EXECUTIVE SUMMARY

2. This paper proposes an overall 'architecture' for a reference to the Treaty of Waitangi, which will allow greater detail to be added when the further work is complete. This architecture comprises:
   1. an overarching statement in the Bill's purpose statement, which links to:

   2. a generic reference to the Treaty, which links to:

   3. reference to specific provisions relating to the Treaty in the health and disability sector.

3. The specific provisions would include, but not necessarily be confined to, a range of provisions already in the draft Bill that have Treaty aspects. As well as some more indirect provisions which empower DHBs to meet their objectives with regard to Maori health, provisions with direct Treaty implications include:
   1. a requirement that DHBs establish partnership agreements with the iwi of their regions

   2. Maori representation on DHB boards and committees

   3. objectives for DHBs which include reducing Maori health disparities, and DHB functions which include working with Maori to increase Maori capacity to meet their own health and disability needs

   4. requirements on DHBs to consult with Maori.

4. Two options are proposed for giving effect to the Government's intentions for a Treaty reference in the Bill using the proposed architecture:
   1. The first option is based on the Te Puni Kokiri Bill provision, which requires the Act to "be interpreted in a manner that is consistent with the principles of the Treaty of Waitangi". Officials recommend this option as it establishes some boundaries on the application of the Treaty, so is the least risk of the two options with regard to potential litigation.

   2. The second option is based on the Conservation Act 1987 provision, and requires the Act to be "interpreted and administered in a manner that gives effect to the principles of the Treaty of Waitangi". The option creates more positive and substantive obligations with regard to the Treaty and establishes fewer boundaries. It would therefore be associated with a litigation risk and a greater likelihood that the Courts would attempt to define the Treaty's application in the sector. It is likely, however, to be viewed with greater favour by many Maori as it places fewer limits on the application of the Treaty to the sector.

5. The further work to develop the specificity of the provision will be carried out by an interdepartmental working group, drawing on advice from expert Maori, and reporting to Ministers by 31 August 2000. The Bill is scheduled for introduction on 31 July 2000. It is possible that the results of the further work could be included in the Bill at the Select Committee stage, or, failing that, by Supplementary Order Paper at the Committee of the Whole House stage of the Bill.

BACKGROUND

6. On 20 June 2000, the Cabinet Social Policy and Health Committee:
   1. directed officials from the Ministries of Justice and Health and the Crown Law Office, in consultation with other agencies as required, to undertake further work on inclusion in the New Zealand Public Health and Disability Bill of a general reference to the Treaty of Waitangi with more detailed specification of how the principles of the Treaty would be implemented; and to report back to the Social Policy and Health Committee as soon as possible

   2. agreed that, pending completion of the work referred to in paragraph i) above, at a minimum a generic clause would be included in the Bill

   3. agreed that this clause will give effect to the Government's commitment to:
      1. ensure an effective partnership between Maori and the Crown in the health and disability sector

      2. accelerate progress towards parity between Maori and non-Maori health

   4. invited the Minister of Health to instruct the Parliamentary Counsel Office to draft a generic Treaty clause for interim inclusion in the Bill

   5. directed officials to include in the report referred to in paragraph i) above, comment on the alignment between the Treaty clause and other provisions in the Bill, compliance with relevant international and human rights instruments, and any legal risks [CAB (00) M 21/17 refers].

Existing provisions in the draft Bill with relevance to the Treaty

7. The draft Bill already provides for a number of government policies with direct or indirect Treaty aspects These provisions reflect the Treaty principles of partnership, participation and protection, and create a foundation on which to build an explicit Treaty reference. Beyond a set of core obligations, the provisions, in general, are intended to be flexible and enabling rather than prescriptive. The Treaty related provisions are summarised below, and set out in greater detail in Appendix One.

8. Provisions with direct relevance to the Treaty include the following:
   1. requirements that DHBs to establish Treaty-based partnership agreements with the iwi of their regions

   2. provisions for Maori representation on DHB boards and their committees, and training of DHB board members on Maori health and Treaty issues

   3. giving DHB explicit objectives and functions for Maori health, such as reducing Maori health disparities and working with Maori to build their own health capacity

   4. requirements for DHBs to consult with the Maori communities in their area

   5. requirements that DHBs be good employers of Maori, including recognising the aims and aspirations of Maori

   6. requirements that DHBs report on their performance with regard to their Maori health objectives and functions, including spending on Maori health.

9. Other more general and indirect provisions are designed to empower DHBs to achieve their Maori health objectives, for example through collaboration with other DHBs and agencies in other sectors that impact on health outcomes.

   Others provide the Minister of Health with a range of levers to use in ensure the achievement of Maori health and Treaty-related objectives, including an ability to issue New Zealand Health and Disability Strategies, to make funding agreements with DHBs, to issue directions to, and require information from, DHBs, and to appoint Crown Monitors if there are concerns with their performance, as well as a range of other sanctions and rewards.

   Working through the exact relationship between these policies and the interim generic reference will be one task in the more detailed work.