The Government has obligations under te Tiriti o Waitangi and international law to provide redress in many cases of abuse in care.
Te Tiriti o Waitangi, signed in 1840, is an agreement between iwi and the Bristish Crown. It paved the way for further settlement of British citizens. Te Tiriti provides for two spheres of authority – kāwanatanga, or governance, and tino rangatiratanga, or self-determination – which must co-exist as part of an ongoing relationship between the parties to te Tiriti. In areas that overlap the Crown and Māori need to negotiate how they will work together. The Waitangi Tribunal explains that through kāwanatanga the Crown gained the right to make laws and govern, which was initially for the principal purposes of controlling settlers and settlement and managing foreign relationships, adding:
“This power is qualified by the rights that are reserved to Māori. To the extent that it affects Māori communities, the right of kāwanatanga must be used to protect Māori interests.”
The Tribunal explains that Māori communities retain their tino rangatiratanga, which included “their right to autonomy and self-government, and their right to manage the full range of their affairs in accordance with their own tikanga”.
The guarantee of tino rangatiratanga provides that Māori keep full authority over their own affairs. This includes, among other things, rights to exercise social, cultural, economic, political, and spiritual authority; to self-government and self-determination; to exercise tikanga; to maintain kinship ties, manage internal and external relationships, protect the tribal base, and advance the wellbeing of the hapū and other hāpori; and, as noted above, to raise and care for the next generation to be “happy, healthy and grounded in te ao”.
The Tribunal found, in its inquiry into Oranga Tamariki, that the guarantee of rangatiratanga was a comprehensive guarantee which the Crown has systematically breached over many generations since 1840, including through its treatment of tamariki Māori in care.
Treaty principles have been developed by the Crown, Courts and Waitangi Tribunal to assist with the interpretation and application of te Tiriti today. The principle of partnership emphasises a duty on the parties to reasonably cooperate. Wherever Māori and Crown interests intersect or overlap, ongoing dialogue and negotiation is required, and both partners must make a genuine effort to work out agreements over issues arising between them and accord each other respect in their interactions.
Where Māori interests are affected, as they are with respect to Māori in State or faith-based care, the Crown cannot impose its will on Māori, nor limit Māori involvement to mere consultation; rather, it must acknowledge Māori rights to either exercise self-determination or at least share in decision-making. Underpinning the partnership is a shared obligation for both parties to treat each other well, acting reasonably, honourably, and with the utmost good faith.
The principle of active protection provides that the Crown must actively protect Māori rights and interests. This includes Treaty rights such as those relating to the wellbeing of tamariki and the future of the tribal base. The Crown cannot cause harm, nor stand by while harm is done. Rather, it must take all reasonable steps to protect Māori and Māori rights and interests.
The principle of equity requires the Government to act fairly between Māori and non-Māori. The Waitangi Tribunal’s report – He Pāharakeke, He Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry – made the important distinction that the fundamental requirement for te Tiriti / Treaty consistency is not equity in terms of relative rates of entry into State care or equity of funding to run a care and protection service. Rather, “te Tiriti/the Treaty consistent objective is recognition and restoration of rangatiratanga over kāinga, which in turn means strong, connected whānau looking after their own tamariki and thriving as Māori.”
All of these principles are relevant to any assessment of the tūkino that must be put right, the nature of puretumu torowhānui, or holistic redress, and restoration that must be provided, and the process by which any puretumu torowhānui scheme is designed and delivered.
Both the courts and the Waitangi Tribunal have recognised that it is a principle of partnership generally, and of te Tiriti relationship that past wrongs give rise to a right of redress. It provides that Māori are entitled to redress for any government actions that breach the guarantees and principles of te Tiriti – including breaches relating to the removal of people from their communities, the design and delivery of care, and the impacts on Māori as individuals, and as part of a whānau, hapū and iwi.
The High Court has described the right of redress as a right to “fair and reasonable recognition of, and recompense for, the wrong that has occurred”. The Tribunal, meanwhile, has described the principle more broadly as creating a duty for the Government to “restore the honour and integrity of the Crown and the mana and status of Māori”. Several Tribunal reports have recommended a restorative approach, involving recognition of the mana and tino rangatiratanga of the hapū or iwi that has been wronged.
For many Māori, restoration of tino rangatiratanga over whānau, hapū, iwi and kāinga is seen as a critical step towards any effective redress for abuse in care. The Tribunal Report He Pāharakeke, He Rito Whakakīkīnga Whāruarua was also of this view, finding that effective redress for the removal of Māori children from their whānau and whakapapa would involve steps to address systemic racism, restore tino rangatiratanga to Māori communities and kāinga, and strengthen and restore whanaungatanga.
The Catholic Church, Anglican Church and The Salvation Army have enduring relationships with Māori whānau, hapū, iwi and hapori or communities. Catholic and Anglican missionaries were among the first Pākehā settlers who built relationships with Māori communities and encouraged Māori to seek the protection of the British Crown. As settlement continued, all three churches played a significant role in providing schooling, childcare and welfare services. Some whānau, hapū, iwi and hapori, or communities, came to rely on this support and many ministers held positions of great mana in these communities. All three churches still have large Māori congregations.
Te Tiriti o Waitangi is often acknowledged as the cornerstone of our society. Faith-based institutions do not have the same obligations to Māori as the Crown does as a Treaty partner, although most – including entities relating to the Catholic Church, Anglican Church and The Salvation Army – have policies that emphasise their commitment to biculturalism and recognise te Tiriti o Waitangi. Some of the Treaty policies adopted by these faith-based institutions are prominent and detailed. The Salvation Army has committed to honouring the principles of partnership, protection and participation inherent in te Tiriti o Waitangi. However, the overall approach to te Tiriti by faith-based institutions varies and in some cases the commitment seems weak.
Despite not having formal obligations under te Tiriti, the faith-based institutions played a significant role in colonisation in Aotearoa. The churches continue to have a strong moral obligation to Māori, partly because of their history in Aotearoa and relationships with Māori, and partly because of their self-imposed te Tiriti policies.
Most faith-based redress processes have not enabled Māori governance, input or leadership, yet they emphasised their commitment to Māori and te Tiriti o Waitangi, and significant numbers of Māori have been abused in their care. This contributed to the lack of culturally informed redress available for survivors.
Next: International law obligations to provide redress