What the new government is proposing is highly regressive and likely to cause harm to Māori children and families, writes Luke Fitzmaurice-Brown. But it will be fought every step of the way, and decolonisation efforts will continue regardless.
The appointment of Karen Chhour as minister for children represents a significant milestone, as never before has the holder of that position been a survivor of the state care system. Chhour knows the damage the system can do when things go badly and often mentioned children in state care in her first term as an MP. She has made restoring the independent oversight of Oranga Tamariki one of her new priorities as minister, but unfortunately, that is where the good news ends.
The National-Act coalition agreement includes a commitment to repeal section 7AA of the Oranga Tamariki Act 1989. That provision is the primary legal mechanism for recognising the Crown’s Te Tiriti o Waitangi duties in the child protection system. It outlines a range of obligations for Oranga Tamariki relating to Māori children and whānau. Those include reducing disparities between Māori and non-Māori children in contact with the state care system, forming partnerships with iwi, and prioritising the tikanga of mana tamaiti, whakapapa and whanaungatanga in policy and practice.
The passage of s7AA in 2017 was the first time that Te Tiriti had ever been mentioned in New Zealand’s child protection laws. To be clear: it is far from perfect. The Waitangi Tribunal has said that far from fully upholding the Crown’s obligations in this area, section 7AA actually waters down those obligations. Article 2 of Te Tiriti o Waitangi assured Māori tino rangatiratanga over kāinga, which the tribunal clearly stated encompasses child protection issues. In practice, the protections enabled by section 7AA are far narrower than what Te Tiriti itself provides for.
Nevertheless, those gains were hard-fought by Māori, and remain an important (though inadequate) source of protection for Māori children and families against the power of the state. As the Tribunal discussed, the child protection system has had a huge role in the colonisation process, removing thousands of Māori children from their families and systematically undermining essential Māori values and practices. Section 7AA was the most significant legislative change since 1989 aimed at addressing those problems, and the new government now seeks to repeal it.
They will not be allowed to do so without a fight. In 2019, thousands of people took to the streets to protest the treatment of Māori children and families by Oranga Tamariki and its predecessors. Those protests led to six different reviews of the agency, arguably the most significant of which was the Waitangi Tribunal inquiry. All six reviews recommended widespread change, with several of them stating that the current agency would never be able to address the underlying problems driving child protection inequities for Māori. Even bigger protests are likely to result if the government follows through on the promises they have made to try to strip the Oranga Tamariki Act of its Te Tiriti provisions. Just as will be the case with any other anti-Tiriti legislation the new government tries to pass, advocates for Māori will fight those changes at every step.
As an advocate for a decolonised child protection system, I am given hope by that unwavering willingness in communities to oppose regressive reforms. But what also gives me hope is that far from just beginning, the decolonisation of the child protection system is well under way. Across the country, Māori have been rebuilding the capacity to care for our own for decades now. Sometimes it has been led by iwi, sometimes by organisations like the Māori Women’s Welfare League, and other times it has been individual aunties and nannies who are fiercely determined to ensure that not one more Māori baby be taken by the state. Section 7AA has often helped, but the decolonisation of the child protection system started before that provision existed, and it won’t just stop if it is repealed.
What the new government is proposing is highly regressive and very likely to cause harm to Māori children and families. Section 7AA is not in the law as an empty gesture, it is there because upholding Te Tiriti in relation to child protection could significantly improve outcomes for Māori whānau. Upholding Te Tiriti is also the Crown’s most central constitutional obligation, and they cannot just legislate that responsibility away.
The good news for the new government is that there is still time to look at the evidence and understand the issues surrounding Oranga Tamariki in their wider context. Should they do so, they will see that removing the first and only mention of Te Tiriti o Waitangi in our child protection laws is a terrible idea. But the good news for the rest of us is that there is only so much the government can do. The law matters, and I would much prefer that our child protection laws continue to mention Te Tiriti. But changing laws is only one part of decolonisation, and often it’s not the most important part. Where outcomes for Māori have improved in the last few years it has usually been down to the work of dedicated people on the ground. Those efforts are an essential aspect of decolonisation, and those efforts will continue. The government now has a choice whether to support, or to oppose, that vitally important work. I hope they choose wisely.