The High Court has reserved its decision in a landmark case over the Crown’s disestablishment of Te Aka Whai Ora, the Māori Health Authority, in 2024.
The hearing started on Monday in the High Court in Wellington and adjourned on Thursday.
The claim was brought by four 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.
They are seeking a similar declaration in relation to Te Tiriti o Waitangi, something the courts have never issued before.
Chair of Te Kōhao Health, Lady Tūreiti Moxon, said the proceedings aimed to secure accountability.
“We’re here really to get a declaration of inconsistency from the High Court in relation to Te Tiriti of Waitangi and the Bill of Rights, and certainly, you know, in terms of human rights, I definitely think we have a case to bring,” she said.
The applicants argue the case could reshape Treaty jurisprudence, allowing Tribunal findings to be upheld as judicial rulings, particularly when the Crown does not act on them.
Justice Boldt explored this possibility during the hearing.
“What is wrong with the tribunal as the arbiter of these matters? And if the problem is that the Crown is not respecting the authority of the Tribunal, then that is potentially something the court needs to disabuse it of,” he said.
“I think the courts have been taking steps highlighting the mana of the Tribunal and the expert nature of it and the fact it has far greater expertise in this area than someone like me. If that’s falling on deaf ears in government, then that is certainly something the courts need to… it actually isn’t acceptable.” He posited to the court.
Justice Boldt’s comments reflect the way a judge will test and scrutinise the legal arguments; his ultimate ruling, once delivered, will set out his considered position.
Among the applicants’ arguments, their lawyer Andrew Butler KC cut through the legal complexities to question the Crown’s rationale.
He said the stated desire to reduce central bureaucracy did not withstand scrutiny.
“There is, of course, an irony in that being the reason, if the idea was to reduce central bureaucracy, it’s interesting that when Te Aka Whai Ora was disestablished, almost the entire staff were transferred to central bureaucratic agencies, being Health New Zealand and the Ministry,” he told the court.
Crown’s position
On the last two days of the hearing, the Crown set out its argument, countering that turning Tribunal findings into binding judicial declarations would represent a significant constitutional change and that such reform should be determined by Parliament.
Crown lawyers also maintained that Māori health obligations remain intact despite Te Aka Whai Ora’s disestablishment, pointing to the absorption of its functions, staff, and funding into Te Whatu Ora and the Ministry of Health.
Justice Boldt pressed the one and only witness that took the stand throughout the hearing, Te Whatu Ora’s Interim National Director Hauora Māori, Selah Hart, on whether the new structure has improved or hindered delivery.
“Was it easier under the old model? Is it easier now? Is it about the same? Is it just a different way of achieving the same ends? Or do you find that you are actually struggling more, having been folded back into a mainstream Government entity?” he asked.
“Our team will do everything we possibly can within the new construct that has been provided for us to not go any further backwards than where we are today and to continue to move in a positive way. Easier said than done, though, Your Honour, and I think there are some markers of continuation, the whole of Māori appropriation that supports us to continue to move forward, not move backward, in the current environment.”
At the same time, Hart 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 could have on the health system.”
‘Calls for a standalone Māori health authority’
Calls for a standalone Māori health authority date back to the Hui Whakaoranga in 1984.
In 2019, the Waitangi Tribunal’s Hauora inquiry found the Crown had failed Māori in health and recommended the creation of a Māori Health Authority.
A 2020 government-commissioned review reached the same conclusion, paving the way for the Pae Ora Act reforms and the establishment of Te Aka Whai Ora in 2022.
The coalition government moved to disestablish the authority under urgency in 2024, triggering widespread opposition and the present legal challenge.
Justice Boldt’s reserved decision will be much anticipated as it could have implications far beyond health, influencing how Waitangi Tribunal findings are treated across future Treaty claims.
