Taking the Treaty out of child protection law risks making NZ a global outlier

Australia, Canada and New Zealand share similar colonial stories. Historically, New Zealand has been the most interested of the three in thinking about how the universal human rights of equality, dignity and culture might gradually challenge the colonial order.

Australia hasn’t traditionally taken such issues as seriously, as the defeat of last year’s Voice to Parliament^[1] referendum suggested. It struggles to address the consequences of its stolen generations^[2] practices, while Canada struggles with the consequences of its residential schools^[3] legacy.

Both nations’ policies were intended to “breed out^[4]” the original inhabitants of those lands. New Zealand used “native schools^[5]”, among other measures of assimilation.

Te Tiriti o Waitangi (the Treaty of Waitangi) offers an alternative non-colonial vision, however. While always contested, it has sometimes made New Zealand a leader in Indigenous-state relations.

But in the past month, modest policy developments in Australia, and a significant constitutional development in Canada, have highlighted the extent to which New Zealand is becoming an outlier in international Indigenous policy thinking.

Amending the Oranga Tamariki Act

As part of their coalition agreement^[6], the National and ACT parties will remove section 7AA from child protection agency Oranga Tamariki’s governing legislation^[7].

The section came into force in 2019, allowing “strategic partnerships” with iwi (tribes) and other Māori organisations to improve child care and protection.

Read more: Care and protection, or containment and punishment? How state care fails NZ's most vulnerable young people^[8]

In part, it was a response to successive independent reports^[9] finding fault with Oranga Tamariki’s ability to care effectively for children at risk, especially Māori children. Last month, the Ombudsman reported^[10] 109 “formal deficiencies” in the agency’s work between 2019 and 2023.

Some might argue section 7AA still gave the state too much power, especially when the agency continues to do such a poor job. But without the section, Māori will again be left without recourse within the act to challenge that state power.

Australia and Canada change course

Meanwhile, the Australian government has this year announced it will establish^[11] a National Commissioner for Aboriginal and Torres Strait Islander Children and Young People. According to Prime Minister Anthony Albanese:

Indigenous children are almost eleven times more likely to be in out-of-home care than non-Indigenous children. The National Commissioner will focus on working with First Nations people on evidence-based programs and policies to turn those figures around.

It’s a simple ambition that won’t change overall power relationships. And it doesn’t have the far-reaching implications of the Supreme Court of Canada^[12] finding Indigenous peoples have an “inherent right of self-government, which includes jurisdiction in relation to child and family matters”.

But the notion that evidence counts, and that Indigenous people have a say in what constitutes that evidence, provides a sharp contrast with the current New Zealand government’s plan to remove reference to the Treaty from the Oranga Tamariki Act.

Read more: Do the principles of the Treaty of Waitangi really give Māori too much power – or not enough?^[13]

NZ as outlier

In Australia, some of the evidence Albanese referred to can be found in Safe & Supported: the national framework for protecting Australia’s children^[14]. Developed by the federal and state governments, Aboriginal and Torres Strait Islander representatives and the non-government sector, it sets out various policies and priorities.

These cover the primary role of families, communities and cultures in effective care, holistic support services, and addressing the causes of abuse and neglect. Section 7AA of the Oranga Tamariki Act aimed to foster the same things.

Like Australia and New Zealand, Canada retains its colonial outlook. But its acknowledgement of the right of self-government – with reference to the United Nations Declaration on the Rights of Indigenous Peoples^[15] – shows New Zealand is increasingly out of step on Indigenous policy.

Canada says its Act Respecting First Nations, Inuit and Métis Children, Youth and Families^[16] aims to contribute to the “implementation” of the UN declaration by offering a pathway to just and effective policy.

The province of Québec objected to this federal law on the basis it weakened its own powers. However, Canada’s Supreme Court found against Québec. The national Assembly of First Nations^[17] said this paves the way to rebuild their role, as the people who preceded the modern state, in caring for children at risk.

Right to self-determination

The Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly in 2007. Australia, Canada, New Zealand and the United States were initially the only UN members to vote against it (11 abstained).

Over time, however, all four countries have come to agree with the rest of the world that the declaration didn’t create any new or special rights. It simply recognised that human rights belong to Indigenous peoples as much as to anybody else.

When New Zealand changed its position in 2010, then National Party leader and prime minister John Key said^[18]:

My objective is to build better relationships between Māori and the Crown, and I believe that supporting the declaration is a small but significant step in that direction.

Read more: The state removal of Māori children from their families is a wound that won't heal – but there is a way forward^[19]

Yet in 2023, National’s coalition agreement^[20] with NZ First confirmed the previous government’s rejection^[21] of the 2019 He Puapua^[22] report on how New Zealand might implement the UN declaration.

Importantly, the declaration is not binding on member countries. But its essential premise is that Indigenous peoples have the same right to self-determination as others.

By repealing section 7AA of the Oranga Tamariki Act, and removing the requirement that Maori agencies are involved in decision making, the presumption that child care and protection policy should work equally well for Māori people is diminished.

This also weakens New Zealand’s commitment to the UN declaration’s insistence that Indigenous peoples have:

the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to […] violence […] including forcibly removing children of the group to another group.

Repealing section 7AA sets back New Zealand’s efforts to uphold those rights, at a time when similar countries are taking steps in the opposite direction.

References

1. ^{^} Voice to Parliament (csrm.cass.anu.edu.au)
2. ^{^} stolen generations (aiatsis.gov.au)
3. ^{^} residential schools (nctr.ca)
4. ^{^} breed out (trove.nla.gov.au)
5. ^{^} native schools (www.nzcer.org.nz)
6. ^{^} coalition agreement (www.interest.co.nz)
7. ^{^} governing legislation (www.legislation.govt.nz)
8. ^{^} Care and protection, or containment and punishment? How state care fails NZ's most vulnerable young people (theconversation.com)
9. ^{^} independent reports (www.waitangitribunal.govt.nz)
10. ^{^} Ombudsman reported (www.ombudsman.parliament.nz)
11. ^{^} announced it will establish (www.pm.gov.au)
12. ^{^} Supreme Court of Canada (www.scc-csc.ca)
13. ^{^} Do the principles of the Treaty of Waitangi really give Māori too much power – or not enough? (theconversation.com)
14. ^{^} Safe & Supported: the national framework for protecting Australia’s children (www.dss.gov.au)
15. ^{^} Declaration on the Rights of Indigenous Peoples (www.un.org)
16. ^{^} Act Respecting First Nations, Inuit and Métis Children, Youth and Families (laws-lois.justice.gc.ca)
17. ^{^} Assembly of First Nations (afn.ca)
18. ^{^} John Key said (www.beehive.govt.nz)
19. ^{^} The state removal of Māori children from their families is a wound that won't heal – but there is a way forward (theconversation.com)
20. ^{^} National’s coalition agreement (assets.nationbuilder.com)
21. ^{^} rejection (www.stuff.co.nz)
22. ^{^} He Puapua (www.rnz.co.nz)