C's Father v Chief Executive of Oranga Tamariki Minister for Children
[2023] NZHC 184
•14 February 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, ANY REPORT OF THIS PROCEEDING MUST NOT INCLUDE ANY NAME OR PARTICULARS LIKELY TO LEAD TO THE IDENTIFICATION OF C. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2021-488-000122
[2023] NZHC 184
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER OF
a decision of Oranga Tamariki under s 7AA of the Oranga Tamariki Act 1989
BETWEEN
C’S FATHER
Applicant
AND
CHIEF EXECUTIVE OF
ORANGA TAMARIKI – MINISTRY FOR CHILDREN
Respondent
Hearing: 17 October 2022
(Heard at Auckland via AVL)
Appearances:
L S O’Boyle for Applicant
B R Arapere and S Deng for Respondent
Judgment:
14 February 2023
JUDGMENT OF EDWARDS J
[redacted version]
This judgment was delivered by me on 14 February 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
C’S FATHER v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2023]
NZHC 184 [14 February 2023]
[1] C has just turned three. She is of Māori, Aboriginal, and “NZ European”1 descent. Soon after C’s birth, she was uplifted from her parents by the respondent, Oranga Tamariki (OT), and placed in temporary care.
[2] The applicant is C’s father. He says that OT has wrongly identified C as a “Māori child” within the meaning of the Oranga Tamariki Act 1989 (Act). He seeks judicial review of that decision. C’s father says that the power to determine a child’s identity rests with C’s mother and himself as C’s guardians. He does not identify C as Māori.
[3] OT says it has not made a decision about C’s ethnicity or whakapapa and agrees that it has no power to do so. OT says that whether a child is a “Māori child” is not a decision made by the child’s guardians or OT. Rather, it is a question of fact. In any event, OT says it has not acted unlawfully in recognising C’s Māori whakapapa.
[4] It is worth stating at the outset what this judgment is not about. It is not about the decision to uplift C from her parents. That decision is not challenged. Nor is it about who should care for C in the long term. That decision has yet to be made. Nor is this a challenge to OT’s policy in relation to the placement of Māori children in care, although that policy forms the backdrop to the current proceeding. And finally, this is not a decision about recognising one line of whakapapa to the exclusion of others. As I explain further in this judgment, inclusivity underpins the law in this area.
Relevant facts
[5]C was born on [redacted] 2020.
[6] C’s father is of Scottish descent. In an affidavit sworn in support of the application, he says that C’s mother is of Aboriginal descent on her father’s side, and of Scottish and Māori descent on her mother’s side. He says that C’s mother identifies as Aboriginal and NZ European.
1 As that phrase appears on C’s birth registration document.
[7] C’s mother has not sworn an affidavit in support of the application. However, the materials put before the Court refer to an affidavit in which she acknowledges her Māori whakapapa. The authority of C’s father to swear an affidavit on behalf of C’s mother is not at all clear to me. In any event, questions of identity are intensely personal. I place no weight on statements made by C’s father on behalf of C’s mother as to how she may identify herself.
[8] OT has been involved with C’s mother in relation to her other children for some time. C has six maternal half-siblings. One of those siblings is in the custody of OT and is being cared for by whānau members on C’s maternal side. C also has a paternal half-sister who is in the care of her mother.
[9] C was uplifted from her parents when she was born due to concerns about the capabilities of both parents to adequately care for C. It is unnecessary to traverse the reasons for this decision in this judgment. As I noted at the outset, the decision to uplift C is not challenged.
[10] The genesis for this proceeding is a dispute about who should be C’s permanent carers. C’s father wishes to see C remain with friends of C’s mother who have had temporary care of C. OT considers C should be placed with maternal whānau members who have been involved in the care of C’s maternal siblings.
[11] The proposed whānau carers are connected to C through C’s maternal grandmother. C’s pepeha is set out in the joint affidavit of the proposed whānau carers. To protect her identity, I will not repeat it here, except to say that she has connections to Ngātiwai.
[12] Placement with whānau members is consistent with OT’s placement policy, “Ensuring a safe, stable and loving home for tamariki in care”. That policy requires preference to be given to placing tamariki Māori/Māori children in a home within the family, whānau, hapū, iwi and family group. Permanent care outside these groups
“must only occur in exceptional circumstances, following extensive work with those groups”.2
[13] OT has referred to C as a Māori child in documents and correspondence concerning her placement. The first of those occasions occurred on 24 January 2020 when OT applied for a care and protection order under s 68 of the Act. Pending the outcome of that proceeding, OT also applied for, and was granted, a s 78 interim custody order in favour of OT. The information sheet submitted to the Family Court accompanying those applications recorded C’s “ethnic identity” as “NZ Māori”.
[14] In an affidavit filed on behalf of OT for this proceeding, the social worker involved with the case says that C was identified in this way because OT was aware of the Māori whakapapa of C’s mother, and the whakapapa of C’s siblings who were in OT’s care. C’s mother had not previously objected to the Māori whakapapa of the other children being recognised this way.
[15] OT also referred to C as a Māori child in discussions with C’s father. C’s father recalls a conversation with a social worker around May 2020 where he questioned OT about their reference to C as a Māori child when she was European and Aboriginal. He says the social worker told him it was how OT had recorded C in their system.
[16] Similarly, around 16 June 2020, in the context of a discussion about who was to attend a family hui, C’s father says that OT told him that C was Māori, and they were obliged to engage her whānau. C’s father says he was completely shocked by this and he refused to attend the meeting.
[17] Later that month, the Ministry filed a social worker’s plan for C’s care. In that plan, C is recorded as being of New Zealand Māori and Pākehā descent.
[18] On 24 August 2020, OT made an application for a rehearing of the without notice application varying the s 78 order. The information sheet accompanying the application again identified C as Māori. At a judicial conference, C’s father continued
2 Oranga Tamariki Ministry for Children “Ensuring a safe, stable and loving home for tamariki in care” (23 March 2022) < assert that C was not a Māori baby. He says he became very vocal, emotional, and angry because no one was listening to him about the identity of his child.
[19] Following the judicial conference, the Judge directed a lawyer to assist the Court by making submissions on the background and ambit of the legal provisions relevant to the classification of C as a Māori child. These legal provisions are set out later in this judgment. The lawyer for the child reported that C was Māori, Pākehā and Aboriginal and fell within the definition of a Māori child.
[20] On 28 January 2021, C’s birth was registered with Births, Deaths and Marriages. There is some confusion about why it took so long to register C’s birth, but the delay and reasons for it are not relevant to this dispute.
[21] C’s father says he and C’s mother discussed how C should be identified in the birth registration document based on their own ethnic groups. He says that they both felt that C was “in the main” European and Aboriginal. C’s father says they wanted to acknowledge the Aboriginal heritage of C’s maternal grandfather as a predominant part of C because he is from the stolen generation and it made him proud to know that he had an Aboriginal grandchild.
[22]The birth registration document records as follows:
Ethnic Groups: NZ European
Aborigine Māori Descent: Y
[23] The same responses to the same questions are recorded for C’s mother on the birth registration document. C’s father is recorded as belonging to the NZ European ethnic group.
[24] A copy of the birth registration document was provided to OT under cover of letter from the lawyer for C’s father in March 2021. Correspondence between Oranga Tamariki and that lawyer was exchanged over the ensuing months.
[25] A further social worker’s plan was filed on 9 April 2021. That social worker’s plan again identified C as Māori. It also recorded concerns about whether C was learning about her Māori side and her whakapapa. These concerns were reflected in an affidavit filed by a social worker for the Family Court proceedings.
[26] This application for judicial review was filed on 10 December 2021 with an amended statement of claim filed on 15 June 2022. Affidavits in support were not filed until 7 September 2022. The hearing took place in October 2022.
Legislative framework
[27] The application for judicial review involves consideration of relevant statutory provisions under the Act, and the powers of guardians under s 16 of the Care of Children Act 2004.
Oranga Tamariki Act 1989
[28] The overriding purpose of the Act is to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups.3 The well- being and best interests of the child is the first and paramount consideration in any decision made under the Act.4
[29] Section 4 of the Act lists steps by which this purpose may be achieved. Those steps which are particularly relevant to this case may be summarised as follows:
(a)Establishing, promoting and coordinating services that are designed to affirm mana tamaiti (tamariki), and are culturally appropriate.5
(b)Assisting families, whānau, hapū, iwi and family groups to fulfil their responsibility to meet the needs of their children and young persons.6
3 Oranga Tamariki Act 1989, s 4(1).
4 Sections 4A(1) and 13(1).
5 Section 4(1)(a)(i) and (iii).
6 Section 4(1)(d).
(c)Providing a practical commitment to the principles of the te Tiriti o Waitangi/Treaty of Waitangi in the way described in the Act.7
(d)Recognising mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for children who come to the attention of the department.8
(e)Maintaining and strengthening the relationship between children who come to the attention of the department and their family, whānau, hapū, iwi, family group and siblings.9
[30] Section 5 sets out principles to be applied to the exercise of powers under the Act. Those principles relevant to this case are summarised as follows:
(a)Mana tamaiti (tamariki) and the child’s well-being should be protected by recognising their whakapapa and the whanaungatanga responsibilities of their family, whānau, hapū, iwi and family group (which I shall refer to collectively as the child’s “wider group”).10
(b)A holistic approach should be taken that sees the child as a whole person, including their whakapapa and cultural identity.11
(c)The child’s place within their wider group should be recognised. In particular, it should be recognised that:
(i)the primary responsibility for a child lies with this wider group;
(ii)the effect of any decision on the child’s relationship with this wider group, and their links to whakapapa should be considered;
7 Section 4(1)(f).
8 Section 4(1)(g).
9 Section 4(1)(h).
10 Section 5(1)(b)(iv).
11 Section 5(1)(b)(vi).
(iii)the child’s sense of belonging, whakapapa, and whanaungatanga responsibilities of the wider group should be respected;
(iv)the relationship between the child and the wider group should be maintained and strengthened;
(v)the wider group should participate in decisions wherever possible, and regard should be had to their views; and
(vi)endeavours should be made to obtain the support of the parents, guardians, or other persons having care of the child for the exercise of any power under the Act relating to the child.12
[31] Section 13 sets out additional principles that apply in certain circumstances, including the uplift and placement of children in care. Those additional principles relevant to this case include:
(a)Services provided should strengthen and support members of the child’s wider group to enable them to care for the child.13
(b)Where a child’s usual caregivers are members of the child’s wider group, the child should only be removed if there is a serious risk of harm.14
(c)Where possible, and consistent with the child’s best interests, a child should be returned to those members of the child’s wider group who are the child’s usual caregivers.15
12 Section 5(1)(c)(i)–(vi).
13 Section 13(2)(b)(i)(A).
14 Section 13(2)(g).
15 Section 13(2)(h).
(d)Decisions about placement for children removed should be guided by a preference for placement within the wider group, and the importance of mana tamaiti (tamariki), whakapapa, and whanaungatanga.16
(e)A child in care should receive special protection and assistance to:
(i)preserve connections with the child’s wider group and contacts; and
(ii)to respect and honour, on an ongoing basis, the child’s whakapapa and whanaungatanga responsibilities of the child’s wider group.17
[32] Sections 4, 5 and 13 refer to “mana tamaiti (tamariki)”, “whakapapa” and “whanaungatanga”. These terms, and “tikanga Māori”, are defined under the Act as follows:18
mana tamaiti (tamariki) means the intrinsic value and inherent dignity derived from a child’s or young person’s whakapapa (genealogy) and their belonging to a whānau, hapū, iwi, or family group, in accordance with tikanga Māori or its equivalent in the culture of the child or young person
whakapapa, in relation to a person, means the multi-generational kinship relationships that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend
whanaungatanga, in relation to a person, means—
(a)the purposeful carrying out of responsibilities based on obligations to whakapapa:
(b)the kinship that provides the foundations for reciprocal obligations and responsibilities to be met:
(c)the wider kinship ties that need to be protected and maintained to ensure the maintenance and protection of their sense of belonging, identity, and connection
tikanga Māori, means Māori customary laws and practices
16 Section 13(2)(i)(iii)(A) and (C).
17 Section 13(2)(j)(ii) and (iii).
18 Section 2(1).
[33] Reference to “Māori children” appears only twice in the Act — in ss 7AA and 448B. Section 7AA is of key relevance to this proceeding. It provides:
7AADuties of chief executive in relation to Treaty of Waitangi (Tiriti o Waitangi)
(1)The duties of the chief executive set out in subsection (2) are imposed in order to recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi).
(2)The chief executive must ensure that—
(a)the policies and practices of the department that impact on the well-being of children and young persons have the objective of reducing disparities by setting measurable outcomes for Māori children and young persons who come to the attention of the department:
(b)the policies, practices, and services of the department have regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga responsibilities of their whānau, hapū, and iwi:
(c)the department seeks to develop strategic partnerships with iwi and Māori organisations, including iwi authorities, in order to—
(i)provide opportunities to, and invite innovative proposals from, those organisations to improve outcomes for Māori children, young persons, and their whānau who come to the attention of the department:
(ii)set expectations and targets to improve outcomes for Māori children and young persons who come to the attention of the department:
(iii)enable the robust, regular, and genuine exchange of information between the department and those organisations:
(iv)provide opportunities for the chief executive to delegate functions under this Act or regulations made under this Act to appropriately qualified people within those organisations:
(v)provide, and regularly review, guidance to persons discharging functions under this Act to support cultural competency as a best-practice feature of the department’s workforce:
(vi)agree on any action both or all parties consider is appropriate.
(3)One or more iwi or Māori organisations may invite the chief executive to enter into a strategic partnership.
(4)The chief executive must consider and respond to any invitation.
(5)The chief executive must report to the public at least once a year on the measures taken by the chief executive to carry out the duties in subsections (2) and (4), including the impact of those measures in improving outcomes for Māori children and young persons who come to the attention of the department under this Act and the steps to be taken in the immediate future.
(6)A copy of each report under subsection (5) must be published on an Internet site maintained by the department.
[34] Section 448 of the Act also mentions Māori children. That section obliges the responsible Minister to report to Parliament on certain matters including whether the needs of Māori children and young persons with whom the department is concerned are met.
[35]There is no definition of “Māori” or “Māori children” in the Act.
Care of Children Act 2004
[36] C’s father claims that the decision to identify a child as Māori is a guardianship decision made under s 16 of the Care of Children Act.
[37]Section 16 relevantly provides:
16 Exercise of guardianship
(1)The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
…
(b)contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c)determining for or with the child, or helping the child to determine, question about important matters affecting the child.
(2)Important matters affecting the child include (without limitation)
…
(e)the child’s culture, language, and religious denomination and practice.
…
[38] C’s father places emphasis on those subsections which empower guardians to make decisions regarding a child’s “culture”, which he says includes ethnicity. There is no definition of “culture” under the Care of Children Act.
Terminology
[39] This case involves discussion about concepts defined in the Act (mana tamaiti, whakapapa, whanaungatanga), and concepts such as race, ethnicity, identity, and culture. These are value-laden concepts with meanings which may differ depending on the lens through which they are read and understood.
[40] The parties and their counsel use these terms interchangeably. For example, counsel for OT equated ethnicity with whakapapa; and counsel for C’s father equated ethnicity with culture and identity. That interchange reflects the intertwined nature of these concepts. It is necessary, however, to disentangle them to understand the dispute at the centre of this proceeding.
[41] With those challenges in mind, I have adopted the definitions of “ethnicity” and “Māori descent” used by Statistics New Zealand in its published standards.
[42]Ethnicity is defined as follows:19
Ethnicity is the ethnic group or groups that people identify with or feel they belong to. Ethnicity is a measure of cultural affiliation, as opposed to race, ancestry, nationality or citizenship. Ethnicity is self perceived and people can belong to more than one ethnic group.
[43]“Māori descent” is defined as follows:20
A person has Māori descent if they are of the Māori race of New Zealand; this includes any descendant of such a person.
19 Statistics New Zealand Statistical standard for ethnicity V1.0.0 (as at 26 July 2022) at 2.
20 Statistics New Zealand Statistical standard for Māori descent V1.0.0 (as at 28 July 2022) at 1.
[44] As explained in the relevant standard, Māori descent is a biological or genealogical concept which is distinguished from cultural or social affiliation to the Māori ethnic group.21 Whether a person is of Māori descent will not change over a person’s lifetime.
[45] The distinction between “ethnicity” and “Māori descent” accords with the distinction drawn in birth registration documents. C’s birth registration document does not record her ethnicity as “Māori”, because C’s father says neither parent identifies her as such. However, C is recorded as being of Māori descent, and there is no dispute that she has Māori whakapapa.
[46] As I explain next, the distinction between “ethnicity” and “Māori descent” captures the differences between the parties on the key issue in this proceeding.
Framing the issue
[47] The parties approached the issues in dispute as if it concerned the power to determine a child’s ethnicity and whakapapa. C’s father says the power to determine a child’s identity lies with the child’s guardians under s 16(1) of Care of Children Act. OT says no one has the power to determine a child’s whakapapa or genealogy as that involves a question of fact.
[48] However, this approach misapprehends the nature of the decision challenged in this case. The decision at issue is not a decision determining C’s ethnicity or whakapapa. Rather, it is a decision to refer to or identify C as a Māori child and to treat her as such. It is a decision of classification or categorisation, rather than a decision of ethnicity or whakapapa.
[49] OT’s decision was made in the context of OT’s current placement policy for tamariki Māori. That policy requires preference to be given to placing Māori children in a home with whānau, hapū, iwi and family groups. The decision to refer to C as a Māori child means the policy is engaged.
21 Statistics New Zealand Statistical standard for Māori descent V1.0.0 (as at 28 July 2022) at 2.
[50] OT’s placement policy was issued in furtherance of s 7AA duties in relation to te Tiriti o Waitangi/Treaty of Waitangi. It replaced the former policy which the Waitangi Tribunal found incompatible with those duties.22 As previously mentioned, s 7AA is one of only two sections in the Act which specifically refer to “Māori children”.
[51] In context therefore, the broad issue to be determined is whether OT was right to refer to C as a Māori child. That will turn on the meaning of “Māori children” as it appears in s 7AA, and pursuant to which OT’s placement policy was issued. More specifically, the contest is whether “Māori children” in s 7AA refers to a child of the Māori race, descended from Māori; or whether it refers only to those children whose guardians identify them as being of Māori ethnicity.
A reviewable decision?
[52] Framing the issue in this way responds to OT’s first line of defence, which is that there is no reviewable decision. OT says the Act does not provide a decision- making process for determining ethnicity, genealogy, or whakapapa.
[53] I do not disagree with OT’s submissions. However, as already explained, the decision subject to challenge is not a decision to determine ethnicity, genealogy or whakapapa. Rather, the decision at issue is OT’s decision to refer to, or identify, C as a “Māori child”. That decision was made in the context of OT’s placement policy for tamariki Māori and the Chief Executive’s duties under s 7AA of the Act.
[54] I consider the decision to identify C as a Māori child is amenable to judicial review. If the duties in s 7AA do not extend to children who are of Māori descent, but are not identified as Māori by their guardians, then C’s identification as a Māori child would not be in accordance with the Act. Similarly, a decision to identify a child as a Māori child who is not of Māori ethnicity, nor of Māori descent, would also be subject to the supervisory jurisdiction of the Court and challengeable by way of judicial review.
22 Waitangi Tribunal He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at [5.6.7] and [5.7].
[55]Accordingly, OT’s decision is reviewable.
Meaning according to Tikanga
[56] The most appropriate way to commence an analysis of the meaning of “Māori children” is with how Māori define themselves. The starting point is the definition according to tikanga.
[57] Tikanga is defined in the Act to mean “Māori customary law and practices”.23 In Ellis v R, the Supreme Court said tikanga includes “values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct” and that it includes both practice and principle.24 The Supreme Court confirmed that tikanga forms part of the laws of New Zealand:25
… we are now at a point where tikanga and/or tikanga-derived principles are part of the fabric of Aotearoa/New Zealand’s law and public institutions through legislation, the common law and policy. This is a manifestation of Te Tiriti, particularly in relation to Article Two, and also highlights Aotearoa/ New Zealand’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples.
[58] Evidence of tikanga was provided in this case by way of affidavit from Mr Aperahama Kerepeti-Edwards. Mr Kerepeti-Edwards belongs to Ngātiwai, Ngāti Kahungunu, Ngāi Tūhoe, Ngāti Tarāwhai Tainui, Maniapoto and Ngāpuhi. His principal hapū is Te Whānau a Rangiwhakaahu — a hapū of Ngātiwai. He holds several positions of authority and is currently the Chair of the Ngātiwai Trust Board.
[59] Because of the way the parties approached the issue in this case, Mr Kerepeti- Edwards did not provide direct evidence on how Māori define themselves. Rather, he gave expert evidence on a Ngātiwai perspective on whakapapa, and the place of tamariki within Ngātiwai. As previously mentioned, the pepeha given by C’s maternal whānau connects her to Ngātiwai.
[60] It is evident from Mr Kerepeti-Edwards’ evidence that “whakapapa” plays an important part in Māori identity. He explains that whakapapa is broader than the
23 Oranga Tamariki Act 1989, s 2(1).
24 Ellis v R [2022] NZSC 114 at [107].
25 At [126] (footnote omitted).
English concepts of genealogy or lineage. Whakapapa connects a Māori person to the environment and the wider kinship groups of whānau, hapū and iwi. He explains further:
When a child is born they are part of a kinship system that has been in place mai rānō (since long ago). Their birth is part of ngā kawai whakapapa (lines of descent and lineage) going back many hundreds of years. Whakapapa is the thing that binds us as people to the past but also ties us to the future and ngā uri whakaheke (those yet to be born).
[61]Mr Kerepeti-Edwards explains that whakapapa is not a question of choice:
We do not choose our whakapapa. Our whakapapa is chosen for us before we are even born, in the myriad of hononga (relationships) and couplings, that descend through ngā kawai whakapapa that lead ultimately to our parents and thence to us.
[62] Mr Kerepeti-Edwards describes whakapapa as a “birth right” and “the very thing that gives you a sense of belonging and identity in this world”. As to the authority to decide whakapapa, Mr Kerepeti-Edwards says:
The authority to decide the whakapapa of a person does not sit with parents. We do not think in those terms in tikanga Māori. Our whakapapa is our inherent right to know who we are, who we descend from and how we link to the taonga of our ancestors.
[63] This evidence is consistent with the statement on tikanga appended to the Supreme Court’s decision in Ellis v R.26 In that statement, Sir Hirini Moko Mead and Professor Pou Temara emphasise the importance of whakapapa to being Māori:
91. Māori place great importance on genealogy and kinship relationships and the concept of whakapapa is central to being Māori and to identity. The world and everyone in it is part of a huge interlocking family tree.
92. Whakapapa and knowledge of relationships between people is pivotal to the Māori world and tikanga Māori. Whakapapa is a prized form of knowledge and great effort is made to preserve memory of it.
93. It is through whakapapa that kinship ties are cemented and mana is inherited and intimately connected …
94. Whakapapa also creates responsibilities of manaaki (care and nurturing) within the whānau. Like all these concepts, that are inextricably linked, whakapapa is closely linked to the concept of whanaungatanga.
26 Ellis v R [2022] NZSC 114 at Appendix (emphasis added).
[64] As that statement of tikanga records, the concepts of whakapapa are interlinked with other concepts, including whanaungatanga, and cannot be understood in isolation. Whanaungatanga is defined in the Act.27 The term broadly describes the relationships and attendant responsibilities of kinship.28
[65] On the basis of Mr Kerepeti-Edwards’ evidence and the tikanga statement in Ellis v R, I conclude that a child with Māori whakapapa is a Māori child. Whakapapa is not a matter of parental choice. That meaning is more closely aligned with the concept of Māori descent as that term is used by Statistics New Zealand. It suggests OT was right to refer to C as a Māori child.
Meaning under s 7AA
[66] As required by the Legislation Act 2019, the meaning of “Māori children” in s 7AA of the Act is to be ascertained from the text of the provision and in light of its purpose and context.29
[67] Section 7AA(1) imposes duties on the Chief Executive of OT. Counsel for C’s father emphasises that the s 7AA duties are only imposed on the Chief Executive and no one else. On this basis she says that the responsibilities in s 7AA cannot be imposed on C’s father.
[68] There is no dispute that the duties imposed in s 7AA are duties imposed on the Chief Executive of OT and do not apply to the applicant. But OT does not rely on s 7AA as a source of decision-making authority in this case. Rather, s 7AA provides the statutory context in which the decision to identify C as Māori was made. The fact that s 7AA only imposes duties on the Chief Executive does not advance the applicant’s case.
[69] The duties on the Chief Executive under s 7AA are imposed “in order to recognise and provide a practical commitment to the principles of the Treaty of
27 Oranga Tamariki Act 1989, s 2(1).
28 See Joseph Williams “Lex Aotearoa: an Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 Wai L Rev 1 at 3–4.
29 Legislation Act 2019, s 10.
Waitangi (te Tiriti o Waitangi)”.30 The reference to “Māori children” must therefore be understood in the context of te Tiriti/Treaty.
[70] The Treaty of Waitangi Act 1975, as described in its long title, was enacted to “provide for the observance, and confirmation, of the principles of the Treaty of Waitangi” by establishing the Waitangi Tribunal. Under s 2 of that Act, “Māori” is defined to mean “a person of the Māori race of New Zealand; and includes any descendant of such a person”.31
[71] That definition is found in other New Zealand statutes also, such as the Electoral Act 1993, Te Ture Whenua Maori Act 1993, Maori Fisheries Act 2004 and the Maori Affairs Restructuring Act 1989.32 It is a definition which correlates with the definition of “Māori descent” used by Statistics New Zealand.
[72] Section 7AA(2)(a) requires the Chief Executive to ensure that the policies and practices of the department that impact on the well-being of children and young persons “have the objective of reducing disparities by setting measurable outcomes for Māori children and young persons”.
[73] A disparity between the treatment of Māori and non-Māori children was the subject of claims addressed by the Waitangi Tribunal in its 2021 report, He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Enquiry.33 The extent of the disparity was recorded in the report’s letter of transmittal:34
The disparities we examine are both enduring and stark. We collate as an appendix some of the key data. It is sufficient to note the following from the evidence we have heard. Between 2000 and 2018, the incidence of tamariki Māori aged 16 and under in State care rose from one in every 125 Māori children to one in every 64. By 2012, tamariki Māori were five times more likely than their non-Māori counterparts to enter State care. Māori were 54.7 per cent of children in care in June 2013, climbing to 61.2 per cent of children
30 Oranga Tamariki Act, s 7AA(1).
31 Treaty of Waitangi Act 1975, s 2.
32 Electoral Act 1993, s 3(1); Te Ture Whenua Maori Act 1992, s 4; Maori Fisheries Act 2004, s 5(1); and Maori Affairs Restructuring Act 1989, s 2(1).
33 Waitangi Tribunal He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021).
34 At xiv.
in care in 2017. The proportion of Pākehā children in care over the same period reduced from 33.2 per cent to 26 per cent.
[74] The disparity referred to in subs (2)(a) must be understood as a disparity between the outcomes for Māori children, as opposed to non-Māori children. The juxtaposition is between outcomes for those of the Māori race and those who are not of the Māori race. That is, those who are descended from Māori, and those who are not. This also suggests that the reference to Māori children in s 7AA is a reference to those who are biologically Māori and those who are not.
[75] Subs (2)(b) requires the policies and practices of the department to have regard to “mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga responsibilities of their whānau, hapū and iwi”.
[76] These provisions, and the associated definitions of “mana tamaiti (tamariki)”, “whakapapa” and “whanaungatanga” (set out at [32] of this judgment), were inserted as part of a 2017 amendment to the Act, which came into force in 2019. They were part of a suite of changes aimed at emphasising and extending Māori concepts to the care of children and young people.35
[77] The reference to these concepts in relation to Māori children in s 7AA reinforces the central importance of these tikanga values as they apply to tamariki Māori. Mana tamaiti (tamariki) refers to the intrinsic value and inherent dignity of a child derived from whakapapa and the sense of belonging to the wider group. Whakapapa features in this definition, and in the definition of whanaungatanga. The definition of whakapapa refers to the multi-generational kinship relationships which help describe who the child is by reference to their parents and the ancestors from whom they descend.
[78] Reference to these concepts in s 7AA reaffirms that Māori children are born into a kinship matrix which is independent of the choices their parents make for them
35 See Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill (224-2) (commentary) at 2–13; Alison Cleland “Protection of mana tamaiti (tamariki): the right to cultural connectedness (2021) 10 NZFLJ 141 at 142–146; and Waitangi Tribunal He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at [5.2.1].
regarding their ethnicity or cultural identity. In other words, reference to these concepts aligns with the definition of Māori descent.
[79] Such an interpretation also accords with the purposes and principles of the Act set out in ss 4, 5, and 13. Those purposes and principles include providing a practical commitment to te Tiriti o Waitangi/Treaty of Waitangi and recognising and protecting mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for children who come to the attention of OT. The requirement to maintain and strengthen the relationships between children and their family, whānau, hapū, iwi and family group reinforces the whakapapa and whanaungatanga ties that link children to these wider groups. As Mr Kerepeti-Edwards describes in his evidence, these ties are not chosen for Māori children, but are something they are born into.
[80] Defining Māori children as including those of Māori descent is also consistent with the policy underpinning these provisions. Cull J summarised the legislative history to these amendments in Moana’s Mother v Smith:36
[27] The need to incorporate a Māori perspective into the care and protection of children was recognised and actioned in the 1980s. In 1985, a ministerial advisory committee was appointed by the then Minister of Social Welfare to investigate and report on the operations of the Department of Social Welfare from a Māori perspective. The committee found that the department had “profoundly misunderstood the place of the child Māori society and the relationship of Māori children with whānau, hapū, and iwi structures”. It recommended changes to the Children and Young Persons Act 1974. This led to the introduction of the Children, Young Persons, and Their Families Act 1989. The Act introduced several tikanga Māori principles including participation of whānau, hapū and iwi in decision making for a child and strengthening a child's relationship with wider kin groups.
[28] A further review was undertaken in 2015 and in its report, the Expert Advisory Panel found that the system was unable to fulfil the needs of vulnerable children and young people. This led to the establishment of a new Ministry for Children, Oranga Tamariki–Ministry for Children. Legislative reform closely followed, including amendments to the Children, Young Persons and Their Families Act 1989, which became the Oranga Tamariki Act. I refer to this legislative change as “the 2019 amendments”.
[29] Of relevance to this appeal, the 2019 amendments reflected a significant strengthening of the policy shift to address the needs of Māori children. The major changes introduced incorporating statutory definitions of tikanga Māori, mana tamaiti (tamariki) and related concepts, promoting the well-being of Māori children through a practical commitment to the principles
36 Moana’s Mother v Smith [2022] NZHC 2934 (footnotes omitted).
of the Treaty of Waitangi, most notably by the imposition of a duty to do so on the Chief Executive, and adding guiding principles for those making decisions under the Act.
[30] As the focus of this appeal centres on cultural appropriateness, particularly with regard to tikanga Māori compliance under the OT Act, it is relevant to set out the introduced statutory definitions to the OT Act and the amended provisions.
[81] In addition, and as already referred to, the 2017 amendments to the Act were designed to improve outcomes for Māori children and reduce the significant disparities between Māori and non-Māori children in the care of OT.37 Strengthening and maintaining the links between Māori children and their whānau, hapū and iwi was seen as a way of achieving that purpose.
[82] If the meaning of “Māori children” did not include children of Māori descent, then the alienation and disconnection of Māori children from their whakapapa, whānau, hapū and iwi could continue. Children who had Māori whakapapa but were not identified as being of Māori ethnicity (such as C) would be lost to the kinship matrix that contributes to their intrinsic value and inherent dignity. Such a result would be at odds with the objectives of s 7AA and would not be in accordance with the policy underpinning this section and the other amendments enacted in 2017.
[83] To recap, I consider the phrase “Māori children” as it is used in s 7AA of the Act refers to children who have Māori whakapapa; are of the Māori race; and who are of Māori descent. The definition embraces all children of Māori ethnicity, but is not dependent on the decision of a guardian or parent as to the ethnic group to which that child belongs.
Was Oranga Tamariki right to identify C as a Māori child?
[84] It follows from this analysis that I consider OT was right to identify C as a Māori child, despite her parents’ choice of ethnicity.
[85] However, this conclusion does not mean that non-Māori whakapapa, ethnicity, identity, and culture are irrelevant to decisions concerning Māori children. C’s non-
37 Oranga Tamariki Act, s 7AA(2)(a).
Māori whakapapa, and the choices of her guardians regarding culture and ethnicity cannot be ignored.
[86] The definition of whakapapa encompasses all lines of descent and is not confined to Māori whakapapa. Nor is the requirement to have regard to whakapapa limited to Māori children. The concepts of whakapapa, mana tamaiti (tamariki) and whanaungatanga apply to all children falling within the auspices of the Act.38
[87]This is consistent with Mr Kerepeti-Edwards’ expert evidence on whakapapa:
It is through your whakapapa that you embrace and acknowledge all of the different threads that form you as a person and that connect you to others. This fabric includes all of the parts of your whakapapa – your different whānau, tribes and ethnicities.
[88]OT’s preferred caregiver for C, her maternal aunt, put it in these terms:
Whakapapa encompasses the entirety of a person’s identity … All of C’s ancestry is what makes her the unique child that she is.
[89] The requirement in s 5(1)(b) of the Act to adopt a holistic approach where the child is seen as a whole person, including their whakapapa and cultural identity, is also consonant with a requirement to consider all lines of whakapapa, ethnicities, culture and identity.
[90] Importantly, having regard to all of a child’s whakapapa is required to meet the overriding purpose under the Act which is to promote the well-being and best interests of the child.
[91] This means that while C is a “Māori child” under the Act and OT’s placement policy, identifying her in this way needs to be approached with some care. C is a Māori child within the meaning of the Act. However, she is also an Aboriginal and NZ European child, as her parents have identified her. As I said at the outset of this judgment, the approach to the law in this area is an inclusive one.
38 This was a deliberate change made to the Bill. See Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill (224-2) (commentary) at 5.
[92] To conclude, OT was correct to refer to C as a Māori child despite her parents not identifying her as such. The definition refers to children of the Māori race, and who are descended from Māori. The definition is not dependent on the choice made by guardians as to ethnicity, culture or identity. However, that does not mean that these factors and C’s other whakapapa should be ignored. These will be relevant to the promotion of C’s well-being and best interests.
[93] The challenge to OT’s decision fails and the application for judicial review must be dismissed.
Result
[94]The application for judicial review is dismissed.
[95] OT is the successful party and is entitled to an award of costs. The parties are encouraged to confer, and if possible, reach agreement on the question of costs. If agreement cannot be reached, a memorandum in support of costs may be filed 20 working days after receipt of this judgment, with a memorandum in response filed 10 working days thereafter. Memoranda shall be no longer than five pages in length. Costs shall be determined on the papers.
Edwards J
Solicitors/Counsel:
O’Boyle Law, Ruakaka B R Arapere, Whanganui
Luke Cunningham and Clere (Office of the Crown Solicitor), Wellington
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