Parts of the Oranga Tamariki Act still undermine the role of whānau, hapū and iwi in the protection of tamariki, and to achieve true partnership under the Treaty, the Crown must devolve power to iwi, the Waitangi Tribunal has been told.
In May 2019, the attempted removal of a newborn Maori baby from its whanau by Oranga Tamariki (OT) at Hawke's Bay Hospital sparked widespread outrage.
In January this year, Jean Te Huia, the midwife of the mother whose baby OT tried to uplift, said she believed being born "brown" was a disadvantage in Hawke's Bay.
More than a year on, an urgent hearing is under way into Oranga Tamariki practices in relation to tamariki Māori and whether they are compliant with Te Tiriti o Waitangi.
Judge Michael Doogan began the hearing by laying out the take (purpose) of the tribunal hearing, which was to find out: why there had been such a consistent disparity of tamariki Māori being removed from their families; to what extent legislative and practices changes had altered the disparity for the better; and what changes to Crown legislation might be required to secure outcomes that uphold Te Tiriti o Waitangi.
Waikato Māori health provider Te Kohao director Lady Tureiti Moxon told the tribunal true partnership would mean Oranga Tamariki devolving its powers to a standalone Māori tamariki-mokopuna authority.
She said there was capacity within iwi, Whānau Ora providers and urban Māori authorities to take on this responsibility for the care of tamariki Māori.
"Māori are ready, we've been ready for a long time and we are ready to take back our tamariki and they need to give them back with the full resources, empowerment that it takes for us to do this mahi," Moxon said.
She suggested Oranga Tamariki give half of its budget to iwi and Māori organisations to enable them to carry out the care of tamariki, as more than 50 per cent of tamariki in its care are Māori.
Coming under the microscope of the panel and the claimants was the 7AA clause of the Oranga Tamariki Act.
Introduced over a year ago, the clause was designed to put the mana of the child, its whānau, and whakapapa at the heart of all decisions made about that child.
However, family court lawyer Tania Williams-Blyth told the tribunal the process in which all subsequent children are removed from their family care, often without wider whānau input, is in tension to 7AA.
"The whānau now have to prove that, prove that they can care for their subsequent children - the problem is the child will likely be removed at birth - which is what has been happening.
"The legislation is doing what it is designed to do - there's no surprises at the number of Māori babies being removed - it is designed for early removal."
She said the court process - when whānau would be asked to prove they had addressed concerns - could take up to two years, in which time the child may have bonded with other caregivers and the court may decide it was better for the tamaiti to stay with them.
She said the legislation largely still considered a child an individual, separate from its whānau, hapū and iwi.
Oranga Tamariki is expected to seek strategic partnerships with iwi and Māori organisations under 7AA, to improve outcomes for tamariki.
Children's Commissioner Judge Andrew Becroft said there needed to be a stronger commitment in the legislation for Oranga Tamariki to share resources with iwi.
"If what so many iwi around the country are saying they will do if resourced in a proper way, without the strings attached, then there's every hope to think there'll be improvement - but let's make no mistake, at the moment, it is partnership only of a fashion, it is partnership where the power is still with the state."
He said the state also needed to make sure it provided ongoing support to mothers in order to prevent subsequent uplifts.
"A mother is so desperate to have a second child to show she can be a mother and wants to be a mother and one of the great problems I think, I hear all around the country from NGOs and Māori organisations that when a child is removed so is removed the funding, so the mother is left helpless."
Becroft said the Crown had failed Māori but ultimately the tribunal would have the final say on that.
The hearing will continue on Saturday.