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Tariana Turia Speech to Family Law Conference

6 October 2001 Hon Tariana Turia Speech Notes
10am Saturday 6 October 2001

Speech to Family Law Conference, "Whanaungatanga and the Family Court", Christchurch

E nga iwi, e nga mana, tena koutou.

He mihi atu tenei ki a koutou I runga I te kaupapa o te ra, huri atu te po, nau mai te ao!

No reira, anei au he muka no te taurawhiri o Hinengakau e mihi atu nei ki a koutou, tena koutou, tena koutou tena tatau katoa.

Ngai Tahu tena koutou e pupuri nei I nga ahuatanga ki a koutou.

Tena koutou me o koutou awa, maunga hoki.

When I received the invitation to speak at this conference and saw that I was to address the politics regarding politics and the impact this might have on the Family Court and the impact politics may have on the descendants of whanau, hapu and iwi I thought I'd do this best by being personal.

You could say I'm a new age feminist who believes that the personal is the political. Or is the political personal?

On the other hand as an iwi fundamentalist, I know my people have always celebrated the notion that the personal is the political and that political beliefs are very much about personal beliefs.

At least those are the beliefs of the four iwi from whom I descend who laud the fact that every decision they make is a political decision.

Every hui and conference agenda has political connotations and every oration and waiata sung are political both in nature and in intent.

This conference and its agenda would be seen as political by my old people!

Our history as whanau and hapu is filled with politics.

Marriage was a political act – love I am told if it did develop, developed later – after the children or the grandchildren in some instances, were born!

The second point I want to make is that there is an expectation for me to discuss the Treaty of Waitangi and it's interface with the Family Court I am of course happy to do this as I have a few thoughts I want to leave with you.

Any discussion I have regarding the Treaty inevitably involves some discourse on self-determination.

For me, self determination

"…. refers to a degree of autonomy that enables individuals or collectives to shape their own economic, social and political destiny".

Another definition is that self-determination, in purely political terms, is

"the right of an aboriginal nation to choose how it will be governed.

Self-governance, in contrast, is one natural outcome of the right of self-determination and refers to the right of peoples to exercise political autonomy.

Self-determination refers to the collective power of choice; self-government is one possible result of that choice" .

I would like to talk about self-governance as being the choice of self-determination.

It is about the right to participate in, and control the processes, through which decisions that affect our lives are made.

To that extent I would like us to consider very seriously the possibility of establishing parallel systems of justice to recognise the systems of law of both parties who were the signatories to the Treaty of Waitangi.

The Family Court may be a good place to start.

I am reminded that in 1986 the Chief Judge of the Maori Land Court, Judge Eddie Durie said in discussing ancestral or customary law:

"For my part I have no difficulty in considering that there should be some adaptation and growth of ancestral laws to deal with situations beyond our forebears experience. Indeed all laws, if they are to remain relevant, are never fossilised but always develop as society develops too.

One day we will be ancestors and we should not be without licence to develop the principles of our old laws to meet the needs of our time.

It is partly for that reason that I object to the occasional suggestion that if we are to have customary laws, we must adhere to them in a fundamental or literal way, or else abandon them altogether.

It presumes western laws can change but ours cannot, or that our laws should be adhered to only until time makes them imperfect.

In the same way I object to any suggestion that we should be limited, in utilising our traditional fishing grounds, to the use of traditional implements or should be limited to taking only for traditional needs. "

The words of Judge Durie could, I submit, result in a legal framework, which may exist alongside that which currently exists.

This leads me on to the next issue, which relates to the children of whanau, hapu and iwi who as a result of adult behaviour find themselves coming before the Family Court.

While I know that there have been criticisms of the Family Court particularly but not exclusively by groups representing fathers I am also aware that many within the Family Court system have been complimented by whanau, who have appeared before it.

I know for example, that many of the Family Court judges have referred families to appropriate forum to try and arrive at an indigenous solution and report that outcome back to the Court.

I also know that on occasions when the Family Group Conference process within the Child, Young Person and their Families Act 1989 has not arrived at a resolution, Family Court judges have encouraged whanau to go away and try again.

I find this aspect of the Family Court most satisfying.

In considering parallel systems perhaps we could entertain in this country the desirability of having a Whanau, Hapu and Iwi Children’s Act much like the Indian Child Welfare Act in the United States of America.

This Act could build on and stand alongside the internationally acclaimed CYP and F Act 1989, the Family Group Conference processes of which were arrived as a result of the recognition of whanau decision making processes of hapu and iwi.

What I also want to address and while I am aware that Leland Ruwhiu will be discussing this aspect, is the issue on how important it is for the Family Court, its processes and decisions, to support the care of children by whanau, hapu and iwi as opposed to them being cared for by non-kin or in my terms strangers.

There is a danger in stranger care, if only because I know that many of the child descendants of whanau, hapu and iwi have as a result in this type of care been alienated from those with whom they have whakapapa ties, their whanaunga.

I would be most interested in any research which could be undertaken on the experiences of children who were alienated in to state care in the 60's and onwards.

It would be also be important to know what the whanau of those children felt and experienced at that time and how they feel now. Also what happened to those young people.

I am reminded that Jane Von Dadelzen's "Sexual Abuse Study. An examination of the Histories of Sexual Abuse Among Girls Currently in the Car of the Department of Social Welfare" blew the myth of the safety of State care.

I think perhaps we need to look at the residual effects of what occurred in the name of care and protection and the "best interests of the child". Let us revisit the impact of state care.

Discussion on some of Minister Turia's experiences of fostering children

I am concerned that whanau is seen as the equivalent of family. It is not.

Whanau is a kinship group much more extensive than the Anglo European heritage which is reflected when legally defining kinship relationships.

When relationships around children are defined, too often this is limited in law, to two parents and these generally are the biological parents.

How often do we hear about the “responsibility of the parents”?

How often do we hear that parents should “share duties and responsibilities for the care, welfare and development of their children, and should agree about their children’s future”?

I respectfully put it to you that the very laws with an Anglo European whakapapa have lead to the continued alienation of the children of indigenous people.

The irony is that this has all occurred in the name of care, welfare and development.

And here we are today talking about whanaungatanga, but do we really know what that means.

At one level it means relationships and this could in our present context mean relationships between strangers.

However, I can assure you that whanaungatanga and its origins came from a context where people knew each other and if they had not met they often knew of each other. Whanau means to be born of.

What I have noticed over the last two decades is a plethora of definitions where we now have a "whanau" class in a school or a "whanau" room.

The notion of whanau is being redefined - usually by powerful institutions - like educational institutions. We need to claim back our terms and exercise some control over the use or abuse of our terms.

George and I have for example, mokopuna who share other iwi. While they have never met these people, we have, and we share that with our mokopuna.

As we continue to speak of these people we know our mokopuna will come to know them – even though they still may not have physically met or lived amongst them.

Our mokopuna are their whanau - they were born of them. They share the blood. They have the genealogical linkages.

They will hear the stories and they will sing the songs of those ancestors as indeed they already do.

All our mokopuna delight in celebrating the diversity of the iwi and hapu they have genealogical connections.

They compete at times in counting the different hapu each can lay claim to.

What connects these mokopuna is the whakapapa.

In seeking background material for this speech and in reflecting on discussions that I have had with officials and staff within my office, the word 'paramountcy' began to haunt me.

I tried to trace the origins of such a notion, where it appeared that the individual assumed an authority and importance that subsumed the authority and importance of a group.

This began to worry me.

I was eventually lead to Descartes who had this wonderful facility to separate one element from its body and treat it as if it was a totally independent and unrelated entity from the very thing it was a part of.

This type of thinking is not very enlightened in fact I would suggest it was still in the dark ages.

I then understood why the paramountcy of the individual disturbed me so much.

It is an anathema to a person such as I, who claims to be a descendant of the strands and tributaries of the Awa of Whanganui.

I cannot be separated from the Awa nor do I believe can Descartes separate me.

I am the Awa and the Awa is me.

It is in my heart my mind my body and it is the very essence of my soul. I am born of the river and its waters.

It is for this reason that I have difficulty in understanding how our policy analysts in Aotearoa New Zealand with a South Pacific address continue to advocate that a concept whose origins have a western European address should continue to have currency in child welfare, law, policy, practice and belief.

Why a concept such as the paramountcy principle can in this increasingly culturally diverse society of ours, continue to be promoted as appropriate is beyond my comprehension.

Obviously I share a worldview, which is different to the proponents of the paramountcy principle.

It also reinforces my belief that the personal is the political, a fact I acknowledge but a fact, which I am sure the analysts and policy writers would deny.

This blind adherence to the paramountcy principle means where we are waiting for the world to catch up with our CYP & F Act 1989, we are languishing behind the rest of the world by insisting on an adherence to the paramountcy principle.

We are, as many of you know considering principles of childcare with which to underpin all policy practice and legislation.

In considering this, we always take cognisance of what is being done internationally but particularly how we see the relationship of each principle and its relevance to the articles of the UN Committee on the Rights of the Child (UNCROC).

As a government, it is always our intention that policies and services affecting children should be consistent with UNCROC.

In this particular instance, they should be child-focused and to that extent, the UNCROC position is that

"the best interests of the child should be a primary consideration, and children should be able to participate in decisions that affect them according to their age and ability".

This type of wording from UNCROC reflects the culturally diverse nature of the world and sends us all a message that the principles of childcare are not solely determined by western Eurocentric notions of what should be.

This differs markedly from having “the paramountcy of the best interests of the child” elevated to the extent that it excludes the social unit which we say is important for children and that for us is the whanau.

It concerns me because we often have a ‘third person’ representing the child’s interests and often that person is of a culture different to that of the whanau of the child in question.

Whose interests are then being served with such a principle? Why is the child separated from the social unit into which he or she is born?

Such a principle whose origins are from the period of 'the Enlightenment' must be returned to 'the annals of darkness' from which it came.

To conclude I need to say that in viewing the invitation I am disappointed the names of James Whakaruru and Lillybing are again being used.

Is there a political agenda behind that?

Can anybody name the three children killed in Nelson, are their names household names as James’ and Lillybing’s appear to be. What of the child killed and drowned in the Wairarapa, where Lillybing was killed, is that child’s name known.

I am somewhat tired of Maori being portrayed as sad and bad and I am quite frankly tired of the politics surrounding the deaths of Maori children.

I think our society needs to take stock of how we view and treat children. I concur with Mick Brown that the issue is not with the child, it is with us the adults.

Na reira tena tatau katoa.

Ends

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