spinofflive
Kohitere-boys-03-home-nga-morehu-state-abuse

ĀteaFebruary 22, 2018

A perpetrator can’t be a saviour: the state abuse historic claims system must go

Kohitere-boys-03-home-nga-morehu-state-abuse

Opinion: The announcement of a Royal Commission of Inquiry into the abuse of children in state care has been met with praise and relief, but survivors may be worse off if the historic claims unit within the Ministry of Social Development is allowed to continue.

The announcement of a Royal Commission of Inquiry into abuse of wards of the state is a step in the right direction. However, the retention of the historic claims unit within the Ministry of Social Development is a serious mistake. They are retaining a unit that has already done a lot of damage in terms of revictimising and trying to discredit survivors through the compensation process.

It has the potential to undermine the Royal Commission itself.

From the moment I first started researching this story, I’ve had a twin focus. Firstly, to find out what actually happened to wards of the state sent to places such as Kohitere, Epuni and Lake Alice, and secondly to find out what happened in the institutions of authority that failed those individuals – the response of successive governments to those individuals when they became adults and tried to confront their abusers.

One is about the past. The second is very much about the present and the future.

I wrote that the new Labour-led government has responded well to the first question and given us a credible solution, but I’ve since come to the conclusion it has not sufficiently addressed the second. Although the government has said it will keep an open mind around what the Royal Commission recommends, claims currently before MSD will continue to be processed even while the Royal Commission is sitting.

The current historic claims process, which is run by MSD, was described to me by one survivor, Keith Wiffin, as “contemptuous” towards victims seeking redress.

As many survivors can attest, MSD’s claims process is not only flawed but adds further trauma. The fact that victims have to deal with the very department that is the successor to the institutions that abused them in the first place is like asking a victim of rape to seek justice from their rapist. The perpetrator is effectively put in a position of judging its own behaviour and deciding on the consequences. 

The state gets to decide what allegations it will accept; it holds the documents that might provide evidence of those allegations and also gets to redact those documents if it sees fit. It can dismiss the allegations, effectively calling victims liars and forcing them down a path of litigation in a hostile court environment. If it does make a financial offer of compensation, the amount is determined by calculations that don’t align with overseas standards.  

The perpetrator cannot be the saviour.

The whole purpose of an independent inquiry was for the process to be untethered to the state in every way.

Photographer Warwick Smith captured these portraits of boys at Kohitere ca. 1978 while training at the school.

When questioned on this subject at the announcement, Ardern stated that if the Royal Commission recommends looking at it, then the government would consider such a recommendation. It could be (and many are hoping) that the Royal Commission takes over the claims process sooner rather than later. If the chair, Sir Anand Satyanand, makes a strong enough recommendation in that direction that could be the case. He is already hearing from a number of people in the consultation phase that the claims unit is flawed. It will depend how much evidence he needs before he comes to the same conclusion.

But it’s not as if the prime minister isn’t aware of this. Wiffen has told her and others in Labour, as have a number of survivors and their advocates. Judge Carolyn Henwood, the Human Rights Commission, and the UN have also voiced criticism. Why do survivors need to waste their breath telling the Commission again so it can pass on the message to the government? The message has already been stated loud and clear.

Practically speaking, many survivors have poor health, both mental and physical. Many won’t survive to see the end of the Royal Commission’s term, which could well be extended beyond the currently planned three years. Although they may feel some validation that their experience is finally being heard, they also have more immediate concerns, like redress.

No amount of money can ever make up for stolen childhoods and the loss of potential that abuse in state care has caused. Money can’t buy justice. But there could be a number of measures taken to provide services to victims and their families to alleviate some of the suffering and negative consequences of their neglect and abuse by the state. This should be quite separate from the current agencies and systems that have already failed. That failure is what led to this inquiry in the first place – it’s farcical that it be allowed to continue now that we have an inquiry. More to the point, it ignores the wishes of survivors.

Another flaw is the timeframe – currently the period covered by the Royal Commission’s mandate is from 1950 to 1999.

Again, this leaves out the failings of recent governments and even the current one. Helen Clark is revered in Labour circles and is still is a mentor to Ardern herself. But a major concern is that that the Commission will not scrutinise the decisions and actions of the Clark government who, with Annette King, betrayed the victims of Lake Alice with a shonky settlement and then failed to investigate and hold anyone accountable. It was a missed opportunity nearly 20 years ago.

But that wasn’t just about Lake Alice – it was a response to the known liability that existed for the abuse that occurred in other institutions. That response was a textbook case of arse-covering. That arse-covering was highly sophisticated, not to mention costly.

Clark’s government set in motion a policy approach and legal strategy that has continued to fail victims and their families right through to the present.

Lawyer Sonja Cooper, who represents hundreds of victims of state abuse, has new clients that are in their teens – born after 1999.

The Royal Commission can expect some harsh criticism, suspicion and even hostility as it begins its work. Survivors have a deep-seated distrust of anything the state does, and for good reasons. They want accountability not only for what happened to them but for the protection of present and future generations.

Victims want to see change, not be offered a box of tissues. Without a robust and fair redress system independent of the MSD, the Royal Commission could leave victims in a worse state… which is saying something.

Words are cheap. If the state and the new government are sincere they will have to prove their intentions with changed attitudes and actions.

By announcing a Royal Commission while retaining a system that is a major part of the failure and leaving out government decisions since 1999, the government has said to survivors; ‘Let’s do this, but let’s not do that’.

Click here to read more about Ngā Mōrehu from Aaron Smale.

Dying kauri near Maungaroa Ridge Track in the Waitākere Ranges
Dying kauri near Maungaroa Ridge Track in the Waitākere Ranges

ĀteaFebruary 21, 2018

Auckland Council vote ‘āe’ on the rāhui

Dying kauri near Maungaroa Ridge Track in the Waitākere Ranges
Dying kauri near Maungaroa Ridge Track in the Waitākere Ranges

Yesterday Auckland Council voted unanimously to endorse the rāhui placed by local iwi Te Kawerau ā Maki on the Waitākere Regional Park, and close all walking tracks to help fight the spread of the deadly kauri dieback disease. Edward Ashby, the executive manager of Te Kawerau ā Maki, explains what it’s all for.

New Zealand is known for its ‘clean green’ brand and New Zealanders love the outdoors and our wilderness spaces. It is part of our cultural DNA to spend the summer at the beach or tramping through the bush. Our natural environment is also the central pillar of our multi-billion-dollar tourism industry. While the natural environment is a core part of our identity, lifestyle and GDP, there is a severe deficit in what we invest back into nature – both fiscally and socially. The inevitable result is an environment in decline. This is true of the Waitākere Ranges where millions of visitors pour through the forest each year extracting experiences yet giving nothing back to the forest. The situation is worsened when under-investment is combined with a deadly pathogen.

Kauri dieback disease has a long but uncertain history. Its presence in Waitākere was confirmed in 2008, though it may have been there longer. There is a lot still to learn about the disease. What we do know is that phytophthora agathidicida (aka kauri killer) lives in the soil for years, loves water, and attacks its host through the roots eventually starving the tree to death from the inside out. The result is 1000 year old trees – some of these giants have been here longer than humans – dying within a few years. On our watch. We know it is spread primarily by humans (70% of infection in Waitākere is within 50m of a track) as we move infected soil around the forest on our shoes. Pigs and poor track design contribute as well. We also know there is currently no cure.

In mid-2017 Auckland Council released a report that outlined that approximately 20% of kauri in the Waitākere forest were infected with kauri dieback, and that nearly 60% of kauri stands over 5 ha were infected, meaning Waitākere is facing mass habitat and biodiversity loss. Worse still is the fact that the infection rate had doubled within the past five years. It doesn’t take a math genius to figure out that, at the current rate of deaths, there could be localised extinction of kauri within a generation. The impact doesn’t stop there. Kauri are keystone species – they create the conditions in which they thrive by changing soil chemistry, hydrology, forest canopy, and ground cover which creates the habitat and conditions for a large number of co-dependent plant, fungi and animal species. In essence, if we lose kauri we lose the forest altogether. Fast growing replacements such as manuka and kanuka do not hold the same habitat value, and are themselves the targets of the vile Myrtle Rust disease.

Image: Auckland Council

Kauri is an iconic species and national taonga (treasure). It is one of the oldest species of tree in the world, and kauri forests are some of the oldest forests on earth. Its natural distribution is roughly the upper half of the North Island, taking in Waikato, Coromandel, Bay of Plenty, Auckland, and Northland. The fight against kauri dieback is supposedly led by the National Kauri Dieback Programme (NKDP) set up about a decade ago. The NKDP is led by the Ministry of Primary Industries, with DOC and regional councils as partners. There is also a Tangata Whenua Roopu that is an advisory board on matters of tikanga and mātauranga Māori. While the NKDP did make some positive steps in the early days, its current function, management, research programme and relationship with mana whenua as Treaty partners is questionable at best, and a dysfunctional and broken barrier to progress at worst. Auckland Council as a member of the NKDP is bound to this bureaucracy while also having responsibilities under its own auspices. Despite the money, tools, resources and time at the NKDP and Auckland Council’s disposal, the death rate doubled and meaningful engagement with mana whenua was for all intents and purposes non-existent.

This is the context in which Te Kawerau ā Maki, the iwi with mana whenua over West Auckland, was forced to try and navigate until deciding to act directly on behalf of Waitākere forest – Te Waonui a Tiriwa – by placing a rāhui, or cultural quarantine, over the forested area of the Waitākere Ranges. The decision was not taken lightly, but was taken to ensure that the forest and kauri are still standing for our grandchildren in the future. A rāhui is many things and is a deeply spiritual matter for Māori. It is implemented for a variety of reasons and is a sacred means of managing an area or resource. Employed as a method of what might be termed indigenous conservation, the rāhui over Waitākere is a means to protect the environment and allow time for the forest to heal, to stop the spread of kauri dieback, to allow time for remedial works and infrastructure upgrades to make access safe, and to buy time for scientists to come up with the tools to manage or kill the disease.

The Waitākere rāhui is one of the largest indigenous conservation efforts in New Zealand. It is certainly the largest and most unique rāhui of this kind in living memory, given the size and complexities of the Waitākere Ranges. It also sits at the heart of a debate around the role of kaitiakitanga (the sacred obligation of mana whenua guardianship) in the 21st century and the role of the Treaty of Waitangi in how the Crown and Māori work together on conservation issues.

Among other things the Treaty provides for the protection of Māori and their taonga. Te Kawerau ā Maki have gone on record stating that kauri dieback is an existential issue and that if the forest dies so too does the iwi. The obligation on the Crown is to protect both the iwi and kauri. The principles of the Treaty are captured in a number of relevant pieces of legislation. The RMA (1991) directs local authorities to account for the exercise of kaitiakitanga. The Waitākere Ranges Heritage Area Act (2008) specifies that the Waitākere Ranges are nationally significant, require the Crown and Auckland Council to protect and enhance its heritage features, and recognises Te Kawerau ā Maki as tangata whenua including their responsibilities as kaitiaki. The Te Kawerau ā Maki Claims Settlement Act (2015) recognises Te Kawerau ā Maki mana whenua (and kaitiakitanga) over Waitākere, apologises for nicking the land and chopping the trees down, and gives additional statutory recognition over much of the Waitākere Ranges. The Auckland Unitary Plan also provides tools for recognising kaitiakitanga and the need for shared decision-making over matters that directly impact mana whenua.

Auckland Council have been slow to respond meaningfully and boldly, but to their credit they have done demonstrably more than any other Crown organisation. It was after all Council’s own report that provided the evidence on which Te Kawerau ā Maki acted. Their 5 December decision to keep the forest open not only failed to protect kauri and sent the public a mixed message, but failed to live up to their obligations as a Treaty partner. It is a cause for celebration that Auckland Council voted unanimously to rectify this on the 20th February, with a decision to close the forested area of the Waitākere Regional Park (with exceptions to be worked through). Less impressive has been the response and engagement of the NKDP and the Crown. To date, Te Kawerau ā Maki have not been formally and meaningfully engaged by either since placing the rāhui on the 2nd December. The silence has been deafening and our forests are the worse for it. New ministers in a new government are of course very busy people, but it is difficult to imagine what reaches the benchmark of their notice and engagement if the country’s largest rāhui and indigenous conservation effort does not meet the grade. In my experience I lay most (not all) of the blame at the feet of the inept NKDP which has only blocked action in Waitākere in recent years and has refused to engage meaningfully with Treaty partners.

The Waitākere rāhui has given us all an opportunity to pause and reconsider our relationship to our environment. It is part of us, our identity, our economy, but it is very sick. We are in the midst of a positive and constructive national debate about the quality of our lakes and rivers, of our clean green image. We also need to have a genuine debate about the health of our native forests. We need a national policy statement on forest health. This will enable us as a nation to better manage and look after our forests, perhaps to consider them as integral national infrastructure requiring protection and investment.