Inquiry into the Determinants of Wellbeing for Māori Children

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Submission by the

Human Rights Commission

Inquiry into the Determinants of Wellbeing for Māori Children

to the Māori Affairs Select Committee

16 March 2012

Contact person:

Jack Byrne

Senior Policy Analyst

Human Rights Commission

Direct dial 09 375 8647


Inquiry into the determinants of wellbeing for Māori children

  1. Introduction

Tungia te ururua, kia tupu whakaritorito te tupu o te harakeke

Burn the over-growth to enable the flax to bring forth new shoots
The Human Rights Commission welcomes the opportunity to make this submission to this Māori Affairs Select Committee’s Inquiry into the determinants of wellbeing for Māori children.
Section A outlines the domestic and international human rights standards on the rights of indigenous children. In particular, it concentrates on the United Nations Convention on the Rights of the Child (UNCROC) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Both support a focus on indigenous frameworks and indicators of wellbeing.
Section B applies these standards to the specific questions raised by the Select Committee. It emphasises the importance of Māori participation in defining wellbeing for Māori children, drawing from a growing body of relevant Māori research.
The Commission would like to meet with the Select Committee to speak to this submission.
Inquiry’s Terms of reference
The Inquiry’s terms of reference are to inquire into:

  1. The historical and current health, education, and welfare profiles of Māori children. This would take account of the transmission of life circumstances between generations, and how this impacts on Māori children

  2. The extent of public investment in Māori children across the health, education, social services, and justice sectors—and whether this investment is adequate and equitable

  3. How public investment in the health, education, social services, and justice can be used to ensure the well-being of Māori children

  4. The social determinants necessary for healthy growth and development for Maori children

  5. The significance of whānau for strengthening Māori children

  6. Policy and legislative pathways to address the findings of this inquiry

A International and domestic human rights standards
The international human rights standards for the rights of children are set out most comprehensively in UNCROC. They are also a fundamental component of the core International Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR). The Government is bound by these provisions, having ratified these covenants and conventions, and is required to regularly report to the United Nations on the steps taken to realise these obligations.

The rights set out in international human rights covenants and conventions ratified by New Zealand encompass both civil and political rights on the one hand, and economic, social and cultural rights on the other. New Zealand has obligations in relation to both. However civil and political rights place an immediate and unqualified obligation on countries.1 Of particularly relevance to the Select Committee is the right to protection from all forms of violence.2

Countries are required to progressively realise economic, social and cultural rights including the right to education, health and an adequate standard of living. Retrogressive or backward steps undermine these rights.

Whatever their economic circumstances, countries are required to undertake all possible measures towards the realisation of the rights of the child, making the maximum use of their available resources and paying special attention to the most disadvantaged groups.3

Māori children have all the human rights of non-Māori children.4 In that regard, the Commission would like to draw the Select Committee’s attention to its recent response to the Green Paper for Vulnerable Children.5
This submission builds on the same foundation, relevant international human rights standards, and extends it to focus specifically on the rights of indigenous children. In doing so, it cites general comments and concluding observations from the Committee on the Rights of the Child (UNCROC), recommendations from the UN Special Rapporteur on the Rights of Indigenous People and work undertaken by the UN Permanent Forum on Indigenous Issues (PFII).
In addition, this submission identifies the importance of considering domestic responsibilities under the Treaty of Waitangi, including their relationship to the provisions set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
CROC’s Concluding Observations February 2011
New Zealand’s third and fourth periodic reports on compliance with UNCROC were heard in January 2011 with the Committee’s concluding recommendations published in February 2011. The Committee’s comments and recommendations that make specific reference to Māori children are attached as Appendix 1. As many are relevant to this Inquiry’s terms of reference they are highlighted in section B of this submission in response to the specific questions raised by the Select Committee.
In addition, the Committee drew the New Zealand government’s attention to guidance in its general comment 11 and recent observations and recommendations made by the UN Special Rapporteur on Indigenous Peoples. These are each discussed in turn below.
General Comment No. 11: Indigenous children and their rights under the Convention
The Convention on the Rights of the Child was the first core human rights treaty to include specific references to indigenous children in a number of its provisions. These focus on the following concerns:

  • an indigenous child shall not be denied the right “to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language” – article 306

  • education shall encourage understanding and tolerance “among all peoples, ethnic, national and religious groups and persons of indigenous origin” – article 29 and

  • mass media should “have particular regard for the linguistic needs of the child who belongs to a minority group or who is indigenous” – article 17

The Committee has noted that this general comment was necessary because “indigenous children face significant challenges in exercising their rights and . . . experience serious discrimination contrary to article 2 of the Convention in a range of areas, including in their access to health care and education”.7 In addition the Committee reiterated that the development of the child, as set out in its general comment No. 5, is a “holistic concept embracing the child’s physical, mental, spiritual, moral, psychological and social development”.8

Other significant points of relevance to the Select Committee’s Inquiry include:

  • the rights conceived in the Convention are both individual and collective, recognising the collective traditions and values in indigenous cultures9

  • positive measures are required to protect a child’s right to their culture, religion or language

  • culturally appropriate solutions should be developed in partnership with indigenous peoples, including children10

  • “empowerment of indigenous children and the effective exercise of their rights to culture, religion and language provide an essential foundation of a culturally diverse State in harmony and compliance with its human rights obligations”11

Declaration on the Rights of Indigenous Peoples
In 2007 the United Nations General assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP).12 It forms part of the international human rights framework and it brings together the various existing provisions of binding human rights treaties, which are minimum standards.13 UNDRIP provides important guidance on how universal human rights, including the rights of children, have been applied to the specific experiences of indigenous peoples.
Professor Mason Durie has provided this succinct statement of the nature of indigenous rights as espoused in UNDRIP.14
In effect the Declaration proposes that indigenous peoples should have access to the indigenous world with its values and resources, access to the wider society within which they live, access to a healthy environment, and a degree of autonomy over their own lives and properties. It looks forward as well as backward and is as much about development as restoration. It is also about the rights of indigenous groups – as tribes or collectives – to form polities within their own cultural context.
UNDRIP sets out both the individual and collective rights of indigenous peoples. Article 3 affirms the importance of self determination as set out in both ICESCR and ICCPR. For indigenous peoples, important aspects of this right include the right to autonomy or self-government in internal or local affairs (article 4) and the right to maintain and strengthen indigenous institutions (article 5). These rights are relevant to growing calls for kaupapa Māori responses to entrenched inequalities.
Whilst the declaration itself is not binding, other provisions also reflect binding obligations set out in ratified conventions or covenants. These include the rights to equality and non-discrimination (article 2), cultural transmission to future generations (article 13), education (article 14), improvement of their economic and social conditions (article 21) and particular attention to the needs of elders, women, youth, children and disabled people (article 22).
Treaty of Waitangi
The Treaty of Waitangi is New Zealand’s own unique statement of indigenous and human rights, setting out the rights and responsibilities of the Crown, Rangatira (Māori leaders) and of all New Zealanders. Articles 1 and 3 of the Treaty of Waitangi give all people the right to live as equal citizens in New Zealand. The guarantee of rangatiratanga in article 2 affirms the right of Māori to live as Māori, and to protect and develop their taonga.
Rangatiratanga may also be seen as an expression of the right to self-determination, a people’s right to freely "determine their political status and freely pursue their economic, social and cultural development".15 It entails the rights to: non-discrimination; cultural integrity; lands and natural resources; development; self-government; autonomy and participation. Indigenous people’s right to self-determination has been described as “the freedom for indigenous peoples to live well, to live according to their own values and beliefs”.16
The UNDRIP affirms that indigenous peoples have the right to the “recognition, observance and enforcement of treaties... and to have States honour and respect such treaties” (article 37). It also recognises that “treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States” (preamble, para 19).
In affirming the foundational status of the Treaty, UNDRIP therefore upholds the rights conferred by that agreement, including the Crown’s right to govern (UNDRIP article 46; Treaty article 1 - kāwanatanga) and the rights of Māori as indigenous people to live as Maori and to determine for themselves what that means (for example UNDRIP articles 3, 9, 11-16, 18-20, and 23-25; Treaty article 2 - rangatiratanga).
On 2 July 2011 the Waitangi Tribunal released Ko Aotearoa Tēnei. This was its first whole-of-government report, and addressed the work of more than 20 Government departments and agencies. The Tribunal recommended wide-ranging reforms to laws and policies affecting Māori culture and identity and called for the Crown-Māori relationship to move beyond grievance to a new era based on partnership.

In its letter of transmittal to Ministers, the Tribunal touched on issues very relevant to the Select Committee’s Inquiry:

What we saw and heard in sittings over many years left us in no doubt that unless it is accepted that New Zealand has two founding cultures, not one; unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority, a problem to be managed with a seemingly endless stream of taxpayer-funded programmes, but never solved.
We adjure those with the power to look to the Treaty of Waitangi for the guidance and vision necessary to avoid this path of failure . . . . There are many reasons to take this partnership principle and build it into all of our national institutions. It gives us our sense of right and place, grounding us in the traditions of the Pacific and the West at the same time. It provides the centre of gravity around which our multicultural nation can coalesce. It is essentially optimistic in outlook and it relieves both Māori and Pākehā of the burden of a troubled past. It is the precondition for unlocking Māori potential for the benefit of the country as a whole. It is the core of our national identity. And it is unique.17
B. Inquiry’s specific questions

  1. Historical and current health, education, and welfare profiles of Māori children

International human rights treaty bodies have repeatedly expressed concern about inequalities in New Zealand.18
The Commission notes that other submitters to this Inquiry have undertaken in-depth primary research into the status of Māori children. The Commission’s relevant secondary research has involved assessing the status of human rights and race relations within New Zealand. In particular the Commission would like to draw the Select Committee’s attention to:

  • Human Rights in NZ 2010 / Ngā Tika Tangata o Aotearoa – especially chapter 2 on Human Rights and the Treaty of Waitangi and chapter 16 on the rights of children and young people19

  • Tūi Tūi Tuituiā – Race Relations in 201120 - published in March 2012 and

  • A Fair Go for All? Structural discrimination and systemic barriers to ethnic equality 21- an October 2011 discussion paper by the Human Rights Commission.

There is a growing urgency to addressing inequalities faced by Māori children. The data for school enrolments in 2011, gives an indication of the continuing demographic change in New Zealand. Notably, in the Northern region (Auckland and Northland) nearly 60 per cent of students are Māori, Pacific, Asian and other non-European. In the Central North region (South of Auckland and north of Turangi) nearly 40 per cent of students are Māori.22

In 2011 the Commission began a project to address structural discrimination and entrenched inequalities in the public health, education and justice sectors, the public service, and the economic system. The project asked whether all New Zealanders, regardless of ethnicity, really get the same opportunity for good health, education, decent work and an adequate standard of living. The figures show a great deal of lost potential for Māori, Pacific and ethnic people in New Zealand, despite many attempts to eliminate inequalities.
The Commission’s discussion paper, A fair go for all? Structural discrimination and systemic barriers to ethnic equality, noted the following systemic barriers across all those sectors it examined:

  • dominant cultural norms that produce unequal outcomes. One instance of this is in the health system, where research shows doctors spend 17 per cent less time interviewing Māori than non-Māori patient.

  • entrenched ethnic inequalities: although social and economic factors contribute to and exacerbate these inequalities, they alone do not cause inequalities

  • cumulative effect within systems: the effects of structural discrimination at one stage in a system flow on to the subsequent stages

  • a sole focus on universal provision of public services: providing the same service to all irrespective of socio-economic status or ethnicity, assumes everyone has equal access to services and ignores barriers to accessing services and

  • inaction, another form of structural discrimination: where government services do not respond to the needs of ethnic groups, the absence of initiatives perpetuates barriers.

  1. Extent, adequacy and equity of current public investment in Māori children

Early universal intervention
In 2009, the OECD reported that in recent years New Zealand spent less than the OECD average on young children in particular, despite the fact that spending more on young children is more likely to generate positive changes and make a difference in the long term.23 Based on international evidence, the OECD concluded that New Zealand should spend considerably more on younger, disadvantaged children, and ensure that current rates of spending on older children are more effective in meeting the needs of the disadvantaged amongst them. The Commission supports such an approach.
The Commission notes there are potential lessons for New Zealand in the early intervention initiative ‘Chile Grows with You’.24 This model was rolled out in Chile three years before its major earthquake in 2010 and has been pivotal to addressing children’s needs in the earthquake aftermath. It is a coordinated programme involving key government social service agencies such as the Ministries of Health, Justice, Labour and Education. The programme provides universal access to maternal care, education, health and social services. The expectation is that every child and family is provided with a service in the early years. Additional services are provided to those assessed as most vulnerable, depending on a range of dynamic and static risk factors including age, family income, drug and alcohol use, living conditions and disability of family members.
In New Zealand, the current ante-natal and post-natal system of lead maternity care followed up by Well Child / Tamariki Ora health checks is a foundation for such an approach here. As with the lead maternity care system, families could exercise choice about a lead service that they wish to engage with for ongoing monitoring and support purposes. The benefits of the system would include that it:

  • normalises family support

  • responds to the particular needs of a child and family and is therefore likely to have positive impact

  • provides the best opportunity to build constructive and ongoing relationships with ‘hard to reach’ families

  • eliminates the ‘silo’ effect of different agency involvement in family lives

  • replicates Whānau Ora principles within the government sector and

  • provides wider choices to families about service provider, for example disability support services, iwi social services or General Practitioners.

Another positive initiative currently in place is the Early Childhood Education (ECE) subsidy for children over three and children under two who are in State care. As noted below, the CRC has recommended that the government consider extending the ECE subsidy and that more provision be made for temporary and after-school care.

Children’s budget
An issue repeatedly raised by the CRC is the lack of available data on budgetary allocations for children. In 2003 the CRC recommended the collection of disaggregated data on budget allocations for children and the systematic assessment of the impact of economic policy on children.25
The Committee’s most recent 2011 report on New Zealand reiterated this call. It recommended the government undertake “a child budgeting exercise that will allow it to specify strategic allocations to implement children’s rights, track this implementation, monitor results and evaluate impact”.26
The Committee noted with appreciation recent increases in expenditure on children including through the Working for Families tax credit. However it was “concerned that the increases are not sufficient to eradicate poverty and address inequalities”. 27
The Committee recommended that New Zealand take all necessary measures to provide appropriate support to allow disadvantaged families and their children to move out of poverty in a sustained way while, at the same time, continuing to provide assistance to those who remain under the poverty line.

The Committee urged New Zealand to:

  • take urgent measures to address disparities in access to services of Māori children and their families

  • intensify efforts to assist parents and legal guardians in the performance of their child-rearing responsibilities with timely responses at the local level, including services to parents who need counselling in child-rearing, services for the treatment of alcohol- or drug-related problems, and, in the case of Māori and Pacific Islander populations, culturally appropriate services to enable them to fulfil their parental role

  • take a coordinated approach to addressing inequalities in access to health services, with greater coordination between health policies and those aimed at reducing income inequality and poverty

  • ensure that all children have access to high quality early childhood education and care that, at a minimum, is free for socially disadvantaged families and children

  • continue and strengthen its efforts to reduce negative effects of the ethnic (cultural, regional) and social background of children on their enrolment and attendance in school and

  • invest considerable additional resources in order to ensure the right of all children, including children from all disadvantaged, marginalised and school-distant groups, to a truly inclusive education.

In addition the Committee encouraged the government, in its efforts to improve outcomes for Māori children, to take into account the observations and recommendations made by the UN Special Rapporteur on Indigenous Peoples, including with regard to the principles enshrined in the Treaty of Waitangi.

In his February 2011 report, Professor James Anaya made a number of recommendations relevant to access to health, education and social services including:

  • overcome the shortage of teachers fluent in te reo Māori and continue to develop Māori language programmes

  • continue to work with whānau, iwi and Māori leaders to assess the causes of discrepancies in health conditions and identify culturally appropriate solutions and

  • continue support for Whānau Ora.

Many of the Special Rapporteur’s other recommendations focused on Māori participation in decision-making, redress through the Waitangi Tribunal’s Treaty Settlements process and the constitutional review. All have the potential to have a significant impact on Māori economic and community development and therefore the wellbeing of Māori children.

The Human Rights Commission’s annual review of race relations has identified 10 race relations priorities for New Zealand in 2012.28 Those most relevant to tamariki Māori are:

  • the safety and wellbeing of children: focusing on the rights of children, including through submissions to this Inquiry, and on the Green Paper for Vulnerable Children.

  • reducing social and economic inequalities: addressing entrenched inequalities across different sectors, with a focus on structural discrimination

  • protecting beneficiaries and their families: ensuring that reforms aimed at reducing welfare dependency do not adversely affect the welfare of beneficiaries and their families

  • the constitutional review: public discussion of New Zealand’s constitutional arrangements including the Treaty of Waitangi and

  • language: determining the future strategy for te reo Māori.

  1. How public investment in the health, education, social services and justice can be used to ensure the wellbeing of Māori children

The principle of the ‘first call for children’ was promoted at the World Summit for Children in 1990, a year after UNCROC was adopted. Both the first-call principle and article 4 of the Convention emphasise that limited financial resources cannot be used as a justification for neglecting to put in place appropriate measures to implement children’s rights. Whatever their economic circumstances, countries are required to undertake all possible measures towards the realisation of the rights of the child, making the maximum use of their available resources and paying special attention to the most disadvantaged groups.29

The concept of progressive universalism has emerged internationally within both United Nations’ agencies and governmental policymakers. Its first tier is universal provision of services, supplemented by additional services targeted to those with higher levels of need. Progressive universalism has explicitly been identified as an essential step to reduce inequalities.30 In other instances it has developed in response to the global financial crisis31 where it is advocated that higher levels of social security should be introduced as economies develop and the fiscal space for redistributive policies widens.
In England the Marmot Review’s 2010 final report Fair Society, Health Lives has promoted the concept of proportionate universalism.32 It argues that focusing solely on the most disadvantaged will not reduce health inequalities sufficiently. To reduce the steepness of the social gradient in health, actions must be universal, but with a scale and intensity that is proportionate to the level of disadvantage.
As all children are inherently vulnerable, arguably a nation that has children at the heart of decision making - in homes, communities and government policies - is a healthy nation. The Human Rights Commission supports the position advocated by the Office of the Children’s Commissioner (OCC), in its position paper responding to the Green Paper for Vulnerable Children, that there are many instances where universal provision remains the most effective approach. Examples cited by OCC include where poor outcomes are widely spread, there are economies of scale and where targeted approaches alone may stigmatise children and their families. Universal services also provide an effective way of screening and identifying children at risk who require additional support.
In addition, targeted measures are required to supplement universal provision. The Committee on the Rights of the Child has emphasised that UNCROC’s specific references to indigenous children acknowledge that “they require special measures in order to fully enjoy their rights”.33
Both the Human Rights Act and the New Zealand Bill of Rights Act recognise that, to overcome discrimination, such affirmative action or special measures may be needed to enable particular groups to achieve equal outcomes with other groups in our society. These positive actions are not discriminatory if they assist people in certain groups to achieve equality. Any special measure must be based on information, such as that presented in this submission, which shows that the present position is unequal.34
The CRC’s general comment 11 provides specific guidance around addressing many of the determinants of wellbeing for Māori children including:

  • the right to health – particularly the role of health care workers from indigenous communities. The Committee notes with concern that poor health outcomes for indigenous children compared to non-indigenous children applies to both developing and developed countries.35

  • the right to education – including ensuring a range of special measures and recognising “the right of indigenous peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards”.36

  • youth justice – the arrest, detention or imprisonment of a child may be used only as a measure of last resort. State parties are encouraged to support indigenous peoples to design and implement traditional restorative justice systems as long as they comply with UNCROC, notably with the best interests of the child.37

The general comment emphasises the importance of a strengths-based or child rights approach rather than one focused on welfare and deficits.38 This involves respecting and promoting the human dignity and physical and psychological integrity of children as rights-bearing individuals rather than perceiving them primarily as ‘victims’. Such a focus is particularly relevant to considering the rights of disabled children who are too often defined by their specific health needs or diagnosis rather than their inherent dignity, autonomy and abilities.

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