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Procedural Power Play In Crown Response To Silence Māori Non-Interference Case Law Filed To Shut Down Waitangi Tribunal

The Crown continues to oppose Māori health claimants and those that support them as it races against the clock to fulfil its 100-day agenda to disestablish Te Aka Whai Ora, the Māori Health Authority by 30 June 2024.

Its Memorandum filed last night outlines the intention to table a Bill before the House of Representatives no later than 8 March 2024.

The submission relies on a ‘non-interference principle’, striking back at the jurisdiction of the Waitangi Tribunal, and telling it to wait.

“The Crown submits the authorities on the non-interference principle mean the Tribunal should await the conclusion of the legislative process before deciding whether any inquiry, on an urgent basis, into the present claims is warranted.”

Challenging the authority of the Tribunal, despite it being explicit in legislation[1] is a provocative move aiming to silence lead co-claimants Lady Tureiti Moxon and Janice Kuka.

Under The Treaty of Waitangi Act 1975 section 6 (1) a-d the Waitangi Tribunal has explicit jurisdiction that no other court has to consider claims.

Specifically, when “the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty”.

Both lead claimants have met the “exceptional criteria” in an earlier decision by the Tribunal for an urgent inquiry that is supported by 29 other separate Māori claimants.

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Whereas the Crown submits “it would be premature to articulate the full detail of the Coalition Government’s plans”.

The principal questions asked by the Waitangi Tribunal in the Wai 3077 matter remain unanswered by the Crown.

What is the alternative to Te Aka Whai Ora, the Māori Health Authority? How is this Treaty compliant and consistent with the principles in the Hauora Report? Who has been consulted?

“Clearly there is no plan,” said Lady Tureiti Moxon, Chair of the National Urban Māori Authority and Managing Director of Te Kōhao Health.

“What we do know is that the Crown is not prepared to wait for the guidance of the Tribunal which is extraordinary yet not unexpected. It is also going further by telling the Tribunal it shouldn't use its own jurisdiction to hear the case.”

The Crown submission shows that there is no alternative plan, it makes no promises on future engagement with Māori and confirms no formal consultation ever occurred with Māori prior to determining the move to remove Te Aka Whai Ora.

“Dismissive unilateral actions like this are disrespectful to Te Tiriti o Waitangi and alarming given the legal status of the Tribunal especially given the overwhelming tested evidence about disproportionate Māori health outcomes that formed the basis of the Hauora Report leading to the creation of the Māori Health Authority,” said Lady Tureiti.

“The Crown and Tribunal recognised Māori solutions as a benchmark of quality for the whole health system, and the Māori Health Authority was starting to support us.”

The Crown also confirmed procedurally that no consultation with the Treaty partner has ever taken place. It relies on Minister Reti’s individual experience in his previous two-year role as an Opposition Health Spokesperson.

“Railroading this Bill through as part of a 100-day political agenda trying to deconstruct the framework that embodies tino rangatiratanga that enabled Māori to exercise control over our health without a plan or consultation with the Treaty partner is a clear breach of Te Tiriti – how can this be even legal?”

Lady Tureiti and Janice Kuka were part of the original claimant rōpū that first filed about Māori health inequity in 2005. They will be filing a response to the Crown Memorandum by the end of this week.

[1] The Treaty of Waitangi Act 1975

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