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A gavel, scales of justice and the Oranga Tamariki logo against a stylised background featuring the Treaty of Waitangi
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OPINIONĀteaMay 3, 2024

The Waitangi Tribunal’s latest report is about far more than just child protection

A gavel, scales of justice and the Oranga Tamariki logo against a stylised background featuring the Treaty of Waitangi
Image: Tina Tiller

The striking report goes far beyond the proposed repeal of the Oranga Tamariki Act’s Treaty of Waitangi provision, and its impact should be felt far beyond the unique circumstances of the claim it addresses.

Earlier this week, the Waitangi Tribunal released an interim report on the government’s proposed repeal of section 7AA of the Oranga Tamariki Act. For those not following along at home, section 7AA is the Oranga Tamariki Act’s Treaty of Waitangi provision – requiring the agency to take a number of steps aimed at upholding their Te Tiriti obligations. 

As the tribunal itself described in 2021, section 7AA is far from perfect. Nevertheless, Māori advocates are now fighting to preserve the provision after the government promised to repeal it. This Waitangi Tribunal inquiry is about whether doing so would amount to a further breach of Te Tiriti. 

The release of the tribunal’s report is interesting for a few reasons. Firstly, the timing. It is unusual for the tribunal to release a report so quickly after an inquiry has concluded. There is a chance it may not have concluded – as I write, a Court of Appeal hearing is under way to determine whether the minister for children can be compelled to appear in person before the tribunal, which so far she has refused to do. Nevertheless, the tribunal has decided that releasing an interim report is necessary. 

Minister for children Karen Chhour (Photo: Getty Images; additional design The Spinoff)

The tribunal’s urgency appears to have been influenced by very recent history. Back in February, the government brought forward the introduction of the bill disestablishing Te Aka Whai Ora (the Māori Health Authority) just as the tribunal was about to begin an inquiry into that proposal. Doing so removed the tribunal’s jurisdiction to examine the proposed closure of the agency. The tribunal appears determined to not let that happen again.

Secondly, the report is striking for how much of it relates to Te Tiriti generally, rather than just child protection. During the inquiry hearings, tribunal members asked government officials at length about the steps taken by the minister for children to understand her Treaty obligations prior to proposing law changes. Officials stated that those steps were close to non-existent. 

As with many other changes in the last six months, the public rationale from the government for the process followed here has been that the repeal of section 7AA is part of the coalition agreement. The tribunal dismisses this in no uncertain terms, discussing with barely veiled indignance the ignorance of Te Tiriti that such a claim involves. The point they repeatedly stress is that while political parties are free to promise whatever they want, once they take office (and once individual MPs become ministers of the Crown) their actions must be guided by Te Tiriti. 

From the moment political parties form a government, they become the Treaty partner, with all the obligations that entails. Those obligations cannot be diminished by anything said on the campaign trail, or in opposition, or in coalition negotiations. Te Tiriti o Waitangi endures, and always will. As the tribunal puts it, “it is a Treaty of Waitangi, not a proclamation of Waitangi, and the Crown does not have a unilateral right to breach its terms”. This is exactly what the government has tried to do here in planning to repeal section 7AA without any regard for the views of its Treaty partner. 

Photo: Phil Walter/Getty Images

Turning to the substance of the claim, the tribunal discusses the Crown’s decades-long failure to understand the Treaty implications of child protection policy. They quote Pūao-Te-Āta-Tū, published almost 40 years ago, which said that “the traditional policy of assimilation and one law for all has become so ingrained in national thinking that it is difficult for administrators to conceive of any other, or to appreciate that indigenous people have particular rights to a particular way of life”. 

The tribunal adds to this that the minister for children has fundamentally misunderstood what the Treaty requires here. The assumption, for example, of a fundamental conflict between honouring Te Tiriti and upholding children’s best interests is one the tribunal is particularly critical of. In one stinging rebuke, they state that “at this point in our inquiry, we are struggling to understand how any government having proper regard to the Treaty could conclude that the repeal of section 7AA was appropriate on the basis of the case presented in the minister’s paper to cabinet”.

What is perhaps most striking about this report is that the tribunal directly confronts the argument, heard far too frequently recently, that upholding Te Tiriti amounts to separatism. To that they say: “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.” 

Such a simple and forceful articulation of what Te Tiriti means should have an impact far beyond the unique circumstances of this report. What the tribunal is saying here, and what Māori advocates have said all along, is that when we ask for Te Tiriti to be upheld we are simply asking for the right to live as ourselves. It is not about separatism, or “special treatment” (whatever that means), or the right to veto anything. The tribunal has encapsulated in a single sentence much of the frustration that Te Tiriti advocates have been desperately expressing all year. 

It remains uncertain how all of this will end. The Court of Appeal will weigh in on the legality of the tribunal’s summons of the minister as soon as they can, but there is a chance of a further appeal. Either way, that case has become about more than just child protection as well, as Māori advocates increasingly look to the tribunal to uphold our Te Tiriti rights in the face of a hostile Treaty partner. In my view, this report shows we are right to do so. The report is another reminder that the fight for the rights of tamariki and whānau Māori in the child protection system is part of a much bigger battle. Time will tell how the next steps in that battle play out. 

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