Covid 19 Delta outbreak: Waitangi Tribunal says Crown 'actively breaching' Treaty in Covid response for Māori

The Waitangi Tribunal has found the Crown "actively breaching" the Treaty of Waitangi on multiple levels in its vaccination strategy and shift to the traffic light system.

It also says the Government failed to prioritise Māori despite the known inequitable health outcomes due to "political convenience" and "fear of a racist backlash".

It has recommended a raft of changes to the Covid response, including better resourcing and partnering with Māori organisations and prioritising Māori in the vaccine booster rollout and for 5 to 11 year olds.

The nature of the vaccination rollout and shift to the Covid-19 Protection Framework had consequently put Māori at a "disproportionate risk of being infected by Delta", the tribunal found.

Prior to the Delta outbreak in August, Māori were fully vaccinated at just over half the overall rate, partly due to access issues and the rollout prioritising older groups first (as a population Māori are much younger than average).

Since the rollout opened to all eligible ages from September 1, Māori have been vaccinated at the fastest of all ethnicities - about double the rate of Pākehā - however it was too late for Delta, with Māori quickly making up a disproportionate number of cases.

The tribunal carried out a week-long hearing, brought by Māori leaders to consider whether Te Tiriti o Waitangi principles of equity and active protection were and are honoured in the vaccine rollout, in moving the country to the traffic light system, and in loosening of the Auckland boundary on December 15.

Prior to that opening, as at December 13, although Māori comprised 15.6 per cent of the population, Māori comprised over 50 per cent of the Delta cases, 38.6 per cent of hospitalisations, and 45 per cent of associated deaths.

"The statistics speak for themselves," the report Haumaru, released today, said.

Concerning the vaccination rollout, the tribunal found Cabinet's decision to reject advice from its own officials to adopt an age adjustment for Māori breached the Treaty principles of active protection and equity.

Regarding the Crown's Covid-19 Protection Framework, the tribunal found while a new
framework was necessary rapid transition into the framework happened faster than the Crown's officials and experts recommended.

It also occurred without the original vaccination thresholds for each district health board being met and did not adequately account for Māori health needs.

"As such, Māori are put at a disproportionate risk of being infected by Delta in comparison to other popular groups," the report said.

"This breached both the principles of active protection and equity."

The rapid shift had also put Māori health and whānau ora providers under "extreme pressure and undermines their ability to provide equitable care for Māori".

"This is in breach of both the principles of tino rangatiratanga and options."

The decision to shift into the new framework also came despite "strong, unanimous opposition" from Māori health leaders and iwi that were consulted.

The report includes a letter from Prime Minister Jacinda Ardern to the NZ Māori Council, in which she says setting vaccination targets for Māori before relaxing restrictions could create "a perception amongst some, that that group is preventing the country from opening up more quickly".

The tribunal said it suspected similar rationale was behind the decision not to follow expert advice - including from director general of health Dr Ashley Bloomfield - and prioritise Māori with lower age bands due to the higher health risks.

"Given there was a clear public health rationale for the prioritisation of Maaori in the vaccine rollout, fear of a racist backlash against Maaori is not a good enough justification for failing to take all reasonable measures to ensure equity."

The Crown had also failed to consistently engage with Māori effectively on key decisions in its pandemic response.

"These actions are in breach of the principle of partnership."

The tribunal said the Crown would remain in breach until it ensured an "equitable vaccine rollout, which protects the Māori population equitably".

It recommended the Crown urgently provide further funding, resourcing, data, and other support to assist Māori providers and communities with:

• the vaccination effort – including the paediatric vaccine and booster vaccine;

• targeted support for whānau hauā and tāngata whaikaha;

• testing and contact tracing;

• caring for Māori infected with Covid-19; and

• self-isolation and managed isolation programmes

Chair of the National Urban Māori Authority and one of the 40 claimants Lady Tureiti Moxon said the tribunal had made "strong, and unequivocal recommendations that will make a real difference to power sharing and resource sharing between Māori and the Crown".

The tribunal also recommended the Crown improve its collection of ethnicity data and
information relevant to Māori health outcomes.

The tribunal said the Crown needed to improve and work better with different providers to make it public and easier to understand, and better monitor how its policies work for Māori.

With the rollout for 5 to 11-year-olds due to begin in January, the tribunal recommended both the vaccine and booster vaccine rollout expressly prioritise Māori and be supported by adequate funding, data, and resourcing for Māori providers.

The tribunal also recommended the Crown strengthen its engagement with its Treaty
partners, including a new national collective being developed, with key ministers and Crown officials involved.

A spokesman for Covid-19 Response Minister Chris Hipkins said they would be considering the report and making comment today.

The story has been updated with new comments.