Analysis - The finding that the government is actively breaching the Treaty of Waitangi in the pandemic response and is giving little heed to the needs of Māori will come as little surprise to those on the frontline.
The tribunal found the government breached Te Tiriti o Waitangi for "political convenience" in its pandemic response (File image). Photo: RNZ / Marika Khabazi
The Waitangi Tribunal today released 'Haumaru: The Covid-19 Priority Report' into the government's Covid-19 response and vaccine rollout, finding that "Māori were put at a disproportionate risk of being infected by Delta".
It is a scathing report. But it is also one that reinforces what Māori health providers and experts have been saying for months.
"Vindication," is how Peter Fraser, the national secretary of the Māori Council, described it.
In its 144-page report, the tribunal found the government breached Te Tiriti o Waitangi for "political convenience" in its pandemic response.
The findings follow a week-long hearing this month after an application by the Māori Council, which argued that Māori had been left vulnerable because of Crown decisions.
"As at 13 December 2021, although Māori comprised 15.6 percent of the population, Māori comprised over 50 percent of the Delta cases, 38.6 percent of Delta hospitalisations, and 45 percent of associated deaths," panel chair Judge Damian Stone wrote in his letter to ministers which accompanied the report.
"The statistics speak for themselves."
The tribunal heard from Māori health providers who spoke of being sidelined, ignored and underfunded.
It also heard from experts and officials, including modeller Shaun Hendy and Director-General of Health Ashley Bloomfield, who said they had advised of the need for a Māori prioritisation.
The evidence laid before the tribunal pointed to Cabinet decisions that ignored Māori expertise, which prioritised a generalist approach for fear of political backlash over special consideration for Māori.
Today, the tribunal said the Crown had breached the principles of active protection and equity, as well as those of tino rangatiratanga and partnership.
The Crown, in its defence, insisted that no breaches of Te Tiriti have been committed - in fact, it asked the tribunal not to consider whether or not there had been breaches, saying it was too early in the pandemic to judge.
It also said the Treaty had been a consideration at every step of the pandemic response.
The tribunal - led by Judge Damian Stone, with a panel of associate professor Tom Roa, Tania Simpson and professor Linda Tuhiwai Smith - was not convinced: "The outcomes we see now seem to reflect that, in many instances, 'consideration' is where the Crown determined its Treaty obligations ended."
Vaccine rollout
One of the key considerations for the tribunal was the design of last year's vaccine rollout, and whether the structure adopted by Cabinet disadvantaged Māori.
The Māori vaccination rate lagged straight off the bat, something experts had warned would happen because of myriad reasons including access, poverty and mistrust, among others.
The main point of contention was the division of the rollout into groups - in particular, Group 3, which opened the Pfizer vaccine to those aged over 65 and those with chronic health conditions. This started in June and July.
The Māori Council, as well as dozens of other experts, health providers and officials who gave evidence, said a lower age threshold should have been made for Māori, who die younger and have more health vulnerabilities than Pākehā.
Hendy told the tribunal that in his advice to Cabinet, he said a 59-year-old Māori patient with Covid-19 and no other health issues had the same risk of ending up in hospital as an 80-year-old Pākehā.
Director-General of Health Ashley Bloomfield says the Ministry of Health recommended that Māori over the age of 50 should have been included in Group 3 for the vaccine rollout. Photo: RNZ / Samuel Rillstone
Dr Bloomfield told the tribunal that the Ministry of Health had recommended a 15-year difference for Māori: Māori over the age of 50 should have been included in Group 3.
This advice was rejected by Cabinet, a decision the tribunal said did not make sense.
The government has said it instead opted for a so-called whānau approach - that is, say, if a kuia brought her whole family along, they too would get the vaccine.
It has also maintained that it held a loose definition of chronic conditions, allowing more Māori to be vaccinated.
But the tribunal did not buy that.
"The whānau-based approach appears to have come out of nowhere; there was no explanation of the mātauranga that underpinned it. Unlike the age adjustment recommended by the ministry and endorsed by public health experts, we have seen no scientific, mathematical or public health assessment done of the efficacy of the whānau-based approach.
"Accordingly, we struggled to understand why Cabinet did not approve the age-adjustment rollout. Professor Shaun Hendy [said it was] a bit of a mystery."
On top of this, few Māori health providers seemed to be aware that the whānau approach was even a thing.
Today, the Māori vaccination rate is vastly improved, though it is still behind: 86 percent of Māori have had one dose, while 77 percent are fully vaccinated.
That is partly due to an increase in funding - including $120 million announced in October - for Māori health providers to do things like going mobile, or door-to-door outreach.
But the tribunal also found that this money was also slow to get the frontlines, which contributed to sluggish rates.
"We consider that it is relatively clear that the government did not approve funds early enough and did not organise them in a way that would get them out to Māori communities efficiently - in fact, practically all of these additional funds were announced during the Delta outbreak."
Traffic light system
Another consideration was whether the accelerated move to the traffic light system - the Covid-19 Protection Framework in official parlance - put Māori at particular risk.
The tribunal found that while a new framework was necessary, taking into account the economic impact of lockdowns and a waning social licence, the change of tack did not allow for the fact that Māori vaccination levels were still lagging behind.
"The Crown's evidence ... shows that in respect of the more rapid move to the protection framework, the government knew it was putting Māori at risk and move more rapidly to the protection framework anyway, relying on mitigation measures that it hoped would be effective.
"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," the report said.
That decision also put Māori health providers under extreme pressure on limited resource. That pressure, the tribunal said, was created by a delayed rollout, and years of chronic underfunding by the state.
"The Māori communities Covid-19 fund, as a last-ditch effort to try to mitigate known risks with a transition to the protection framework, is insufficient. It was an exceptionally risky strategy, given the well-established pressure the health system and Māori providers were already under. Further, the risk were exacerbated by making it a contestable fund in an emergency."
Throughout the hearing, Māori health providers also spoke of being frustrated at the government's consultation with Māori throughout the pandemic. Of advice being ignored, and of talks feeling like a tokenisitic box ticking exercise.
The tribunal said the level of consultation was not enough, and that a time of crisis requires more adherence to the Crown's Treaty obligations, not less.
"The present pandemic is a national health crisis of a magnitude that should focus and heighten the Crown's efforts to actively address any inequities suffered by Māori in accordance with Treaty principles.
"The Crown's treaty obligations, and especially its obligation to actively protect Māori to the fullest extent practicable, are perhaps more imperative now than at any other time in recent history."
Since the hearing, both the government and the Māori Council have announced a new consultative body. But it remains to be seen just how deeply they will collaborate, though Fraser said he was optimistic.
Recommendations
During the hearing, both the applicants and the Crown asked for strong recommendations from the tribunal, to inform the next phase of the pandemic response.
The Crown, at the hearing, said it was always open to listen and to learn. To the chagrin of the tribunal.
"When considering the partnership threshold, Crown goodwill and the promise to learn and grow is not the treaty standard. Because the power imbalance in the partnership between Māori and the Crown favours the Crown, it's the Crown's responsibility to ensure Māori are not disadvantaged in the relationship."
The tribunal recommended there be better data collection; better support for the continuing vaccination effort, testing and contact tracing; as well as better support to care for the increasing number of Māori infected with Covid-19.
It also recommended the Crown strengthen how it actually monitors if its policies for Māori are working; as well as strengthening its engagement with key treaty partners, while giving effect to tino rangatiratanga.
But, significantly, it wants to see much better access for the imminent booster and paediatric vaccine rollout, something ministers have said they're planning on.
"It cannot simply find ways of avoiding these duties by coming up with less equitable alternatives; it must make those choices that sustain Māori wellbeing, 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 findings from the Waitangi Tribunal are scathing, but they are non-binding for the government.
Still, the Crown shortfalls, long complained about, are now laid bare on the table.
It was decisions made in Cabinet, a table at the top of the Beehive with more Māori sitting round it than ever before, that has contributed to the serious perils tangata whenua now face.