25. The Terms of Reference directed the Inquiry to appropriately recognise te Tiriti o Waitangi and to partner with Māori throughout the Inquiry. The Inquiry was directed to be underpinned by te Tiriti o Waitangi and its principles. It was also directed to recognise the disproportionate representation of Māori in State and faith-based care.[1]

26. Key terms used include:

• kāwanatanga is a reo Māori term, an adaptation of the English word ‘governor’
• kaupapa Māori means a Māori approach or customary practice
• mana motuhake means self-determination, independence, sovereignty and authority over one’s own destiny
• mātauranga Māori means Māori knowledge
• Takatāpui is a traditional reo Māori word meaning ‘intimate friend of the same sex’, which includes all Māori who identify with diverse sexualities, gender expressions and/or variations of sex characteristics
• tāngata whaikaha is a reo Māori term for disabled people, which reflects a definition of people who are determined to do well
• tāngata Turi is a reo Māori term for Deaf people
• tāngata whaiora is a reo Māori term for people who are seeking health, and can also be used to refer to a person receiving assessment and treatment in mental health, addiction and intellectual disability services
• tikanga Māori means behavioural guidelines for living and interacting with others in te ao Māori
• tino rangatiratanga means self-determination, sovereignty, independence and autonomy
• whānau hauā is a reo term for Māori with disabilities, which reflects te ao Māori perspectives and collective orientation
• whāngai means Māori customary adoption or fostering of children or young people.

27. Part 2 of the Inquiry’s final report, Whanaketia – Through pain and trauma, from darkness to light, sets out the historical and social context relevant to the Māori experiences of abuse and neglect in care, including:

• traditional Māori attitudes to care, wellbeing, health and disability (Chapter 2)
• the arrival of missionaries in Aotearoa New Zealand (Chapter 3)
• the origins, signing and impacts of te Tiriti o Waitangi Treaty of Waitangi (Chapter 3)
• societal attitudes during the Inquiry period, including racism and negative stereotypes of Māori (Chapter 4)
• increasing hardship on Māori communities in the period 1900-1950 (Chapter 5)
• Māori adapting to an urban way of life and Māori activism in the period 1950-1970 (Chapter 6)
• growth of the Māori-Crown relationship, Māori beginning to be overrepresented in care, and Māori activism in the period 1970-1999 (Chapter 7)
• demographic data relating to Māori during the Inquiry period (Chapter 8)
• Aotearoa New Zealand’s system of government, the public service and State administration during the Inquiry period (Chapter 9)
• State-based care settings during the Inquiry period (Chapter 10)
• faith-based institutions and care settings during the Inquiry period (Chapter 11).

Māori survivors who registered with the Inquiry

28. Māori survivors made up almost half (44 percent) of the 2,329 survivors who registered with the Inquiry.

29. Survivors who registered with the Inquiry were a self-selecting subset of everyone who was in State and faith-based care, and do not  represent all those who were abused or neglected in care. The Inquiry recognises that the true number of Māori survivors who experienced abuse and neglect in State and faith-based care may be far greater. There are likely many Māori survivors the Inquiry did not hear from and
who did not disclose the abuse and neglect they suffered. This, and the poor recordkeeping of survivors’ demographic information and failure to document incidents of abuse and neglect mean we may never know the true numbers of Māori survivors who were subjected abuse and neglect in State and faith-based care.

30. Although it was not possible to reference or quote every survivor who came forward to the Inquiry in this report, the experiences of every survivor were heard and informed the Inquiry’s observations, findings and recommendations.

31. The table below sets out additional demographic information about the 1,018 registered Māori survivors.

Key facts about registered Māori survivors

Number and percent of registered Māori survivors

* MVPFAFF+ refers to diverse sexualities, gender expressions and roles in the Pacific (Māhū, Vakasalewalewa, Palopa, Fa’afafine, Akava’ine,
Fakaleitī (or Leiti), Fakafifine).

32. The Inquiry acknowledges that not all Māori survivors disclosed their whakapapa. The data reported in the table below reflects those registered survivors who identified their iwi. The iwi identified by survivors were grouped according to Statistics New Zealand’s iwi and iwi-related groups statistical classification V2.1.0.

Iwi affiliation of registered Māori survivors

How Māori survivors and their whānau, hapū, iwi and hāpori engaged with the Inquiry

33. Māori survivors could engage with the Inquiry in person, through their whānau, through legal representatives or advocates, during  community meetings or wānanga.

34. The health, wellbeing and mana of survivors was at the centre of the Inquiry’s approach and it always sought to avoid further harm. Interactions with survivors and their whānau or support networks were trauma informed. This meant being sensitive to the impacts of trauma and treating survivors and their whānau with atawhai (kindness), humanity, compassion, dignity, respect and generosity.[2]

35. The Inquiry respected the mana motuhake (autonomy) of survivors and empowered them to make their own decisions about how they would be involved. Some survivors shared their experiences as a group, community or collective. Survivors could meet privately with a commissioner or kaitakawaenga (a representative of the Inquiry). Face to face interviews were held with survivors in prison.

36. The Inquiry established a hauora policy and a survivor hauora team to provide appropriate support for survivors before, during and after they engaged with the Inquiry. Survivors and their whānau had access to wellbeing support and services, including rongoā Māori practitioners, free of charge.[3] In 2021, the Inquiry worked with a hauora Māori clinical expert to review and update its survivor wellbeing approach to ensure it was mana informed.

37. The Inquiry held 133 days of public hearings between 2019 and 2022, to give survivors an opportunity to talk publicly about what happened to them and witnesses of abuse and neglect to describe what they saw or heard. They also provided an opportunity for the Inquiry to publicly hold State and faith-based institutions to account. Most hearings were held in Tāmaki Makaurau Auckland. Ngāti Whātua Ōrākei provided cultural guidance and support for the hearings, including opening and closing the sessions.

38. The Inquiry held its Tō muri te pō roa, tērā a Pokopoko Whiti-te-rā (Māori Experiences) Hearing was held at Ōrākei Marae in Tāmaki Makaurau Auckland in March 2022. Ngāti Whātua Ōrākei gifted the name, which refers to hope and healing for survivors of abuse in care, after years of darkness. This hearing was co-chaired by Commissioners Julia Steenson (Ngāti Whātua Ōrākei, Waikato-Tainui) and Dr Andrew Erueti (Ngā Ruahinerangi, Ngāti Ruanui, Te Āti Haunui-a-Pāpārangi) generally in person from Ōrākei Marae.

39. Commissioners went on haerenga (journeys) to Kaitāia, Kaikohe, Waikato, Tūranganuia-Kiwa Gisborne, Ōtautahi Christchurch, Ōtepoti Dunedin, Te Tai Poutini West Coast, Waihōpai Invercargill and Motupōhue Bluff to engage particularly with survivors (communities including iwi), leaders and providers of care in these places.

40. A gang whānau hui was held in February 2023 and the Inquiry was invited to attend. The hui provided a platform for gang whānau (nine gangs and more than 250 participants) to share with the Inquiry their experiences of abuse and neglect in care and their views on its connection to gang membership. Two female focus groups were also held to hear their unique experience. The Inquiry offered one-on-one interviews for gang whānau who were survivors of abuse and neglect in care.

41. The Inquiry brought together Te Taumata, a group of Māori leaders and pukenga (experts). Its role changed over time. By early 2022 its function was to ensure that the Inquiry had implemented an effective te Tiriti-based approach. Te Taumata provided strategic advice and guidance on engaging with iwi, hapū, whānau, and hapori Māori.

42. Pou Tikanga (a group of tikanga and te reo Māori experts) was set up in 2021 to provide advice guidance on tikanga-based approaches to the Inquiry. In late 2021, the Inquiry began to meet with Te Ara Takatū, a group of Māori-led survivors, kaupapa Māori advocates and academics that had formed independently of the Inquiry. Te Taumata, Pou Tikanga and Te Ara Takatū were provided with draft material, in confidence, to provide expert feedback for consideration in the finalisation of the reports.

Frameworks underpinning the Inquiry’s work

43. The Inquiry used five frameworks to guide its analysis and understanding of survivors’ experiences of abuse and neglect in State and faith-based care. The Inquiry used these frameworks to analyse evidence and identify where these frameworks, values and worldviews were breached or transgressed.

44. The two frameworks of most relevance to Māori survivors – te Tiriti o Waitangi and tikanga and te ao Māori – are described below. Chapter 6, Part 1 of the Inquiry’s final report, Whanaketia – Through pain and trauma, from darkness to light, discusses the other three frameworks: human rights, Deaf, disability and mental distress framework, and Pacific values framework.

The Inquiry was underpinned by te Tiriti o Waitangi

45. Guided by the intention to recognise te Tiriti o Waitangi and its principles, as well as the status of iwi and Māori under te Tiriti o Waitangi,[4] the Inquiry sought to centre te Tiriti o Waitangi in all its work.

46. The status of te Tiriti o Waitangi in Aotearoa New Zealand’s legal system has evolved over time.[5]No longer a “simple nullity”,[6] te Tiriti o Waitangi is now recognised as “of the greatest constitutional importance”.[7] If it is included in legislation, it has direct legal force and effect. Where it is not explicitly mentioned, courts have found that te Tiriti o Waitangi can be relevant to interpretation of the statute and the development of the common law. The courts have adopted a general presumption that Parliament intended to legislate in terms consistent with te Tiriti o Waitangi.[8]

47. The Inquiry reviewed the significant body of jurisprudence that the Waitangi Tribunal and the courts have developed over the last 40 years to apply te Tiriti o Waitangi and its principles in the context of its work. While there are some well-established te Tiriti o Waitangi principles, their interpretation and articulation has developed over time.[9]The Inquiry placed weight on recent descriptions of te Tiriti o Waitangi principles by the Waitangi Tribunal. This is consistent with the courts’ approach of considering the opinion of the Waitangi Tribunal that te Tiriti o Waitangi is always speaking.[10]

48. The Inquiry was aware of the significant debate over the differences between te Tiriti o Waitangi and the Treaty of Waitangi.[11] Talking about the principles can be controversial, particularly when they are interpreted in a way that lessens or undermines guarantees in the reo Māori text.[12]

49. The Terms of Reference refer to “te Tiriti o Waitangi/the Treaty of Waitangi and its principles”.[13]The Inquiry took meaning from the text, intent and circumstances surrounding the signing of te Tiriti o Waitangi. The principles cannot be separated from, and necessarily include, the articles and language of te Tiriti o Waitangi itself.[14]The Supreme Court has demonstrated a willingness to refer to and uphold the articles.[15]The Waitangi Tribunal has found that te Tiriti o Waitangi principles must be based in the actual agreement entered in 1840 between rangatira and the Crown.[16]Recent Cabinet Office guidance has noted that “while the courts and previous guidance have developed and focused on principles of the Treaty, this guidance takes the texts of the Treaty as its focus”.[17]

50. Considering the text of te Tiriti o Waitangi, the Inquiry adopted the following principles:
a. tino rangatiratanga
b. kāwanatanga
c. partnership
d. active protection
e. options
f. equity and equal treatment
g. good government
h. redress.

51. More detail about these principles is set out in Part 1 of the Inquiry’s final report, Whanaketia – Through pain and trauma, from darkness to light.

How the Inquiry applied te Tiriti o Waitangi and its principles

52. The Inquiry applied te Tiriti o Waitangi and its principles to consider the provision of care by the State and faith-based institutions, as appropriate to the context. This meant identifying when the State and faith-based institutions failed to uphold their obligations and commitments under te Tiriti o Waitangi and its principles, and how this affected Māori survivors.

53. The Crown’s obligations in respect of care provided by the State stem directly from being a party and signatory to te Tiriti o Waitangi. When the Crown delegates responsibilities to State organisations (such as Oranga Tamariki or the Ministry of Health), the Crown must ensure those institutions recognise Māori rights and values and act in accordance with the Crown’s te Tiriti o Waitangi obligations.[18]This is consistent with the principle of active protection. The Crown’s obligations therefore apply to all State organisations that provide care.

54. Although faith-based institutions and indirect care providers are not te Tiriti o Waitangi partners, the Inquiry took the approach that:

• legislation may require faith-based institutions and indirect care providers to act consistently with te Tiriti o Waitangi [19]
• te Tiriti o Waitangi influences the interpretation of all legislation dealing with Māori, and therefore may impact on faith-based institutions and indirect care providers when they care for tamariki, rangatahi and pakeke Māori[20]
• if faith-based institutions and indirect care providers made their own commitments to te Tiriti o Waitangi, they may be held accountable to meet those commitments.[21]

Ngā tikanga me te ao Māori

55. The Inquiry used a tikanga Māori (Māori customary practices or behaviours) framework to assist in understanding and analysing Māori survivors’ experiences from an ao Māori (Māori worldview) perspective. The Inquiry chose to draw on these tikanga and ao Māori perspectives because a disproportionate number of survivors are Māori and, for many, a meaningful response to the tūkino – abuse, harm and trauma – inflicted and suffered can only occur on Māori terms.

56. The descriptions of tikanga and ao Māori concepts and values set out below reflect what guided the Inquiry’s analysis and investigations. They are not intended to be a comprehensive analysis of the terms and concepts used. The Inquiry was informed by the expertise of its Pou Tikanga group.

Te ao Māori – a relational world

57. Te ao Māori means the Māori worldview (the way Māori see the world through a Māori cultural lens) and the cultural world that Māori live in and operate in. When survivors talked about being dislocated and isolated from their Māori culture, they were often referring to both these contexts. Disenfranchisement from the Māori cultural world comes from not being able to access the knowledge that would support engagement and participation in the cultural life of whānau, hapū and iwi.

58. Te ao Māori is guided by the understanding and operation of tikanga Māori. Tikanga are the primary customary system of values and practices that have developed over time. They are based on shared, commonly held beliefs and values that are passed on intergenerationally and guide behaviours and practices. Tikanga set expectations about what is right and just, and what is wrong and should be avoided. When followed
and adhered to, tikanga helps keep people and things safe. The way tikanga Māori manifests can vary between different whānau, hapū and iwi but the values and principles underlying tikanga are relatively consistent.[22]

59. The hauora (wellbeing) of an individual in te ao Māori is intimately tied to the hauora of their collective. The care, protection and nurturing of a person’s whole wellbeing was the responsibility of the collective. Negative impacts on the mana, tapu, mauri, wairua and rangatiratanga of an individual has a collective impact on the mana, tapu, mauri, wairua and rangatiratanga of the wider whānau, hapū and iwi.

Ngā tikanga Māori

60. From conception, a person is imbued with all these collective attributes – whakapapa, mana, mana motuhake, tapu, mauri and wairua. They interconnect and support each other to create and nourish the foundations of life and hauora. These values and beliefs are explained in detail in Chapter 6, Part 1 of the Inquiry’s final report, Whanaketia – Through pain and trauma, from darkness to light:

a. whakapapa
b. mana
c. mana motuhake
d. tapu
e. mauri
f. wairua
g. hauora.

61. The tikanga relating to the care and treatment of people and things individually and collectively illustrate the notion of a duty of care and regard for people and the environment. These tikanga are explained in more detail in Chapter 6, Part 1 of the Inquiry’s final report, Whanaketia – Through pain and trauma, from darkness to light:
a. whanaungatanga
b. manaakitanga
c. atawhaitanga, tauwhirotanga and kaitiakitanga
d. tūkino
e. utu and muru
f. ea.

62. Failure to uphold these tikanga will have a direct impact on the mana of an individual and their whānau or hapū. In such circumstances, the responsibilities and connections usually maintained and nurtured through the practice of whanaungatanga can become frayed and lead to social fragmentation and hostility. The opposite impact occurs when these tikanga are upheld and realised well. This results in an enhancement of the mana of whānau, hapū or iwi, particularly their status, prestige and social cohesion.

Footnotes

[1]Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions, Terms of Reference, clause 6.
[2]Royal Commission of Inquiry into Abuse in Care, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, Volume 1 (2021, page 68)
[3]Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions, Terms of Reference, clause 24
[4] Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions, Terms of Reference, Preamble.
[5]For example, Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC); New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA); Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC), (paras 206 and 210).
[6]Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC); Sir Robin Cooke, “Introduction” (1990) 14 NZULR 1 (page 1).
[7]New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC), (pages 513 and 516).
[8]Urlich v AttorneyGeneral [2022] NZCA 38, [2022] 2 NZLR 599, para 55; Trans-Tasman Resources Limited v Taranaki-Whanganui Conservation Board [2021] NZSC 127, (paras 8, 146–151 and 296)
[9]For example, Treaty of Waitangi Act 1975, Preamble and section 5; New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA).
[10]For example, New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA), (pages 661–662, 642 and 656); Treaty of Waitangi Act 1975, Preamble and section 5; Wairarapa Moana ki Pouākani Incorporation v Mercury NZ Ltd [2022] NZSC 142 (para 16); Te Rūnanga o Muriwhenua Inc v Attorney-General [1990] 2 NZLR 641 (CA), (page 656).
[11]For example, Fletcher, N, The English text of the Treaty of Waitangi (Bridget Williams Books, 2022, pages 1–3, 17, 529).
[12]Mikaere A, “Te Tiriti and the Treaty: Seeking to Reconcile the Irreconcilable in the Name of Truth” in Colonising Myths – Māori Realities: He Rukuruku Whakaaro (Huia Publishers and Te Tākapu, Te Wānanga o Raukawa, September 2021, pages 123–146).
[13]Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions, Terms of Reference, clause 6.
[14]New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC), (page 517).
[15]In Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] 1 NZLR 801, [2021] NZSC 127 see the reference to “the guarantee in art 2 of the Treaty of tino rangatiratanga” (para 154), per William Young and Ellen France JJ; in Ellis v R [2022] NZSC 114 (para 98) see the reference to “the tino rangatiratanga guarantee in Article 2” per Glazebrook J, and para 174, per Winkelmann CJ the mention of “the protection of the law ... guaranteed to Māori under Article 3 of Te Tiriti o Waitangi”.
[16]Waitangi Tribunal, He Whakaputanga me te Tiriti The Declaration and the Treaty: Te Paparahi o Te Raki Inquiry Stage 1 Report (2014, pages 526–529); Waitangi Tribunal, Tino Rangatiratanga me te Kāwanatanga: Te Paparahi o Te Raki Inquiry Stage 2 Report, Part I (2023, page 22).
[17]Cabinet Office, Te Tiriti o Waitangi / Treaty of Waitangi Guidance, Cabinet Office Circular CO (19) 5 (22 October 2019, para 17)
[18]Waitangi Tribunal, Tauranga Moana 1888–2006: Report on the Post-Raupatu Claims, Volume 1, MSC0010510 (2010) (page 476).
[19]For example, Education and Training Act 2020, sections 4–5, 9 and 127.
[20]Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] 1 NZLR 801, [2021] NZSC 127 (pages 8 and 151); Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843 (pages 589–590); Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) (page 210); Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (page 184).
[21]Te Pou Matakana Limited v Attorney-General [2022] 2 NZLR 148, [2021] NZHC 2942. Although this case concerned the Ministry of Health’s policy commitments to exercise its powers in accordance with te Tiriti, it may be arguable that faith-based institutions exercise public powers and functions when providing care and therefore could be amenable to judicial review if a decision is inconsistent with its own te Tiriti commitments.
[22] Royal Commission of Inquiry into Abuse in Care, He Purapura Ora, he Māra Tipu: From Redress to Puretumu Torowhānui, Volume 1 (2021, page 56)