Abstract
Tamariki Māori are over-represented in the Aotearoa New Zealand child protection system. This is a long-standing problem, which has its roots in the impacts of colonisation on Māori. The issue has come to a head in recent years, with a report from the Waitangi Tribunal in 2021, ‘He Pāharakeke, He Rito Whakakīkīnga Whāruarua’, finding that the government had breached the principles of Te Tiriti o Waitangi/The Treaty of Waitangi in relation to child protection. This thesis explores those issues from a Māori perspective, focusing on four questions:
1. Should the child protection system in Aotearoa New Zealand be decolonised and, if so, which principles of tikanga could help with this?
2. How effectively do the legal, policy and practice settings of the current child protection system meet the needs of tamariki and whānau Māori?
3. How might kaupapa Māori research and theory help to ensure that the decolonisation of the child protection system happens safely?
4. How should decisions be made within a decolonised child protection system, and what role should tamariki and whānau themselves have in that process?
Given the impacts of colonisation on the current challenges faced by tamariki and whānau Māori, the concept of decolonisation is used to analyse the ways in which the child protection system should change in future. In reference to my first research question, I argue that if the child protection system is to ever meet the needs of Māori it must be grounded in tikanga Māori and must contribute to the wider restoration of tikanga Māori in Aotearoa New Zealand generally. A decolonisation framework helps to highlight those wider changes that are necessary to improve outcomes for Māori generally, while also highlighting what must change within the child protection system itself. In reference to my second research question, I analyse the ways in which the legal, policy and practice settings of the current child protection system fail to meet the needs of Māori, and outline how those settings could be changed.
In reference to my third research question, I draw on kaupapa Māori research and theory to develop a framework which I have labelled ‘kaupapa Māori legal theory’. This framework acknowledges the potential value of incorporating tikanga Māori in law, but seeks to problematise the assumption that doing so is inevitably positive. Doing so carries risk, and kaupapa Māori legal theory seeks to find a way forward between those benefits and risks by suggesting that incorporating tikanga in law can be positive for Māori, but only if it helps affect a shift in power to Māori from the Crown. I develop the concept of ‘legislative off-ramps’ to describe the potential legal shifts which can affect short-term benefits for Māori while also enabling longer-term transformative change.
Finally, in reference to my fourth research question, I explore the issue of child protection decision-making as an illustration of how a decolonised child protection system might operate. Building on the theoretical analysis in the first half of my thesis, I analyse the findings from qualitative interviews I conducted with eight people, all of whom were Māori. The need to balance the views of tamariki and whānau with broader perspectives and considerations of tikanga is a microcosm of the issues facing the child protection system as a whole, and addressing the tension between those perspectives provides an illustration of how longer-term challenges within the child protection system could be addressed.
Building on those interview findings, I outline six tikanga Māori principles which I believe can be central to a decolonised child protection system – mana, rangatiratanga, wānanga, whakapapa, whanaungatanga and whānau. I analyse the ways in which those principles could shift law, policy and practice, and provide examples of what legislative reform might look like. The proposed reforms are designed to improve the child protection system for tamariki and whānau Māori and ensure their voices are heard, while also giving effect to broader aspirations regarding Māori self-determination and decolonisation. I believe that finding a way to uphold both of those short-term and longer-term goals is what will ultimately make the biggest difference for Māori. The longer-term changes required are fundamental, and the child protection system can perhaps be a place to start.