The Waitangi Tribunal

On Friday 29 November 2024, the Tribunal released Hautupua: Te Aka Whai Ora (Maaori Health Authority) Priority Report, Part 1 in pre-publication format. The report was the result of a priority inquiry granted in May 2024 into claims concerning the Crown’s disestablishment of Te Aka Whai Ora – the Māori Health Authority. These claims were previously the subject of an urgent inquiry that was vacated when the Crown introduced the Pae Ora (Disestablishment of Māori Health Authority) Amendment Bill on 27 February. The panel for the inquiry was Judge Damian Stone (presiding), Professor Susy Frankel FRSNZ, Professor Tom Roa, Tania Simpson ONZM, and Linda Tuhiwai Smith CNZM.

The Tribunal decided to inquire into and report on the priority claims in two parts: the first part concerns the disestablishment and its impacts only. The second part will focus on the Crown’s alternative plans for Māori health. Part 1 of the Te Aka Whai Ora (Māori Health Authority) priority inquiry was conducted on the papers with no in-person hearing.

The Tribunal found that the Crown breached the principles of tino rangatiratanga, kāwanatanga, good government, partnership, active protection, and redress. The Crown did not act in good faith when disestablishing Te Aka Whai Ora as it did not consult with Māori. Without consulting its Tiriti/Treaty partner and without substantive advice from officials, the Crown decided that Te Aka Whai Ora was not required, despite knowledge of grave Māori health inequities.

Māori did not agree with the Crown’s decisions but were denied the right to self-determine what is best for them and hauora Māori. Instead, the Crown implemented its own agenda – one based on political ideology, rather than evidence – without even following its own process for the development and implementation of legislative reform. As the establishment of Te Aka Whai Ora was a form of redress for the Crown’s long-standing failure to reflect tino rangatiratanga in the health system, its unilateral decision to remove effectively took that redress away. The Tribunal found that these Tiriti/Treaty breaches caused significant prejudice to Māori.

The Tribunal recommended that the Crown commit to revisiting the option of a stand-alone Māori health authority, consult extensively with Māori in the development of any alternative plans, and always undertake proper regulatory impact analysis in matters that affect Māori health.

On Tuesday 5 November 2024, the Waitangi Tribunal released Ngā Mātāpono/The Principles: Part II of the Interim Report of the Tomokia Ngā Tatau o Matangireia – The Constitutional Kaupapa Inquiry Panel on The Crown’s Treaty Principles Bill and Treaty Clause Review Policies in pre-publication format.

This updated report responds to further evidence provided to the Tribunal on the policy development process for the proposed Treaty Principles Bill since May 2024, including the Cabinet paper on the proposed Bill.

The earlier findings and recommendations in the Tribunal’s initial interim report have not changed. Rather, this updated report consists of an additional chapter (chapter 6) that makes further findings on these specific matters.

Regarding the Crown’s policy development for the Bill, the Tribunal found the Crown’s process to develop the Bill has purposefully excluded any consultation with Māori, breaching the principle of partnership, the Crown’s good-faith obligations, and the Crown’s duty to actively protect Māori rights and interests. The Tribunal also found this policy process to be in breach of the principle of good government, as Cabinet has decided to progress the Bill despite it being a policy that is not evidence-based, has not been adequately tested, has not been consulted upon, and fails regulatory standards.

The Tribunal analysed how the proposed content of the Bill does not reflect the texts or meaning of the Treaty/te Tiriti. The Tribunal commented that Principle 1 misinterprets the kāwanatanga granted to the Crown in 1840, which is not an unbridled power restrained only by its own sense of what is in the best interests of everyone. Cabinet’s approval of Principle 2 for introduction in a Bill was found to be a breach of the principles of tino rangatiratanga, kāwanatanga, partnership, and active protection. The Tribunal commented that Principle 2, if enacted, would revoke the promises and guarantees the Queen made to Māori in 1840. The Tribunal held that Principle 3 bears no resemblance to the meaning of article 3 and that Cabinet’s decision to introduce the principle in a Bill was a breach of the Treaty/te Tiriti principles of partnership, equity, and active protection. 

The Tribunal found that these breaches caused significant prejudice to Māori. The Tribunal found that Māori would be particularly prejudiced by the extinguishment of tino rangatiratanga in a legal sense if the Bill were to be enacted. Among other effects, the new principles would apply to all legislation where the Treaty/te Tiriti might be considered relevant. The Tribunal also found that the new principles would advance the discredited agenda of assimilation, as they are designed to end the distinct status of Māori as the indigenous people of this country. The Tribunal commented that, even if the Bill were not enacted, Cabinet’s decision to introduce the Bill would prejudice Māori by further damaging the Māori–Crown relationship. Māori would also feel the brunt of the social disorder and division caused by the introduction of the Bill, including through the select committee process.

The Tribunal confirmed its previous recommendation that the Bill be abandoned. If the Government does not abandon the Bill, the Tribunal recommended that, given the constitutional significance of the issue, the Bill be referred to the Tribunal under section 8(2) of the Treaty of Waitangi Act 1975.

The Tribunal reserved its jurisdiction to hear further evidence and submissions concerning the Bill, should it be enacted.

On 13 September 2024, the Waitangi Tribunal released The Takutai Moana Act 2011 Urgent Inquiry Stage 1 Report (Wai 3400). The inquiry was granted urgency in the Waitangi Tribunal’s inquiry programme. The hearing was held in August 2024.

The Tribunal panel comprised Judge Miharo Armstrong (presiding), Ron Crosby, Professor Rawinia Higgins, and Tā Pou Temara. The report was the first report in a two-stage inquiry. This first stage considered the Treaty compliance of the policy development process that the Government followed in seeking to amend the Takutai Moana Act 2011, along with the proposed amendments, and whether these caused prejudice to Māori. The second stage will address the alleged mismanagement of funding for applications for customary marine title under the Act.

Overall, the Tribunal found that the Crown’s actions are such a gross breach of the Treaty that it is an illegitimate exercise of kāwanatanga. The Tribunal cautioned the Crown that, on the strength of the evidence it received, to proceed now on its current course would significantly endanger the Māori–Crown relationship.

To give effect to Treaty principles, the Tribunal recommended that:

• the Crown halt its current efforts to amend the Takutai Moana Act;
• the Crown make a genuine effort for meaningful engagement with Māori; and
• the focus of this engagement should be on the perceived issues of permissions for resource consents, rather than interrupting the process of awarding customary marine title.

The Tribunal emphasised that the recommendations should be implemented to restore a fair and reasonable balance between Māori interests and those of the public in te takutai moana.