Waitangi Tribunal COVID-19 Priority Report

This morning, the Waitangi Tribunal released its report on the Crown’s COVID-19 vaccination strategy and the shift to the COVID-19 Protection Framework (the Traffic Light System). The report, Haumaru: the COVID-19 Priority Report, follows quickly from the Tribunal’s hearing into specific aspects of the Crown’s response to the COVID-19 pandemic, which was held from 6-10 December 2021 and finds significant breaches of Te Tiriti o Waitangi and its principles.

The Tribunal granted leave for a group comprising Archdeacon Harvey Ruru, George Ngatai, Ann Kendall, and Sir Edward Taihakurei Durie, on behalf of themselves and the New Zealand Māori Council, to participate in this inquiry as claimants. A range of other interested parties, representing organisations such as the National Urban Māori Authority, the National Hauora Coalition, Te Ohu Rata o Aotearoa, and others were also granted participation rights in the priority inquiry.

The scope of the inquiry was focused on the following questions:

1. Having regard to the disproportionate numbers of Māori vaccination rates and COVID-19 cases:
   • Is the Crown’s vaccination strategy and plan consistent with Te Tiriti o Waitangi and its principles?
   • Is the Crown’s November 2021 COVID-19 Protection Framework consistent with Te Tiriti o Waitangi and its principles?
2. What changes are required to ensure the Crown’s vaccination strategy and November 2021 COVID-19 Protection Framework are Tiriti compliant?

The claimants and interested parties alleged that the Crown’s vaccine rollout and rapid shift to the Protection Framework had failed Māori. The Tribunal notes that this failure fell into three broad categories:

1. Failure in relation to the vaccine rollout;
2. Failure in the shift to the Protection Framework; and
3. Failure in the Crown’s engagement with Māori.

The Tribunal approaches these allegations by reference to the Treaty principles and standards that were recognised and applied in Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry, released by the Tribunal in 2019. Achieving equitable outcomes was a central focus of the Hauora report and is an important theme in Haumaru. The key principles identified in Hauora and applied by the Tribunal in this priority inquiry are:

1. Tino rangatiratanga – “autonomy and self-government to the fullest extent possible”;
2. Partnership – “The Crown and Māori must work in partnership as co-designers of the governance, delivery, and monitoring of the health system and health services for Māori”;
3. Equity – “The principle of equity is guaranteed by article 3, and requires the Crown to commit to achieving equitable health outcomes for Māori”; and
4. Active protection – “The principle of active protection also requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for Māori”;
5. Options – “The principle of options requires the Crown to provide for and properly resource kaupapa Māori health services”.

The Tribunal noted that the Crown had opportunities to take pro-equity steps to address the disparity in need but instead took decisions that put Māori at a clear disadvantage. These decisions were taken, at least in part, because of political considerations, particularly a concern about a backlash against Māori if Māori as a population group were singled out in the vaccine rollout. The Tribunal was clearly very concerned about that approach and the resulting harm:

The Crown has a Treaty duty to adopt rational, scientific, equitable policy choices for Maaori. It has a moral and ethical duty to defend them against unreasonable public backlash. It cannot simply find ways of avoiding these duties by coming up with less equitable alternatives; it must make those choices that sustain Maaori well-being, and then explain and defend them as long and as vocally as is required. Failing to perform these duties for the sake of political convenience does not reflect the Treaty partnership and, in fact, threatens the fundamental basis for it.

The Tribunal acknowledged that what might constitute reasonable conduct in accordance with Treaty principles will depend on the circumstances. For example, “in a health crisis, the Crown’s Treaty obligations in respect of health should be prioritised”. The Tribunal noted that in the circumstances the current pandemic, the Crown’s Treaty obligations are heightened. The report notes that these obligations, and especially the “obligation to actively protect Māori to the fullest extent practicable, are perhaps more imperative now than at any other time in recent history”.

The Tribunal found that the Crown had not met these obligations:

Concerning the Crown’s vaccination strategy, the Tribunal finds that Cabinet’s decision to reject advice from its own officials to adopt an age adjustment for Maaori in the vaccine rollout breached the Treaty principles of active protection and equity.

Regarding the Crown’s COVID-19 Protection Framework, the Tribunal finds that a new framework was necessary. However, the rapid transition into the framework – which happened faster than the Crown’s officials and experts recommended, and without the original vaccination thresholds for each district health board being met – did not adequately account for Māori health needs. As such, Maaori are put at a disproportionate risk of being infected by Delta in comparison to other popular groups. This breached both the principles of active protection and equity.

Additionally, the rapid shift to the COVID-19 Protection Framework puts Maaori health and whaanau ora providers under extreme pressure and undermines their ability to provide equitable care for Maaori. This is in breach of both the principles of tino rangatiratanga and options.

Finally, the decision to shift into the COVID-19 Protection Framework was made despite strong, unanimous opposition from the Maaori health leaders and iwi that the Crown consulted. Further, the Crown did not consistently engage with Maaori to the fullest extent practicable on key decisions in its pandemic response. These actions are in breach of the principle of partnership.

The consequences of these breaches of Treaty principles could hardly be more serious. The Tribunal makes it clear that Cabinet’s decision to reject an age-adjusted vaccine rollout has meant that Māori vaccination rates are not as high as they could have been, leaving Māori in a more vulnerable position in the rapid shift to the Protection Framework. The Tribunal found that:

the Crown bears significant responsibility for the current disproportionately lower vaccination rate for Maaori. In turn, the Delta outbreak that began in August 2021 has, to date, disproportionately infected, hospitalised, and killed Maaori.

The Tribunal made specific recommendations including that further funding, resourcing, data and other support should be urgently provided to assist Māori service providers with continuing vaccination effort, testing and contact tracing, caring for Māori with COVID-19 and reiterating the recommendation for the Hauora inquiry that the Crown urgently improve its collection of and reporting on data relating to ethnicity and people with disabilities. The Tribunal also recommended that the Crown empower Māori to coordinate the Māori pandemic response and that the Crown’s pandemic response ought to be monitored “to assess in real time whether its Maaori-specific policies are effective, and to assess the Crown’s overall pandemic response as it affects Maaori.” And, in addition to “urgently correcting its inequitable vaccine rollout for Maaori adults”, the Crown must “also begin to plan for the paediatric vaccine rollout and the booster vaccine rollout”. 

Overall, the Tribunal noted that

The Crown’s Treaty breaches have contributed significantly to the disproportionately lower levels of vaccination in Maaori communities. Because the Crown has failed to equitably vaccinate Maaori, the Protection Framework will not actively protect Maaori until Maaori vaccination rates are comparable to the general public. The Crown must pursue all these recommendations, as active protection dictates, to the fullest extent practicable and as matters of extreme urgency. The Crown will remain in active Treaty breach until it ensures an equitable vaccine rollout, which protects the Maaori population equitably.

The Crown has clearly failed Māori in the vaccine rollout and must take urgent action to address this. The consequences of that failure are extremely serious and what makes these findings all the more damning is that the consequences of these Crown actions and decisions are not just obvious in hindsight but, as the evidence in the Tribunal shows, were obvious from the outset. And it was not simply that Māori public health experts could have told the Crown this, but that they did – urgently and repeatedly. In fact, the Tribunal itself had already provided the Crown with something of a blueprint for taking pro-equity, Treaty-consistent actions in its earlier Hauora report. The Crown has no excuses for its decisions in relation to the vaccine rollout and the move to the Protection Framework. Those decisions have left Māori more vulnerable and suffering disproportionate harm from the COVID-19 pandemic.

MARINE AND COASTAL AREA REGIME BREACHES TREATY

The Waitangi Tribunal has found that aspects of the regime that is intended to support the implementation of the Marine and Coastal Area (Takutai Moana) Act 2011 are in breach of the principles of the Treaty of Waitangi.

In its pre-publication version of the Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage One Report, the Waitangi Tribunal found that the claimants have been prejudiced by aspects of the procedural and resourcing regime that falls well short of Treaty compliance. The Marine and Coastal Area (Takutai Moana) Act 2011 repealed and replaced the controversial Foreshore and Seabed Act 2004. The 2011 Act established a statutory regime for the identification of customary interests in the Coastal Marine Area and a set of statutory mechanisms to recognise specific customary rights.  The Act provides two application pathways for this purpose. Māori can either engage directly with the Crown or apply to the High Court for a recognition order. They may also do both. In either pathway, applications for customary rights had to be filed by the statutory deadline of 3 April 2017. 

The initial claims that began this Tribunal inquiry alleged the following prejudice caused by the Act:

• The legislation prevented them from owning their takutai Moana, but left the Crown free to exercise full authority over it.
• The Act had redefined and limited their legal rights and interests to an extent that was inconsistent with the Treaty and prevented them from exercising their rangatiratanga or partnering with the Crown.
• To seek recognition of their rights, they had to comply with a unilaterally imposed statutory deadline (3 April 2017) and follow either High Court or Crown engagement processes that were cumbersome, unfair, and risky.

The Tribunal was careful to set the parameters of its inquiry in a way that did not intervene in the substance of applications to the High Court or for direct engagement with the Crown under the Act. The Tribunal determined it would conduct its inquiry in two stages. The first would focus on procedural and resourcing aspects of the regime. In the second stage of its inquiry, the Tribunal will consider the substantive nature of the Act.

In this report on Stage One, the Tribunal found that the Crown’s regime is inconsistent with Treaty obligations by failing to:

• provide adequate and timely information about the Crown engagement pathway for applicants to seek recognition of their customary rights in the marine and coastal area,
• put in place adequate policies to ensure that the High Court pathway and the Crown engagement pathway operate cohesively,
• actively and practically support efforts to resolve overlapping interests in the marine and coastal area,
• cover 100% of all reasonable costs that claimants incur in pursuing applications under the Act,
• manage real or perceived conflicts of interest in the administration of funding,
• provide sufficiently independent, accessible, and transparent mechanisms for the internal review of funding decisions,
• enable timely access to funding for applicants in the Crown engagement pathway, and
• fund judicial review for Crown engagement applicants and Māori third parties. 

The Tribunal noted that it was particularly regrettable that these aspects fall well short of Treaty compliance, give the context that the Marine and Coastal Area Act was “a replacement for the controversial Foreshore and Seabed Act 2004, which left such a damaging imprint on Māori– Crown relations and the social fabric of Aotearoa New Zealand. The new legislation was an opportunity for the Crown, working with Māori, to start afresh.  Instead, the Act appears to reprise many of its predecessor’s more egregious features, not least its capacity to generate grievances and division.”

Ultimately, the Tribunal recommends that the Act’s procedural and resourcing arrangements be amended urgently. The Presiding Officer notes that Māori will continue to be prejudiced “until the Crown acts to make the regime fairer, clearer, more cohesive, and consistent with its obligations as a Treaty partner.”

Waitangi Day reading

In case you missed it, there has been a great series of pieces by Māori writers on the Guardian website:

• Tina Ngata ‘We must dismantle our colonial system and rebuild it with Māori at the heart’
• Morgan Godfery ‘Forget anti-racism. This Waitangi Day demand our land back.’
• Emma Espiner ‘The Treaty of Waitangi was forged to exclude Māori women – we must right that wrong’
• Miriama Aoke ‘Jacinda Ardern is right, Waitangi Day is imperfect. But the flaws are intentional’

I would also recommend a typically informative and insightful post by Leonie Hayden, which concisely covers a lot of very important ground: ‘Hold us to account’: has Jacinda Ardern honoured her 2018 Waitangi pledges?

And RNZ’s Katie Doyle has an item entitled ‘What will Aotearoa look like on Te Tiriti o Waitangi’s 200th anniversary?’ in which a group of young New Zealanders share their hopes for 2040.

If, after those excellent pieces, you are still looking for more Waitangi Day-related reading, you might be interested in a couple of things I wrote recently:

• ‘Can Te Tiriti help solve our big problems?’ (in which I suggest we ought to develop Te Tiriti-based responses to urgent public policy challenges)
• ‘What is the Treaty of Waitangi settlement process?’ (a brief explanation of the settlement process that I wrote for The Project for Public Interest Media).

 

Public Lecture – Val Napoleon, 3 Sept 2019

 

The Māori Law Review and AlterNative Journal of Indigenous Peoples are proud to be hosting a public lecture in Wellington by renowned Indigenous legal scholar, Val Napoleon, titled ‘Indigenous Legal Personhood: A Gendered Perspective’.

When: Tuesday 3 September, 5:30-7:00pm
Where: Lecture Theatre 4, Old Government Buildings, Faculty of Law, Victoria University of Wellington

RSVP to carwyn.jones@maorilawreview.co.nz

Val Napoleon is the Law Foundation Professor of Aboriginal Justice and Governance and the Director of the Indigenous Law Research Unit at the University of Victoria, British Columbia and has been instrumental in establishing the world-leading Indigenous law degree there.

VNapoleon_public lecture_3Sept2019

He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui

‘He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui: Looking Towards 2040’ by Associate Professor Māmari Stephens is the final essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

In this essay, my wonderful colleague, Māmari Stephens, looks forward to the bicentenary of the signing of the Treaty of Waitangi in 2040. Stephens frames this chapter with ‘an instrumental question’, in essence asking, what is the best mechanism for giving effect to the relationship and recognising the rights for which the Treaty of Waitangi provides? She draws together strands of the political, constitutional, legal, academic, and public discussions of the Treaty of Waitangi to examine the ways in which we might try to answer that question. Constitutional issues, never far from discussion of the Treaty, remain central to the path to 2040 that Stephens outlines. However, this is perhaps not the same kind of constitutionalism that we have seen in the past. The kind of constitutionalism that Stephens articulates is one that includes Māori constitutional principles at its core, that is grounded in the lived realities of individuals, institutions, and communities of Aotearoa New Zealand. And it is a constitutionalism that takes for granted the place of the Treaty of Waitangi and looks to how the Treaty’s various interpretive communities might give shape to the Treaty partnership as we approach its 200th year.

Future Contexts for Treaty Interpretation

‘Future Contexts for Treaty Interpretation’ by Natalie Coates is the penultimate essay in the 2018 collection: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi.

In this essay, Coates explores the future contexts in which the Treaty of Waitangi may be further interpreted and given meaning. In particular, she examines the settlement of historical claims that are based on breaches of the Treaty of Waitangi and suggests ways in which these settlements might affect understanding of the Treaty. Coates identifies the range of relationship instruments that are common features of Treaty settlements and notes that these instruments establish new and ongoing relationships between settling groups and government agencies. This has the potential to transform the Māori–Crown relationship and will undoubtedly have implications for how the Treaty relationship is understood. Coates also considers some of the key issues that are on the horizon for Māori communities and suggests that the traditional collectivism of Māori society will be an important dimension of how those issues are addressed within the context of a re-shaped Treaty relationship.

The final essay in this collection is ‘He Rangi Tā Matawhāiti, He Rangi Tā Matawhānui: Looking Towards 2040’ by Associate Professor Māmari Stephens. I will post about this essay soon.

Reflecting on the Treaty of Waitangi and its Constitutional Dimensions

‘Reflecting on the Treaty of Waitangi and its Constitutional Dimensions: A Case for a Research Agenda’ by Professor Mark Hickford is the eighth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay is one of four in the collection which explore the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future.

Professor Hickford reflects on the ways in which interpretive communities engage with the Treaty of Waitangi as a feature of a historical-political constitution. He considers the meaning of the Treaty in the context of a range of activity that constructs constitutional relationships between Māori nations and the Crown and contends “that the Treaty of Waitangi ought to be seen as a set of texts – English and Māori – instantiating contested and contestable, negotiated and negotiating communities of practice and interpretation.” Hickford is careful to pay attention to the varied and contingent nature of meaning attributed to the Treaty. The result is an account which draws on the contested and negotiated life of the Treaty of Waitangi to create space for pluralist understandings of interaction between legal systems and sources of authority. This chapter describes an approach to ‘legal association’ that is grounded in the distinctive histories of Aotearoa New Zealand, yet also speaks to the experiences of Indigenous–State relations in other parts of the world.

Next, I’ll post a little bit about the second to last essay in this collection: ‘Future Contexts for Treaty Interpretation’ by Natalie Coates.

‘Ko te Mana Tuatoru, Ko te Mana Motuhake’

‘Ko te Mana Tuatoru, Ko te Mana Motuhake’ by Professor Rawinia Higgins is the seventh essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This is the first essay in the final part of the collection, which examines the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future.

Professor Higgins provides a perspective on the Treaty of Waitangi from her own community, the Tūhoe nation. Tūhoe has a complex relationship with both the Treaty of Waitangi and the Crown. Tūhoe never signed the Treaty of Waitangi and have always asserted their mana motuhake (self-determination/self-government). Tūhoe have nevertheless used the Treaty of Waitangi framework to achieve a negotiated redress package to settle their historical claims against the Crown and to establish a platform to further advance their mana motuhake. Higgins explores the relationship between the Treaty of Waitangi and Tūhoe expressions of their autonomy, reflecting on Tūhoe’s history of interactions with the Crown and their journey through the settlement of their historical claims. Higgins illustrates the challenges of creating governance and co-governance structures that appropriately reflect te mana motuhake of Tūhoe (Tūhoe self-determination). However, these challenges are responded to with innovation and determination to realise that autonomy, that mana motuhake, which remains fundamental to the lives and identity of the people of Tūhoe.

Next, I’ll post a little bit about the essay that was contributed by my co-editor, Mark Hickford, which is titled ‘Reflecting on the Treaty of Waitangi and its Constitutional Dimensions: A Case for a Research Agenda’.

The Failing Modern Jurisprudence of the Treaty of Waitangi

‘The Failing Modern Jurisprudence of the Treaty of Waitangi’ by Professor Jacinta Ruru is the sixth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay concludes the second part of the collection, which explores meanings given to the Treaty over time.

In her essay, Professor Ruru surveys the recent history of Treaty of Waitangi jurisprudence, particularly examining the way in which Treaty interests have been addressed in cases relating to water under the Resource Management Act 1991. The issues relating to water provide a powerful case study, in part because of the fundamental importance of water to the life of all communities. As Ruru notes, Māori water rights have also been central to some of the most innovative co-management/co-governance regimes that have developed through the Treaty of Waitangi settlement process, such as the settlements in relation to the Te Arawa Lakes, the Waikato River, and Te Awa Tupua (the Whanganui River system). However, Ruru argues, judicial decisions relating to water use and management under the Resource Management Act appear to be still rooted in colonial assumptions and are failing to deliver on the potential provided by the Treaty of Waitangi.

The third part of this book turns to examine the diverse sites of Indigenous–State relationships and the role of instruments such as the Treaty of Waitangi in framing those relationships into the future. I’ll post soon about each of the essays in this part, which are written by Rawinia Higgins, Mark Hickford, Natalie Coates, and Māmari Stephens.

Towards a Post-foundational History of the Treaty

‘Towards a Post-foundational History of the Treaty’ by Professor Bain Attwood is the fifth essay in a collection published last year: Indigenous Peoples and the State: International Perspectives on the Treaty of Waitangi. 

This essay continues the examination of the meanings given to the Treaty of Waitangi over time and the role of history in treaty interpretation.

Attwood argues for developing ‘post-foundational’ histories of the Treaty of Waitangi. Attwood contends that a significant amount of historical work done on the Treaty could be described as ‘foundational history’ in which “historians try to discern in a particular historical event, in this case the Treaty of Waitangi, some norm or another that they believe created, or should have created, or could still create, the foundations of the nation.” However, Attwood contends that understanding of the Treaty would be assisted by undertaking a post-foundational approach, which

historicises the past in such a way that it unsettles any notion of the past being comprised of self-same essences over time and instead reveals that forms of knowledge are contingent and therefore unstable as they are constructed by historical processes and relationships, especially relationships of power.

Next, I’ll post about Professor Jacinta Ruru’s contribution to the collection, entitled ‘The Failing Modern Jurisprudence of the Treaty of Waitangi’.