Rapua ngā tuhinga ruku tātari

In June 2019, the Tribunal released Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry. Stage one of the inquiry had addressed two claims, calling on the Tribunal to investigate the Crown’s legislation, policy, actions, and omissions of the primary health care system since the New Zealand Public Health and Disability Act 2000. After hearing evidence throughout 2018 and 2019, the Tribunal made a series of interim recommendations in the Hauora report, and directed the Crown and claimants to inform the Tribunal on the progress made.

After considering the parties’ submissions on their progress, as well as the Crown’s proposed health reforms, in October 2021, the Tribunal issued a further chapter of the Hauora report (chapter 10), setting out its final recommendations. The release of chapter 10 marked the end of the first stage of this ongoing inquiry into the Crown’s response to health inequities experienced by Māori.

The Tribunal’s main finding in Hauora was that the Crown had breached the Treaty of Waitangi by failing to design and administer the current primary health care system to actively address persistent Māori health inequities, and failing to give effect to the Treaty’s guarantee of tino rangatiratanga (autonomy, self-determination, sovereignty, self-government). It also found that the Crown had failed to guarantee Māori adequate decision-making authority regarding the design and delivery of primary health services and to properly support and resource Māori primary health organisations and health providers.

The 2019 report also made three interim recommendations, two of which were time-bound. The first called upon the Crown to explore the concept of a standalone Māori primary health authority, working together with claimants to further assess the extent of the problems in primary health care, and to co-design a set of solutions. Throughout the hearings, both claimant groups broadly suggested creating a national, Māori-controlled agency, organisation, or collective, which would have substantial oversight and control of Māori health-related spending and policy. The Tribunal’s second time-bound interim recommendation required the Crown and claimants to agree upon a methodology to assess the extent of underfunding. Both time-bound interim recommendations required the Crown and claimants to keep the Tribunal updated as to their progress.

In chapter 10, released in 2021, the Tribunal reviewed the progress the parties had made towards fulfilling those interim recommendations. The Crown’s announcement in early 2021 that it would commence significant structural reform within the health sector and establish a Māori Health Authority satisfied the first interim recommendation. The Tribunal evaluated the Crown’s high-level descriptions of the reforms against its 2019 findings and recommendations, emphasising that the Crown needed to ensure the reforms and the Māori Health Authority empowered tino rangatiratanga of hauora Māori. With respect to its interim recommendation on underfunding, the Tribunal expressed its disappointment that an underfunding methodology had not been jointly agreed upon. However, the Tribunal noted that the claimants had commissioned and produced an independent report, which it considered a good starting point towards determining the amount of compensation due to Māori health organisations and providers.

In chapter 10, the Tribunal also called for collaboration to continue between parties to develop a Treaty-compliant primary health care system. Accordingly, the Tribunal’s final recommendations for the stage one inquiry were that:

• the Crown continue to work with claimants in partnership to further develop a Māori Health Authority that empowers tino rangatiratanga;
• the Crown and claimants urgently progress work to agree upon a methodology to calculate underfunding experienced by Māori primary health care organisations and providers since 2000;
• once the Crown and claimants agree upon a methodology, the Crown fully compensate those Māori health organisations and providers that had suffered from underfunding;
• once parties calculate the amount of compensation due, they agree upon a method of payment, whether as a lump sum or in instalments;
• the Crown fully reimburse claimants for the costs of producing the Sapere report, and fund the process required to agree upon an underfunding methodology; and
• the Crown work with the claimants to use the underfunding methodology work to inform future primary health care funding.