Taken By The State

Waitangi Tribunal gets to grips with uplift ‘octopus’

In the wake of a damning internal report into Oranga Tamariki's attempted uplift of a Māori baby, the Waitangi Tribunal has held its first public discussions about its own inquiry, with the focus on how far into the past it should look back.

Lawyers for the Crown and Waitangi Tribunal claimants have traded arguments over the scope of an urgent inquiry into Oranga Tamariki's practices in taking Māori children from their mothers, with the breadth of the state's role in uplifting children likened to an octopus.

The tribunal announced last month it would look into Oranga Tamariki’s policies and practices, with Chief Judge Wilson Isaac saying there were sufficient grounds for an urgent inquiry “concerning a risk of significant and irreversible prejudice to Māori arising from current Oranga Tamariki policy and practice".

It is the fifth separate inquiry to arise from the case of an attempted 'uplift' of a week-old baby from its mother at Hawke's Bay Hospital in May, captured in a video documentary by Newsroom investigations editor Melanie Reid.

Exactly how far-ranging the Waitangi Tribunal's inquiry should be was the primary topic of discussion at a judicial conference in Wellington on Monday, with lawyers for the Crown and claimants taking differing views on whether historical problems with the uplifts of Māori children should be taken into account.

Appearing for the Crown, legal counsel Cameron Tyson argued the urgent inquiry should be limited in scope to cover the Government’s policies and practices since the establishment of Oranga Tamariki in 2017.

Extending the scope of the case back to 1989 - when a significant overhaul of New Zealand’s child wellbeing legislation took place - or earlier would move the inquiry beyond what the Waitangi Tribunal had intended when it granted the urgent hearing, Tyson said.

“It is what is happening in the here and now that needs to be addressed from the claimants’ perspective."

“It’s clear that what the chairperson had in mind was a very targeted inquiry into current policies and practices.”

Tyson’s argument was questioned by panel chairman and Māori Land Court Judge Michael Doogan, who noted that a review of historical data and practice could help to understand the rising and disproportionate numbers of Māori children being taken into state care.

“Given the nature of the question before us, why wouldn’t we look back to whatever period the data shows this trend either commences, or is well established, in order to understand how that has come about and...what aspects of Crown policy, practice, legislation may be inconsistent with the principles of the Treaty?”

In response, Tyson said the significant overhaul and different mandate of the new children’s ministry meant that looking at the current model and its potential shortcomings was where the tribunal could add the greatest value.

“It is what is happening in the here and now that needs to be addressed from the claimants’ perspective, and indeed that is very much how the claimants’ arguments to the tribunal were framed.”

Taking on the octopus

Māori lawyer David Stone, representing a number of claimants including midwife Jean Te Huia, said the tribunal needed to look at the actions of not just Oranga Tamariki but all the government agencies that could be involved in the uplifts of ​Māori children. 

“The issue before this tribunal can be viewed as an octopus, in the sense that there are different arms to this issue and Oranga Tamariki is just one of the arms of this octopus.

“You can’t look at just one of the arms of the octopus, you’ve got to go for the head.”

Stone said the tribunal would not have to “turn over every leaf and every stone” in its work, but could take a targeted approach to keep its work at a manageable level.

“We’ll know that we’ve got enough when we’ve got it - how long that will take and how far back that could go, I don’t know.”

The inquiry needed to hear evidence from those who knew the inner workings of government departments, with many too scared to come forward at present in case their jobs were put in jeopardy.

Stone said the Crown’s desire for a narrow scope would exclude many Māori who had suffered from similar government policies in previous decades.

“I would be personally uncomfortable if as a result of our work, we leave behind those people from the 70s who have gone through the exact same thing that people are going through today.

“We have grandchildren whose grandparents were also in state care…in dealing with and addressing the here and now, do we leave behind those from yesterday?”

“Do we have people in these hospital rooms when children are being taken who themselves have been in state care, and why would that be the case?”

Tom Bennion, representing claimants Aaron Smale and Toni Jarvis, said the tribunal should take a wide approach to the data it collected and agencies it spoke with, then narrow in based on what information it uncovered.

There was a “prima facie” case to suggest systemic problems given the failure of successive resets of legislation, which meant the historical elements could not be ignored.

“One thread that is very vital to keep carrying is the possibility that this is a systemic issue, that tamariki put into state care today may be part of an intergenerational issue.

“Do we have people in these hospital rooms when children are being taken who themselves have been in state care, and why would that be the case?”

The tribunal will meet again in early 2020, with three other independent inquiries - from the Children's Commissioner, the Chief Ombudsman, and the Whānau Ora Commissioning Agency - still underway.

Tyson said it would be best if the various inquiries could inform each other so Oranga Tamariki was not confronted with different sets of recommendations that did not "speak to each other along the way".

However, Doogan noted the need to respect the autonomy of the other inquiries' processes, as well as its own.

A fifth, internal inquiry into the attempted Hastings uplift at the centre of Newsroom's investigation was recently released by Oranga Tamariki, with chief executive Grainne Moss promising sweeping changes in response to the damning findings.

Doogan said it was possible the Hastings case or others could be used as case studies for the purposes of the tribunal's inquiry. However, there would need to be detailed discussions about how to manage confidentiality and privacy given the sensitivity of the issue.

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