The Ministryof Health’s website lists the principles of the Treaty that provide the framework for how the obligations under the Treaty will be met by the organisation.
The principles are stated to be those “articulated by the courts and the Waitangi Tribunal”.
The source of the principles articulated by the Waitangi Tribunal are given as :Waitangi Tribunal. 2019. Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry. Wellington. Waitangi Tribunal. pp. 163–164 (See the report here)
There is no source given for the principles articulated by
the courts.
The principles of the Treaty
This is what the website has to say:
The principles of Te Tiriti o Waitangi, as articulated by the Courts and the Waitangi Tribunal, provide the framework for how we will meet our obligations under Te Tiriti in our day-to-day work. The 2019 Hauora report recommends the following principles for the primary health care system. These principles are applicable to wider health and disability system. The principles that apply to our work are as follows.
- Tino rangatiratanga: The guarantee of tino rangatiratanga, which provides for Māori self-determination and mana motuhake in the design, delivery, and monitoring of health and disability services.
- Equity: The principle of equity, which requires the Crown to commit to achieving equitable health outcomes for Māori.
- Active protection: The principle of active protection, which requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for Māori. This includes ensuring that it, its agents, and its Treaty partner are well informed on the extent, and nature, of both Māori health outcomes and efforts to achieve Māori health equity.
- Options: The principle of options, which requires the Crown to provide for and properly resource kaupapa Māori health and disability services. Furthermore, the Crown is obliged to ensure that all health and disability services are provided in a culturally appropriate way that recognises and supports the expression of hauora Māori models of care.
- Partnership: The principle of partnership, which requires the Crown and Māori to work in partnership in the governance, design, delivery, and monitoring of health and disability services. Māori must be co-designers, with the Crown, of the primary health system for Māori.
The Courts
According to the statements above, the principles of the Treaty are those articulated by the courts. No reference is given for this. The courts of New Zealand are only called upon to give their views on what constitute the principles of the Treaty in situations where there is a Treaty clause in legislation that is relevant to the case before it. A Treaty clause either requires the Crown to have regard to the principles of the Treaty or similar wording, or more specifically sets out certain fixed obligations. The cases involve the Crown’s guarantee of what may be called treasures – taonga – under Article 2 of the Treaty.
Section 4 of the New Zealand Public Health and Disability Act 2000 is a Treaty clause:
4 Treaty of Waitangi
In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes for Maori, Part 3 provides for mechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services.
Part 3 provides for the establishment of DHBs, but does not list any specific principles of the Treaty.
There has been no legal case in respect of section 4 so the courts have not expressed any views on what might constitute any principles of the Treaty relating to health care.
It is of concern that parliament included a Treaty clause in legislation that affects the running of the New Zealand health service. The courts have only been involved in defining treaty principles where a taonga of Maori was in jeopardy because of actions of the Crown. It is highly unlikely that the courts would view health services as a taonga of Maori under the Treaty. Health services did not exist in 1840. But more importantly health services for the whole of the community are part of the sovereign role of the Crown. They are part of the equal benefits of citizenship under Article 3. The courts have been very reluctant to allow special treatment for Maori in areas which are considered to be part of the government of the country.
In the Dams case (1994), Mäori plaintiffs sought to prevent the Minister from approving a plan for the transfer of hydroelectric dams from Crown ownership. They were concerned that the transfer would remove the dams and their electricity production from the scope of properties which might be offered to them as redress for their claims to the Wheao and Anuwhenua rivers. The Court of Appeal held that: “The Treaty of Waitangi ... could not sensibly be regarded today as meant to safeguard rights to generate electricity”. The Court went on to say:
… any negotiated redress for any Mäori grievances relating to electricity generation cannot realistically be supposed to lie in a surrender or modification of the ownership of generating assets intended to serve district or regional or wider communities as a whole. With respect, we are not convinced by a suggestion to the contrary in the Waitangi Tribunal’s Te Ika Whenua – Energy Assets Report (1993) at p 39.443
In the Whales case of 1995 the Ngāi Tahu Māori Trust Board challenged the Director-General of Conservation over the allocation of an additional whale-watching licence at Kaikoura (section 4 of the Conservation Act 1987 requiring the Crown to “give effect’ to the principles of the Treaty”) Cooke P acknowledged the various interpretations of kawanatanga in Article 1 and added, somewhat tersely:
Clearly, whatever version or rendering is preferred, the first article must cover power in the Queen in Parliament to enact comprehensive legislation for the protection and conservation of the environment and natural resources. The rights and interests of everyone in New Zealand, Maori and Pakeha and all others alike, must be subject to that overriding authority.
The principles that have been identified by the courts are only relevant to taonga under Article 2 and only where the obligation to comply with the principle has come before the court via a Treaty clause and has been ruled on by the court. Thus, the courts have identified, in the cases before them, a principle of active protection of a taonga.
The principle of active protection as noted by the Ministry of Health pushes the boundaries of taonga:
Active protection: The principle of active protection, which requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for Māori. This includes ensuring that it, its agents, and its Treaty partner are well informed on the extent, and nature, of both Māori health outcomes and efforts to achieve Māori health equity.
Health outcomes have become a taonga and are to be based on equity for Maori and not equality for all New Zealanders.
It is almost certain that if this issue was brought before the courts, the courts would not consider that this related to a taonga for Maori. Health services are simple part of the general operations of a government. In addition, the requirement to provide special treatment based on race "to the fullest extent practicable" in a public health service would almost certainly jar on the court.
The principle of equity is no doubt derived from Article 3. There is a large body of people who argue that the granting of citizenship to all ordinary New Zealanders in Article 3 stipulates equity for Maori rather than mere equality. The Kawharu translation of the legal Maori version states: the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England. To suggest that these words stipulate equity for Maori is simply not supportable.
It is the same with the last-listed principle, partnership. Partnership was not part of the Treaty. The courts have held that there was a fiduciary relationship in respect of property and taonga under Article 2 but nothing more. To suggest that the Treaty required the Crown to provide the listed health services specifically for Maori is just nonsense.
Waitangi Tribunal
The principles listed all originate from the findings and recommendations of the Waitangi Tribunal in Hauora: Report on Stage One ofthe Health Services and Outcomes Kaupapa Inquiry. The principles are listed on pages 163–164.
There is an immediate problem. The Waitangi Tribunal is not a court of law. It is a commission of inquiry (clause 8 Schedule 2, Treaty of Waitangi Act 1975). Its function is to inquire into claims that the Crown has breached the principles of the Treaty and to make recommendations to the government. Those recommendations included in its reports are not binding on the Crown, not binding on parliament, not binding on the courts, and not binding in law.
They are only acted on if the Crown agrees to negotiate a Treaty settlement based on the Tribunal’s recommendations. The courts may consider them as helpful, or dismiss them.
Consequently the principles of the Treaty listed by the Ministry of Health have no basis in fact or law.
Ultra vires actions of the Waitangi Tribunal
The Treaty of Waitangi Act 1975 is a poorly drafted piece of legislation. Its clear intention was to create the concept of “the principles of the Treaty”. Not only did the Treaty fail to define those principles, it failed to include an operative clause giving the Tribunal the statutory function of defining the principles.
Without that operative clause the Tribunal has had no legal power to define what the principles are.
The Act does not have a purpose clause but the Note alongside the Title states:
An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty.
The “observance” and “confirmation” of the principles suggest that the principles are already in existence.
The Preamble states:
And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.
Again, the wording suggests that the principles of the Treaty are already in existence.
The principles of the Treaty are not defined anywhere in the Act.
Under section 6 claims may be made to the Tribunal by Maori who are prejudiced by any act or omission of the Crown which is inconsistent with the principles of the Treaty. If the Tribunal finds that the claim is well-founded it may make recommendations to the Crown to compensate for or remove the prejudice.
The principles of the Treaty and their breach are therefore pivotal to the consideration of the claim. But there are no principles. In addition there is no clause stating who has the power to define those principles. Certainly the Tribunal has the function under section 5(2) to determine the meaning of the two texts of the Treaty, to enquire into and make recommendations on claims based on breaches of the principles of the Treaty, under section 5(1). But the Act is silent on how the principles are defined.
Serious concerns
There has to be serious concerns that a Crown entity, no doubt with government support, has stepped outside the law and adopted principles of operation that have no basis in the law of New Zealand but which are misrepresented as being the principles of the Treaty.
It is misleading the people of New Zealand.
The Crown has adopted principles of the Treaty that have been defined by the Waitangi Tribunal in full knowledge that its findings are recommendations only and not binding on the Crown or in law.
The Crown has turned a blind eye to the fact that the Waitangi Tribunal has no statutory power to define what constitutes the principles of the Treaty of Waitangi. It has permitted the Tribunal to act ultra vires since 1975 and has misrepresented the Tribunal's findings on the principles of the Treaty to be in compliance with the Treaty of Waitangi Act, and binding in law.
Pae Ora (Healthy Futures) Act 2022
https://www.legislation.govt.nz/act/public/2022/0030/latest/versions.aspx
This new act repealed and replaced the New Zealand Public Health and Disability Act 2000. This was part of the recommendations of the Hauora report referred to above. The report also recommended that the new act should have many more targeted references and obligations in respect to the Treaty principles.
This is the new Treaty clause:
9 Te Tiriti o Waitangi (the Treaty of Waitangi)In order to provide for the Crown’s intention to give effect to the principles of te Tiriti o Waitangi (the Treaty of Waitangi), this Act—
(a)
requires the Minister, the Ministry, and all health entities to be guided by the health sector principles, which, among other things, are aimed at improving the health sector for Māori and improving hauora Māori outcomes; and
(b)
establishes the Māori Health Authority and sets out its objectives and functions; and
(c)
requires the Minister—
(i)
to establish a permanent committee, the Hauora Māori Advisory Committee, to advise the Minister; and
(ii)
to seek that committee’s advice before exercising certain powers; and
(d)
requires the Minister to have regard to any advice of the Māori Health Authority when determining a health strategy; and
(e)
requires the Hauora Māori Strategy to be jointly prepared by the Māori Health Authority and the Ministry; and
(f)
provides for iwi-Māori partnership boards to enable Māori to have a meaningful role in the planning and design of local services; and
(g)
requires the Government Policy Statement to contain priorities for hauora Māori; and
(h)
requires Health New Zealand and the Māori Health Authority to engage with iwi-Māori partnership boards; and
(i)
requires Health New Zealand and the Māori Health Authority to jointly develop and implement a New Zealand Health Plan and to work together in the performance of specified functions of Health New Zealand; and
(j)
includes, as criteria for appointment to the board of the Māori Health Authority, that the board collectively has knowledge of, and experience and expertise in relation to, te Tiriti o Waitangi (the Treaty of Waitangi), tikanga Māori, mātauranga Māori, kaupapa Māori services, and cultural safety and responsiveness of services; and
(k)
includes, as criteria for appointment to the board of Health New Zealand, that the board collectively has knowledge of, and experience and expertise in relation to, te Tiriti o Waitangi (the Treaty of Waitangi) and tikanga Māori; and
(l)
requires the board of Health New Zealand to maintain systems and processes to ensure that Health New Zealand has the capacity and capability to understand te Tiriti o Waitangi (the Treaty of Waitangi), mātauranga Māori, and Māori perspectives of services; and
(m) requires the Māori Health Authority—
(i) to have systems in place for the purpose of engaging with Māori and enabling responses from that engagement to inform the performance of its functions; and
(ii) support and engage with iwi-Māori partnership boards; and
(n) requires the Māori Health Authority to report back to Māori on how the engagement under section 20 has informed the performance of its functions.
There can be no doubt that this provision mandates preferential treatment for Maori based on race. In addition many of the 66 sections impose special obligations when dealing with Maori. The word Maori is used 431 times in the Act, yet the Act fails to provide a definition of "Maori".
Presumably the justification argument runs that preferential treatment of the type mandated in the Act is acceptable because it is part of the Treaty obligations and therefore binding on the Crown.
As I have shown, that is not true. There are no Treaty principles that are legally binding on the Crown in respect of health services. The principles adopted are gratuitous and self-imposed.
Not only that, the obligations arising from the so-called principles of the Treaty go far beyond anything that would be contemplated if the principles were in fact legal.
