Analysis – The discovery that the government is actively violating the Treaty of Waitangi in responding to the pandemic and paying little attention to the needs of Māori will come as no surprise to those on the front lines.
The Waitangi Tribunal today published “Haumaru: The Covid-19 Priorities Report” into the government’s Covid-19 response and vaccine rollout, finding that “Maori have been put at a disproportionate risk of being infected by Delta “.
It is a blatant report. But it’s also one that reinforces what health providers and Māori 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 that the government violated Te Tiriti o Waitangi for “political convenience” in its pandemic response.
The findings follow a week of hearings this month following an inquiry by the Māori Council, which argued that Māori had been left vulnerable as a result of the Crown’s decisions.
“As of December 13, 2021, although Māori comprised 15.6 percent of the population, Māori comprised more than 50 percent of Delta’s cases, 38.6 percent of hospitalizations of Delta, and 45 percent of the associated deaths,” the court’s president, Judge Damian Stone wrote in his letter. ministers who accompanied the report.
“The statistics speak for themselves.”
The tribunal heard from Māori health providers who spoke of being marginalized, ignored and underfunded.
He also heard from experts and officials, including model Shaun Hendy and Health Director General Ashley Bloomfield, who said they had advised of the need for a Maori priority.
Evidence presented before the court pointed to Cabinet decisions that ignored Māori expertise, which prioritized a generalist approach for fear of a political backlash to special consideration for Māori.
Today, the court 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 breach of Te Tiriti had been committed – in fact, it asked the court not to consider whether or not there had been a breach, saying it was too early in the pandemic to judge
He also said that the Treaty had been considered in every step of the pandemic response.
The court – led by Judge Damian Stone, with a panel of Associate Professor Tom Roa, Tania Simpson and Professor Linda Tuhiwai Smith – was not convinced: “The results we are seeing now seem to reflect that, in many cases, ‘considerations’ is where the Crown has determined that its Treaty obligations end.”
Launch of vaccines
One of the key considerations for the court was the design of last year’s vaccine rollout, and whether the structure adopted by Cabinet disadvantaged Māori.
The Māori vaccination rate immediately lagged, something experts had warned would happen for a myriad of reasons including access, poverty and distrust, 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 over 65 and those with chronic health conditions. This started in June and July.
The Māori Council, like dozens of other experts, health providers and officials who gave evidence, said a lower age threshold should be made for Māori, who die younger and have more health vulnerabilities than Pākehā
Hendy told the court that in his advice to Cabinet, he said a 59-year-old Māori patient with Covid-19 and no other health problem had the same risk of ending up in hospital as a Pākehā of 80 years
Dr Bloomfield told the court that the Ministry of Health had recommended a 15-year gap for Maori: Maori over 50 should be included in group 3.
This advice was rejected by the Cabinet, a decision which the court said made no sense.
The government said it instead opted for a so-called whānau approach – that is, if a kuia brought his whole family, they too would receive the vaccine.
He also argued that it maintained a vague definition of chronic conditions, allowing more Maori to be vaccinated.
But the court didn’t buy that.
“The whānau-based approach seems to have come out of nowhere; there was no explanation of the mātauranga that supported it. Unlike the age adjustment recommended by the ministry and endorsed by public health experts , we have not seen any scientific, mathematical or public health evaluations made of the effectiveness of the whānau-based approach.
“As a result, we have struggled to understand why the Cabinet did not approve the rollout of the age adjustment. Professor Shaun Hendy [said it was] a bit of a mystery.”
On top of that, few Māori health providers seemed to be aware that the whānau approach was even a thing.
Today, the Māori vaccination rate has greatly improved, although it is still behind: 86 percent of Māori have had a dose, while 77 percent are fully vaccinated.
This is partly due to increased funding – including $120 million announced in October – for Māori health providers to do things like go mobile, or door to door.
But the court also found that this money was also slow to get to the frontlines, which contributed to the slow rates.
“We consider it relatively clear that the government did not approve funds early enough and did not organize them in a way that brought them to Māori communities efficiently – in fact, virtually all of these additional funds were announced during the fire of Delta.”
Traffic light system
Another consideration was whether the accelerated move to the traffic light system – the Covid-19 Protection Framework in official parlance – would put Māori at particular risk.
The court found that while a new framework was needed, taking into account the economic impact of the lockdowns and a declining social license, the change in attitude did not allow for the fact that Māori vaccination levels were always late.
“The Crown’s evidence … shows that in terms of moving faster towards the protection framework, the government knew it was putting Māori at risk and was moving faster anyway towards the protection framework, relying on mitigation measures that he hoped would be effective.
“The rapid transition in the framework – which happened faster than the officials and experts of the Crown recommended, and without the original vaccination thresholds for each district health board being respected – did not adequately consulted Māori health needs,” the report said.
This decision also puts Māori health providers under extreme pressure on limited resources. That pressure, the court said, was created by a delayed rollout, and years of chronic underfunding by the state.
“The fund of Māori communities Covid-19, as a last effort to try to mitigate the known risks with a transition to the protection framework, is insufficient. It was an exceptionally risky strategy, given the well-established pressure of the system of health and of Māori. The providers were already under. In addition, the risk was compounded by making a contestable fund in an emergency.”
During the hearing, Māori health providers also spoke of being frustrated by the government’s consultation with Māori during the pandemic. Of ignored advice, and of discussions that feel like a tokenisitic box office exercise.
The court said that 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 current pandemic is a national health crisis of a magnitude that should focus and increase the Crown’s efforts to actively address any inequity suffered by Māori in accordance with Treaty principles.
“The Crown’s treaty obligations, and especially its obligation to actively protect Māori to the maximum extent practicable, are perhaps more imperative now than at any other time in recent history.”
Since the hearing, the government and the Māori Council have announced a new advisory body. But it remains to be seen how deeply they will collaborate, although Fraser said he was optimistic.
During the hearing, both the candidates and the Crown asked for strong advice from the court, to inform the next phase of the pandemic response.
The Crown, at the hearing, said it was always open to listening and learning. To the displeasure of the court.
“When considering the partnership threshold, the good will of the Crown and the promise to learn and grow are not the standard of the treaty. Because the power imbalance in the partnership between Māori and the Crown favors the Crown, it is the Crown’s responsibility to ensure that Māori are not disadvantaged in the country. relationship.”
The court recommended that there be better data collection; better support for the ongoing vaccination effort, testing and contact tracing; and also better support for the care of the growing number of Māori infected with Covid-19.
It also recommended that the Crown strengthen the way it actually monitors whether its policies for Māori are working; as well as strengthening its engagement with key treaty partners, while giving effect to tino rangatiratanga.
But, significantly, he wants to see much better access for the upcoming booster and launch of the pediatric vaccine, something ministers have said they are planning.
“It cannot simply find ways to avoid these duties by coming up with less equitable alternatives; it must make those choices that support Māori well-being, and then explain and defend them as long and as loudly as necessary.
“Failure to perform these functions for political convenience does not reflect the Treaty partnership and, in fact, threatens the fundamental basis for it.”
The findings of the Waitangi Tribunal are controversial but not binding on the government.
However, the shortcomings of the Crown, long complained about, are now laid bare on the table.
It was decisions made in Cabinet, a table at the top of beekeeping with more Māori sitting around it than ever before, that contributed to the serious dangers that tangata whenua now faces.