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How the Waitangi Tribunal can make a difference in Māori health

Last weekend the New Zealand Māori Council with the National Hauora Coalition hosted a hui to discuss Wai 2575, the Waitangi Tribunal’s inquiry into Health Services and Outcomes. Gabrielle Baker was there.

For some of the people assembled at the national hui on Māori health issues, this was a long awaited chance to talk about the claims they filed with the Waitangi Tribunal, some more than a decade ago, and to identify common themes with other claimants. But for plenty of others it was all new material – a first chance to consider what a Kaupapa Inquiry is and how it can support Māori aspirations and hold the Crown to account for its obligations under Te Tiriti o Waitangi.

You’d be forgiven for not knowing about the Kaupapa Inquiries. They are a relatively new feature of the Waitangi Tribunal’s landscape – a landscape that can be hard to understand anyway.

The Waitangi Tribunal can hear claims by Māori that allege the Crown has breached the Treaty of Waitangi by actions, inactions, laws, or policies and that Māori have suffered prejudice (harmful effects) as a result. The Tribunal has often grouped these claims together into district inquiries where a range of claims from the same geographic area are looked at together. Mostly these claims are historic in nature. And of course because we’re talking about lawyers* ‘historic’ has a particular meaning. It means claims that relate to a time before 21 September 1992. And before you think about lodging that new historic claim, all historic claims needed to have been with the Tribunal by 1 September 2008. So you’ll need a time machine. Claims after 21 September 1992 can still be lodged though and will be considered “contemporary’’ claims.

To complement the district inquiries, the Tribunal has designed Kaupapa Inquiries. These inquiries bring together claims on themes of national significance. In 2015 the Tribunal announced its intention to run a programme of inquiries, starting with an inquiry into military veterans. You can read more about that inquiry on the Waitangi Tribunal’s website here.

Although initially scheduled to be the third inquiry, the health inquiry was leapfrogged ahead of the originally scheduled constitutional inquiry. I have no idea why this happened but I have always assumed it is because health seemed less daunting than the fraught ground of the constitution (especially after the Waitangi Tribunal had finished hearings for Te Paparahi o Te Raki). However from the outset the Tribunal have seemingly had a realisation that health isn’t an easily defined thing.

While almost all the 181 (and counting) claims could be summed up as claims of Crown failure to deliver equitable health outcomes for Māori or to work with Māori as true partners, each individual claim has its own angle on the issue. There are claims that look across whole parts of the health system, like the primary health care claims that challenge the way the Crown has implemented the primary health care strategy since 2001, and there are claims that really drive home the inequitable health status of Māori and challenge the Crown’s inaction. There are claims that focus on Māori participation in the health workforce – either as part of the current health system or traditional models of health like tohunga. Some claims that talk about a particular health issue, like methamphetamine, and one claim highlights the health issues and systemic issues faced by Māori with disabilities.

To help itself make sense of the wide breadth of issues while also making progress on the claims, the Tribunal has decided to hear the claims in stages – starting with a targeted and discrete inquiry into primary care. I couldn’t presume to speak for the claimants but I am familiar with the two main claims in this group and what they seem to have in common is a sense that the government had some good ideas in 2001 about what a new primary care system might aim for, but in implementing its policy (which gave us all PHOs and gave PHOs capitated funding) it failed to deliver (for Māori at least, if not more broadly). Its aims might have been for Māori health equity but these have not yet materialised and the way the strategy was brought to life failed to support Māori to thrive as the approach very quickly went from being about a ‘brave new world’ with people at the centre, to another system where doctors – GPs in this instance – call the shots.

Amongst claimants there was some dissatisfaction with this approach from the Tribunal. Why start there? And why only involve the two main primary care claims in this first stage? The Tribunal has heard this criticism and has invited claimants to come back to it with priorities they – as claimants – see them for the second stage of the inquiry. And that is what the Rotorua hui was about. As a result of last weekend, representatives of the claimants present have been identified to respond to the Tribunal’s request that claimants respond to it by 27 April 2018. As an important aside, the Tribunal itself has identified mental health, Māori with disabilities and alcohol and other substance abuse as likely contenders for stage two of the inquiry.

A natural question to ask, especially in light of the recent report from the UN which criticised the Government for ignoring Waitangi Tribunal recommendations, is “what will the outcome or remedies be from this Inquiry?” Of course it is a ways off being finished – the hearings for stage one aren’t until October – but this question is occupying the minds of claimants and probably also Crown officials.

The Tribunal process is an opportunity for Māori to have our lived experience of the health system documented as part of the public record. The Tribunal will also give a view on the way the Crown has (or hasn’t) met its obligations under the Treaty of Waitangi. And what will be most valuable from the Tribunal is recommendations as to what else the health system could do. I have already given you my preliminary thoughts on that in my summer health series for The Spinoff, but for my money the question begins with “what does a pro-equity, anti-racist health system look like”. From there stems questions of whether Māori would be better served by a separate Māori health agency or whether we could change a few policy settings to get a substantially better result.

The Tribunal is not the only way to have these discussions with Government about Māori health and system change. But they are an important mechanism that we haven’t been able to use before.

You can find out more information on the Tribunal process and making a claim on the Waitangi Tribunal’s website.

Gabrielle Baker has worked in policy roles at the Ministry of Health and been involved in the ‘Health services and outcomes’ Kaupapa Inquiry as a Crown official.


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