwi, hapū and Māori organisations are treaty partners, not service providers.[24]

Other shortcomings with section 7AA also exist. For example, the Waitangi Tribunal in 2021 stated that the goal in section 7AA(2)(a) of ‘reducing disparities’ falls short of the Treaty principles of equity and active protection. Under the latter principle, the goal would be for Oranga Tamariki to eliminate the need for tamariki Māori to be removed from their families, rather than just removing those children at a rate equal to that of non-Māori children.[25] Compliance with Te Tiriti would require more from the Government than section 7AA compels it to provide.[26]

Again, this is not to suggest that section 7AA has not had any positive effect. At the time of writing, there are 10 strategic partnerships between Oranga Tamariki and iwi and Māori organisations.[27] The majority of those have been with iwi, but some strategic partnerships involve iwi collectives, and some have been signed with urban Māori organisations[28] or pan-Māori nationally-focused organisations.[29] The degree of influence and resource afforded to those groups may be higher than it was prior to the signing of their strategic partnerships, and this may well be making a positive difference for the tamariki and whānau they have relationships with.[30] But the limited number of agreements signed to date still leaves many more hapū and iwi without a formal relationship of this type with Oranga Tamariki, despite being Te Tiriti signatories. [31] Furthermore, the Crown does not deserve applause for relinquishing power it never had the authority to exercise in the first place.[32]

The fight to save section 7AA

So is section 7AA still worth saving? In the remainder of this paper I argue that yes, despite the flaws outlined above, the current efforts of many Māori advocates to prevent the repeal of section 7AA is worthwhile. I put forward three reasons for this – upholding the mana of Te Tiriti, limiting the damage caused to tamariki and whānau Māori within the current child protection system, and providing a pathway to tino rangatiratanga in future, even where such a pathway remains tenuous for now.

The status of Te Tiriti o Waitangi

The first reason why advocates for tamariki and whānau Māori are right to oppose the repeal of section 7AA, is that the proposed repeal comes amidst a wider effort to diminish the influence of Te Tiriti o Waitangi in law and policy. At the time of writing, there are at least four other urgent inquiries being conducted by the Waitangi Tribunal into government proposals which are alleged to breach Te Tiriti/The Treaty and its principles,[33] despite the Tribunal’s procedural guide, reissued in 2023, stating that urgent inquiries will only be granted in exceptional circumstances.[34]

The most high profile of these relates to a proposed Bill which would radically alter the way the principles of Te Tiriti/The Treaty are referred to in legislation.[35] The exact words of the proposed Bill are yet to be publicly released at the time of writing, but the coalition agreement between two of the parties forming the Government requires the wording of the principles to be based on the election policy of the Act Party.[36] The words referred to in that policy constitute major departures from the text of Te Tiriti o Waitangi. For example, one of the proposed new principles replaces the Māori right of tino rangatiratanga in Article 2 of Te Tiriti with a guarantee to “honour all New Zealanders in the chieftanship of their land and all their property.”[37] This substitutes a collective right of Māori self-determination with an individual property right. In the words of one expert witness in the inquiry into the matter, the Treaty Principles Bill “reinterprets and redefines the principles in a way that shows no fidelity or respect for the original treaty.”[38]

These proposals have been met with widespread resistance, and in some cases, widespread mobilisation. A ‘nationwide unity hui’ called by the Māori King, Tūheitia Pōtatau Te Wherowhero VII, was attended by an estimated 10,000 people in January 2024.[39] The following month an estimated 50,000 people attended the annual commemorations at Waitangi, double the usual number.[40] A further national unity hui took place in May,[41] with more events of this type likely to be held. Should the Treaty Principles Bill progress, large-scale protest from both Māori and non-Māori seems likely. This is a mobilisation not seen since the famous foreshore and seabed hikoi of 2004,[42] and one which echoes earlier mobilisations of Māori people dating back to the 1970s and 1980s.[43]

Part of the context for this, as may be evident already, is that the incoming government appears to show no willingness to even understand Te Tiriti, let alone honour it. In its report on the repeal of section 7AA, the Waitangi Tribunal criticised what it saw as “the belief or assumption on the part of the government that the coalition agreements that lead to its formation override or take precedence over the Crown’s obligations under the Treaty of Waitangi” (Wai 3350, 2024 at p 27) The Tribunal recorded that during the inquiry hearings, senior public officials provided evidence to the effect that although they felt obliged to provide policy advice regarding Te Tiriti o Waitangi and its relevance to the proposed repeal, they had no real expectation that such advice would be listened to by the Minister for Children (Wai 3350, 2024 at p 27). Officials provided similar advice in the Treaty Principles Bill inquiry (Wai 3300). There is a pattern developing, whereby incoming Ministers of the Crown seem intent on completely disregarding Te Tiriti o Waitangi and the obligations it imposes.

The Waitangi Tribunal made comments on the wider context in which the repeal of section 7AA is proposed which speak to an issue broader than that of just child protection policy. Noting the apparent opposition to law and policies which priorities Indigenous peoples’ rights, they reiterated that “Māori do have particular rights guaranteed to them under the Treaty and honouring them has nothing to do with separatism and everything to do with accepting the fact that Māori actually have the right to live here, as Māori.”[44] The latter point references the work of Sir Mason Durie, who has argued that a cornerstone of Māori health and wellbeing must be the ability for Māori people to be able to ‘live as Māori.’[45] For many Māori, this is what is at stake, and this perhaps speaks most directly to the issue at hand for many of those who have opposed the repeal of section 7AA. The provision, despite its flaws, goes at least some way towards upholding the status of Te Tiriti o Waitangi. In doing so, it is seen as going at least some way towards upholding the status of the Māori people as a whole.

Whether, as Māori, we should put so much stock in a Tiriti/Treaty provision which falls short of what Te Tiriti actually promises is an important question, but it is not the only question that matters. What also matters is defending Te Tiriti itself. As another expert witness put it during the Tribunal’s Treaty Principles Bill inquiry, “it is possible that a legally sanctioned falsehood will undermine this Kawenata tapu[46] and the constitutional bones of our country, based on the political agenda of a minor Party.” The effort to prevent the repeal of section 7AA must be seen in this wider context.

The need to limit the damage

Aside from that broader context, there are also reasons to save section 7AA found within the context of the child protection system itself. The most recent statistics published by Oranga Tamariki show that Māori remain over-represented in the numbers of children removed from their families by the State.[47] This long-standing trend has, as yet, shown little sign of being reversed at the systemic level.[48]

That disproportionality continues to get worse at each stage of the system. Oranga Tamariki reported that in the 2022-2023 financial year, 48% of the reports of concern to Oranga Tamariki were in respect of tamariki Māori. However, that figure increased to 52% at the point of referral for further assessment, and increased again to 64% at the point of holding a family group conference. Each of these are key points of escalation within the child protection system, and the fact that the disproportionality increases at each point suggests that this is not just an issue of more tamariki Māori being referred to the agency than children of other ethnicities (because if that were the case, Māori disproportionality would remain level at each stage, even if tamariki Māori were over-represented at the initial point of referral). At ‘entry into care’, the next stage at which data is collected, Māori disproportionality decreases slightly to 60%, but the proportion of tamariki Māori currently in state care is still higher than this figure, at 66%. These figures show that the crisis of Māori over-representation in state care remains as urgent as ever. [49]

Furthermore, the child protection system still causes harm to tamariki and whānau Māori. In their most recently published report on the safety of children taken into care, Oranga Tamariki found that approximately nine per cent of children in care experienced further harm.[50] The total number of recorded incidents causing harm was 895, which was caused to a total of 519 individual children.[51] There was a higher proportion of tamariki Māori (74%) within the group of children who experienced harm in care than there was within the care population generally (69%).[52] Put simply, the figures continue to show that the child protection system still removes tamariki Māori at a disproportionately high rate, and once those children are within the system they are more likely to experience harm.

Māori child protection experts have long argued that Māori-led responses to these issues, grounded in Māori knowledge and drawing on Māori cultural values, are the only measures likely to address the underlying causes of this long-term over-representation.[53] Section 7AA may be flawed, but it is still one of the best tools which exists right now to address this crisis and to work towards that long-term goal. The harm being experienced by tamariki and whānau Māori is enormous, and the evidence continues to show that the State is ill-equipped to deal with it. Iwi, hapū and Māori communities need to remain at the decision-making table (even if the power afforded by the State to those at that table falls far short of what they are entitled to under Te Tiriti).[54] Section 7AA is one such way to do so.

A pathway to tino rangatiratanga in future?

Section 7AA does not amount to rangatiratanga, but might the consequences of its enactment one day lead to the guarantee of tino rangatiratanga over kainga being upheld? I believe the answer to that question may be yes. Not because the Oranga Tamairki Act itself upholds Te Tiriti o Waitangi (section 7AA falls well short of that), but because it may be a catalyst for iwi, hapū and Māori communities to build the capacity which enables us to exercise tino rangatiratanga more effectively in future. These Māori-led capacity-building projects are central to decolonisation,[55] and central to realising the guarantees of Te Tiriti o Waitangi. They do not depend on provisions like section 7AA, but such provisions can still help, as long as we recognise them for what they are.

Te Tiriti o Waitangi does not create tino rangatiratanga, it affirms it. The rights affirmed by Te Tiriti, which the Crown guaranteed to uphold, to live as Māori are grounded in tikanga, and the tikanga of rangatiratanga dates back far further than 1840. Tikanga may be recognised in Te Tiriti, but it is not sourced in Te Tiriti, and rangatiratanga will always exist outside of state law, even when it is acknowledged by state law.[56] In that sense, section 7AA cannot erode rangatiratanga, even if it fails to affirm it, and, similarly, the repeal of section 7AA does not mean that tino rangatiratanga no longer exists. Rangatiratanga has continued to be exercised by Māori throughout the past 184 years, despite the Crown’s breaches of Te Tiriti during that time.[57] This will likely remain the case in the context of child protection, even if section 7AA is repealed.

On its own, that argument may not be enough of a reason to fight to retain section 7AA, because all it proves is that section 7AA does no harm. But what adds weight to that argument is the evidence from current strategic partners of Oranga Tamariki that the provision has helped them to work with tamariki and whānau Māori in ways which were not previously possible. For example, the National Operations Manager for the Māori Women’s Welfare League, Ronda Pahau, gave evidence to the recent Waitangi Tribunal inquiry into the planned repeal of section 7AA that the strategic partnership the League signed in 2020 “allowed for a shift in our relationship with Oranga Tamariki, allowing a more reciprocal relationship than a strict contract for services.”[58] This stands in contrast with comments in the 2021 Waitangi Tribunal report into Oranga Tamariki that the relationship between the agency and iwi and Māori organisations was sometimes seen as a ‘master-servant relationship’.[59]

What has often been missing in past efforts by our state child protection agency to improve its services for Māori is a lack of willingness by the State to relinquish power.[60] While section 7AA itself may not constitute the meaningful transfer of power that Te Tiriti o Waitangi envisages, it appears to at least provide the possibility of that happening in future, by beginning to shift the nature of the relationship between the state and some iwi, hapū and Māori organisations. We cannot forget that it does not do so for all such organisations, as claimants who do not have a strategic partnership agreement with Oranga Tamariki pointed out in the recent Waitangi Tribunal inquiry (Wai 3350, 2024). We also cannot assume that the beginning of a shift in the Crown-Māori relationship as it relates to the protection of tamariki and whānau will inevitably result in a Te Tiriti-consistent relationship eventually. However, the actions taken so far as a result of section 7AA suggest that such a shift is at least possible.

Kōrero whakamutunga – Conclusion

Though progress towards tino rangatiratanga over kainga may be slow, patchy and frustratingly inadequate, section 7AA does more to contribute to that progress than its repeal would. It may seem obvious that something is better than nothing, but in my view that determination may be more finely balanced than it looks. In the criminal justice context, abolitionists have long argued that claims to reform, while appearing to respond to the demands of advocates, are often the very thing that maintain oppressive systems, rather than changing them. Angela Davis has written that “frameworks that rely exclusively on reform help to produce the stultifying idea that nothing lies beyond the prison.”[61] Moana Jackson once made similar comments in the context of change for Māori people generally, arguing that the push for incremental change often risks stasis.[62]

The same could be said within child protection, where claims to reform of the state-run system risk reinforcing the idea that the State must remain central to that system. In fact, the efforts of Māori advocates over the past five years have often been more focused on the need for a shift to a Māori-led child protection system, rather than reform of the state-run system.[63] In my view, there is a risk that the fight to prevent the repeal of section 7AA distracts us from that broader struggle.

Nevertheless, there are also reasons why the fight to save section 7AA is a worthwhile one. As this article has discussed, these include the broader effort to diminish Te Tiriti o Waitangi, the need to limit the damage the current child protection system causes, and the possibility that actions taken as a result of section 7AA existing may one day provide a pathway to the full realisation of tino rangatiratanga.

How should we manage those tensions, between reform and transformation, incrementalism and stasis? It is a set of tensions that as Māori we are familiar with navigating – in Treaty settlements, for example, where iwi are forced to decide whether to accept a fraction the financial value of what has been taken from them by the Crown, and in doing so forego the right to make historical claims in future.[64] There is no easy answer to this challenge, and this article does not claim to have found one.

At a minimum, we can’t just fight to save section 7AA. In the fight to prevent its removal, we should also seek to make it better. Should the provision be repealed, we shouldn’t spend our future energy on re-inserting it into legislation exactly as it was. At a minimum, we should return to the Waitangi Tribunal’s recommendation in 2021 to establish a Māori transition authority for child protection, which would help to chart a path from the current state-centric system towards a Māori led, rangatiratanga-consistent one in future (Wai 2915, 2021). Tino rangatiratanga must be the goal, and we must recognise that section 7AA as it was introduced in 2019 falls short of that goal. That does not mean it is not worth fighting to save, but it does put that fight within the context of a broader struggle. It is that broader struggle that may make the biggest difference for tamariki and whānau Māori in the long run.

Ngā kupu āpiti - Notes

* Luke Fitzmaurice-Brown is a lecturer in the Faculty of Law, Victoria University of Wellington Te Herenga Waka. Luke's research and teaching interests are centred on Te Tiriti o Waitangi, Family Law, Child Protection and Children's Rights. His PhD research focused on kaupapa Māori approaches to children's rights, and decolonising the child protection system. He has a background in child protection policy, having worked for Oranga Tamariki and Child, Youth and Family prior to undertaking PhD study. His whakapapa is to Te Aupōuri.

[1] New Zealand National Party and ACT New Zealand Coalition Agreement 24 November 2023.

[2] Note for overseas readers: any MP can introduce a Member’s Bill, including opposition MPs.

[3] Oranga Tamariki (Repeal of Section 7AA) Amendment Bill 2022.

[4] Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179.

[5] Waitangi Tribunal The Oranga Tamariki (Section 7AA) Urgent Inquiry Report (Wai 3350, 2024), p 34.

[6] Section 4(1)(f) of the Act also refers generally to “the principles of the Treaty of Waitangi (te Tiriti o Waitangi)” but it is section 7AA which specifies how those principles are to be given effect.

[7] A discussion of how Tiriti/Treaty provisions have been used to give legislative effect to Te Tiriti/The Treaty is beyond the scope of this article, as is an exploration of the differences between Te Tiriti (the text in te reo Māori) and The Treaty (the text in English). For more on both, see: Damen Ward, Kevin Hille, and Carwyn Jones (2023) Treaty Law: Principles of the Treaty of Waitangi in Law and Practice Thomson Reuters.

[8] See: Children, Young Persons and Their Families Act 1989, as at 1 April 2017 (the most recent version of the legislation prior to widespread reform later that year).

[9] Ministerial Advisory Committee. (1988). Pūao-te-Ata-tū: The report of the Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare. Wellington.

[10] Barton-Prescott v Director-General of Social Welfare, above n 4.

[11] Regarding the broader context, see, for example, the recent urgent inquiry by the Waitangi Tribunal into the Treaty Principles Bill and Treaty Provisions Review process, which also form part of the incoming government’s coalition agreements. At the time of writing the Tribunal’s report is yet to be released, but both their report and the introduction of the Treaty Principles Bill itself is expected to occur very shortly.

[12] Waitangi Tribunal He Pāharakeke, he Rito Whakakīkinga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at p 96.

[13] Waitangi Tribunal (Wai 2915, 2021) at p 94.

[14] Expert Panel (2015) Expert Panel Final Report: Investing in New Zealand’s Children and their Families. Wellington: Ministry of Social Development.

[15] See, for example: Ministerial Advisory Committee, above n 9; Brown, M. A. (2000) Care and protection is about adult behaviour: the ministerial review of the Department of Child, Youth and Family Services. Report to the Minister of Social Services and Employment Hon Steve Maharey; Ministry of Social Development (2003) Report of the Department of Child, Youth and Family Services: First Principles Baseline Review Child, Youth and Family Services; Office of the Chief Social Worker (2014) Workload and Casework Review: Qualitative Review of Social Worker Caseload, Casework and Workload Management Ministry for Social Development.

[16] Expert Panel (2015).

[17] Expert Panel (2015).

[18] See, for example: New Zealand Family Violence Clearinghouse (2016) Proposal to deprioritise placing Māori children in care with whānau, hapū, iwi criticised. Available at https://nzfvc.org.nz/news/proposal-deprioritise-placing-maori-children-care-whanau-hapu-iwi-criticised. See also: Durie, M. (2001) Mauri ora: the dynamics of Māori health Oxford University Press.

[19] Collins, S. (2016) Turia blasts ‘racist’ children’s law. Available at https://www.nzherald.co.nz/kahu/turia-blasts-racist-childrens-law/HGJIIGV6VSA2QEZEMX2HHGVYEE/.

[20] Defined in the Oranga Tamariki Act 1989 as “the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person.”

[21] Defined in the Act as “the multi-generational kinship relationships that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend.”

[22] Defined in the Act as, (a) “the purposeful carrying out of responsibilities based on obligations to whakapapa”, (b) “the kinship that provides the foundations for reciprocal obligations and responsibilities to be met”, and (c) the wider kinship ties that need to be protected and maintained to ensure the maintenance and protection of their sense of belonging, identity, and connection.”

[23] Waitangi Tribunal (Wai 2915, 2021).

[24] The fact that Māori organisations generally, not just iwi, may have rights under Te Tiriti o Waitangi has been discussed by the Waitangi Tribunal. See: Waitangi Tribunal Te Whānau o Waipareira Report (Wai 414, 1998).

[25] Waitangi Tribunal (Wai 2915, 2021).

[26] A deeper exploration of what such compliance might look like is beyond the scope of this article, but for further discussion see: Fitzmaurice-Brown, L. (2023) “Te Rito o Te Harakeke: Decolonising Child Protection Law in Aotearoa New Zealand” Victoria University of Wellington Law Review, 53(4), 507–542.

[27] Oranga Tamariki (2023) Strategic Partnerships with Māori. https://www.orangatamariki.govt.nz/about-us/our-work/strategic-partnerships-with-maori/ (Accessed 16 May 2024).

[28] Oranga Tamariki (2024) Less children taken into care under partnership. https://ot.govt.nz/about-us/news/less-children-taken-into-oranga-tamariki-under-te-whanau-o-waipareira-partnership/ (Accessed 16 May 2024).

[29] Oranga Tamariki (2023). Māori Women’s Welfare League partnership. https://www.orangatamariki.govt.nz/about-us/our-work/strategic-partnerships-with-maori/maori-womens-welfare-league/ (Accessed 16 May 2024).

[30] Though many of these partnerships are still in their infancy, evaluations of some pilot programmes established before strategic partnerships were officially signed shows initial positive results. See, for example: Aiko Consultants Ltd “Qualitative Process Evaluation of Mokopuna Ora” (Oranga Tamariki, 2018). Available at: https://orangatamariki.govt.nz/assets/Uploads/About-us/Research/Latest-research/Specialist-Maori-Roles-Evidence-Synthesis/Report-Mokopuna-Ora-AIKO-2018.pdf.

[31] A number of iwi and Māori organisations do have other forms of formal relationship, for example through funding and contracting arrangements as a service provider. The current Chief Executive of Oranga Tamariki, Te Hapimana Te Kani, gave evidence during the recent Waitangi Tribunal inquiry that over 100 such arrangements exist. See: Te Kani, T. (2024) Affidavit of Te Hapimana Te Kani, pursuant to the Oranga Tamariki (section 7AA) urgent inquiry (WAI3350), Waitangi Tribunal.

[32] Waitangi Tribunal (Wai 2915, 2021).

[33] These include an inquiry into the use of te reo Māori in the public sector (Wai 3327), an inquiry into proposed changes to Māori wards within local government (Wai 3365), an inquiry into the disestablishment of Te Aka Whai Ora/the Māori Health Authority (originally Wai 3307, now part of a broader inquiry into health claims, Wai 2575) and the inquiry into the planned Treaty Principles Bill and Treaty Principles Review process (part of Wai 3300).

[34] Waitangi Tribunal Guide to the Practice and Procedure of the Waitangi Tribunal (Waitangi Tribunal, 2023) at 10.

[35] New Zealand National Party and ACT New Zealand, above n 1. See also: Bretkelly, S. (2024). The Detail: The Treaty of Waitangi – articles, principles, changes. https://www.rnz.co.nz/programmes/the-detail/story/2018923991/the-treaty-of-waitangi-articles-principles-changes.

[36] New Zealand National Party and ACT New Zealand, above n 1.

[37] ACT New Zealand, “Treaty.NZ” (ACT New Zealand, 2024). Available at: www.treaty.nz (Accessed 4 June 2024).

[38] Harris, M. (2024) Brief of evidence of Max David Noble Harris, pursuant to Tomokia ngā tatau o Matangireia (WAI 3300) – the Urgent Inquiry into the Proposed Treaty of Waitangi Principles Bill, Waitangi Tribunal.

[39] Ruru, K. (2024). Kiingitanga hui ‘a big bring it on’. Available at: https://www.stuff.co.nz/nz-news/350152911/kiingitanga-hui-big-bring-it.

[40] Piper, D. (2024) Waitangi Day 2024 was ‘overwhelming success’ with crowd of 50,000. https://www.nzherald.co.nz/northern-advocate/news/waitangi-day-2024-was-overwhelming-success-with-crowds-of-50000/ZGSBSE4ASNDKNO5XVGUMXZCYBY/.

[41] Ruru, K. (2024) Ngāti Kahungunu to host next hui for Māori unity. https://www.stuff.co.nz/politics/350208252/ngati-kahungunu-host-next-hui-maori-unity.

[42] See: Hickford, M. (2006) Law of the foreshore and seabed – Challenge and controversy. Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/law-of-the-foreshore-and-seabed/page-4.

[43] Keane, B. Ngā rōpū tautohetohe – Māori protest movements - Land protests. Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/nga-ropu-tautohetohe-maori-protest-movements/page-3.

[44] Waitangi Tribunal (Wai 3350, 2024 p 30). Perhaps given the scope of their urgent inquiry, the Tribunal did not elaborate on exactly what those rights are, and a discussion of the full extent of those rights is beyond the scope of this article.

[45] Durie, M. (2001) Mauri ora: the dynamics of Māori health, Oxford University Press.

[46] ‘Kawenata tapu’ can be roughly translated as ‘sacred covenant’. Coates, N. (2024). Brief of evidence of Natalie Ramarihia Coates, pursuant to Tomokia ngā tatau o Matangireia (WAI 3300) – the Urgent Inquiry into the Proposed Treaty of Waitangi Principles Bill. Waitangi Tribunal.

[47] Oranga Tamariki (2024) Section 7AA report 2023: Te whaneke i ngā hua mō ngā tamariki, ō rātou whānau, hapū, iwi anō hoki. Improving outcomes for tamariki Māori and their whānau, hapū and iwi.

[48] Arguments that section 7AA may be contributing to increasing this disparity, rather than reducing it, were dismissed by the Waitangi Tribunal in its recent inquiry, with Crown witnesses stating during the inquiry that the highest evidential base for the proposed repeal was anecdotal. See: Waitangi Tribunal (Wai 3350, 2024).

[49] Oranga Tamariki (2024), Section 7AA report 2023 at pp 35-36.

[50] Oranga Tamariki (2024) Safety of Children in Care Annual Report, July 2022 to June 2023.

[51] Oranga Tamariki (2024) Safety of Children in Care Annual Report p 7.

[52] Oranga Tamariki (2024). Safety of Children in Care Annual Report p 14.

[53] Fitzmaurice-Brown, above n 26; Office of the Children’s Commissioner (2020) Te Kuku O Te Manawa - Moe ararā! Haumanutia ngā moemoeā a ngā tūpuna mō te oranga o ngā tamariki; Whānau Ora Commissioning Agency (2020) Ko te wā whakawhiti: It’s time for change - a Māori inquiry into Oranga Tamariki; Williams, T., Ruru, J., Irwin-Easthope, H., Quince, K., & Gifford, H. (2019) Care and protection of tamariki Māori in the family court system. Te Arotahi Series Paper, (1). Nga Pae o te Maramatanga.

[54] Waitangi Tribunal (Wai 2915, 2021).

[55] I have previously argued that the term decolonisation provides a useful frame of reference for thinking about the changes required to child protection law in order to uphold the rights of tamariki and whānau Māori. See: Fitzmaurice-Brown above n 26.

[56] In some cases, there may even be a tension between the rights and obligations of rangatiratanga as expressed in tikanga, and the equivalent rights and obligations in the context of Te Tiriti o Waitangi. See, for example: Te Pou Matakana Ltd v Attorney-General (No 2) [2021] NZHC 3319, (2022) February Māori LR, [2022] 2 NZLR 178 at [107-113], in which the Court discussed this potential tension, drawing on the evidence of expert witness Dr Carwyn Jones.

[57] Bargh, M. (2017) “Tino Rangatiratanga: Water under the bridge?” He Pūkenga Kōrero: A Journal of Māori Studies 8(2).

[58] Pahau, R. (2024) Brief Of Evidence Of Ronda Pahau, Pursuant to The Oranga Tamariki (Section 7AA) Urgent Inquiry Report (Wai 3350). Waitangi Tribunal.

[59] Waitangi Tribunal (Wai 2915, 2021 at p 23).

[60] See, for example: Brown, M. A. (2000), above n. 15 at p 82, in which an independent review of the child protection system criticised the enthusiasm of Child, Youth and Family Services (as Oranga Tamariki was then known) to “devolve responsibility without devolving control.”

[61] Davis, A. (2003) Are prisons obsolete? Seven Stories Press.

[62] Jackson, M. (2022). In Maniapoto, M. & Mills, T. (2022) Moana Jackson – Portrait of a Quiet Revolutionary. Tawera & Black Pearl Productions.

[63] Whānau Ora Commissioning Agency, above n 53.

[64] See generally: Stone, D. (2012) The Financial and Commercial Dimensions of Settlements in Wheen, N. & Hayward, J. (Eds.) Treaty of Waitangi Settlements pp 138-148. Bridget Williams Books.

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