Still waiting for the new dawn

Although it was written 36 years ago, in 1986, the landmark report into the Social Welfare Department, Pūao Te Ata Tū (meaning “new dawn”), still holds truths and solutions which should be required reading for everyone at Oranga Tamariki — as law lecturer Luke Fitzmaurice-Brown says in his kōrero here in E-Tangata.

The report of the ministerial advisory committee, led by Ngāi Tūhoe kaumātua and academic John Rangihau, was requested by then Minister of Social Welfare, Anne Hercus, to identify “aspects of the Social Welfare Department which are detrimental to the Māori people”.

Here’s an extract from the report.

 

A current failure to deliver government services with sensitivity to Māori needs is not just the result of cultural ignorance, or omission or neglect by present state advisers. It results also from a century of antipathy and long adherence to a policy of assimilation. We think it important to appreciate the impact of the past.

In the first instance, broad allegations of racism are unhelpful if they lay blame for history on current office bearers. In the second, the historical perspective emphasises the quantity of inherited laws, policies and practices, requiring substantial modification before Māori needs can be adequately catered for. This is particularly pertinent when the law requires a service through a department of state bound to deliver within the parameters of settled law and practice.

It is no easy matter to wipe the slate clean and begin again. Even the most culturally aware officers of state will be unable to effect desirable changes if there are no commensurate changes to overriding laws. Those not so culturally aware are easily persuaded to assume that the existing regime of laws, practices and policies is right, if only because it exists.

Racism ought not to be personalised if it is endemic in a system in which people work. This part of our paper considers some laws inimical to Māori interests that condition and constrain the bureaucratic response. Departmental policies operating independently of legal requirements will be separately considered later. To begin with we must go back in time again.

Early imperial laws of the British Government were directed to protecting Māori customs, preferences and way of life. Initially, colonial policy sought to achieve protection through the maintenance of tribal lands in tribal districts. The policy, as contained in letters of instruction to colonial governors, was that only excess tribal lands were to be bought for settlement. It was seen necessary that the tribes retain a sufficient endowment for their future needs.

The policy was advanced in the New Zealand Constitution Act, 1852, enacted in Great Britain to introduce self-government to New Zealand. It provided for the maintenance of tribal districts in which Māori customary laws and practices would prevail. (It must be added that the imperial policy did not prescribe separate “Homelands” or “Reservations” for the tribes. The policy was also that Māori people would enjoy the same rights and privileges as British subjects, without restriction on the right to move freely throughout the country.)

The reality was that the imperial policies were not applied at the frontier. Land was acquired so as to leave tribes without a sufficient endowment, and in some cases to render them totally landless. It followed that, save for a brief exception affecting the Tūhoe people, tribal districts in which tribal law would prevail were not created either.

So it was that the maintenance of customary preference in law came to be regarded not as a constitutional right, but as something to be conceded to meet particular exigencies, and then done away with as soon as possible, to advance the assimilation of Māori people into Western society, and to have but one law for all people.

That policy is now so ingrained in national thinking that it is difficult for the administrator to conceive of any other, and administrative reaction is invariably to counteract pressure for change with allegations of separatism or privilege.

Many cannot conceive that indigenous people have particular rights, or contemplate that the denial of a way of life to the original inhabitants, is itself divisive and destructive. The extent to which laws defeated the maintenance of a Māori way is not properly appreciated in our society.

Such land as was left to the tribes was by law individualised in a manner totally alien to Māori concepts. It was done despite every tribal protestation and petition. It took away the authority of traditional leadership and placed it in the hands of European courts and lawyers. We think it was probably this, more than the failure to provide tribal districts, that caused the disintegration of tribal authority, kin group structures and eventually the traditional sense of community responsibility.

The social cost bears heavily on the Department of Social Welfare today. The historical perspective suggests the cure of the malady may lie in the identification of the cause — the breakdown of Māori society.

That leads us to the next point. It is not just the making of laws, but the omission to make them, that is important. We refer in particular to the failure to provide adequately for tribal authorities and community responsibility.

Despite every endeavour to denigrate tribal controls, the vestiges of tribalism remained as the preferred vehicles for self-management.

It was reflected in the development of adaptation movements, the Kīngitanga, and the Rātana and Ringatū churches for example, but the tribal principle was not reflected in legislation until Māoridom found its first cabinet minister in Sir James Carroll. From at least 1891, when he sat as a member of the Royal Commission on Native Land Laws, Sir James Carroll promoted the tribal principle for the administration of Māori land and affairs. But it was not until 1900 that Carroll was able to persuade his colleagues to accept the Native Lands Administration Act of that year.

The Act provided for administration through tribal councils. But tribal control, not unexpectedly, resulted in a marked decrease in the sale of land for settlement, and to Carroll’s dismay, his government repealed the Act in 1905.

Government voted instead [for] liberal funding to the Land Purchase Board to expedite land acquisitions. Carroll’s political protege, Sir Apirana Ngata, took up where Carroll left off, but the political antagonism to tribal control was by then so strong that Ngata’s land development proposals were implemented only through land boards.

Land boards, constituted for each Māori Land Court District, were predominantly staffed by administrators, and covered areas too large to permit anything more than some token tribal representation upon them.

The prospect of tribal redevelopment did not emerge again until 1945 when the Māori Social and Economic Advancement Act provided again for tribal authorities. The emphasis on economic development was helpful, but this time tribal powers were carefully divorced from any responsibility for what was then the only — if illusory — economic base for Māoridom: the land.

Without the land, or adequate funding to permit the development of other economic enterprises, the emphasis of the tribal councils shifted to political and social concerns. There never was the facility for the councils to be involved in any comprehensive tribal development programme. With the contemporaneous shift of Māori people to urban centres, sometimes well removed from the tribal base, tribal unity suffered too.

Eventually, the Māori Social and Economic Advancement Act 1945, was replaced by the Māori Welfare Act 1962. The latter constituted the current New Zealand Māori Council. It also substituted district representation for tribalism, and while of course geographical districts occasionally coincide with tribal areas, the tribal principle was not the basic rationale for the council’s structure.

In similar vein, while other bodies have strong tribal personalities and characteristics, they are not by their constitutions, tribal authorities. Some large Māori land trusts and incorporations support tribal programmes but owe their prime allegiance and legal responsibility to their individual shareholders, and then in accordance with the individual shares. Māori trust boards are separate bodies, originally created by statute to administer compensation moneys on behalf of tribes. Since the mid-1940s, when most of them were established, many have widened their roles into the general area of tribal and community development and the representation of their iwi on land grievances.

More recently, they have been increasingly recognised by the Crown as the appropriate nominating bodies for Māori membership on other bodies and agencies. Still more recently, a number of them have begun to evolve a role as distribution agencies of central government funds within the Māori, as distinct from tribal, communities in their respective regions. They have become the “bankers” and “trustees” for the proper and equitable distribution of these funds.

The merits of this most recent development are the capacity for effective Māori community representation and decision-making on the allocation of resources, matched with proper accounting and financial management through the offices of already established statutory bodies. Within communities, which are increasingly cross-tribal and dispersed in regions other than their traditional ones, it is a pattern which maintains the important cultural principle of mana whenua and allows appropriate tribal relationships to flourish.

The most remarkable phenomenon of our times is the enormous resurgence of interest in the propagation of tribal structures along traditional lines, and the consequent restrengthening of kin ties and community responsibility. It has come, unexpectedly, at a time when Māori people have become scattered across the nation. It has come as a call home.

It underlies the strongest call that we heard from Māori people as we moved across the country — a call for resources that the tribes might manage and care for in their own way. No more as supplicants seeking more lollipops from the state, but as a proud people seeking to manufacture their own quality.

The resurgence of tribalism has come despite every obstacle. It has come not because of the law but in spite of it. Tribalism lost its land base and an alternative economic base was not found, and yet the principle survives, for tribalism exists in the hearts and minds of people. It is an integral part of a Māori cultural renaissance.

But as we look back on history, we realise that the modern demand for the right of self-development along tribal lines is nothing new. It is half as old as time. It is our Polynesian heritage. The question is whether the law makers and administrators will be able to capitalise on the unbounded energy that exists as a way of improving both their performance and ours.

From that perspective and from the official denial of de facto survival of tribal structures as the preferred models for Māori development, we need to consider other laws inimical to Māori growth. These laws amount to one thing, the substitution of Māori concepts of group control for western principles of individual rights and impartial treatment.

As we have seen, the denial of tribal ownership of land and the substitution of individual shareholding within land allotments provide the most striking examples of cultural replacement. Even today, Māori land laws emphasise the rights of individual owners but give little consideration to the effect of individual actions on the group. In addition, Māori land holdings are not a resource for tribal development programmes, save perhaps those in extensive multiple ownership.

In the criminal arena, it was never seriously considered there should be any other laws and procedure than that favoured in western tradition. As we have seen, although the Imperial Government favoured districts in which the laws, customs and usages of Māori people would be observed, Māori districts were not created. Māori law observance depended on the maintenance of the mores of a communal society, but the authority of community sanction was supplanted by the remote institutions of western law courts and police forces.

Imprisonment typified the western response — the equation of individuals with animals distanced from their communities but later to be inflicted back on them. It is not suggested that the old Māori ways should now be restored, but that ought not inhibit the search for a greater sense of family and community involvement and responsibility in the maintenance of law and order.

At present, there is little room for a community input into individual sentencing, no chance for an offender’s family to express censure or support, no opportunity for a reconciliation between the wrongdoer and the aggrieved, no search for a community solution to a social problem. The right and responsibility of a community to care for its own is again taken away and shifted to the comparatively anonymous institutions of western law.

All this is not removed from our terms of reference. The prevalence of western opinion in influential areas of law, conditions the approach of administrators who service necessary institutions, and affirms the view that the Māori is to be treated as an individual and that the communal orientation of Māoridom is without value or relevance.

Not unexpectedly then, group rights are without recognition in other areas of law pertinent to Māori group identity and traditional structures, but more strictly, within the purview of the Department of Social Welfare. Those causing particular anguish relate to the placement of children, be it in adoption, following marriage breakdown, after death, following neglect or abuse, or resulting from an appearance of a young person in court.

The placement of children was once the means whereby kin group or whānau structures were strengthened. The child is not the child of the birth parents, but of the family, and the family was not a nuclear unit in space, but an integral part of a tribal whole, bound by reciprocal obligations to all whose future was prescribed by the past fact of common descent.

Children were best placed with those in the hapū or community best able to provide, usually older persons relieved from the exigencies of daily demands but related in blood so that contact was not denied. Whakapapa (recited genealogies) were maintained to affirm birth lines, but placements were arranged to secure lasting bonds, commitments among relatives, the benefit of children for the childless, or those whose children had been weaned from the home, and relief for those under stress.

Placements were not permanent. There is no property in children. Māori children know many homes, but still, one whānau. “Adopted” children knew birth parents and adoptive parents alike and had recourse to many in times of need.

But it follows too that the children had not so much rights, as duties to their elders and community. The community in turn had duties to train and control its children. It was a community responsibility. Discipline might be imposed on a child by a distant relative, and it was a strange parent who took umbrage.

Into this remarkably fluid arrangement, western adoption laws were introduced. It was a totally alien concept, contrary to the laws of nature in Māori eyes, for it assumed that the reality of lineage could be expunged, and birth and parental rights irrevocably traded. At first, Māori customary placements were recognised in law but then wrongly equated with adoptions.

From 1901, it was required that they be registered to have status. Registrations were effected because of advantages in securing benefit payments, allowances, housing opportunities and succession rights in Māori lands. By 1909, Māori adoptions required the approval of the Māori Land Court. That did not seem too great an imposition in the circumstances. In a bow to customary preferences, proposed Māori adoptions were publicly notified by the Land Court, anyone of the community could object, and birth lineages remained matters of public record in the offices of the Court.

At the same time, however, Māori were unable to adopt European children, for the reason, as stated in the House, during the passage of the Act, that they “are not living in a way we should consider proper for European children”. That placed some restrictions on Māori people (for many had raised European children), not just for the children, but as a way of building lasting bonds and relationships with European families who had settled among them.

But there was more concern that Europeans were adopting Māori children, obviously with parental consent, but not the consent of the community, and the effect of the European way to them, was to make a child of lineage, a child who belonged only at sea, to be rescued if possible. It did not create binding ties with the European family but affirmed the concept of remoteness and the separation of children from their communities.

For example, some parts of the Māori Affairs Act 1953 can now be seen as confirming the distancing of Māoris from their cultural norms by reinforcing the process of assimilation into western legal forms and institutions.

The language used in Section 79 of that Act, for instance, is significant: “No marriage in accordance with Maori Custom . . . shall be regarded as a valid marriage for any purposes” and again Section 80: “No Maori shall hereafter be capable or be deemed at any time since the commencement of the Native Land Act 1909 to have been capable of adopting any child in accordance with Maori Custom”.

By 1955, Māori parents could adopt European children and vice versa, but the adoption of Māori children by Māori was still within the jurisdiction of the Māori Land Court.

In 1962, all adoptions passed to the general courts. Legal assimilation was finally perfected. Once again, decision-making and responsibility for the placement of children has been taken from close-knit Māori communities and the authority placed exclusively in courts and state agencies.

The superiority of the western preference for individual rights and duties is officially affirmed, and the Māori promotion of communal responsibilities is diminished, not least among social workers who are constrained to supply their services within the authority of the law and with due regard to the attitudes of judicial officers.

We see then a need for substantial law reform to accompany any new strategies to improve policy, planning and service delivery to Māori people within the Department of Social Welfare.

We see no reason why Māori adoption models cannot be provided for in law, as an option for any Māori who may choose them — or any Europeans for that matter, outside of the general courts. Additionally, we think whānau members should have the right to be heard in objection on the adopting out of Māori children.

We have been given to understand that the wider whānau of Māoridom has not even the right to be heard on cases involving the placement or custody of Māori children. We have been told of cases where neither judges, nor lawyers nor even counsel for the child, have considered it proper for other than immediate parents to be present.

We do not think cases involving Māori children ought to be determined solely in accordance with western priorities, or that those who do not have a Māori experience or training, are adequate arbiters or advocates of the best interests of the Māori child.

We do not think the law should be weighted to denying the facility of Māori communities to care for their own in the way they best know how.

We consider the Children and Young Persons Act requires substantial revision along similar lines. Informal hearings should be conducted in the context of seeking a family involvement in the discussion, and ultimate decision.

We do not think that Māori children should be placed in State foster homes without a committed search for a suitable placement within the whānau. We were told of a case where a grandparent had to take legal proceedings in custody to recover her grandchild from a State foster home, following a case of parental abuse, and where the grandparent had not even been interviewed by the Department for her fitness to care.

It is not good enough to consider that the state provides best simply because it provides the easiest options. It is even worse when the inference is that relatives are unfit. It is not easy to reinculcate the traditional sense of family and community support for those under stress, when the value of the family support is undermined in laws and bureaucratic services.