C’S FATHER v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2023] NZHC 184

C'S FATHER v CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN [2023]NZHC 184 [14 February 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANDSS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, ANY REPORT OFTHIS PROCEEDING MUST NOT INCLUDE ANY NAME OR PARTICULARSLIKELY TO LEAD TO THE IDENTIFICATION OF C. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2021-488-000122[2023] NZHC 184UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court RulesIN THE MATTER OF a decision of Oranga Tamariki under s 7AAof the Oranga Tamariki Act 1989BETWEEN C'S FATHERApplicantAND CHIEF EXECUTIVE OFORANGA TAMARIKI – MINISTRY FORCHILDRENRespondentHearing: 17 October 2022(Heard at Auckland via AVL)Appearances: L S O'Boyle for ApplicantB R Arapere and S Deng for RespondentJudgment: 14 February 2023JUDGMENT OF EDWARDS J[redacted version]This judgment was delivered by me on 14 February 2023 at 2.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy Registrar[1] C has just turned three. She is of Māori, Aboriginal, and "NZ European"1descent. Soon after C's birth, she was uplifted from her parents by the respondent,Oranga Tamariki (OT), and placed in temporary care.[2] The applicant is C's father. He says that OT has wrongly identified C as a"Māori child" within the meaning of the Oranga Tamariki Act 1989 (Act). He seeksjudicial review of that decision. C's father says that the power to determine a child'sidentity rests with C's mother and himself as C's guardians. He does not identify C asMāori.[3] OT says it has not made a decision about C's ethnicity or whakapapa and agreesthat it has no power to do so. OT says that whether a child is a "Māori child" is not adecision made by the child's guardians or OT. Rather, it is a question of fact. In anyevent, OT says it has not acted unlawfully in recognising C's Māori whakapapa.[4] It is worth stating at the outset what this judgment is not about. It is not aboutthe decision to uplift C from her parents. That decision is not challenged. Nor is itabout who should care for C in the long term. That decision has yet to be made. Noris this a challenge to OT's policy in relation to the placement of Māori children in care,although that policy forms the backdrop to the current proceeding. And finally, this isnot a decision about recognising one line of whakapapa to the exclusion of others. AsI explain further in this judgment, inclusivity underpins the law in this area.Relevant facts[5] C was born on [redacted] 2020.[6] C's father is of Scottish descent. In an affidavit sworn in support of theapplication, he says that C's mother is of Aboriginal descent on her father's side, andof Scottish and Māori descent on her mother's side. He says that C's mother identifiesas Aboriginal and NZ European.1 As that phrase appears on C's birth registration document.[7] C's mother has not sworn an affidavit in support of the application. However,the materials put before the Court refer to an affidavit in which she acknowledges herMāori whakapapa. The authority of C's father to swear an affidavit on behalf of C'smother is not at all clear to me. In any event, questions of identity are intenselypersonal. I place no weight on statements made by C's father on behalf of C's motheras to how she may identify herself.[8] OT has been involved with C's mother in relation to her other children for sometime. C has six maternal half-siblings. One of those siblings is in the custody of OTand is being cared for by whānau members on C's maternal side. C also has a paternalhalf-sister who is in the care of her mother.[9] C was uplifted from her parents when she was born due to concerns about thecapabilities of both parents to adequately care for C. It is unnecessary to traverse thereasons for this decision in this judgment. As I noted at the outset, the decision touplift C is not challenged.[10] The genesis for this proceeding is a dispute about who should be C's permanentcarers. C's father wishes to see C remain with friends of C's mother who have hadtemporary care of C. OT considers C should be placed with maternal whānaumembers who have been involved in the care of C's maternal siblings.[11] The proposed whānau carers are connected to C through C's maternalgrandmother. C's pepeha is set out in the joint affidavit of the proposed whānau carers.To protect her identity, I will not repeat it here, except to say that she has connectionsto Ngātiwai.[12] Placement with whānau members is consistent with OT's placement policy,"Ensuring a safe, stable and loving home for tamariki in care". That policy requirespreference to be given to placing tamariki Māori/Māori children in a home within thefamily, whānau, hapū, iwi and family group. Permanent care outside these groups"must only occur in exceptional circumstances, following extensive work with thosegroups".2[13] OT has referred to C as a Māori child in documents and correspondenceconcerning her placement. The first of those occasions occurred on 24 January 2020when OT applied for a care and protection order under s 68 of the Act. Pending theoutcome of that proceeding, OT also applied for, and was granted, a s 78 interimcustody order in favour of OT. The information sheet submitted to the Family Courtaccompanying those applications recorded C's "ethnic identity" as "NZ Māori".[14] In an affidavit filed on behalf of OT for this proceeding, the social workerinvolved with the case says that C was identified in this way because OT was awareof the Māori whakapapa of C's mother, and the whakapapa of C's siblings who werein OT's care. C's mother had not previously objected to the Māori whakapapa of theother children being recognised this way.[15] OT also referred to C as a Māori child in discussions with C's father. C's fatherrecalls a conversation with a social worker around May 2020 where he questioned OTabout their reference to C as a Māori child when she was European and Aboriginal.He says the social worker told him it was how OT had recorded C in their system.[16] Similarly, around 16 June 2020, in the context of a discussion about who wasto attend a family hui, C's father says that OT told him that C was Māori, and theywere obliged to engage her whānau. C's father says he was completely shocked bythis and he refused to attend the meeting.[17] Later that month, the Ministry filed a social worker's plan for C's care. In thatplan, C is recorded as being of New Zealand Māori and Pākehā descent.[18] On 24 August 2020, OT made an application for a rehearing of the withoutnotice application varying the s 78 order. The information sheet accompanying theapplication again identified C as Māori. At a judicial conference, C's father continued2 Oranga Tamariki Ministry for Children "Ensuring a safe, stable and loving home for tamariki incare" (23 March 2022) <www.practice.orangatamariki.govt.nz>.to assert that C was not a Māori baby. He says he became very vocal, emotional, andangry because no one was listening to him about the identity of his child.[19] Following the judicial conference, the Judge directed a lawyer to assist theCourt by making submissions on the background and ambit of the legal provisionsrelevant to the classification of C as a Māori child. These legal provisions are set outlater in this judgment. The lawyer for the child reported that C was Māori, Pākehāand Aboriginal and fell within the definition of a Māori child.[20] On 28 January 2021, C's birth was registered with Births, Deaths andMarriages. There is some confusion about why it took so long to register C's birth,but the delay and reasons for it are not relevant to this dispute.[21] C's father says he and C's mother discussed how C should be identified in thebirth registration document based on their own ethnic groups. He says that they bothfelt that C was "in the main" European and Aboriginal. C's father says they wantedto acknowledge the Aboriginal heritage of C's maternal grandfather as a predominantpart of C because he is from the stolen generation and it made him proud to know thathe had an Aboriginal grandchild.[22] The birth registration document records as follows:Ethnic Groups: NZ EuropeanAborigineMāori Descent: Y[23] The same responses to the same questions are recorded for C's mother on thebirth registration document. C's father is recorded as belonging to the NZ Europeanethnic group.[24] A copy of the birth registration document was provided to OT under cover ofletter from the lawyer for C's father in March 2021. Correspondence betweenOranga Tamariki and that lawyer was exchanged over the ensuing months.[25] A further social worker's plan was filed on 9 April 2021. That social worker'splan again identified C as Māori. It also recorded concerns about whether C waslearning about her Māori side and her whakapapa. These concerns were reflected inan affidavit filed by a social worker for the Family Court proceedings.[26] This application for judicial review was filed on 10 December 2021 with anamended statement of claim filed on 15 June 2022. Affidavits in support were notfiled until 7 September 2022. The hearing took place in October 2022.Legislative framework[27] The application for judicial review involves consideration of relevant statutoryprovisions under the Act, and the powers of guardians under s 16 of the Care ofChildren Act 2004.Oranga Tamariki Act 1989[28] The overriding purpose of the Act is to promote the well-being of children,young persons, and their families, whānau, hapū, iwi, and family groups.3 The well-being and best interests of the child is the first and paramount consideration in anydecision made under the Act.4[29] Section 4 of the Act lists steps by which this purpose may be achieved. Thosesteps which are particularly relevant to this case may be summarised as follows:(a) Establishing, promoting and coordinating services that are designed toaffirm mana tamaiti (tamariki), and are culturally appropriate.5(b) Assisting families, whānau, hapū, iwi and family groups to fulfil theirresponsibility to meet the needs of their children and young persons.63 Oranga Tamariki Act 1989, s 4(1).4 Sections 4A(1) and 13(1).5 Section 4(1)(a)(i) and (iii).6 Section 4(1)(d).(c) Providing a practical commitment to the principles of the te Tiriti oWaitangi/Treaty of Waitangi in the way described in the Act.7(d) Recognising mana tamaiti (tamariki), whakapapa, and the practice ofwhanaungatanga for children who come to the attention of thedepartment.8(e) Maintaining and strengthening the relationship between children whocome to the attention of the department and their family, whānau, hapū,iwi, family group and siblings.9[30] Section 5 sets out principles to be applied to the exercise of powers under theAct. Those principles relevant to this case are summarised as follows:(a) Mana tamaiti (tamariki) and the child's well-being should be protectedby recognising their whakapapa and the whanaungatangaresponsibilities of their family, whānau, hapū, iwi and family group(which I shall refer to collectively as the child's "wider group").10(b) A holistic approach should be taken that sees the child as a wholeperson, including their whakapapa and cultural identity.11(c) The child's place within their wider group should be recognised. Inparticular, it should be recognised that:(i) the primary responsibility for a child lies with this wider group;(ii) the effect of any decision on the child's relationship with thiswider group, and their links to whakapapa should be considered;7 Section 4(1)(f).8 Section 4(1)(g).9 Section 4(1)(h).10 Section 5(1)(b)(iv).11 Section 5(1)(b)(vi).(iii) the child's sense of belonging, whakapapa, andwhanaungatanga responsibilities of the wider group should berespected;(iv) the relationship between the child and the wider group shouldbe maintained and strengthened;(v) the wider group should participate in decisions whereverpossible, and regard should be had to their views; and(vi) endeavours should be made to obtain the support of the parents,guardians, or other persons having care of the child for theexercise of any power under the Act relating to the child.12[31] Section 13 sets out additional principles that apply in certain circumstances,including the uplift and placement of children in care. Those additional principlesrelevant to this case include:(a) Services provided should strengthen and support members of thechild's wider group to enable them to care for the child.13(b) Where a child's usual caregivers are members of the child's widergroup, the child should only be removed if there is a serious risk ofharm.14(c) Where possible, and consistent with the child's best interests, a childshould be returned to those members of the child's wider group whoare the child's usual caregivers.1512 Section 5(1)(c)(i)–(vi).13 Section 13(2)(b)(i)(A).14 Section 13(2)(g).15 Section 13(2)(h).(d) Decisions about placement for children removed should be guided by apreference for placement within the wider group, and the importance ofmana tamaiti (tamariki), whakapapa, and whanaungatanga.16(e) A child in care should receive special protection and assistance to:(i) preserve connections with the child's wider group and contacts;and(ii) to respect and honour, on an ongoing basis, the child'swhakapapa and whanaungatanga responsibilities of the child'swider group.17[32] Sections 4, 5 and 13 refer to "mana tamaiti (tamariki)", "whakapapa" and"whanaungatanga". These terms, and "tikanga Māori", are defined under the Act asfollows:18mana tamaiti (tamariki) means the intrinsic value and inherent dignityderived from a child's or young person's whakapapa (genealogy) and theirbelonging to a whānau, hapū, iwi, or family group, in accordance with tikangaMāori or its equivalent in the culture of the child or young personwhakapapa, in relation to a person, means the multi-generational kinshiprelationships that help to describe who the person is in terms of their mātua(parents), and tūpuna (ancestors), from whom they descendwhanaungatanga, in relation to a person, means—(a) the purposeful carrying out of responsibilities based on obligations towhakapapa:(b) the kinship that provides the foundations for reciprocal obligationsand responsibilities to be met:(c) the wider kinship ties that need to be protected and maintained toensure the maintenance and protection of their sense of belonging,identity, and connectiontikanga Māori, means Māori customary laws and practices16 Section 13(2)(i)(iii)(A) and (C).17 Section 13(2)(j)(ii) and (iii).18 Section 2(1).[33] Reference to "Māori children" appears only twice in the Act — in ss 7AAand 448B. Section 7AA is of key relevance to this proceeding. It provides:7AA Duties of chief executive in relation to Treaty of Waitangi (Tiriti oWaitangi)(1) The duties of the chief executive set out in subsection (2) are imposedin order to recognise and provide a practical commitment to theprinciples of the Treaty of Waitangi (te Tiriti o Waitangi).(2) The chief executive must ensure that—(a) the policies and practices of the department that impact on thewell-being of children and young persons have the objectiveof reducing disparities by setting measurable outcomes forMāori children and young persons who come to the attentionof the department:(b) the policies, practices, and services of the department haveregard to mana tamaiti (tamariki) and the whakapapa of Māorichildren and young persons and the whanaungatangaresponsibilities of their whānau, hapū, and iwi:(c) the department seeks to develop strategic partnerships withiwi and Māori organisations, including iwi authorities, inorder to—(i) provide opportunities to, and invite innovativeproposals from, those organisations to improveoutcomes for Māori children, young persons, andtheir whānau who come to the attention of thedepartment:(ii) set expectations and targets to improve outcomes forMāori children and young persons who come to theattention of the department:(iii) enable the robust, regular, and genuine exchange ofinformation between the department and thoseorganisations:(iv) provide opportunities for the chief executive todelegate functions under this Act or regulations madeunder this Act to appropriately qualified peoplewithin those organisations:(v) provide, and regularly review, guidance to personsdischarging functions under this Act to supportcultural competency as a best-practice feature of thedepartment's workforce:(vi) agree on any action both or all parties consider isappropriate.(3) One or more iwi or Māori organisations may invite the chief executiveto enter into a strategic partnership.(4) The chief executive must consider and respond to any invitation.(5) The chief executive must report to the public at least once a year onthe measures taken by the chief executive to carry out the duties insubsections (2) and (4), including the impact of those measures inimproving outcomes for Māori children and young persons who cometo the attention of the department under this Act and the steps to betaken in the immediate future.(6) A copy of each report under subsection (5) must be published on anInternet site maintained by the department.[34] Section 448 of the Act also mentions Māori children. That section obliges theresponsible Minister to report to Parliament on certain matters including whether theneeds of Māori children and young persons with whom the department is concernedare met.[35] There is no definition of "Māori" or "Māori children" in the Act.Care of Children Act 2004[36] C's father claims that the decision to identify a child as Māori is a guardianshipdecision made under s 16 of the Care of Children Act.[37] Section 16 relevantly provides:16 Exercise of guardianship(1) The duties, powers, rights, and responsibilities of a guardian of a childinclude (without limitation) the guardian's—(b) contributing to the child's intellectual, emotional, physical,social, cultural, and other personal development; and(c) determining for or with the child, or helping the child todetermine, question about important matters affecting thechild.(2) Important matters affecting the child include (without limitation)(e) the child's culture, language, and religious denomination andpractice.[38] C's father places emphasis on those subsections which empower guardians tomake decisions regarding a child's "culture", which he says includes ethnicity. Thereis no definition of "culture" under the Care of Children Act.Terminology[39] This case involves discussion about concepts defined in the Act (mana tamaiti,whakapapa, whanaungatanga), and concepts such as race, ethnicity, identity, andculture. These are value-laden concepts with meanings which may differ dependingon the lens through which they are read and understood.[40] The parties and their counsel use these terms interchangeably. For example,counsel for OT equated ethnicity with whakapapa; and counsel for C's father equatedethnicity with culture and identity. That interchange reflects the intertwined nature ofthese concepts. It is necessary, however, to disentangle them to understand the disputeat the centre of this proceeding.[41] With those challenges in mind, I have adopted the definitions of "ethnicity"and "Māori descent" used by Statistics New Zealand in its published standards.[42] Ethnicity is defined as follows:19Ethnicity is the ethnic group or groups that people identify with or feel theybelong to. Ethnicity is a measure of cultural affiliation, as opposed to race,ancestry, nationality or citizenship. Ethnicity is self perceived and people canbelong to more than one ethnic group.[43] "Māori descent" is defined as follows:20A person has Māori descent if they are of the Māori race of New Zealand; thisincludes any descendant of such a person.19 Statistics New Zealand Statistical standard for ethnicity V1.0.0 (as at 26 July 2022) at 2.20 Statistics New Zealand Statistical standard for Māori descent V1.0.0 (as at 28 July 2022) at 1.[44] As explained in the relevant standard, Māori descent is a biological orgenealogical concept which is distinguished from cultural or social affiliation to theMāori ethnic group.21 Whether a person is of Māori descent will not change over aperson's lifetime.[45] The distinction between "ethnicity" and "Māori descent" accords with thedistinction drawn in birth registration documents. C's birth registration document doesnot record her ethnicity as "Māori", because C's father says neither parent identifiesher as such. However, C is recorded as being of Māori descent, and there is no disputethat she has Māori whakapapa.[46] As I explain next, the distinction between "ethnicity" and "Māori descent"captures the differences between the parties on the key issue in this proceeding.Framing the issue[47] The parties approached the issues in dispute as if it concerned the power todetermine a child's ethnicity and whakapapa. C's father says the power to determinea child's identity lies with the child's guardians under s 16(1) of Care of Children Act.OT says no one has the power to determine a child's whakapapa or genealogy as thatinvolves a question of fact.[48] However, this approach misapprehends the nature of the decision challengedin this case. The decision at issue is not a decision determining C's ethnicity orwhakapapa. Rather, it is a decision to refer to or identify C as a Māori child and totreat her as such. It is a decision of classification or categorisation, rather than adecision of ethnicity or whakapapa.[49] OT's decision was made in the context of OT's current placement policy fortamariki Māori. That policy requires preference to be given to placing Māori childrenin a home with whānau, hapū, iwi and family groups. The decision to refer to C as aMāori child means the policy is engaged.21 Statistics New Zealand Statistical standard for Māori descent V1.0.0 (as at 28 July 2022) at 2.[50] OT's placement policy was issued in furtherance of s 7AA duties in relation tote Tiriti o Waitangi/Treaty of Waitangi. It replaced the former policy which theWaitangi Tribunal found incompatible with those duties.22 As previously mentioned,s 7AA is one of only two sections in the Act which specifically refer to "Māorichildren".[51] In context therefore, the broad issue to be determined is whether OT was rightto refer to C as a Māori child. That will turn on the meaning of "Māori children" as itappears in s 7AA, and pursuant to which OT's placement policy was issued. Morespecifically, the contest is whether "Māori children" in s 7AA refers to a child of theMāori race, descended from Māori; or whether it refers only to those children whoseguardians identify them as being of Māori ethnicity.A reviewable decision?[52] Framing the issue in this way responds to OT's first line of defence, which isthat there is no reviewable decision. OT says the Act does not provide a decision-making process for determining ethnicity, genealogy, or whakapapa.[53] I do not disagree with OT's submissions. However, as already explained, thedecision subject to challenge is not a decision to determine ethnicity, genealogy orwhakapapa. Rather, the decision at issue is OT's decision to refer to, or identify, C asa "Māori child". That decision was made in the context of OT's placement policy fortamariki Māori and the Chief Executive's duties under s 7AA of the Act.[54] I consider the decision to identify C as a Māori child is amenable to judicialreview. If the duties in s 7AA do not extend to children who are of Māori descent, butare not identified as Māori by their guardians, then C's identification as a Māori childwould not be in accordance with the Act. Similarly, a decision to identify a child as aMāori child who is not of Māori ethnicity, nor of Māori descent, would also be subjectto the supervisory jurisdiction of the Court and challengeable by way of judicialreview.22 Waitangi Tribunal He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga TamarikiUrgent Inquiry (Wai 2915, 2021) at [5.6.7] and [5.7].[55] Accordingly, OT's decision is reviewable.Meaning according to Tikanga[56] The most appropriate way to commence an analysis of the meaning of "Māorichildren" is with how Māori define themselves. The starting point is the definitionaccording to tikanga.[57] Tikanga is defined in the Act to mean "Māori customary law and practices".23In Ellis v R, the Supreme Court said tikanga includes "values, standards, principles ornorms that the Māori community subscribe to, to determine the appropriate conduct"and that it includes both practice and principle.24 The Supreme Court confirmed thattikanga forms part of the laws of New Zealand:25 we are now at a point where tikanga and/or tikanga-derived principles arepart of the fabric of Aotearoa/New Zealand's law and public institutionsthrough legislation, the common law and policy. This is a manifestation of TeTiriti, particularly in relation to Article Two, and also highlights Aotearoa/New Zealand's commitment to the United Nations Declaration on the Rightsof Indigenous Peoples.[58] Evidence of tikanga was provided in this case by way of affidavit fromMr Aperahama Kerepeti-Edwards. Mr Kerepeti-Edwards belongs to Ngātiwai,Ngāti Kahungunu, Ngāi Tūhoe, Ngāti Tarāwhai Tainui, Maniapoto and Ngāpuhi. Hisprincipal hapū is Te Whānau a Rangiwhakaahu — a hapū of Ngātiwai. He holdsseveral positions of authority and is currently the Chair of the Ngātiwai Trust Board.[59] Because of the way the parties approached the issue in this case, Mr Kerepeti-Edwards did not provide direct evidence on how Māori define themselves. Rather, hegave expert evidence on a Ngātiwai perspective on whakapapa, and the place oftamariki within Ngātiwai. As previously mentioned, the pepeha given by C's maternalwhānau connects her to Ngātiwai.[60] It is evident from Mr Kerepeti-Edwards' evidence that "whakapapa" plays animportant part in Māori identity. He explains that whakapapa is broader than the23 Oranga Tamariki Act 1989, s 2(1).24 Ellis v R [2022] NZSC 114 at [107].25 At [126] (footnote omitted).English concepts of genealogy or lineage. Whakapapa connects a Māori person to theenvironment and the wider kinship groups of whānau, hapū and iwi. He explainsfurther:When a child is born they are part of a kinship system that has been in placemai rānō (since long ago). Their birth is part of ngā kawai whakapapa (linesof descent and lineage) going back many hundreds of years. Whakapapa isthe thing that binds us as people to the past but also ties us to the future andngā uri whakaheke (those yet to be born).[61] Mr Kerepeti-Edwards explains that whakapapa is not a question of choice:We do not choose our whakapapa. Our whakapapa is chosen for us before weare even born, in the myriad of hononga (relationships) and couplings, thatdescend through ngā kawai whakapapa that lead ultimately to our parents andthence to us.[62] Mr Kerepeti-Edwards describes whakapapa as a "birth right" and "the verything that gives you a sense of belonging and identity in this world". As to theauthority to decide whakapapa, Mr Kerepeti-Edwards says:The authority to decide the whakapapa of a person does not sit with parents.We do not think in those terms in tikanga Māori. Our whakapapa is ourinherent right to know who we are, who we descend from and how we link tothe taonga of our ancestors.[63] This evidence is consistent with the statement on tikanga appended to theSupreme Court's decision in Ellis v R.26 In that statement, Sir Hirini Moko Mead andProfessor Pou Temara emphasise the importance of whakapapa to being Māori:91. Māori place great importance on genealogy and kinship relationshipsand the concept of whakapapa is central to being Māori and to identity. Theworld and everyone in it is part of a huge interlocking family tree.92. Whakapapa and knowledge of relationships between people is pivotalto the Māori world and tikanga Māori. Whakapapa is a prized form ofknowledge and great effort is made to preserve memory of it.93. It is through whakapapa that kinship ties are cemented and mana isinherited and intimately connected 94. Whakapapa also creates responsibilities of manaaki (care andnurturing) within the whānau. Like all these concepts, that are inextricablylinked, whakapapa is closely linked to the concept of whanaungatanga.26 Ellis v R [2022] NZSC 114 at Appendix (emphasis added).[64] As that statement of tikanga records, the concepts of whakapapa are interlinkedwith other concepts, including whanaungatanga, and cannot be understood inisolation. Whanaungatanga is defined in the Act.27 The term broadly describes therelationships and attendant responsibilities of kinship.28[65] On the basis of Mr Kerepeti-Edwards' evidence and the tikanga statement inEllis v R, I conclude that a child with Māori whakapapa is a Māori child. Whakapapais not a matter of parental choice. That meaning is more closely aligned with theconcept of Māori descent as that term is used by Statistics New Zealand. It suggestsOT was right to refer to C as a Māori child.Meaning under s 7AA[66] As required by the Legislation Act 2019, the meaning of "Māori children" ins 7AA of the Act is to be ascertained from the text of the provision and in light of itspurpose and context.29[67] Section 7AA(1) imposes duties on the Chief Executive of OT. Counsel for C'sfather emphasises that the s 7AA duties are only imposed on the Chief Executive andno one else. On this basis she says that the responsibilities in s 7AA cannot be imposedon C's father.[68] There is no dispute that the duties imposed in s 7AA are duties imposed on theChief Executive of OT and do not apply to the applicant. But OT does not rely ons 7AA as a source of decision-making authority in this case. Rather, s 7AA providesthe statutory context in which the decision to identify C as Māori was made. The factthat s 7AA only imposes duties on the Chief Executive does not advance theapplicant's case.[69] The duties on the Chief Executive under s 7AA are imposed "in order torecognise and provide a practical commitment to the principles of the Treaty of27 Oranga Tamariki Act 1989, s 2(1).28 See Joseph Williams "Lex Aotearoa: an Heroic Attempt to Map the Māori Dimension in ModernNew Zealand Law" (2013) 21 Wai L Rev 1 at 3–4.29 Legislation Act 2019, s 10.Waitangi (te Tiriti o Waitangi)".30 The reference to "Māori children" must thereforebe understood in the context of te Tiriti/Treaty.[70] The Treaty of Waitangi Act 1975, as described in its long title, was enacted to"provide for the observance, and confirmation, of the principles of the Treaty ofWaitangi" by establishing the Waitangi Tribunal. Under s 2 of that Act, "Māori" isdefined to mean "a person of the Māori race of New Zealand; and includes anydescendant of such a person".31[71] That definition is found in other New Zealand statutes also, such as theElectoral Act 1993, Te Ture Whenua Maori Act 1993, Maori Fisheries Act 2004 andthe Maori Affairs Restructuring Act 1989.32 It is a definition which correlates with thedefinition of "Māori descent" used by Statistics New Zealand.[72] Section 7AA(2)(a) requires the Chief Executive to ensure that the policies andpractices of the department that impact on the well-being of children and youngpersons "have the objective of reducing disparities by setting measurable outcomesfor Māori children and young persons".[73] A disparity between the treatment of Māori and non-Māori children was thesubject of claims addressed by the Waitangi Tribunal in its 2021 report,He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga Tamariki UrgentEnquiry.33 The extent of the disparity was recorded in the report's letter oftransmittal:34The disparities we examine are both enduring and stark. We collate as anappendix some of the key data. It is sufficient to note the following from theevidence we have heard. Between 2000 and 2018, the incidence of tamarikiMāori aged 16 and under in State care rose from one in every 125 Māorichildren to one in every 64. By 2012, tamariki Māori were five times morelikely than their non-Māori counterparts to enter State care. Māori were 54.7per cent of children in care in June 2013, climbing to 61.2 per cent of children30 Oranga Tamariki Act, s 7AA(1).31 Treaty of Waitangi Act 1975, s 2.32 Electoral Act 1993, s 3(1); Te Ture Whenua Maori Act 1992, s 4; Maori Fisheries Act 2004, s 5(1);and Maori Affairs Restructuring Act 1989, s 2(1).33 Waitangi Tribunal He Pāharakeke, he Rito Whakakīkīnga Whāruarua: Oranga TamarikiUrgent Inquiry (Wai 2915, 2021).34 At xiv.in care in 2017. The proportion of Pākehā children in care over the same periodreduced from 33.2 per cent to 26 per cent.[74] The disparity referred to in subs (2)(a) must be understood as a disparitybetween the outcomes for Māori children, as opposed to non-Māori children. Thejuxtaposition is between outcomes for those of the Māori race and those who are notof the Māori race. That is, those who are descended from Māori, and those who arenot. This also suggests that the reference to Māori children in s 7AA is a reference tothose who are biologically Māori and those who are not.[75] Subs (2)(b) requires the policies and practices of the department to have regardto "mana tamaiti (tamariki) and the whakapapa of Māori children and young personsand the whanaungatanga responsibilities of their whānau, hapū and iwi".[76] These provisions, and the associated definitions of "mana tamaiti (tamariki)","whakapapa" and "whanaungatanga" (set out at [32] of this judgment), were insertedas part of a 2017 amendment to the Act, which came into force in 2019. They werepart of a suite of changes aimed at emphasising and extending Māori concepts to thecare of children and young people.35[77] The reference to these concepts in relation to Māori children in s 7AAreinforces the central importance of these tikanga values as they apply to tamarikiMāori. Mana tamaiti (tamariki) refers to the intrinsic value and inherent dignity of achild derived from whakapapa and the sense of belonging to the wider group.Whakapapa features in this definition, and in the definition of whanaungatanga. Thedefinition of whakapapa refers to the multi-generational kinship relationships whichhelp describe who the child is by reference to their parents and the ancestors fromwhom they descend.[78] Reference to these concepts in s 7AA reaffirms that Māori children are borninto a kinship matrix which is independent of the choices their parents make for them35 See Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill (224-2)(commentary) at 2–13; Alison Cleland "Protection of mana tamaiti (tamariki): the right to culturalconnectedness (2021) 10 NZFLJ 141 at 142–146; and Waitangi Tribunal He Pāharakeke, he RitoWhakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry (Wai 2915, 2021) at [5.2.1].regarding their ethnicity or cultural identity. In other words, reference to theseconcepts aligns with the definition of Māori descent.[79] Such an interpretation also accords with the purposes and principles of the Actset out in ss 4, 5, and 13. Those purposes and principles include providing a practicalcommitment to te Tiriti o Waitangi/Treaty of Waitangi and recognising and protectingmana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga for childrenwho come to the attention of OT. The requirement to maintain and strengthen therelationships between children and their family, whānau, hapū, iwi and family groupreinforces the whakapapa and whanaungatanga ties that link children to these widergroups. As Mr Kerepeti-Edwards describes in his evidence, these ties are not chosenfor Māori children, but are something they are born into.[80] Defining Māori children as including those of Māori descent is also consistentwith the policy underpinning these provisions. Cull J summarised the legislativehistory to these amendments in Moana's Mother v Smith:36[27] The need to incorporate a Māori perspective into the care andprotection of children was recognised and actioned in the 1980s. In 1985, aministerial advisory committee was appointed by the then Minister of SocialWelfare to investigate and report on the operations of the Department of SocialWelfare from a Māori perspective. The committee found that the departmenthad "profoundly misunderstood the place of the child Māori society and therelationship of Māori children with whānau, hapū, and iwi structures". Itrecommended changes to the Children and Young Persons Act 1974. This ledto the introduction of the Children, Young Persons, and Their Families Act1989. The Act introduced several tikanga Māori principles includingparticipation of whānau, hapū and iwi in decision making for a child andstrengthening a child's relationship with wider kin groups.[28] A further review was undertaken in 2015 and in its report, the ExpertAdvisory Panel found that the system was unable to fulfil the needs ofvulnerable children and young people. This led to the establishment of a newMinistry for Children, Oranga Tamariki–Ministry for Children. Legislativereform closely followed, including amendments to the Children, YoungPersons and Their Families Act 1989, which became the Oranga Tamariki Act.I refer to this legislative change as "the 2019 amendments".[29] Of relevance to this appeal, the 2019 amendments reflected asignificant strengthening of the policy shift to address the needs of Māorichildren. The major changes introduced incorporating statutory definitions oftikanga Māori, mana tamaiti (tamariki) and related concepts, promoting thewell-being of Māori children through a practical commitment to the principles36 Moana's Mother v Smith [2022] NZHC 2934 (footnotes omitted).of the Treaty of Waitangi, most notably by the imposition of a duty to do soon the Chief Executive, and adding guiding principles for those makingdecisions under the Act.[30] As the focus of this appeal centres on cultural appropriateness,particularly with regard to tikanga Māori compliance under the OT Act, it isrelevant to set out the introduced statutory definitions to the OT Act and theamended provisions.[81] In addition, and as already referred to, the 2017 amendments to the Act weredesigned to improve outcomes for Māori children and reduce the significant disparitiesbetween Māori and non-Māori children in the care of OT.37 Strengthening andmaintaining the links between Māori children and their whānau, hapū and iwi wasseen as a way of achieving that purpose.[82] If the meaning of "Māori children" did not include children of Māori descent,then the alienation and disconnection of Māori children from their whakapapa,whānau, hapū and iwi could continue. Children who had Māori whakapapa but werenot identified as being of Māori ethnicity (such as C) would be lost to the kinshipmatrix that contributes to their intrinsic value and inherent dignity. Such a result wouldbe at odds with the objectives of s 7AA and would not be in accordance with the policyunderpinning this section and the other amendments enacted in 2017.[83] To recap, I consider the phrase "Māori children" as it is used in s 7AA of theAct refers to children who have Māori whakapapa; are of the Māori race; and who areof Māori descent. The definition embraces all children of Māori ethnicity, but is notdependent on the decision of a guardian or parent as to the ethnic group to which thatchild belongs.Was Oranga Tamariki right to identify C as a Māori child?[84] It follows from this analysis that I consider OT was right to identify C as aMāori child, despite her parents' choice of ethnicity.[85] However, this conclusion does not mean that non-Māori whakapapa, ethnicity,identity, and culture are irrelevant to decisions concerning Māori children. C's non-37 Oranga Tamariki Act, s 7AA(2)(a).Māori whakapapa, and the choices of her guardians regarding culture and ethnicitycannot be ignored.[86] The definition of whakapapa encompasses all lines of descent and is notconfined to Māori whakapapa. Nor is the requirement to have regard to whakapapalimited to Māori children. The concepts of whakapapa, mana tamaiti (tamariki) andwhanaungatanga apply to all children falling within the auspices of the Act.38[87] This is consistent with Mr Kerepeti-Edwards' expert evidence on whakapapa:It is through your whakapapa that you embrace and acknowledge all of thedifferent threads that form you as a person and that connect you to others. Thisfabric includes all of the parts of your whakapapa – your different whānau,tribes and ethnicities.[88] OT's preferred caregiver for C, her maternal aunt, put it in these terms:Whakapapa encompasses the entirety of a person's identity All of C'sancestry is what makes her the unique child that she is.[89] The requirement in s 5(1)(b) of the Act to adopt a holistic approach where thechild is seen as a whole person, including their whakapapa and cultural identity, is alsoconsonant with a requirement to consider all lines of whakapapa, ethnicities, cultureand identity.[90] Importantly, having regard to all of a child's whakapapa is required to meet theoverriding purpose under the Act which is to promote the well-being and best interestsof the child.[91] This means that while C is a "Māori child" under the Act and OT's placementpolicy, identifying her in this way needs to be approached with some care. C is aMāori child within the meaning of the Act. However, she is also an Aboriginal andNZ European child, as her parents have identified her. As I said at the outset of thisjudgment, the approach to the law in this area is an inclusive one.38 This was a deliberate change made to the Bill. See Children, Young Persons, and Their Families(Oranga Tamariki) Legislation Bill (224-2) (commentary) at 5.[92] To conclude, OT was correct to refer to C as a Māori child despite her parentsnot identifying her as such. The definition refers to children of the Māori race, andwho are descended from Māori. The definition is not dependent on the choice madeby guardians as to ethnicity, culture or identity. However, that does not mean thatthese factors and C's other whakapapa should be ignored. These will be relevant tothe promotion of C's well-being and best interests.[93] The challenge to OT's decision fails and the application for judicial reviewmust be dismissed.Result[94] The application for judicial review is dismissed.[95] OT is the successful party and is entitled to an award of costs. The parties areencouraged to confer, and if possible, reach agreement on the question of costs. Ifagreement cannot be reached, a memorandum in support of costs may be filed20 working days after receipt of this judgment, with a memorandum in response filed10 working days thereafter. Memoranda shall be no longer than five pages in length.Costs shall be determined on the papers.___________________Edwards JSolicitors/Counsel:O'Boyle Law, RuakakaB R Arapere, WhanganuiLuke Cunningham and Clere (Office of the Crown Solicitor), Wellington