The Waitangi Tribunal makes final recommendations on the chronic underfunding of Māori primary health care while ministers table their Pae Ora bill. Gabrielle Baker explains what the documents contain – and what they could mean for Māori.

Health equity, and the lack of it, has been a big topic of discussion in recent weeks. This has mostly been in relation to the rise of the delta variant and the initial vaccination rollout, which included decisions that disadvantaged Māori and kept centralised control for too long, preventing Māori and Pasifika providers from doing what they do best.

Part of the reason we are able to talk about these inequities is the decades-long push for quality ethnicity data from Māori. It is also due to the intensive mahi of Māori and Pasifika communities to vaccinate.

All of this labour is exhausting though, which I say from Wellington as I watch more northern whānau, friends and colleagues truly do the hard work for us all. I know that when you’re caught up in urgent and important work having the headspace to engage in another report on health inequities, or another set of government statements about new legislation, probably seems at best like an immense privilege.

So this one’s for you Tāmaki and Waikato pals: a distillation of two significant “announcements” that are not directly about Covid but are fundamentally about how the health and disability system values Māori (or does not).

The first is the Waitangi Tribunal’s final chapter for stage one of its kaupapa inquiry into health services and outcomes. By way of brief background, the tribunal is in the middle of a thematic inquiry into health and disability-related claims. Because there are well over 200 claims, hearings have been split into stages. Stage one involved three claimant groups and looked at primary health care, with hearings held three years ago this month. The tribunal found many instance of breaches of the principles of the treaty, and made a set of interim recommendations. It’s those interim recommendations that the tribunal revisited recently.

Firstly the tribunal considered the establishment of a Māori Health Authority: it said the idea has promise, but the devil is in the details. The tribunal’s interim recommendation was that claimants and the Crown develop terms of reference for the authority. Since the authority is nearly set up, progress on this one is ahead of what was probably expected.

The tribunal noted that the Māori Health Authority is set up as an agent of tino rangatiratanga (allowing self-determination in the design, delivery, and monitoring), at least according to statements from the government. But, in its comment that “tino rangatiratanga means nothing less than Māori having decision-making power over their affairs, including hauora Māori”, the tribunal acknowledged the need to know what its roles and functions are, what its funding looks like and who it is ultimately accountable to.

The second set of findings by the tribunal is on underfunding of Māori primary healthcare. In 2019, the tribunal made an interim recommendation that claimants and the Crown should work together on a methodology for calculating the underfunding. At the start of August this year, the three stage-one claimants released a report they’d commissioned which, through some test calculations, showed that since 2001 Māori primary healthcare had been underfunded by about $500m. And, if the government had funded the primary healthcare in line with the promises of its primary health policies, then Māori primary health would receive around $1bn extra per year. The report also estimated that the overall costs of inequitable primary health care for Māori is, in one year, around $5bn.

The tribunal noted that the claimant calculation might not be the full picture, but since the Crown did not participate in the development of the calculations and have not fully responded to the claimant report, the tribunal took a practical approach, recommending the claimants’ figures should be used as a starting point. The final recommendations covered the question of compensation, including a process for agreeing whether the payment should be a lump sum or instalments. This is potentially very significant.

Because I know the tribunal would have picked its words carefully, I think it is worth ending this summary with a direct quote about the Crown’s approach to the methodology for underfunding:

“…we cannot comprehend why – after more than two years, and despite the Crown having managed to design an entirely new health system in that time – it has failed to substantially progress this critical work on underfunding, with the claimant’s expert input.”

The second significant “announcement” was the introduction of the Pae Ora (Health Futures) bill into parliament. It has been referred to a bespoke select committee (the Pae Ora Legislation Committee) and we have until 9 December 2021 to make submissions.

On the face of it, the bill does what anyone who has been following the health and disability system reforms might have expected: it establishes Health New Zealand and the Māori Health Authority; mandates a set of government strategies and plans which are meant to guide what happens in the health sector; sets out provisions around Pharmac, the NZ Blood and Organ Service, and Health Quality and Safety Commission; and provides a bit of technical detail around things like payments and access to information. It also establishes a Hauora Māori Committee to give advice to the minister of health (a flashback in some ways to the 1980s) and provides more formality to the current DHB Māori partnership boards, giving them potentially a much more powerful role in influencing local decision making.

In light of the Waitangi tribunal’s reports (both the 2019 report and this latest new chapter), however, it is hard not to feel a bit deflated by the proposed legislation. Firstly, the bill has a perplexing Treaty clause that appears an attempt to limit the application of te Tiriti o Waitangi to a small number of Māori specific clauses. Then it says some of its principles to engage with Māori don’t apply to all the health sector agencies. It makes it clear that the minister makes the ultimate decisions on the Māori Health Authority, including when it is in dispute with Health New Zealand or when its board isn’t performing. Perhaps naturally, the legislation doesn’t deal with the level of funding for the Māori Health Authority, though it does describe the things it would commission (or buy), but outside of capacity and capability funding, this is left to be determined later in the New Zealand Health Plan.

In its supplementary analysis, the Department of Prime Minister and Cabinet shows the working behind the decisions on the structure of a Māori Health Authority. What the officials have decided on is a new type of entity with some of the same mechanisms as organisations set up under the Crown Entities Act 2004. This makes it kind of, sort of independent – but decisions ultimately sit with the government. For example, while it provides for a Māori perspective to be taken into account, the decisions on board appointments (and firing the board) all sit with the minister of health. Other options were looked at, including seting up an entirely new type of entity with more Māori control. Officials ranked this as not reflecting te Tiriti partnership and accountability because “it would give the Crown little assurance about the capability of board members to discharge their functions”. To me, this says the Crown is protecting its own interests above its te Tiriti commitments and it is something I hope Māori give lots of feedback on in select committee.

In a short summary it is impossible to cover everything in the bill, but my assessment is that since the devil is in the details we still need to get our hands on more information to know for sure whether the Māori Health Authority is set up to achieve Māori aspirations. And, if our newfound ability to do rapid vaccine-equity analysis has taught us anything, we need a system level response that allows us to achieve and properly invest in Māori health approaches.

Again, I’ll leave it to the Waitangi Tribunal to find words where I fail:

“Māori should be able to design the governance arrangement for the authority themselves, and then implement it so that the authority is governed by and accountable to Māori. We are confident that a reasonable governance arrangement for this Crown entity that upholds tino rangatiratanga is attainable. If the Crown supports the establishment of the Authority but fails to fully uphold and empower tino rangatiratanga, the Crown will be acting inconsistently with its Treaty obligation.”