Disestablishment Of Te Aka Whai Ora – Māori Health Authority To Be Investigated

Waitangi Tribunal Application by Claimants Meets Exceptional Criteria

Despite the Bill being rushed through the House of Representatives to disestablish Te Aka Whai Ora -Māori Health Authority in a provocative move to usurp the legal jurisdiction of the Waitangi Tribunal, the matter is not over.

Lead claimants, Lady Tureiti Moxon and Janice Kuka who filed the Wai 3307 Te Aka Whai Ora (Māori Health Authority) Urgent Claim that is supported by 29 interested parties[1] have now been notified that they have met the criteria for a ‘Priority Inquiry’ to be scheduled October 2024 subject to the Tribunal panel’s availability.

The Waitangi Tribunal will grant such hearings only in exceptional cases at its discretion. The matter will be heard as part of the existing Wai 2575 Health Services & Outcomes Kaupapa Inquiry timetabling.

“What the Tribunal said in their Oranga Tamariki (Section 7AA) Urgent Inquiry Report this month and Wai 2915 Report, He Pāharakeke, he Rito Whakakīkīnga Whāruarua[2] released three years ago in 2021 is very relevant to our matter. It is crystal clear,” says co-lead claimant, Lady Tureiti Moxon, Chair of the National Urban Māori Authority and Managing Director of Te Kōhao Health.

“Specifically, the ‘fundamental article 2 rights reserved to Māori of tino rangatiranga’.”

In the context of dis-establishing Te Aka Whai Ora, both claimants say Māori will suffer significant and irreversible prejudice as a result.[3] They agree with the earlier findings by the Waitangi Tribunal on the government when it said:

“The government’s singular focus on implementation of a commitment made in one of the coalition agreements has caused it to disregard its obligations under the Treaty of Waitangi, and this needs to be corrected before proceeding further.”[4]

The repeal has caused widespread uncertainty and deep concern in the health sector, particularly amongst Māori providers given the impact of the new legislation on Māori rights that the claimants have filed in evidence that shows .

“The government doesn’t have an alternative plan that we can see. So, the knock-on effect is we're still in the dark about what the plan is for Māori health. I feel there is widespread confusion,” says co-lead claimant, Janice Kuka, Chair of Turuki Health Care and Managing Director of Ngā Mataapuna Oranga.

“What we have is a health system that is floundering because it has no sense of direction at both a national and regional level. It’s an era of uncertainty around the sustainability of services. Māori providers are asking if they have a future and what services will be reduced?”

In its recent Memorandum - Directions the Waitangi Tribunal detailed the scope of the priority inquiry.

It will investigate, “the Crown’s alternative proposals to improve Māori health in lieu of a Māori Health Authority. The Priority Inquiry will therefore examine both the processes and steps taken by the Crown to disestablish Te Aka Whai Ora, as well as the Crown’s proposed alternative plans to address Māori health outcomes following its disestablishment”.[5]

The Crown opposed both an urgent inquiry[6] and a priority inquiry although has not filed evidence about what the alternative plans actually are to date.

In January 2024 in submissions to the Waitangi Tribunal the Crown said, “it was premature for it to articulate the full detail of these plans when these have not yet been worked through by Cabinet”.[7]

By April 2024 the Crown reported back to the Tribunal advising, “the topic is the subject of a law reform process currently underway, and timeframes for final Cabinet decisions and introduction of amendment legislation to the House of Representatives had not yet been decided. The Crown intends to proactively release these Cabinet decisions once an amendment Bill is introduced”.[8]

Now the Tribunal has directed Crown counsel to file a memorandum with an update on this matter by 5pm, Monday 27 May 2024.

Lady Tureiti Moxon and Janice Kuka’s claim is supported with a joint brief of evidence from witnesses including former Chair of Te Whatu Ora Rob Campbell, co-chair of Te Aka Whai Ora Sharon Shea, Te Aka Whai Ora Board member, Awerangi Tamihere, and Shelley Campbell member of Hei Āhuru Mōwai and the Health & Disability System Expert Review Panel.

Further in 2019 the Waitangi Tribunal recommended in its Hauora Report that the government change its capitation funding formulas by working with Māori. To date the Crown has not done this.

Claimants engaged Sapere that prepared a 61 page report saying it estimated that funding primary health care in a Treaty compliant way for the whole Māori population, would cost between $891 million and $1.06 billion a year and the cost of not providing an equitable health service to Māori is estimated to be $5 billion a year.[9]

[1] Para 6.1. Wai 3307. Memorandum dated 2 February 2024. Source: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_209541435/Wai%203307%2C%203.1.043.pdf

[2] Page 11. He Pāharakeke, he Rito Whakakīkīnga Whāruarua Report 2021. Source: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_171027305/He%20Paharakeke%20W.pdf

[3] Para 3.1 Wai 2575. Memorandum regarding urgency dated 15 March 2024. Source: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_213095129/Wai%202575%2C%203.2.1035.pdf

[4] Page 2. Oranga Tamariki (Section 7AA) Urgent Inquiry Report 2024. Source: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_212767746/Oranga%20Tamariki%20Urgent%20W.pdf

[5] Para 28. Memorandum-Directions of the Health Services & Outcomes Kaupapa Inquiry dated May 2024.

[6] Para 4 and Para 6. Memorandum of Counsel (Crown) 28 March 2024.

[7] Para 29. Memorandum-Directions of the Health Services & Outcomes Kaupapa Inquiry and in Crown submissions Wai 3307, #3.1.

[8] Para 30. Memorandum-Directions of the Health Services & Outcomes Kaupapa Inquiry and in Crown Submissions Wai 2575, #L17(k).

[9] Para 24. Wai 3307 Statement of Claim dated 7 December 2023. Source: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_207003173/Wai%203307%2C%201.1.001.pdf

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