TNH-102641-2-1-V10
BEFORE THE WAITANGI TRIBUNAL
TE RŌPŪ WHAKAMANA I TE TIRITI O WAITANGI
IN THE MATTER of the Treaty of Waitangi Act 1975
AND
IN THE MATTER of a claim called the Partnership School I Kura Hourua
Claim by SIR TOBY CURTIS and DAME IRITANA
TAWHIWHIRANGI for and on behalf of the claimants
and Māori generally
STATEMENT OF CLAIM
3 July 2018
PO Box 1654
Telephone: (04) 495 9999
Facsimile: (04) 495 9990
Counsel: M K Mahuika / T N Hauraki
WELLINGTON
Wai 2770, #1.1.1
OFFICIAL
RECEIVED
Waitangi Tribunal
Ministry of Justice
WELLINGTON
3 Jul 2018
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MAY IT PLEASE THE TRIBUNAL
INTRODUCTION
1. This statement of claim is filed pursuant to section 6 of the Treaty of
Waitangi Act 1975 (the TOW Act) by Sir Toby Curtis and Dame Iritana
Tawhiwhirangi (the Claimants) for and on behalf of the Claimants and Māori
generally.
2. The Claimants are Māori for the purposes of section 6(1) of the TOW Act.
3. This claim concerns Crown policy, acts and omissions in relation to Kura
Hourua and, in particular, the Crown’s decision to terminate the Partnership
Agreements pursuant to which Kura Hourua operated (Partnership
Agreement).
4. The Claimants say that this policy, acts and omissions are in breach of the
Crown’s obligations under te Tiriti o Waitangi (te Tiriti).
BACKGROUND
Education Amendment Act 2013
5. In 2013, Parliament passed the Education Amendment Act 2013 which
inserted Part 12A into the Education Act 1989 (the Education Act) (and
associated provisions throughout).
6. Part 12A of the Education Act provides for the approval and operation of
Kura Hourua by, inter alia, allowing the Minister of Education (Minister) to
approve a sponsor of a Kura Hourua (Sponsor) and providing that the
Minister may enter into a contract (the Partnership Agreement) with that
Sponsor for the operation of the Kura Hourua.
Kura Hourua
7. Kura Hourua were state-funded but independently operated schools.
8. There are currently 11 Kura Hourua open in New Zealand, each under a
Partnership Agreement. They are:
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(a) Vanguard Military School
(b) Te Kapehu Whetu – Terenga Paraoa
(c) South Auckland Middle School
(d) Rise Up Academy
(e) Te Kāpehu Whetū (Teina)
(f) Middle School West Auckland
(g) Pacific Advance Senior School
(h) Te Kura Maori o Waatea
(i) Te Aratika Academy (Napier)
(j) Te Kopuku High School (Hamilton)
(k) Te Rangihakahaka Centre for Science and Technology
9. As of 7 June 2018, 10 Kura Hourua have been served with notices of
termination of their respective Partnership Agreements by the Ministry of
Education (the Ministry).
10. The Kura Hourua framework provided Kura Hourua with high levels of
freedom compared to state schools both in terms of how students were
taught and how the schools were organised. Such flexibility was achieved in
a variety of ways:
(a) Kura Hourua were entitled to a degree of self-determination by way of
being privately owned, fully funded by the Crown, and free to appoint
fit-for-purpose governance;
(b) Kura Hourua were able to set their own curriculum provided they used
the vision, principles, values and key competencies of the New
Zealand Curriculum or equivalent standards in Te Marautanga o
Aotearoa;
(c) the requirement under the Education Act for all teachers to be
registered was relaxed (a percentage of teaching hours could be
covered by non-registered teachers), as well as the restrictions around
salary conditions for teachers; and
(d) Kura Hourua were bulk-funded.
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11. The model for the operation of Kura Hourua enabled Kura Hourua to act with
independence and flexibility while still being required to meet educational
standards that were linked to the New Zealand Curriculum.
12. Under the Partnership Agreements, Kura Hourua were contractually required
to have at least 75% of their enrolled students made up of Priority Learners
(Māori, Pasifika, decile 1-3 students, Special Needs). A key reason for this
requirement was to address the under-achievement of Māori and Pacific
students and students from low-income families in mainstream education.
13. The school roll across existing Kura Hourua is 75% Māori/Pacific. Some
individual schools exceed that threshold in terms of Māori enrolment.
14. On the whole, the level of educational achievement for Priority Learners
attending Kura Hourua has been better than the levels of achievement
achieved by Priority Learners in state schools.
15. The results achieved by Kura Hourua secondary schools, Te Kapehu Whetu
Terenga Paraoa and Vanguard Military School, are outstanding when
compared to all New Zealand schools.
16. Kura Hourua primary schools have achieved learning success at or above
the national average of all New Zealand schools.
Partnership Agreements
17. A Partnership Agreement recorded the terms and conditions upon which the
Sponsor would operate and manage a Kura Hourua and the payments that
the Minister would make to the Sponsor in consideration for the Sponsor’s
operation and management of the Kura Hourua.
18. A Partnership Agreement set out the following:
(a) the term of the agreement: each Partnership Agreement had an initial
six-year term followed by two further rights of renewal of six-years
each (this term was standard across all Partnership Agreements);
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(b) the key requirements of the Kura Hourua, including: special features of
the Kura Hourua; enrolment requirements; the curriculum;
(c) governance arrangements;
(d) teaching arrangements, including: number of teaching positions;
requirements regarding qualifications of teachers; teacher salaries;
(e) the performance regime, including: the minimum performance
standards for the school; the requirements for recording and reporting
on performance;
(f) consequences for breach of the Partnership Agreement;
(g) termination provisions: a Partnership Agreement could be terminated
by the Minister for cause where the Kura Hourua failed to meet
performance standards or otherwise breached the Partnership
Agreement or its statutory duties. Partnership Agreements could be
terminated without cause by either the Minister or the Sponsor for
“convenience”. They could also be terminated by mutual agreement of
the parties.
Education Amendment Bill 2018
19. On 8 February 2018, the Education Amendment Bill (the Bill) was
introduced into the House of Representatives (the House). The Bill is
currently before the Education and Workforce Select Committee. The Bill
proposes to remove the Kura Hourua model from the education system.
20. The Explanatory Note to the Bill states that the policy objective underlying
this change is to “strengthen the quality of school education…”
21. Clause 10 of the Bill repeals Part 12A of the Education Act - the provisions
enabling the establishment of Kura Hourua.
22. Clause 18 of the Bill amends Schedule 1 to the Education Act, inserting a
transitional provision for existing Kura Hourua which provides as follows:
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Transitional provisions for existing partnership schools kura hourua
(1) In respect of any partnership school kura hourua in existence
immediately before the commencement of this clause, this Act applies
as if sections 10, 18, and 20 of the Education Amendment Act 2018
had not come into force.
(2) Despite subclause (1), section 158C does not apply.
(3) This clause ceases to apply in respect of a partnership school kura
hourua on the earlier of—
(a) the expiry of the partnership school contract for the school; and
(b) the termination of the partnership school contract for the school.
23. While the Bill, if enacted, will prevent the establishment of any new Kura
Hourua, it does not itself disestablish the existing Kura Hourua. The Bill in
fact, confirms that existing Kura Hourua will continue to operate until the
earlier of the expiration or the termination of the relevant Partnership
Agreement.
24. The Crown’s decision to terminate the existing Partnership Agreements was
one that is distinct from the provisions of the Bill.
TE TIRITI O WAITANGI AND EDUCATION
25. The Waitangi Tribunal has previously considered the relationship between
the principles of te Tiriti and the provision of education services and
educational outcomes for Māori.
26. The Tribunal’s consideration has largely focused on historical treaty
grievances concerning the Crown’s compliance with its Treaty obligations in
relation to education services within specific inquiry districts.
27. The Tribunal considered contemporary Treaty claims of more national scope
relating to education in the Matua Rautia: The Report on the Kohanga Reo
Claim
and the Report on the Aotearoa Institute Claim concerning Te
Wananga o Aotearoa (Te Wananga o Aotearoa Report)
.
28. The Tribunal has found that, generally, the Crown owes obligations to Māori
under te Tiriti in respect of education.
Waitangi Tribunal, Matua Rautia: The Report on the Kohanga Reo Claim, 2013
Waitangi Tribunal, The Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa,
2005
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29. In relation to the termination of Partnership Agreements with Kura Hourua,
the following Treaty principles are particularly applicable:
(a) Partnership: the Crown and Māori, being Treaty partners, must act
reasonably and in good faith towards each other.
(b) Active Protection: the Crown has a duty to actively protect the interests
of Māori specified in te Tiriti.
(c) Reciprocity: the Crown must respect tino rangatiratanga in exercising
kāwanatanga and this should be reflected in its decision making.
(d) Equity: the Crown has a duty to treat Māori and non-Māori equally.
30. The overarching principle when considering whether the Crown has met its
Treaty obligations in relation to education is the principle of partnership,
which involves the balancing of kāwanatanga and tino rangatiratanga.
31. All other relevant Treaty principles derive from the principle of partnership.
32. In Te Whanau o Waipareira Report the Tribunal observed that “most of all
the concept of partnership serves to answer questions about the extent to
which the Crown should provide for Māori autonomy in the management of
Māori affairs, and more particularly how Māori and the Crown should relate
to each other that such issues might be resolved”.
33. In the context of education, the Tribunal has found that the cession by Māori
to the Crown of kāwanatanga under article 1 of te Tiriti gives the Crown a
right to determine education policy in accordance with the principles of good
government and for the benefit of all New Zealanders.
34. Kāwanatanga also involves the active protection of tino rangatiratanga.
35. Therefore, the exercise of kāwanatanga by the Crown in respect of
education requires the Crown to:
Waitangi Tribunal, Te Whanau o Waipareira Report, 1998, p. 30
The Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa, p. 35
Ibid, the Waitangi Tribunal observed that “the point has been made by many Tribunals”.
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(a) Have a fully informed understanding of and respect for the Māori
interest.
(b) Consider “carefully the effect of executive action and changes in
policy, and to engage in consultation and negotiation with its Treaty
partner” to understand how Māori interests are affected.
(c) Conduct consultation in good faith.
36. The standard and manner of consultation is not fixed but depends on the
issues in question and the relative impact on Māori and Māori interests.
37. For the Crown to have meaningfully consulted, the Crown must have at
least:
(a) sufficiently informed itself of the Māori interest at stake; and
(b) engaged with Māori prior to making the final decision to proceed with
termination.
CROWN BREACHES OF TE TIRITI O WAITANGI
38. The Claimants allege that the Crown has breached the principles of te Tiriti
by:
(a) failing to act in good faith to the Claimants and Māori in general by,
without consulting:
(i) terminating the Partnership Agreements between the Crown and
existing Kura Hourua; thereby forcing:
i. the closure of Kura Hourua; and
ii. the transition of Kura Hourua to a different type of state
school under the Education Act;
The Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa, p. 35
Ibid
See for example the Tribunal’s discussion of consultation standards in the Report on the Trans-
Pacific Partnership Agreement, 2016, pp. 39-40
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(b) failing to take into account the effect the decision to terminate the
Partnership Agreements will have on Māori and in particular the impact
the decision to terminate will have on Māori students, their families and
their communities; and
(c) failing to provide alternatives which make appropriate provision for the
needs of Māori as represented by the Claimants.
PARTICULARS
Termination of Partnership Agreements
39. In early February 2018, the Minister confirmed that the Crown would explore
options for the termination of Partnership Agreements with existing Kura
Hourua. He stated publicly that the operators of Kura Hourua wanting to
continue to be involved in education would have to apply to establish
another form of school, such as a designated character school.
40. To become a designated character school or any other type of school under
the Education Act, applications need to meet the relevant requirements for
state schools under the Education Act.
41. There is no guarantee that all Kura Hourua will meet the requirements and
therefore be able to transition to a state school under the Education Act.
42. The Minister also stated that if early termination could not be agreed
between the Crown and Kura Hourua by the middle of May 2018, and
regardless of whether Kura Hourua were permitted to transition to a different
type of school, the Minister would proceed to terminate the Partnership
Agreements. The Minister indicated therefore that the Partnership
Agreements would not be permitted to run to the expiry of term.
43. On June 7 2018, the Ministry issued notices of termination to 10 Kura
Hourua, with termination to take effect at the end of the 2018 school year.
44. Only one school, Vanguard Military School, was approved to remain open as
a state school with designated character prior to the notices of termination
being issued. The Minister has indicated that the applications of the
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remaining schools to become a different type of state school will be decided
by 31 July 2018.
45. The Crown’s decision to terminate the Partnership Agreements with existing
Kura Hourua:
(a) will lead to the closure of existing Kura Hourua; and
(b) has forced the Sponsors of Kura Hourua to apply to establish a new
state school under the Education Act if they wish to continue to
operate the school.
46. There was no prior consultation by the Crown in relation to the decision for
the early termination of Partnership Agreements with Kura Hourua.
47. The Crown has not considered the Māori interest in making the decision for
the early termination of Partnership Agreements with Kura Hourua, including
in particular the impact on the levels of educational achievement by Priority
Learners.
48. The Crown has not considered the impact of the decision for the early
termination of Kura Hourua on the Māori communities that will be affected by
that decision.
Review of the education system
49. On 21 February 2018, the Minister announced that over the next three years
the Government will undertake a comprehensive review of the education
system (the Review). A main component of the Review is to look at ways to
address the under-achievement of Māori in the current state system. The
Minister did not consult with the Claimants prior to the announcement of the
Review.
50. All changes projected in respect of Kura Hourua, in particular, the
termination of Partnership Agreements and closure of existing Kura Hourua,
will have occurred in advance of the conclusion of the Review.
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No evidence to justify termination
51. There is no policy justification for the termination of Partnership Agreements
with existing Kura Hourua. The Minister has not stated how the abolition of
Kura Hourua will provide better educational outcomes for Māori learners.
52. There is no compelling evidence that the existing Kura Hourua are not
performing. This was recognised in the Regulatory Impact Summary (the
RIS) that was prepared by the Ministry on the Bill: “there are limitations
relating to the problem definition, including the fact that there is limited
information on the long term performance of schools in the PSKH [Kura
Hourua] model”.
53. In fact, the evidence indicates that the existing Kura Hourua are generally
performing and students are succeeding in those schools.
54. It is also well evidenced, and acknowledged by the Crown, that Māori
students are chronically under-performing in mainstream education.
55. The diverse and often unique challenges for Māori in education arguably
require a distinctive response from the Crown.
The Kura Hourua model has
been one such response to Māori under-achievement in mainstream primary
and secondary education, which has had a positive impact.
56. Despite a lack of compelling evidence to justify their termination, the Crown
unilaterally determined to terminate the Partnership Agreements with
existing Kura Hourua, thereby removing schools with greater curriculum
flexibility and autonomy (rangatiratanga), while at the same time forcing
Māori back into a system in which they have historically performed poorly.
This cannot be a proper exercise of the Crown’s kāwanatanga.
No consultation with Māori
57. There has been an absence of consultation with Māori on the proposed
termination of Kura Hourua. In the RIS on the proposed legislative changes,
the Ministry acknowledged that there was no public consultation and testing
See for instance Waitangi Tribunal: The Whanganui Land Report; Report on the Kōhanga Reo
Claim; Report on the Aotearoa Institute Claim concerning Te Wānanga o Aotearoa
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of the proposal to repeal the legislation allowing for Kura Hourua. Similarly,
the decision to terminate the Partnership Agreements with existing Kura
Hourua was a unilateral decision by the Crown without consultation with the
Claimants or Māori generally.
58. The fact that the disestablishment of Kura Hourua was a commitment by the
(now) Government during the 2017 election campaign does not negate the
Crown’s duty to consult with Māori under te Tiriti.
59. While the Crown has undertaken discussions with existing Kura Hourua on
future alternative schooling options (and continues to engage with the
schools on this matter), there is no possibility that these discussions will alter
the Crown’s decision to terminate the Partnership Agreements, which has
now been effected by notice. A discussion of transition options at this
juncture is not a substitute for the meaningful dialogue that should have
occurred prior to the Crown’s decision to take steps to terminate the
Partnership Agreements.
60. In order to meet its Treaty obligations, the Crown should have undertaken a
consultation process with affected Māori groups before deciding to proceed
with a termination process. As no consideration was given to the affected
Māori community’s values and aspirations, it cannot be said that the Crown
and Māori are working together, nor that the principle of rangatiratanga has
been maintained.
61. There is a lack of clarity - both in terms of process and outcome - regarding
the discussions that the Crown is now undertaking with each
school/Sponsor. This is exacerbated by the fact that the Crown holds these
discussions with each Sponsor individually and subject to confidentiality,
which creates uncertainty for schools, students and their whānau alike.
Lack of adequate alternative options
62. For Kura Hourua the consequences that flow from the Crown’s decision to
terminate the Partnership Agreements are as follows:
(a) Kura Hourua will be forced to close;
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(b) Sponsors of existing Kura Hourua have been forced to make an
application to the Minister to establish a new state school as defined
under s 156 of the Education Act.
63. The Crown has not stated how the abolition of Kura Hourua will assist in
advancing educational outcomes for current and prospective Māori students
of Kura Hourua.
64. Despite the fact that it is widely accepted and acknowledged by the Crown
that Māori are chronically under-achieving in the state system, by terminating
Kura Hourua the only option for Sponsors to potentially continue to be
involved in education has been to exercise the right to make an application
to the Minister to establish a new state school. The Crown has not stated
how forcing Māori back into the state system will help to advance
educational outcomes for Māori, rather than perpetuate the inequities
currently suffered by Māori in state education.
65. The Crown has not guaranteed that all Kura Hourua will be able to transition
to a different type of state school under the Education Act.
66. In any event, dislocation is an inevitable consequence for those students
currently enrolled at Kura Hourua. Students of Kura Hourua will not be able
to continue their education in its current form when termination of the
Partnership Agreements takes effect at the end of the school year. They will
have no option but to enrol at a state school if they wish to remain in
education. There is the added risk that students of Kura Hourua, who are
targeted Priority Learners, may choose not to continue their education.
67. The Crown has committed to addressing ways to raise Māori achievement
as part of its 3-year Review. The Crown has not rationalised why
Partnership Agreements with Kura Hourua needed to be terminated in
advance of any findings and recommendations that come out of the Review.
68. The fact that the Government has committed to undertaking a Review also
indicates that there are recognised deficiencies in the current system for
Māori for which no alternative solutions or strategies have yet been
developed or implemented. The Crown’s decision to terminate Kura Hourua
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in the absence of any adequate alternative options for Māori was therefore
premature.
PREJUDICE
69. The Crown’s actions will have a disproportionate affect on Māori.
70. Partnership Agreements required Kura Hourua to enrol Priority Learners,
with a focus on Māori students not succeeding in mainstream education.
The school roll across the existing Kura Hourua is 75% Māori/Pacific. Some
individual schools exceed that 75% threshold in terms of Māori enrolment.
The changes to the operation of Kura Hourua resulting from the actions of
the Crown to terminate Partnership Agreements will disproportionately affect
Māori students.
71. The majority of the Sponsors are Māori trusts/incorporations, which entered
into Partnership Agreements with the Crown in good faith and have now
invested time and money into developing Kura Hourua for the purpose of
advancing Māori educational and future employment outcomes. The
termination of Partnership Agreements by the Crown will also have an
impact on those trust/incorporations and their capacity to provide education
services to Māori. The Tribunal has found, in the context of the delivery of
social services such as education, that the Crown owes duties to Māori
entities under te Tiriti.
72. The breaches of te Tiriti by the Crown described above have caused or are
causing significant and irreversible prejudice to the Claimants and to Māori
generally by, including (but not limited to) the following:
(a) eroding Māori rangatiratanga by exercising kāwanatanga:
(i) without regard to the disproportionate effect the decision to
abolish Kura Hourua will have on Māori;
(ii) without regard to the views and aspirations of Māori in respect of
education and Kura Hourua in particular;
(iii) without seeking to inform itself of the views and aspirations of
Māori in respect of education and Kura Hourua in particular;
Te Whanau o Waipareira Report, p. 16
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(iv) without evidence to justify the termination of Kura Hourua;
(v) without providing adequate alternative options for Māori
students;
(b) compromising the valuable role played by Kura Hourua in advancing
Māori achievement in primary and secondary education;
(c) causing harm and loss to current and prospective Māori students of
Kura Hourua by refusing to maintain or develop an educational
framework that reduces inequities suffered by Māori in primary and
secondary education; and
(d) dislocating Māori students currently enrolled at Kura Hourua.
RELIEF SOUGHT
73. The Claimants, on behalf of themselves and Māori generally, seek the
following relief:
(a) that the Tribunal find that:
(i) the claims are well founded; and
(ii) the Crown’s policies, actions and conduct as outlined in this
statement of claim are inconsistent with Te Tiriti o Waitangi;
(b) that the Tribunal recommend that:
(i) the Crown not further progress the termination of the Partnership
Agreements; and
(ii) enter into consultation in good faith with the Claimants and Māori
on the future of Kura Hourua.
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74. The Claimants reserve the right to further particularise and amend this
Statement of Claim.
DATED this 3
rd
day of July 2018
_______________________________
M K Mahuika / T N Hauraki
Counsel for the Claimants
TO: The Registrar, Waitangi Tribunal, Wellington.
AND TO: Crown Law Office.
This STATEMENT OF CLAIM is filed by MATANUKU MAHUIKA solicitor for the
above named Claimants of the firm of Kahui Legal.
The address for service on the above named Claimant is at the offices of Kahui
Legal, Level 11, Intilecta Centre, 15-17 Murphy Street, Wellington.
Documents for service on the above named Claimant may be left at the address
for service or may be:
(a) posted to the solicitor at Kahui Legal, PO Box 1654, Wellington;
(b) emailed to the solicitors at M[email protected] and
[email protected].nz ; or
(c) transmitted to the solicitor by facsimile to (04) 495 9990.