EXECUTIVE SUMMARY

3. Ministers have indicated their support for the inclusion of a Treaty clause in the NZ Public Health and Disability Bill to affirm and give coherence to the Government's commitment to the partnership between Maori and the Crown, to maintaining Maori confidence in the health sector, and to accelerating progress towards parity between Maori and non-Maori health.

4. Given the precedent that such a clause might set for other social service legislation, the paper compares the risks and benefits of the inclusion of such a clause with the risks and benefits of having no Treaty clause.

5. The most powerful argument for having no Treaty clause is the reduced risk to the Crown of litigation. The introduction of a specific reference to the Treaty in legislation carries with it a statutory responsibility to meet Treaty responsibilities. A moral responsibility becomes a legal responsibility.

6. The paper concludes that the risk of litigation is not a sufficient reason to omit a Treaty clause from the legislation.

7. The inclusion of a Treaty clause is a principled policy response - both to the Government's Treaty obligations and to its explicit commitment to significantly improving Maori health.

8. The merits of a simple generic clause are compared with those of a clause with greater specificity.

9. I recommend the inclusion of a simple generic clause. While a Treaty clause with greater specificity has an intuitive appeal, there is [a] some difficulty in coming to an agreement as to what should be specified, [b] a risk of becoming over prescriptive and thus limiting the development of genuine partnership, and [c] locking agencies into actions that may be inappropriate in some settings, or over time.

BACKGROUND

10. At their meeting on 19 April 2000, the Ad Hoc Ministerial Committee on Health Sector Change considered a paper canvassing the issues arising from the inclusion of a reference to the Treaty in health legislation. While Ministers supported such an inclusion, it was agreed that, given the precedent that the health legislation might set for future social service legislation, further work on the Government's position on the inclusion of a reference to the Treaty clause in social service legislation should be undertaken. This paper reflects that work.

11. This paper complements several other areas of work that are relevant to the application of the Treaty of Waitangi in the health sector, particularly relating to the principles of participation, partnership and protection. These include:
    1. equitable representation of Maori on DHB Boards [CAB (00) M 2/4] An accompanying paper provides advice on how this could be achieved.
    2. Treaty-based partnership arrangements between Maori and the Crown and between iwi and DHBs [CAB (00) m 11/1A(4)]. An accompanying paper sets out more implementation details.
    3. the objectives, goals and targets for Maori health included in the draft New Zealand Health Strategy.

WHY CONSIDER A TREATY CLAUSE?

12. As Crown Law advisers have pointed out¹, arguments about special treatment for Maori can be made whether or not there is a specific Treaty clause in legislation. Governments in recent years have implicitly and explicitly recognised the need for policy responses to mitigate the disparities that exist between Maori and non-Maori and for Maori provider development in a range of sectors. For some time now, even where there is no legislative reference to the Treaty of Waitangi, Courts have tended to refer to the principles of the Treaty as an aid to statutory interpretation in matters of particular concern to Maori. Crown Law cites the High Court's decision in Barton-Prescott² as a case of interest 'because it moves further toward making the Treaty a mandatory relevant consideration for decision makers in areas where the court considers relevant Maori interests are affected."

13. The Government may, however, include a Treaty clause where it wishes to:
    1. affirm the Treaty, and/or
    2. give legal effect to particular Treaty- based entitlements.

14. Ministers have already indicated that they wish to include a Treaty clause in the New Zealand Public Health and Disability Act - in effect affirming and bringing coherence to the Government's policy commitment to:
    1. ensuring an effective partnership between Maori and the Crown in the health and disability sector
    2. maintaining Maori confidence in the restructured health sector
    3. accelerating progress towards parity between Maori and non-Maori health.

15. Since there are no precedents thus far in social service legislation, and since a decision in this particular instance may set a trend for future legislation, this paper compares the risks and benefits of the inclusion of a Treaty clause (of two different levels of specificity) with the risks and benefits of the exclusion of such a clause.

OPTION ONE: NO CLAUSE

16. Under this option, there would be no specific reference to the Treaty of Waitangi in the Act. Instead, the Government's intentions with respect to Maori health would be conveyed through other means: i.e. specific clauses in the New Zealand Public Health and Disability Act which set out the Government's intentions for Maori without reference to the Treaty; the goals, targets and service priorities for Maori in the NZ Health Strategy and the NZ Disability Strategy; and through the funding agreements with individual DHBs.

RISKS

The Government's commitment to Maori [issues] will be perceived as being lacking.

17. Maori expectations have been raised by Government manifesto and policy statements in relation to Maori. Omission of any reference to the Treaty in legislation will be deeply disappointing to Maori, particularly those in the health sector who have argued for such inclusion for some time. The omission may of itself be perceived as a breach of the partnership and protection principles of the Treaty.

The lynch pin of the "model for partnership" will be missing

18. The model for partnership at each level of the health system [described in CAB(00) 11/1A (4) and accompanying paper] will lack its key element. The Treaty of Waitangi underpins that model, and Maori expect that the Treaty will underpin their relationship with this Government.

Maori may increasingly seek to address health status issues through the Waitangi Tribunal

19. The Waitangi Tribunal may more frequently be called upon to fill what might be perceived to be a policy vacuum, directing the Government in respect of its obligations to Maori health.

BENEFITS

The Crown will have less exposure to the risk of litigation

20. With the introduction of a specific reference to the Treaty into legislation, a statutory responsibility to meet Treaty obligations ensues. As Crown Law notes "maintaining the status quo does not alter the legal risk from the present situation. The issue becomes a policy one as to whether this [position] is adequate from the Treaty perspective."³

Comment

21. The omission of a specific reference to the Treaty in the health legislation would not diminish the Government's responsibility in relation to Maori health development. Nor would it limit the Government's ability to require health sector agencies to take account of those responsibilities. However, omission of any reference to the Treaty would be interpreted by Maori as indicative of a less than whole-hearted commitment to the principle of partnership and as such could be seen to be making a negative contribution to Maori health and well being.

Footnote(s):

1

Advice to Ministry of Justice (1996); Draft Advice to Treasury (1997); Advice to Ministry of Health (April 2000)

2

a child custody case ,where the well-being of a whänau was at stake

3

Crown Law Advice to Ministry of Health, May 2000