Te anga Tiriti o Waitangi o te Pakirehua
The Inquiry’s te Tiriti o Waitangi framework

7. While the Inquiry considers that the application of te Tiriti o Waitangi is always contextually dependent, te Tiriti o Waitangi is relevant to both the Crown itself (directly and indirectly) as well as other institutions (including faith-based institutions) that provide care for tamariki, rangatahi and pakeke Māori.

8. The approach that the Inquiry has taken to the relevance of te Tiriti o Waitangi to the Crown and institutions is that:

(a) The Crown has obligations as a te Tiriti o Waitangi partner and signatory to te Tiriti o Waitangi that includes:[5]

• • • • • • • Ensuring the Crown and institutions recognise Māori rights and values.
            • Ensuring the Crown and institutions act in accordance with te Tiriti o Waitangi obligations of the Crown.
            • Monitoring the activities of institutions, and auditing institutions’ performance in the context of te Tiriti o Waitangi relationship between Crown and Māori.

(b) Institutions are not necessarily te Tiriti o Waitangi partners themselves, but:

• • • • • • • Legislation may require institutions to act consistently with te Tiriti o Waitangi.[6]
            • Te Tiriti o Waitangi is relevant to interpreting legislation even where legislation is silent on te Tiriti o Waitangi.[7] Given tamariki, rangatahi and pakeke Māori are taonga, te Tiriti o Waitangi colours all legislation dealing with the status, future and control of tamariki, rangatahi and pakeke Māori.[8]
            • If institutions made their own commitments to te Tiriti o Waitangi (for example, in governing documents of public statements), they may be held accountable to meet those commitments (for example, the Ministry of Health’s policy commits it to exercise its powers in accordance with te Tiriti o Waitangi, however it may be arguable that faith-based institutions exercise public powers and functions when providing care and therefore could be amenable to judicial review if a decision is inconsistent with its own te Tiriti o Waitangi commitments).[9]

9. In terms of what te Tiriti o Waitangi requires, the Inquiry draws on the significant body of jurisprudence developed by the Waitangi Tribunal and courts over the past 40 years. While the Inquiry draws on certain te Tiriti o Waitangi principles, the Inquiry acknowledges that these principles cannot be divorced from, and necessarily include, the articles and language of te Tiriti o Waitangi.

Te whakamahi i ngā mātāpono o Te Tiriti o Waitangi
Application of te Tiriti o Waitangi principles

10. As set out in Part 1 of this report, the Inquiry is underpinned by te Tiriti o Waitangi principles that apply in relation to the care of tamariki, rangatahi and pakeke Māori:

(a) tino rangatiratanga
(b) kāwanatanga
(c) partnership
(d) active protection
(e) options
(f) equity and equal treatment
(g) good government
(h) redress.

Te aukati i te mana me te rangatiratanga o ngā hapū me ngā iwi
Denial of hapū and iwi mana and autonomy

11. Tamariki, rangatahi and pakeke Māori were often taken, or placed into care. This means whānau, hapū, and iwi were deprived of one of their most critical roles – to exercise tino rangatiratanga over their kāinga. It also denied hapū and iwi the ability to exercise mana motuhake and autonomy in relation to tamariki, rangatahi and pakeke Māori. It removed the ability and power of whānau, hapū and iwi to care for and nurture the next generation and to regulate the lives of their people. Had whānau Māori been able to fully realise the exercise of their tino rangatiratanga and mana motuhake as envisaged by te Tiriti o Waitangi, tamariki, rangatahi and pakeke Māori would not have needed care from the State or faith-based institutions in the first place and those who did need care (outside of their whānau) would be served by their hapū, iwi or hāpori Māori.

Te kore anganui ki ngā pānga toronaha moroki o te tāmitanga
Failure to address the ongoing systemic effects of colonisation

12. Many whānau Māori are in vulnerable situations at least in part because of the ongoing systemic effects of colonisation including the alienation from whenua, whānau, and whakapapa.

13. Viewing the issue of care and protection in the historical context of Aotearoa New Zealand, there are many policies and laws over successive governments that were either directed at or had the effect of suppressing tribal political institutions. This included the taking of tribal territory (through direct purchase, land confiscation and Māori land legislation) that disconnected Māori from their economic, political, social and cultural base. As articulated best by Dr Moana Jackson: “A people cannot be tangata whenua if they have no whenua to be tangata upon.”[10] State policies of assimilation devalued Māori language and culture. The urbanisation push, particularly in the mid-1950s to 1970s, further fractured Māori communities.

14. Since 1840 State policies, practices and laws have played a direct and active role in detribalising Māori communities, denying Māori rangatiratanga and creating the underlying factors that have contributed to tamariki, rangatahi and pakeke Māori being taken into care.

15. The State failed to address the ongoing systemic impacts of colonisation that contributed to Māori being taken into care, in which Māori experienced abuse and neglect. This includes recognising the inherent mana motuhake of iwi and hapū, structural reform that would have enabled Māori to exercise rangatiratanga and mana motuhake. Further, when the State was alerted to whānau experiencing stress (whether through for example poor health outcomes, lack of adequate housing, due to circumstances where alcohol and drugs were prevalent), accessible and practical support to whānau to avoid the removal of tamariki, rangatahi and pakeke Māori from whānau was not provided, nor opportunities for whanaunga (kin relatives) in hapū and iwi or hāpori Māori to be supported to provide assistance. Grainne Moss, who was chief executive of Oranga Tamariki at the time of the urgent Waitangi Tribunal inquiry into Oranga Tamariki in 2021, confirmed:

“Historically, Māori perspectives and solutions have been ignored by the care and protection system.”[11]

16. The failure to address the broader underlying issues that create the circumstances in which Māori are disproportionately taken into the care of State and faith-based institutions was a breach of the Crown’s duties to recognise rangatiratanga and actively protect Māori.

Nā ngā pūnaha taurima ā-Kawangatanga, ā-whakapono hoki, i whakararu ai te whānau ki te tiaki i ō rātou uri
State and faith-based care undermined the ability of whānau to care for their own

17. The Crown act of removing tamariki, rangatahi and pakeke Māori from their whānau, hapū and iwi and placing them in various care settings was an act of ongoing colonisation and structural racism. Not only did the taking of tamariki, rangatahi and pakeke Māori undermine whānau and hapū and tribal structures but in some cases Māori who have been in care do not even know where they come from. This has created a landscape of cultural devastation for many Māori survivors.

18. Although the removal of tamariki, rangatahi and pakeke Māori from their whānau was framed within the guise of ‘protection’ and ‘care’, it occurred within a context of discriminatory, paternalistic and racist policies which sought to assimilate Māori into dominant Pākehā society. Māori were also generally targeted by NZ Police, social workers and other State officials and the intrusion into the rangatiratanga sphere was often violent and abusive for individuals and their whānau, hapū and iwi. Structural racism has been acknowledged by former Oranga Tamariki Chief Executive Grainne Moss as a feature of the State care system,[12] which has also been reflected in society more generally, leading to more tamariki and rangatahi Māori being reported and coming to the attention of NZ Police, social workers and other State officials. The Adoption Act 1955 stripped away and legally severed many Māori from their whakapapa.

19. The taking of tamariki, rangatahi and pakeke Māori into care was an intrusion into the rangatiratanga sphere and undermined the ability of Māori to exercise their right to care for their own supported and enabled by hapū, iwi and communities more broadly. It was also a breach of the legitimate exercise of kāwanatanga (which requires the Crown to foster rangatiratanga and ensure laws and policies were just, fair and equitable) and the principles of partnership and active protection.

Te aukati i te Māori i ngā take whakatau me te whakaaweawe
Exclusion of Māori from decision making and influence

20. Like the Waitangi Tribunal in its He Pa Harakeke Report,[13] the Inquiry found little evidence of te Tiriti o Waitangi partnership or meaningful Māori involvement in the design and implementation of Crown policy and legislation relating to the care of children during the Inquiry period.

21. Whānau, hapū and iwi had little, if any, voice or role in decision making processes across the spectrum of care systems, including the placement of tamariki, rangatahi and pakeke Māori. Māori were locked out of decision making about the best interests and wellbeing of their taonga. Further, there was a limited understanding of te Tiriti o Waitangi, which has allowed or enabled a selective approach to incorporating or implementing te Tiriti o Waitangi in practices, standards, polices and legislation.

22. The absence of Māori thought, input, autonomy and influence within the State and faith-based care systems was a breach of te Tiriti o Waitangi particularly the right of Māori to exercise tino rangatiratanga over their kāinga. This resulted in Māori being unable to intervene and protect their own from entry into care and from suffering abuse and neglect while in care. It resulted in the safety of Māori not being met. It was also a breach of te Tiriti partnership and the Crown’s duty of active protection.

Te aukati i ngā anga taurima Māori
Exclusion of Māori models of care

23. The State and faith-based care systems were generally Eurocentric. Māori models of care that valued te ao Māori, mātauranga Māori, tikanga Māori, te reo, and retaining connections to culture and whānau were either excluded from this system until mid-1980s. The Inquiry observed that:

a) The placement of Māori in Pākehā psychiatric hospitals undermined Māori concepts of health, wellbeing and care.
b) Tāngata Turi Māori did not have the option of learning sign language in te reo Māori and therefore were unable to connect to their culture and whakapapa through their language.
c) It was not an option for whānau, hapū, iwi or hāpori Māori to receive support to be empowered to care for their whānau hauā, tāngata whaiora and tāngata Turi Māori in a culturally appropriate way at home.
d) Whānau, hapū or iwi did not have the option to be involved in the care of tamariki, rangatahi and pakeke Māori that were placed or taken into specialised care settings.

24. From the mid-1980s onwards there were some limited attempts made to include te ao Māori, tikanga Māori and te reo Māori.

25. The care systems into which Māori were taken and placed generally took a Eurocentric, ‘one size fits all’ approach that was culturally inappropriate for Māori. Māori thinking, approaches and values were not incorporated into the care systems for tamariki, rangatahi and pakeke Māori in care. The lack of kaupapa Māori options as part of the care systems fall foul of te Tiriti o Waitangi principle of options, that follows on from the principles of partnership, active protection, and equity.

Te tīhoretanga o te tuakiri ahurea i te Māori me te kaikiritanga
The stripping away of Māori cultural identity and racism

26. Once in care, survivors suffered many forms of abuse and neglect. Māori survivors emphasised the overt and targeted racism they endured, the cultural neglect and the deliberate stripping away of Māori survivors from their culture, language, and identity in both State and faith-based care, and the legal severance from their whakapapa for those Māori that were adopted.

27. Cultural genocide as defined by international law is the systematic destruction of traditions, values, language, and other elements that make one group of people distinct from another.[14] While the Inquiry has not found a particular policy that expresses cultural genocide as a goal or intention of the care system, Māori have been disproportionately targeted, removed from their culture and placed into care systems that have not prioritised or provided for their traditions, values, and language. When tamariki, rangatahi and pakeke Māori were taken into care, this action also meant that the whānau, hapū and iwi lost their chance to perpetuate the transmission of mātauranga (knowledge), tikanga and te reo Māori, and collective identity to those tamariki, rangatahi and pakeke Māori. The Waitangi Tribunal has also found that Crown care policies have been dominated by efforts to assimilate Māori to the Pākehā way and that this is perhaps “the most fundamental and pervasive breach of te Tiriti o Waitangi / the Treaty and its principles”.[15] The Inquiry agrees with this line of reasoning.

28. Care systems were part of the ongoing effect of colonisation. There is a serious question whether aspects of the care system contained elements of cultural genocide. Both the 1997 Australian Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families[16] and Canada’s Truth and Reconciliation Commission inquiring into its residential school system found cultural genocide through its aboriginal policy, specifically its policies of assimilation.[17] In Aotearoa New Zealand the laws and practices of removing tamariki, rangatahi and pakeke Māori involved elements of both systemic racial discrimination and cultural genocide. The denigration and stripping away of Māori cultural identity as part of a broader system of assimilation was inconsistent with the principles of tino rangatiratanga, kāwanatanga, partnership, active protection and equity.

Te taraweti ki te reo Māori
Hostility towards the use of te reo Māori

29. The care system had a hostile attitude towards the use and retention of te reo Māori. Te reo Māori was not something that was prioritised and valued; some Māori names of tamariki, rangatahi and pakeke Māori were removed and in some instances survivors were punished for speaking te reo Māori. This impacted not only the individual survivors but for some was a break with their whakapapa and whānau and has had an intergenerational impact.

30. The hostility towards the use of te reo Māori in the care system and resulting loss of language breached te Tiriti o Waitangi principle of active protection.

Nā te kore te tika o te tiaki kīhai i haumaru te Māori
Inadequate care failed to keep Māori safe

31. Māori survivors suffered a range of abuse and neglect across care settings, including psychological, emotional, physical, sexual, cultural, educational, medical, and spiritual abuse and neglect, on top of the effects of colonisation and urbanisation. Māori survivors shared their experiences of transgressions to their personal tapu, mana, mauri and wairua from abuse and neglect in care.

32. While the Inquiry has not been able to obtain accurate numbers around abuse, it is evident that abuse was prolific and that Māori have long made up the majority of those in placed in social welfare and youth justice care settings. The number of Māori abused in care is therefore likely to have been pervasive and disproportionate. Further, being Māori was likely to make the impact of the abuse and neglect worse for survivors.

33. There are multiple systemic reasons why many Māori suffered multiple forms of abuse and neglect while in care or received inadequate care. Quite simply, the care system was broken. Contributing factors are set out in Part 7 of this report and include a lack of resourcing, a lack of action when abuse was raised, a lack of effective protection policies, a violent institutional culture, a lack of prioritisation of Māori values, inadequate cultural capability and societal and systemic racism being deeply embedded within the care system.

34. Tamariki, rangatahi and pakeke Māori in care are taonga. While assuming ultimate care and responsibility or an oversight role for these taonga, the Crown failed to protect or prevent the abuse that many suffered. This is a grave breach of the Crown’s obligation under te Tiriti o Waitangi to actively protect Māori as well as those institutions who have te Tiriti o Waitangi obligations. That disparities in abuse are likely to be present and that Māori are disproportionately affected by racism is also a breach of the principle of equity and equal treatment. Further, the Crown was or should have been aware of the abuse and neglect suffered by Māori while in care. This raises concerns that the Crown has breached the principle of good government particularly by failing to adequately care for Māori or obtain and maintain adequate information or knowledge of any abuse or neglect suffered by Māori while in care, or hold abusers to account.

Te kore tuku rongoā mō te tūkino me te whakahapa
Failure to provide a remedy for abuse and neglect

35. Many survivors found their efforts to have their abuse and neglect appropriately acknowledged and to receive reasonable redress from the State and faith-based institutions for that abuse and neglect, were often rejected or in some instances limited to a small financial payment. The failings in the redress system for abuse and neglect in care are covered in the Inquiry's interim report, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui.[18] These failings included redress processes not being developed with regard to te Tiriti o Waitangi, not recognising the mana of survivors or offering genuine support for survivors to heal their lives and not including tikanga Māori or reflecting te ao Māori concepts and values and the need for collective redress.

36. More broadly than the shortcomings in the redress process, it is clear the Crown has acted in excess of its kāwanatanga powers and breached te Tiriti o Waitangi in a number of ways. The Crown failed to transform the care system in a manner that would uphold rangatiratanga and reflect a true partnership.

37. The failure to implement a te Tiriti o Waitangi consistent redress process for abuse and neglect in care and the ongoing failure of the Crown to address its breaches in respect of the care system more broadly (which leads to abuse and neglect) is a failure to uphold the principle of redress.

Ngā pāpātanga tukuiho ki ngā kiritōpū
The intergenerational impact on collectives

38. The impact of abuse on survivors transcends the individual. The impact of the removal of Māori from their cultural communities, particularly in great numbers, created a significant loss of those who could maintain and continue cultural skills.

39. The trauma of the abuse suffered by those in care was intergenerational and collective. That is, it transferred from survivors to their tamariki, mokopuna, whānau, hapū, and iwi. This can manifest itself in many ways. That includes a number of social problems such as inequitable health and education outcomes, higher incarceration rates, gang formation, intimate partner violence and family and whānau violence, unemployment, homelessness, mental distress, substance misuse and abuse, an overall narrowing number of life opportunities, and suicide. Part 5 of this report discusses these impacts in more detail.

40. This category of harm also breaches te Tiriti o Waitangi principle of active protection.

41. Te Tiriti Tiriti o Waitangi and its principles were significantly neglected in the design, development and implementation of the care systems and this disregard of te Tiriti Tiriti o Waitangi went to the heart of the abuse and neglect experienced by many Māori survivors and their whānau. In particular, the overlapping principles of tino rangatiratanga, kāwanatanga, partnership, active protection, options, equity, equal treatment, good government and redress were infringed as a result of the following inter-related acts or omissions:

a) the denial of hapū and iwi mana and autonomy to care for their whānau, nourish their tamariki, rangatahi and pakeke and regulate the lives of their people
b) the failure to address the ongoing systemic effects of colonisation
c) the legal and practical severance of Māori survivors and their whānau from their whakapapa and their connection to their whānau, hapū and iwi
d) the creation of care systems that:

• • • • • • excluded Māori from decision-making and influence
          • did not include or value Māori models of care
          • were embedded with racism and stripped Māori of their cultural identity
          • were hostile towards te reo Māori

e) the failure to keep Māori safe from many forms of abuse once in care
f) the failure to provide appropriate remedies for abuse and neglect.

42. The impact of these acts and omissions have caused significant multi-faceted harm not only to those individuals who suffered abuse in care, but an intergenerational harm to their whānau (past, present and future), hapū and iwi.