1 July 2019 - Making it happen for Māori children in Aotearoa

Justice Joe Williams speech to the Te Tai Tokerau Family Law intensive event on the 15th of April 2019 laid down a challenge to all of us involved in the provision of family law services with a clear message that we have to do better.

He demonstrated with a simple quiz on significant events in New Zealand history the lack of cultural capability of most of the people at the conference and which I would think is mirrored amongst many who are appointed as lawyers to represent children and FDR mediators working with families. His questions were simple. Whilst most could name the first European who discovered New Zealand, few could say who the first Māori was. Most could name the vessel travelled in by the European, few knew the name of the vessel used by the Māori. And so, he went on, taking us through the history which few of us were taught and which all of us should know. Things like the Māori Land March in 1975 with its catch cry of ‘Not one more acre’, the occupation of areas of land such as Bastion Point and the Raglan Golf Course. He challenged us to learn about the principles of the Treaty of Waitangi and to learn why the Treaty settlement process is, was and continues to be so important. 

Justice Williams highlighted how helpful the Court has been in recognising the Treaty obligations on the Crown and demonstrated how many of these decisions have become codified in law. For example, following Huakina Development Trust  v The Waikato Valley Authority[1]  (where it had been argued that there were obligations on the Crown to have regard for Māori values or lore), decision makers must take into account concepts such as mauri (life force), mana (prestige), taonga tuku iho (treasures) and te mana o te wai (the mana of water) in the context of freshwater management.  This requirement is codified in the Resource Management Act. 

He also noted the development of the law to value Māori tikanga and lore with such things as the granting of a legal person status to the Whanganui river and the Urewera National Park.

Having sparked everyone’s interest, Justice Williams then took us through the history of the development of the Children Young Person’s & Their Families Act 1989 (“CYPF”) as it was then known. He talked of the work done by John Rangihau[2] who lead the group which produced the report Puao-te-ata-tu which so informed the CYPF Act, which today is known as Oranga Tamariki Act 1989.

Then he laid down the challenge. From the 1st of July 2019 several important amendments to the Oranga Tamariki Act come into effect.  A new section 4(A) sets out the paramountcy requirement which requires a focus on the wellbeing and best interests of children having regard to the principles in the new s5 and amendments to s13 of the Act.

The overwhelming message is that children’s wellbeing which is inextricably linked in with their relationships within whanau, hapu and iwi must be promoted. Justice Williams said that these changes focus all involved in making decisions about children to focus on reconciliation of family issues and early intervention to ensure that children’s wellbeing is promoted.

In November 2018 Ngāi Tahu signed an agreement with Oranga Tamariki which established a partnership envisaged by the new s7AA of the Oranga Tamariki Act. In the press release which announced the agreement Gráinne Moss said:

“Oranga Tamariki was delighted to enter into this partnership with Te Rūnanga o Ngāi Tahu. “This is a partnership that respects each other’s mana and it will ensure better outcomes for children, young people and their whānau, supported by shared protocols and principles.”

As stated in the partnership document: “By working together the partners aim to enhance the impact and effectiveness of their individual efforts to achieve enduring outcomes for Ngāi Tahu tamariki, rangatahi and whānau.”

Chief Executives Arihia Bennett (Te Rūnanga o Ngāi Tahu) said:

“Te Rūnanga o Ngāi Tahu objectives will be met when there are no Ngāi Tahu tamariki or rangatahi in state care, when all Ngāi Tahu tamariki and rangatahi are connected and culturally supported, and when communities and organisations are working collaboratively to support whānau needs and aspirations.”[3]

Justice Williams said that many of the aspects of the law which relates to children is very un-Māori. He said that mana tamariki refers to the dignity of the child within the collective of whanau, hapu and iwi. Tikanga, whakapapa, whanaungatanga rights and obligations will need to be understood by anyone who works with children in New Zealand. 

Whilst the changes to legislation affect the Oranga Tamariki Act specifically, there is little doubt that the principles will impact on Care of Children Act decisions.  

No more children in state care seems like a lofty goal and one to aim for.  As is said in the whakatauki “Whāia te iti kahurangi ki te tūohu koe me he maunga teitei” we should aim high, be persistent and not let obstacles stop us from reaching our goal.

For 30 years the promise of Puao-te-ata-tu has not been realised. The 1st of July 2019 is a landmark day. The challenge set by the changes, if realised will again make New Zealand a leader in the way we look after our children.

So, what does this all mean for Family Dispute Resolution (FDR) mediators?  Regulation 7(i) of the Family Dispute Resolution Regulations says that FDR providers must be culturally aware, in particular of Māori values and concepts. This means we need to:

  1. Learn New Zealand history and the impact of colonisation.
  2. Read, discuss and bring to life Puao-te-ata-tu.
  3. Read, discuss and give effect to the principles embodied in ss 5 and 13 of the Oranga Tamariki Act 1989.
  4. Learn tikanga māori, learn about māori leadership and dignity embodied in principles of mana, whakapapa and whanaungatana.
  5. Recognise the importance of lore as well as law.
  6. Design with the people involved in the FDR mediation a process which is going to encourage participation, partnership and reconciliation.
  7. Ensure that we assist parents, guardians and those who have a significant relationship with children to reach agreements which promote the children’s wellbeing as well as being in their welfare and best interests.

In my view the most important thing we must do is recognise that we are all guilty of thinking we know best and judging others from our own world view. Unfortunately, this is encouraged by the process which has us deciding whether or not a matter is suitable for mediation. In my view we should ask am I suitable to be the mediator for this family.

We as FDR mediators will do best when we acknowledge the capacity of the parties who want to mediate and spend our time developing a process which will best serve the parties to make decisions for their children, families, tamariki, mokopuna, whanau or hapu.

About the author

Denise Evans is Principal, Dispute Resolution at FairWay. As part of this role, Denise provides Dispute Resolution leadership within FairWay and champions the use of Dispute Resolution services in New Zealand and internationally.

Denise has over 30 years’ experience as a lawyer, mediator and arbitrator, and she has vast experience in resolving commercial and family disputes. If you would like to get in touch with Denise, please contact her by email at denise.evans@fairwayresolution.com

About FairWay

FairWay is a nationwide provider of Family Dispute Resolution, with accredited mediators around New Zealand.

Many families are entitled to 12 hours of fully-funded Family Dispute Resolution services.

Please get in touch with the Family Dispute Resolution team to find out more.

Phone:     0800 77 44 20

Website:  www.fairwayresolution.com 

 

 

[1] Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188

[2]  For more information about John Rangihau see https://teara.govt.nz/en/biographies/5r6/rangihau-john-te-rangianiwaniwa

[3] http://www.scoop.co.nz/stories/PO1811/S00118/ngai-tahu-to-formally-partner-with-oranga-tamariki.htm