The first Crown witness has taken the stand in the High Court in Wellington in the case brought by Māori health providers Te Puna Ora o Mataatua, Te Kōhao Health, Ngāti Hine Health Trust, and Papakura Marae.

They are asking the court to make a declaration of inconsistency with the Treaty of Waitangi and its principles, and inconsistency with the Bill of Rights Act, concerning the Government’s disestablishment of Te Aka Whai Ora, the Māori Health Authority, in 2024.

Declarations of inconsistency with the New Zealand Bill of Rights Act are now recognised in law, though Parliament is not required to act on them.

What makes this case constitutionally significant is the applicants are seeking a similar declaration in relation to Te Tiriti o Waitangi, something the courts have never issued before.

They argue that while the courts have built up extensive case law on interpreting Treaty principles, the next step is to consider whether those principles create rights that can be enforced judicially.

The Crown rejects that view, saying any move to extend the courts’ powers in this way would amount to a major constitutional change. Its position is that such reform should be made by Parliament, not through judicial development.

Parliament has already established the Waitangi Tribunal as the specialist forum to consider Treaty breaches, although its recommendations are non-binding.

‘Rolls Royce of Te Tiriti’

On Tuesday, Justice Boldt, who is hearing the case, commented that a potentially stronger pathway for holding the Crown to account would be for the Court to uphold Tribunal findings if the Crown refused to accept them.

He said such a ruling would give those findings “the weight and authority of the High Court.”

Chair of Te Kōhao Health, Lady Tūreiti Moxon, said this was a powerful affirmation by the High Court judge.

“To say that the Waitangi Tribunal is really the Rolls-Royce of Te Tiriti o Waitangi, that is a real affirmation from the court,” she said.

Speaking to Te Ao Māori News, Moxon questioned whether the Crown would actually accept the Tribunal’s findings in this case or others.

“Do they actually take heed of the breaches the Waitangi Tribunal have said they committed under Te Tiriti? And the truth of the matter is no, they haven’t.”

Crown argues disestablishment was lawful

The Crown is urging the High Court to dismiss the case on the closure of Te Aka Whai Ora, arguing the courts cannot and should not step into the role of the Waitangi Tribunal.

Crown lawyers said both the Treaty and Bill of Rights declarations sought by the applicants should be rejected.

They argued the principles of Te Tiriti o Waitangi are not directly enforceable in the courts, and that any constitutional shift of that kind must come from Parliament.

“The Tribunal is the specialist body for Treaty consistency challenges,” the Crown submitted, pointing out the Waitangi Tribunal has already found breaches in the disestablishment process and continues to consider whether remedies are needed.

“There is no utility in the Court duplicating that role.”

The Crown also maintains that Māori health obligations remain embedded in the health system, despite the abolition of Te Aka Whai Ora.

It said the authority’s functions, staff and resources were transferred to the Ministry of Health and Te Whatu Ora, while a new Government Policy Statement on Health and changes to advisory committees maintain a focus on Māori health.

Crown lawyers acknowledge Māori health inequities persist, but stated that the restructuring of institutions did not unlawfully worsen access or outcomes.

“The disestablishment changed governance arrangements, not the delivery of services,” the Crown argued,

It added that impacts on Māori were no different in material terms to those on non-Māori with similar needs.

On the Bill of Rights claim, the Crown said removing the Māori Health Authority did not amount to discrimination.

It argued that even if Te Aka Whai Ora had been an example of “positive discrimination,” its repeal was not unlawful.

Te Aka Whai Ora not given a chance – Health NZ Director

Giving evidence for the Crown, the Interim National Director of the Hauora Māori Directorate at Te Whatu Ora, Selah Hart, acknowledged that the Māori Health Authority’s independence had provided more flexibility in targeting Māori health needs.

“There are some aspects of Te Aka Whai Ora that made it a lot more straightforward, based on the directive of the independent governors, to make assertions on where we did or didn’t spend our time, energy and effort,” she told the court.

Under questioning from the applicant’s lawyer, Andrew Butler KC and Justice Boldt, Hart said the new structure also carried opportunities, with responsibilities for Māori health now embedded across the wider system.

“We can build the expectation, not just of the hauora Māori appropriation, but of all appropriations and all health services and systems to work better for Māori.”

She accepted that the scale of inequities remained daunting.

“Māori have been underserved for so long that I can’t say that I will wholeheartedly be able to solve all of those issues, but our team will do everything we possibly can within the new construct that has been provided for us, to not go any further backwards… and to continue to move in a positive way.”

At the same time, she reflected on what had been lost with the disestablishment of Te Aka Whai Ora.

“Te Aka Whai Ora was only in existence for a very short period of time, and I don’t feel that it was given the chance to make the impact it is on the health system.”

Despite that, Hart insisted Māori perspectives had not been shut out of decision-making.

“I haven’t necessarily felt any difference in the influence or the opportunity for hauora Māori to be sitting in places of influence.

“Through my position on the ELT, through our continued engagement with our Ministers, and requiring hauora Māori service perspective on many different matters,” she said.

However, she did note the significant changes in both governance and operational leadership.

“…there was, at that time [Te Aka Whai Ora], a very strong Māori leadership across the Board, the governing board of Te Aka Whai Ora, as well as a full executive of Māori.”

That has now drastically changed, with only one Māori board member remaining.

“We need to acknowledge the difference in the makeup of governance, and that there may not be the same institutional knowledge or understanding of responsibilities to Māori health outcomes,” Hart said.

It is a similar picture with the Executive Leadership Team at Health NZ, with only three Māori: Hart herself, CEO Dr Dale Bramley, and Chief of Tikanga, Mahaki Albert.

“Part of my role is supporting colleagues in senior executive decision-making to not forget, or to be reminded, of their responsibilities. All services provided through Health NZ, whether private or hospital, must be moving towards better Māori health outcomes.”

The applicants and their witnesses won’t be taking the stand, as their testimonies were not challenged by the Crown.

The aspirational yet short-lived Te Aka Whai Ora – How did it get here?

Te Aka Whai Ora, the Māori Health Authority, was established in July 2022 as part of the Pae Ora reforms, alongside Te Whatu Ora. Its purpose was to commission Māori health services and monitor equity across the system, with the aim of addressing longstanding health gaps between Māori and non-Māori.

Following the 2023 election, the coalition government introduced legislation to abolish the authority.

The repeal was passed under urgency in February 2024. Ministers argued Māori health needs could still be met within the mainstream system, while critics said the process removed the only structural mechanism dedicated to improving Māori health outcomes.

In November 2024, the Waitangi Tribunal found the disestablishment of Te Aka Whai Ora had breached several Treaty principles.

The Tribunal said the Crown had not adequately consulted Māori and had departed from standard policy processes.

Subsequent hearings in May 2025 heard evidence from Māori health leaders, who said the authority had begun to deliver results and that its removal had left iwi partnership boards with an unclear role.

Timeline: Māori Health Authority and Treaty litigation

• 1984 – Hui Whakaoranga: National Māori hui calls for a standalone Māori health authority.

• 2019 – Waitangi Tribunal Hauora Inquiry and Report: Tribunal finds Crown failed Treaty duties in Māori health and recommends a standalone Māori Health Authority.

• 2020 – Health and Disability Review: Report says the mainstream system has failed Māori and recommends a standalone Māori Health Authority.

• 2022 – Pae Ora Act: Te Aka Whai Ora established to enable Māori-led health solutions and act as an independent statutory entity on the Crown side of the Treaty partnership.

• 2024 – Disestablishment of Te Aka Whai Ora: Coalition government abolishes the Māori Health Authority under urgency.

• 2025 – High Court challenge: Four Māori health providers argue disestablishment breached Te Tiriti and the Bill of Rights.