Sir Edward Taihakurei Durie student essay competition 2024

Law as an instrument of disempowerment – the disestablishment of the Māori Health Authority Te Aka Whai Ora

Letitia Hill

Foreword by Carwyn Jones, Māori Law Review co-editor

We are very pleased to publish the winning entry from the 2024 Sir Edward Taihakurei Durie student essay competition. The winning essay was written by Letitia Hill and is entitled ‘Law as an instrument of disempowerment – the disestablishment of the Māori Health Authority Te Aka Whai Ora’.

The Sir Edward Taihakurei Durie student essay competition is held annually and sponsored by the Māori Law Review. The competition is open to all undergraduate students studying law at a New Zealand law school and aims to recognise excellence in legal writing on significant and current legal issues affecting Māori.

Letitia Hill is an undergraduate student at Te Whare Wānanga o Waitaha | University of Canterbury. She is in her third year of study towards a Bachelor of Laws with Honours and fourth year of a Bachelor of Commerce, majoring in Human Resource Management with a minor in Marketing.

Letitia’s essay uses the example of Te Aka Whai Ora to examine the way in which law is used to achieve political objectives. The disestablishment of Te Aka Whai Ora sits within the context of the broader relationship between Māori and the Crown and, the essay suggests, reflects long-standing power imbalances within that relationship. In that context, the disestablishment of Te Aka Whai Ora serves as a reminder that law is neither neutral or objective and can be used to further political aims that may support or impede social justice.

Hei tīmatanga – Introduction

The statement “Law is an instrument that serves the ends of those who influence, shape, enlist, invoke, and wield it” challenges the view that law is neutral, instead suggesting that law is a tool that can be manipulated to reflect the interests of those who hold power and authority.[1] This essay critically analyses this perspective of law in the context of the disestablishment of the Māori Health Authority, Te Aka Whai Ora. This demonstrates how law can be enlisted to achieve political and administrative objectives, often undermining the interests of marginalised communities, such as Māori. The disestablishment of Te Aka Whai Ora is not just a bureaucratic decision, rather it is a reflection of the broader historical and structural power imbalances that continue to shape the relationship between Māori and the Crown.

Kōrerorero – Discussion

Hauora – establishing Te Aka Whai Ora

The Waitangi Tribunal Health Services and Outcomes Inquiry (Wai 2575) recognised the Crown had breached Te Tiriti o Waitangi with respect to the health system, specifically, the Waitangi Tribunal acknowledged Māori health services had been historically underfunded and Māori lacked meaningful representation in decision making relating to their health.[2] On this basis, the report recommended the establishment of an independent Māori Health Authority to remedy “contemporary breaches of Te Tiriti”,[3] whilst recognising tino rangatiratanga (self-determination) in the design and delivery of Māori health services.[4] The Crown accepted this recommendation and established Te Aka Whai Ora under the Pae Ora (Healthy Futures) Act 2022, as a fundamental step to “improve Māori health outcomes and eliminate health inequities”.[5]

Hautupua – disestablishing Te Aka Whai Ora

Less than two years following its establishment, Te Aka Whai Ora was disestablished by the National-led coalition Government under the Pae Ora (Disestablishment of Māori Health Authority) Amendment Act 2024.[6] The disestablishment of Te Aka Whai Ora heralds a shift backwards from improving health outcomes for Māori; returning to “a system that really doesn’t work for Māori, [that] never has worked for Māori”.[7] The Government claimed to be committed to improving outcomes for all New Zealanders by implementing a one system approach, minimising “administrative complexity, bureaucracy and inefficiency”, whilst effectively spending public money.[8] This justification for disestablishment of Te Aka Whai Ora reflects a shift in political and administrative priorities of Aotearoa’s Government. Arguably, the decision to disestablish Te Aka Whai Ora was less focused on delivering equitable health services to improve outcomes for Māori and more about wielding the law to consolidate control over resources into an integrated national health system, thereby reducing Māori influence and control.

One system – universal health policy

The Government’s direction for the disestablishment of Te Aka Whai Ora was driven by a “one system approach that works for the whole population”. However, research and persistent poor health outcomes show that such an approach is ineffective. Māori views of health tend to be more holistic, focusing on collective, whānau-based outcomes which does not comfortably align with a Western paradigm.[10] Hence, a ‘one size, fits all’ approach has previously been unsuccessful, tending to “fail to engage with Māori” and, ultimately, delivering inequitable services.[11] Research has shown that, under a singular system, Māori are more likely to face discrimination, have limited access to care, experience lower quality services and have poor health outcomes compared to non-Māori.[12]

Te Aka Whai Ora was established precisely to address these disparities. From its establishment, it gained significant support from Māori, building on the recognition that “by Māori, for Māori” services are best placed to achieve positive outcomes for Māori communities.[14] Ultimately, the establishment of Te Aka Whai Ora represented significant progress towards addressing historical inequities and improving health outcomes for Māori, whilst providing Māori with tino rangatiratanga over their health. It seems clear, therefore, that the disestablishment of Te Aka Whai Ora was designed to achieve the administrative and political interests of the Government, rather than being directed at the interests of Māori communities.

Some experts have argued that the decision to disestablish Te Aka Whai Ora represents a return to “colonial universalist tendencies of health policy”, which have historically suppressed Māori approaches to health.[15] The imposition of a singular health system does not reflect Māori worldviews and is arguably a continuation of historical patterns where Māori cultural practices are subordinated to the dominant western paradigm. The establishment of Te Aka Whai Ora provided Māori with a co-leadership role to design national health outcomes that meet the needs of all. By contrast, its disestablishment removes the potential that existed within Te Aka Whai Ora to better recognise tino rangatiratanga in health policy and services.[17] The power of the law is particularly evident through this legislative change, where the Government has reinforced its control over resources and decision making, fundamentally sidelining Māori in the process.

Legislating using urgency, without engagement during an ongoing Waitangi Tribunal inquiry

A Waitangi Tribunal claim (Wai 3307) was lodged in December 2023, arguing the disestablishment of Te Aka Whai Ora constituted a breach of Te Tiriti o Waitangi and that it should be retained to provide Māori with tino rangatiratanga over their health.[18] Nevertheless, the Crown proceeded to legislate under urgency to disestablish Te Aka Whai Ora, disregarding the Waitangi Tribunal’s active inquiry. It is notable that the decision to pass the legislation under urgency furthered the Government’s political interests by ensuring that it met its commitments in its 100-day plan and that the disestablishment legislation was enacted prior to end of the financial year.[19] Lady Moxon, a lead claimant, argued that the Crown’s actions were a “political decision, based on popularism”.[20] Given the significance of this decision, the Government should have instead prioritised engagement and discussion with whānau, hapū, iwi and Māori health leaders.[21] Whilst, the National-led coalition Government campaigned on disestablishing Te Aka Whai Ora, it failed to ensure Māori were active participants in the decision making, as would have been consistent with the Crown’s obligations under Te Tiriti.[22] This lack of consultation and the use of urgency to progress the legislation further suggests the Government was wielding the law for administrative and political benefit and disregarding the consequential impacts for Māori. This illustrates the role that law can play in perpetuating the marginalisation of certain groups, particularly those who are already disadvantaged by systemic inequities.

Colonising mindsets – exerting cultural and political control

The disestablishment of Te Aka Whai Ora forms part of a broader historical context relating to ongoing effects of colonisation and Government actions which undermine Māori interests, shaping the systemic inequities that exist in society.[23] Aotearoa’s health system has long been criticised for its monocultural approach and policies, which fail to deliver positive outcomes and adequately serve the needs of Māori.[24] The disestablishment of Te Aka Whai Ora represents a further significant development in the long term impact of colonisation. Te Aka Whai Ora was established in response to ‘the failure of monocultural practices’ and systemic health inequities, yet its disestablishment sees history repeating itself by continuing to reduce Māori tino rangatiratanga through centralisation of power.[25] This suppression emphasises how law is both a tool of governance and a means of cultural and political control, with the power to marginalise Māori and undermine tino rangatiratanga.

The Waitangi Tribunal also established a causative link between colonisation and the inequities that exist in Aotearoa.[26] These disparities are suggested to be the legacy of colonisation driving inequities through institutional racism, broadly defined by the “differential access to resources, cultural capital, social legitimation and political power that disadvantages one group, while advantaging another”.[27] Te Aka Whai Ora was established to remedy breaches of Te Tiriti and monocultural practices within the health sector; however, the Government’s recent defiance of Wai 2575 recommendations by disestablishing Te Aka Whai Ora is likely to impede progress and have a “profoundly damaging” effect on Māori for generations to come.[28] Lady Moxon recognised “Māori again, have been used as a political football” demonstrating how law continues to be wielded by those with influence to serve their interests, whilst perpetuating inequalities within society.[29] Law is frequently “embroiled in social, economic and political conflicts” where it is manipulated to serve the interests of those who shape it.[30]

The disestablishment of Te Aka Whai Ora has profound social and legal implications for Māori, reinforcing the argument that the law is not neutral but instead shaped by the interests of those in power. The Government’s ability to enact such legislation is unquestionable. However, the process by which this power was exercised - without consultation and with no consideration of the Waitangi Tribunal’s inquiry and recommendations - reveals the broader power imbalances that exist in Aotearoa and the ways in which these are further perpetuated by the law. The establishment of Te Aka Whai Ora was a step towards addressing the inequities, whilst the disestablishment of ‘the strongest contemporary mechanism for achieving health equity’ represents a reaffirmation of the colonial power structures that continue to influence law and decision making in Aotearoa.[31] The law, in this case, has not been used to promote justice or equity, but has instead been leveraged to further political interests.

Ngā kupu whakatepe – Conclusion

Overall, the disestablishment of Te Aka Whai Ora demonstrates that law can be used to perpetuate power imbalances and inequities within society. The effectiveness of the law in serving the interests of marginalised groups, such as Māori, is contingent upon who controls and influences the legal processes. This reinforces the idea that the law is not neutral or objective, but rather a tool that can be wielded to serve the interests of those with influence. The disestablishment of Te Aka Whai Ora reveals how law can fail to adequately serve marginalised groups where it is manipulated to serve political interests. This illustrates the significant implications law has on justice and equity, with the power to either advance or impede societal progress.

Ngā rārangi pukapuka – Bibliography

Legislation

New Zealand

Pae Ora (Disestablishment of Māori Health Authority) Amendment Act 2024.

Pae Ora (Healthy Futures) Act 2022.

Books

Robert Joseph and Richard Benton Waking the taniwha: Māori governance in the 21^st century (Thomson Reuters, Wellington, 2021).

Brian Tamanaha Sociological Approaches to Theories of Law (Cambridge University Press, 2022).

Journal Articles

Heather Came and others “Pae Ora (Disestablishment of Māori Health Authority) Amendment Act 2024: further Crown breaches of Te Tiriti o Waitangi” (2024) 137 NZ Med J 94.

Andre McLachlan and Suzanne Pitama “Māori preferences and practices in systemic health and social service collaborative practice” (2023) 19 AlterNative: An International Journal of Indigenous Peoples 669.

Anna Rolleston and others “Seeing the unseen: Evidence of kaupapa Maori health interventions” (2020) 16 AlterNative: An International Journal of Indigenous Peoples 129.

Parliamentary and Government Materials

Cabinet Paper “Disestablishment of Māori Health Authority” (27 February 2024) CAB-24-MIN-0002.

Reports

Māori Health Authority Te Aka Whai Ora: Establishment Plan (July 2022).

Te Aka Matua o te Ture | Law Commission He Poutama (September 2019).

Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (Wai 2575, 2019).

Waitangi Tribunal Wai 3307 (2023).

Waitangi Tribunal Hautupua: Te Aka Whai Ora (Maaori Health Authority) Priority Report, Part 1 – Pre-publication Version (Wai 2575) 2024.

Newspaper Articles

Felix Desmarais “Bill to disestablish Māori Health Authority to be introduced today” 1News (online ed, Wellington, 27 February 2024).

Ngā kupu āpiti – Notes

[1]              Brian Tamanaha Sociological Approaches to Theories of Law (Cambridge University Press, 2022) at 3.

[2]              Cabinet Paper “Disestablishment of Māori Health Authority” (27 February 2024) CAB-24-MIN-0002 at [19].

[3]              Heather Came and others “Pae Ora (Disestablishment of Māori Health Authority) Amendment Act 2024: further Crown breaches of Te Tiriti o Waitangi” (2024) 137 NZ Med J 94 at 94.

[4]              Anna Rolleston and others “Seeing the unseen: Evidence of kaupapa Māori health interventions” (2020) 16 AlterNative: An International Journal of Indigenous Peoples 129 at 130.

[5]              Māori Health Authority Te Aka Whai Ora: Establishment Plan (July 2022).

[6]              Came and others, above n 3, at 94.

[7]              Felix Desmarais “Bill to disestablish Māori Health Authority to be introduced today” 1News (online ed, Wellington, 27 February 2024).

[8]              Cabinet Paper, above n 2, at [9].

[9]              At [9].

[10]            Andre McLachlan and Suzanne Pitama “Māori preferences and practices in systemic health and social service collaborative practice” (2023) 19 AlterNative: An International Journal of Indigenous Peoples 669.

[11]            Came and others, above n 3, at 97.

[12]            Rolleston and others, above n 4, at 129.

[13]            Waitangi Tribunal Hautupua: Te Aka Whai Ora (Maaori Health Authority) Priority Report, Part 1 – Pre-publication Version (Wai 2575) 2024.

[14]            Came and others, above n 3, at 97; Rolleston and others, above n 4, at 131.

[15]            Came and others, above n 3, at 96.

[16]            At [13].

[17]            Came and others, above n 3, at 96.

[18]            Waitangi Tribunal Wai 3307 (2023).

[19]            Cabinet Paper, above n 2, at [35].

[20]            Desmarais, above n 7.

[21]            Came and others, above n 3, at 97.

[22]            Robert Joseph and Richard Benton Waking the taniwha: Māori governance in the 21^st century (Thomson Reuters, Wellington, 2021) at 463.

[23]            Rolleston and others, above n 4, at 129.

[24]            Came and others, above n 3, at 97.

[25]            Came and others, above n 3, at 97.

[26]            Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (2019) at 20.

[27]            At 21.

[28]            Came and others, above n 3, at 97.

[29]            Desmarais, above n 7.

[30]            Tamanaha, above n 1, at 3.

[31]            At 96.

Author: Letitia Hill

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