“Needs not race”: A discursive Tiriti analysis of the 2024 New Zealand cabinet circular on needs-based service provision

Abstract

Following a change in government in New Zealand in 2023 the influence of Te Tiriti o Waitangi has been systematically diminished. This article uses Discursive Tiriti Analysis to examine the 2024 Cabinet Circular on Needs-based Service Provision. The stated aim was to remove ‘race’ as a criterion for public service delivery, in spite of ‘race’ being a word and concept that Te Tiriti did not use. Its contemporary use accompanies a popular rhetorical expression that ‘we are all one people’ demanding assimilation and implying that universal services either work equally well for everyone or that Māori people cannot fairly expect effective service delivery. We make the case against the Circular’s characterisation of equality as sameness, and its substitution of Te Tiriti for race, to counter its exclusion of distinctive Māori engagement and values in service delivery. We argue that despite the Circular’s foundational presumption, New Zealanders are not all the same under Te Tiriti. Explicitly, Māori people never surrendered the right to be Māori and to exercise authority over Māori affairs. We argue that there is a causal relationship between the weakening of decision-making authority and the advantages that other population groups experience vis-à-vis Māori across a range of policy indicators. Discursive Tiriti Analysis is a decolonising method that can be used to explain the master narratives of state authority that appear, with no obvious Māori contribution, in the Circular. Te Tiriti remains foundational to efforts to restore Māori authority over Māori affairs and substantive equality so Māori people can exercise mana motuhake in public life as Māori citizens.

Introduction

Internationally, the violence, racism, deprivation of liberty, alienation of resources and diminished authority over land, people, culture and environment that colonialism requires cumulate as determinants of ill-heath (Paradies, 2018; Waitangi Tribunal, 2019). In New Zealand, extensive scholarship over time and successive Waitangi Tribunal reports have shown that colonial development processes, policies and practices have been life-ending and determining (Waitangi Tribunal, 2019). Colonisation has a long international history, but at its contemporary core is the nineteenth century enlightenment construction of race which positions people, by origin and culture, on a scale of human worth (Salmond, 2017). Te Tiriti o Waitangi did not use the term and Salmond (2022) shows how the relationships and Māori authority it envisaged are grounded in whakapapa (relationships among people and their natural environment), an entirely different concept. Nevertheless, race is a recurring theme in the libertarian ACT and populist nationalist New Zealand First political parties’ attempts to diminish Māori culture, language and ways of life in the interests of sameness as a political ideal.

Colonialism has involved the supplanting of key Māori systems of health, education and justice with the bureaucratic systems of the state (Human Rights Commission, 2022) which Te Tiriti proposed should serve everybody’s interests equally well and therefore eschew those colonial characteristics that the Cabinet Circular advances. To this extent, the Circular builds upon breaches of the rangatiratanga asserted in He Whakaputanga o te Rangatiratanga o Nū Tīreni – the Declaration of Independence (He Whakaputanga) (Sadler, 2015) and in Te Tiriti o Waitangi. It infringes, too, on the mana motuhake of those iwi and hapū who chose not to sign Te Tiriti. The colonial institutions which dominate the current social landscape were established to serve the interests and cultural preferences of the Pākehā (white settler) population. In health, this has manifested in Pākehā receiving better quality and quantity of care, resulting in higher life expectancies than non-Pākehā populations (Brown and Bryder, 2023; Harris et al., 2012). The presence of institutional racism against Māori is clearly manifested through inequities in social, economic, and educational outcomes (Talamaivao et al., 2021). Yet, the state and its institutions need not operate in colonial ways and, as our analysis shows, Te Tiriti provides insights into how and why.

Te Tiriti o Waitangi (the authoritative Māori text) negotiated in 1840 (Kawharu, 1989) defines the relationship between sovereign hapū (nations) and the British Crown, and the authorities and responsibilities that belong to each. The Preamble sets out the intention of both parties to enter into a mutually beneficial relationship and outlines the terms and conditions of British engagement. Through Article One, the British were granted the right to establish kāwanatanga (government) balanced, constrained and contextualised by the second and third articles. Article Two affirmed hapū tino rangatiratanga (absolute authority not subject to Crown interference). Hapū authority had previously been acknowledged in the 1835 He Whakaputanga (Salmond, 2022). Article Three granted Māori the same rights and privileges as British subjects grounded in equal tikanga and continuously evolving as New Zealand citizenship. The final oral article provides insight into the meaning of equal tikanga. It affirmed cultural and religious freedoms at the request of the Roman Catholic Bishop Pompallier who was concerned to protect his mission, but the significance of this agreement was broader and aimed to protect religious cultural practices generally.

Te Tiriti has been systematically breached by the Crown since 1840 and well into the 2020s (2011; Waitangi Tribunal, 1998, 2021). Walker (1990) has described the breaches as requiring ‘ka whawhai tonu mātou’ – the struggle without end – as Māori have resisted colonisation, forced assimilation and other breaches of Te Tiriti since its conclusion. Māori have engaged in hīkoi, petitions, delegations, occupations, advocacy, and built the tino rangatiratanga movement to restore Māori authority (Harris, 2004; Awatere, 1984) with at times significant public support (Abbott, 2022; Bell, 2024; Dam, 2022; Huygens, 2007).

Some governments have taken small but significant steps to support Māori pursuit of substantive equality and public policy that is to some extent consistent with Te Tiriti (Belgrave, 2014; O’Sullivan, 2007). For instance, some health and social service delivery responsibilities were devolved to iwi and other Māori service providers in the 1980s and 1990s – the presumption being that Māori were better placed than the state to make decisions about the health and social services that Māori ‘needed’ (Cooper, 2000). Yet colonial developments persist such as the Clark Government’s removal of the right to test customary claims to the foreshore and seabed through the courts, legislation which was subsequently repealed under a Māori Party confidence and supply agreement with the National Party (Jackson, 2006).

The three-word slogan ‘need, not race’ recurs in political discourse to diminish rangatiratanga. The argument was especially influential after the National Party leader Don Brash’s (2004) Orewa speech (a speech so styled after its place of delivery), arguing that we were all New Zealanders and Māori did not deserve what he described as “special privileges”. Brash has continued to promote “equality” over an alleged Māori “birthright to the upper hand” through winding back the influence of Te Tiriti. After Brash’s speech, his party’s standing in public opinion polls increased dramatically and, in response, the Clark Government (1999-2008) appointed Trevor Mallard (2004) as Co-ordinating Minister Race Relations tasked with pursuing a campaign against ‘race-based policy’ in an effort to secure voters. However, this period also gave rise to an important countervailing force in Māori political activism: the founding of the Māori Party in 2004. Emerging directly from Māori opposition to the Foreshore and Seabed legislation, the Party signalled a new era of political agency, representing Māori perspectives in Parliament in new ways and advancing the case for rangatiratanga.

Since assuming office (November 2023), the National-led Coalition Government has defended its anti-Tiriti policies and allowed the Principles of the Treaty of Waitangi Bill’s introduction and reference to a select committee, despite the National and New Zealand First parties’ opposition. There was also a significant national hikoi – a protest march attended by at least 42,000 people, and an urgent hearing before the Waitangi Tribunal ¹ which found that the Bill was an especially egregious breach of the agreement. The Tribunal has upheld claims that coalition government policies breach Te Tiriti in domains such as the care and protection of children, the destruction of smokefree laws, the abolition of Te Aka Whai Ora, undermining the possibility of guaranteed Māori representation in local government, and ‘fast track’ resource exploitation.

In this paper we use Discursive Tiriti Analysis (McCreanor et al., 2024) to examine the Coalition Government’s Cabinet Circular CO (24)5 (2024) as a foundational directive that informs its Tiriti policy.

Method

On the understanding that discourses can privilege particular realities and exclude or marginalise others, discursive analysis focuses attention on linguistic devices that construct popular understandings, or ‘common sense’, through unexplained assumptions, strategic silences and talk or text (Fairclough, 1995).

A specialised critical research approach, Discursive Tiriti Analysis (DTA) (McCreanor et al., 2024), is a multi-stage method in which Māori leadership is essential. DTA takes the position that words matter, drawing strength from a whakataukī that observes ‘the taiaha can be parried aside but words go straight to the heart’, both in terms of Te Tiriti but also in terms of interpreting text that refers directly or indirectly to Te Tiriti. Stages include: i) gathering a research team, Te Tiriti and critical discursive analysis scholarly expertise; ii) select a text for analysis; iii) develop research questions; iv) undertake a fine-grained textual analysis through the lens of Te Tiriti; and v) construct a Māori final word. In this last stage, Māori co-researcher(s) offer an overall contextualising answer to the research question.

Stage One – gathering the team. The co-authors for this paper are HC, a Pākehā critical scholar with a background in public health, social justice activism and Tiriti justice; GB has whakapapa connections to Ngāpuhi, Ngātiwai and Te Rarawa iwi. He has a background in public health, Māori development and is a proud pāpā to many mokopuna; DO is Te Rarawa. He is a professor of political science and honorary fellow of the Royal Society of New Zealand; TM is a Pākehā social scientist who believes Te Tiriti protects us all, dreams of social justice and works in Māori health research.

Stage Two – selecting the text. The text that we examined is the Cabinet Office (2024) Circular CO (24)5, which was circulated in mid-September 2024. It is a two-and-a-half-page directive to all public service agencies that outlines the government’s expectations in relation to the provision of public services “for all New Zealanders” (p.1).

Stage Three – research question. Our core research question asks: how does the Circular perpetuate the master narrative that “we are all one people” and are we therefore subjected to the same universal rights, policies and norms? Stage Four – fine-grained textual analysis. The detail of this analysis is presented within the findings section, where we use the elements of Te Tiriti as the key lenses to focus on the discursive forms and content of the Circular. Stage Five – He Whakaaro Māori. This is an overall assessment of the alignment of the Circular against Te Tiriti o Waitangi as presented by GB, a Māori co-author, of this paper in the concluding Māori final word.

Analysis

The Cabinet Circular (Cabinet Office, 2024) was drafted to give effect to the Coalition agreements between the National Party and the ACT and New Zealand First parties. It sets out expectations for how government service design, commissioning and delivery should be based on the needs of all New Zealanders (National Party and ACT Party, 2023; National Party and New Zealand First, 2023). The Circular sets out how the Coalition expects the machinery of government to operate under five headings – purpose, application, contest, what is required, and distribution. We consider the construction of its central concerns in the first four of these headings, which we have reproduced section by section.

Purpose

1. This circular sets out Government expectations for how the targeting, commissioning, and design of public services should be based on the needs of all New Zealanders.

2. This circular gives effect to the commitment in the coalition agreements between the National Party and the ACT Party, and between the National Party and the New Zealand First Party, to “issue a Cabinet Office circular to all central government organisations that it is the Government’s expectation that public services should be prioritised on the basis of need, not race.”

It is no small irony that there is a broad though contradictory parallel between the statements of intent represented by the Purpose and the Preamble to Te Tiriti. The former is an expression of colonial control while the latter clearly expresses the aim of upholding mana motuhake by controlling hostile settler (and visitor) practices in 1840.

Our first observation is that the voice of Māoridom (specifically He Whakaputanga and Te Tiriti) is deafeningly silenced in the Purpose, in favour of the aspirational or imagined polity they call ‘all New Zealanders’ – evoking and mis-reading Hobson’s ‘One People’ claims at Te Tiriti signings – and that this usage is continued in all other sections of the document. We note that this populist phrase evokes settler mythology (Jackson et al., 2019) in the characterisation of the nation as comprising ‘one people’ based on a comment that Hobson made to Māori signatories in te Reo in 1840.

A second point of contention is in the slogan “need, not race”, a product of coalition negotiations that amounts to a revolution against Te Tiriti and the shared history of Māori–Crown relations. The Circular mischaracterises equality by using ‘race’ rather than Te Tiriti as its framework. In the process, Te Tiriti is unable to take its place as an instrument of equality that could support the development of a fair and just society.

While race is a highly contested term that is undercut by genetic science in particular, its manifestation through discrimination against Indigenous peoples (and other marginalised groups) is common and well established. Indeed, racism is recognised as a key determinant of life outcomes in settler-colonial societies in areas including health, education and economic status (Paradies, 2018). However, for the ACT Party, race is closely linked to notions of rights, privilege and injustice, where it is illogically reversed to argue that it unfairly disadvantages settler peoples. It may be expressed alongside various bogus examples of white exclusion and Māori ‘privilege’.

The term ‘need’, however, in this context is a key concept from neoliberal theory and its associated ideas of economic rationalism (Kelsey, 1995). ‘Needs testing’ is used to justify cuts to government social (and cultural) policy budgets. In this sense it is an instrument through which the common resources of society and their distribution can be measured, costed and rationed in ways that impact profoundly on the lives of people, communities and society at large. By binding the public service provision to ‘need’ in the Circular, the government favours colonial authority that reproduces injustices and disparities that define Māori life outcomes through breaches of Te Tiriti.

Juxtaposing the concepts of ‘need’ and ‘race’ produces a convergence that at once achieves the discounting of Te Tiriti and the promotion of economic rationalism based on the lands, waters, resources and, often, labour of te ao Māori. In this process, Māori people are economically, politically and socially marginalised, and the distribution of power, influence and responsibility outlined in Te Tiriti is rendered impotent. In its place stands a systemic monocultural approach to policymaking, where spaces of rangatiratanga and mana motuhake outside the Crown, and spaces of influence within the Crown through equal tikanga, are foreclosed.

This erasure in relation to Te Tiriti contradicts the Cabinet Manual (Department of Prime Minister and Cabinet, 2017) and the earlier Cabinet office (2019) Circular 19(5) which required Ministers and officials to give due consideration to Te Tiriti responsibilities as they are variously defined. It breaks with much Tiriti-based jurisprudence, including the Waitangi Tribunal (2004) finding that sovereignty was not ceded and that rangatiratanga remains an important check on executive authority. The Purpose appears to anticipate the ACT Party’s purpose in relation to the Treaty Principles Bill and indeed the Circular makes little sense without this as supportive legislation.

Recalling that Te Tiriti guarantees rangatira and hapū mana motuhake over “ngā taonga katoa”, the Circular by contrast presents the Cabinet as all-powerful, discounting te Tiriti’s distribution of power to the extent that the agreement is unable to influence ministerial decision-making. As such, the Purpose of the Circular is part of what many are experiencing as an anti-Māori, anti-Tiriti policy platform, through attacks on the Māori language, punitive, evidence-denying approaches to youth justice and industry-favouring tobacco regulations, to cite just a few examples (Bailey-McDowell, 23 August 2024) that negate the promise of control of ngā taonga katoa.

Ōritetanga, the central concern of Article Three, points to the rights, capacities and responsibilities of citizenship which belong equally to Māori and other people and may be given effect through participatory parity in Crown decision-making and the Māori right to control Māori interests (O’Sullivan, 2024). The Oral Article is a guarantee of spiritual, religious and cultural freedom, yet no Māori concepts such as te reo me ōna tikanga, let alone the right to believe, to dream, to hope in Māori ways, are mentioned in the Circular. Rather it is relentlessly ‘culture blind’, as if all New Zealanders are ‘the same’, regardless of the colonial history and present and the systemic breaches of Te Tiriti that contribute to inequitable life outcomes.

Application

3. The expectations set out in this circular apply to public sector agencies, as defined in paragraph 3.5 of the Cabinet Manual 20231.

4. All public service chief executives and those in their agencies who undertake activities related to this circular must follow the expectations. Where Crown entities, state-owned enterprises, or other public sector agencies have roles in service design, commissioning, and delivery, they should comply with the expectations as far as possible, taking into account their legal obligations, statutory functions and duties.

Here the Circular requires ministers and officials, regardless of their whakapapa, to abandon the good faith and mutual benefit requirements of the Preamble in favour of minimising Māori values and aspirations inside government ineffective. This presence is reasonably expressed in the “design, commissioning and delivery” of services.

Context

5. The Government seeks to ensure that all New Zealanders, regardless of ethnicity or personal identity, have access to public services that are appropriate and effective for them, and that services are not arbitrarily allocated on the basis of ethnicity or any other aspect of identity.

6. The International Convention on the Elimination of All Forms of Racial Discrimination provides that:

“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”

7. The Government is concerned that in the absence of clear expectations, agencies may use ethnic identity or other forms of personal identity as a proxy for need, and therefore a justification in itself for targeted services. The requirements in this circular aim to address this concern.

In point 5 of Context there is a disconnect between Crown responsibility to provide “appropriate and effective” services and the injunction that these must not be “arbitrarily” imposed. Alongside the failure to recognise the point of the Preamble, this Context overlooks a Māori right to shape, influence and develop public services. In addition, Article Three provides Māori with all the rights of British subjects, such that provision for Māori needs to be at least equivalent to the standards of “appropriate and effective” services that are offered to other citizens. On this first point we would ask if public toilets with gendered amenities, ramps and lifts for wheelchair access in buildings or facilitated boarding amenities for less-able folk on public transport would fit this requirement and therefore why not a Kōhanga Reo or a well-funded Māori health service?

Given that such commonplace examples are thoroughly naturalised into our society, it is hard to understand the subsequent point about allocation. This appears to suggest that people need to be protected from being forced to attend or use services that already orient to ethnicity, ableness, gender or other diverse aspects of identity that are different from their own.

Nevertheless, we are sure that this is not the intent and that what is meant is that conventional, oppressive ‘one-size-fits-all’ approaches that minimise expenditure are envisioned.

The Circular cites the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1969), at point 6, specifically the clause pertaining to affirmative action or “special measures”, seemingly in an effort to legitimate Cabinet’s association of such practices with permanent separate rights for different ethnic groups. However, in relation to Te Tiriti rights for example, this clause undermines Cabinet’s position since the cited passage acknowledges that “special measures” to protect specific groups do not constitute “racial discrimination”. It also conflates enduring rights of tino rangatiratanga with special temporary rights to address historic harm (O’Sullivan, 2020).

The final point strengthens this understanding with the caveat that such provisions should not be continued after the rights and protections under consideration “have been achieved”. A vast array of evidence on disparities, discrimination and exclusions (Ajwani et al., 2003; Marriott and Sim, 2014) show that interpersonal, institutional and societal racism persist and proliferate, so that special measures remain entirely justified until the political disparity that arises when rangatiratanga is diminished and citizenship is given a foundation that does not include equal tikanga are addressed. Poor social outcomes are not the primary problem in themselves, but an unsurprising consequence of the underlying political disparity. It is fair to say that special measures are not substitutes for the political causes of inequity, but this does not make them unjust as temporary measures.

Te Tiriti means that whakapapa is a founding determinant of rights and needs (Salmond, 2022). However, much colonial authority attempts to deny the agreement was signed between the British Crown and sovereign hapū, as nations or independent political communities. The Preamble and Article Two are Britain‘s acknowledgement of Māori tino rangatiratanga. In point 7, the Circular over-reaches the bounds of honourable kāwanatanga to substitute these constitutional foundations for a unilaterally imposed piece of economic rationalism, to enhance the privilege and position of the colonial status quo.

What is required

8. Consistent with this context, Cabinet expects that:

8.1 when considering proposals for services targeted to specific population groups, agencies should engage responsible Ministers early about choices or options being considered and:

 8.1.1 provide a strong analytical case for targeted investment (based on empirical evidence about why such interventions are necessary, i.e. the disparity in outcomes between the target and the general population and why general services are not sufficient to address this), and an assessment of any opportunity costs in terms of the service needs of all New Zealanders; and

 8.1.2 provide clear advice on how service design, funding, prioritisation, eligibility criteria, and frontline resources can be aligned with this assessment of need.

8.2 when proposing services (including those designed or delivered in a culturally specific or responsive way) agencies should provide clear analysis of the proposed service model, including:

 8.2.1 why and how it is expected that such a model will improve the efficacy of the proposed service and how it will be evaluated over time;

 8.2.2 how such a model will impact on competitive tendering for the service or its total cost.

8.3 where culturally specific models are used, eligibility should not be restricted to the specific population group unless there is a strong rationale (e.g. value for money).

8.4 agencies should regularly review services targeted to specific population groups to ensure they remain necessary to achieve their original objectives.

9. In making the assessment above, Cabinet expects agencies will recognise that there are many variables that can be used to identify and assess need, and that all variables should be considered before ethnic identity is automatically used to determine need.

Here the revolution we have identified earlier is manifest in the requirements for fiscal and ongoing evaluation (8.1.2) that are not applied to generic policy development. This marginalises the rights of self-determination found in Article Two and removes any sense of parity found in Article Three. This means that Māori seeking Te Tiriti-consistent legislation and policy must contend with diverse barriers, tests and standards, non-exclusivity (8.3) and perpetual review (8.4) that are entirely sourced in Crown authorship and ideology, and then unilaterally developed, applied and executed.

We notice in particular the statement in the requirement that innovations based on identity must explain “why general services are not sufficient” to address entrenched disparities, along with the assessment of “opportunity costs” in terms of for all New Zealanders. These are expressions of the ‘one-size-fits-all’ paradigm that characterises the colonial/partisan approach to service provision that has long been used to ensure that societal institutions are best-oriented to anglophone settler interests at the expense of Māori and all (non-white) others.

This set of rules of engagement expresses dishonourable kāwanatanga, ignoring completely the intent of Te Tiriti and the constraints on kāwanatanga in Article One, in favor of positioning “ethnic identity” (clearly meant to be read as Māori identity) as the last resort (9) in terms of determination of ‘need’. The Cabinet Circular is a message to those working within departments and agencies that they are now under extra scrutiny over any development of targeted services in a manner that diminishes any distinctive Māori voice. This point is reinforced in 8.1, which requires agents to keep the responsible minister in the loop “early”, presumably in order to encourage rapid elimination of proposals or inspirations that do not fit the current ideology.

Discussion

The Cabinet Circular comprehensively and intentionally erases the relevance of Te Tiriti to policy development and the targeting, commissioning, and design of public services. The absence of culture and ethnicity in the Circular at once recentres and naturalises the monoculturalism of state practice (Ministerial Advisory Committee on a Māori Perspective for the Department of Social Welfare, 1988). Dominant settler-colonial cultural preferences and traditions will be further privileged as ordinary and normal. Spaces of rangatiratanga outside the state, and spaces of influence within the state are not mentioned and the wisdom and potential of the Preamble and the Articles are, therefore, absent.

Successive Waitangi Tribunal reports (2021; 2016; 1998; 2004; 1986), in areas as diverse as education, health, broadcasting and geothermal energy, show that Māori and other New Zealanders see Te Tiriti as an instrument of enduring policy significance. Recent research commissioned by the Human Rights Commission (Horizon Research, 1 April 2025) found 90% of participants thought honouring Te Tiriti was important. This is the significance that the Cabinet Circular seeks to curtail and minimise.

The Circular’s master narrative that “we are all one people” signals Cabinet’s interpretation that colour-blind uniformity or monoculturalism should prevail over the foundational Tiriti rights of Māori. The Circular assumes Cabinet authority unchecked or not contextualised by tino rangatiratanga (O’Sullivan et al., 2021).

The Circular asserts that everyone has equal access to essential services which can be equally efficacious for all people without regard to the distinctive circumstances of people’s lives that arise from cultural preferences and colonial context. It assumes that there is a level playing field without regard for uneven political rights and capacities. Equality may be conceptualised as sameness, but even at the level of the individual, it is a false equality because it fails to recognise that racism and colonialism require that not everybody has the same opportunity.

Inequities in social outcomes are the tangible evidence of the presence of discrimination. These inequities are fuelled by long-standing intergenerational trauma – land confiscations, warfare, economic destruction, broad-scale dispossession, imposed laws, language and culture – enacted against Māori. The Circular misrepresents equality (Borell et al., 2018) and wrongfully presumes that colonialism has no impact on contemporary negative, differential social, economic, educational and health outcomes for whānau, hapū and iwi.

Culture and well-being are protected rights, but they cannot ensure the essential liberal aims of equality, freedom and autonomy if they belong to everybody in the same ways. This is specifically because communities – Māori, Pākehā and others – cohere around shared explicit and implicit worldviews that often require particular policy arrangements and settings in order to meet local and societal aspirations for justice, fairness and well-being. Individuals and communities both encompass commonality and variability, as well as the capacity to change over time and circumstance, and communities are usually both normative and somewhat flexible.

The Circular makes no reference to the Declaration of the Rights of Indigenous Peoples.

(United Nations, 2007) which guarantees and protects the distinct permanent collective human rights of Indigenous Peoples. Through its universalising omissions, it ignores Te Tiriti and the distinctive collective human rights of Māori despite the New Zealand Government’s formal endorsement of the Declaration (Key, April 2010). The Circular gives no consideration to the intersectional nature of oppression (Crenshaw, 1991). We have specific human rights conventions and declarations for different groups in recognition of the oppression of different population groups in relation to gender, disability, and ethnicity (Baker et al., 2021). This Circular masks the unique and complex needs of all people including for example, tangata whaikaha, for whom generic service provision does not work equally well.

The liberal ideology behind the Circular is broad, supposing that equality requires minimising difference, such that human freedom and individual autonomy require that nobody holds rights or privileges unavailable to others. In opposition to the view that Te Tiriti theoretically allows liberal democracy to work as well or as badly for Māori people as for anybody else (O’Sullivan, 2024), the ACT Party view influencing the Circular is that “New Zealand is at a constitutional crossroad. In one direction is liberal democracy. In the other is co-government: power-sharing between one ethnic group and all others” (National Party and ACT Party, 2023: 1)

For New Zealand First, whose nationalism places it on the fringe of the liberal tradition, equality means resisting “policies for the few” and that “equal access to … health” means that it “must not be a balance sheet item” (National Party and ACT Party, 2023). While there are arguments for increased expenditure on Māori health (Waitangi Tribunal, 2019), this is not the Circular’s concern, and the significance of Te Tiriti is larger than any one policy priority. One of the reasons is that its text presumes equality through difference in how it distributes authority and responsibility to support its commitment to ‘honourable kāwanatanga’.

In the policy settings to which the Circular is now crucial, difference is important because people and think and act from different perspectives and are reasonably influenced by culture and political experience in coming to their views about what policy is for and what it should achieve. This characteristic of human reasoning becomes an obstacle to equality if it is diminished through the imposition of uniformity. This is not a political problem if one accepts the insistence of Te Tiriti that there are different spaces of political authority for making decisions about how, why, for whom and by whom policy decisions are made (O’Sullivan, 2024).

While ‘equality’ is widely held as an ideal to strive for, to prescribe what it looks like for others, as the Cabinet Circular appears to, is to claim it as a task of government, in the process denying human agency as an expression of human equality. Freedom and autonomy mean that people have to be able to define and seek equality for themselves. Rangatiratanga means that Māori should be able to do this without government hindrance and, indeed, as citizens they should have the same rights and opportunities as anybody to use the authority and resources of kāwanatanga to that end.

The position that equality cannot mean sameness, became especially significant when substantive political authority transferred from the person of the Queen to government (responsible to parliament) in 1854 (New Zealand Constitution Act 1852 (UK)). Equality cannot occur unless government through parliament is, in turn, responsible to all and not just some people. This is nowhere more obvious than in the domain of public health policy and practice.

The Māori Health Authority – Te Aka Whai Ora expressed the principle of substantive equality, rather than equality as sameness, by ensuring that a proportion of the resources and authority of the state were under Māori direction, for purposes determined by themselves according to tikanga. It created new opportunities for substantive equality as a response to health status being entrenched through unjust intergenerational disadvantage. Te Aka Whai Ora was neither a special right over and above the ordinary rights of other citizens, nor an instrument of temporarily justified affirmative action, simply because it was an expression of a right to be Māori (Came et al., 2021).

The Waitangi Tribunal’s (2021) Haumaru: The COVID-19 Priority Report provides another contemporary example of why Tiriti presumptions about the distribution of political authority and responsibility matter – and, especially, why they matter to Māori people’s equal opportunities for good health. This, in turn, explains why the Cabinet Circular’s emphasis on equality as sameness is inconsistent with Te Tiriti and likely to be harmful to people’s opportunities for good health and thus a false equality. The Tribunal found that the government’s COVID-19 Delta strain vaccine strategy gave Māori people an unequal opportunity for protection from the virus. It did so by setting an age of eligibility for the vaccine that was too high relative to the Māori population’s younger age profile. Therefore, proportionately fewer Māori people were vaccinated (Waitangi Tribunal, 2021).

It is, then, instructive to refer to Rawls’ (1971) “veil of ignorance” (p.12) to show, once again, why equality as sameness is not possible. Behind this veil, principles of justice and political order that are fair to everyone because nobody making these decisions knows the “race, ethnicity, gender, age, income, wealth, natural endowments, comprehensive doctrine, etc. of any of the citizens in society, or to which generation in the history of the society these citizens belong.” Nobody behind the veil knows “the political system of the society, its class structure, economic system, or level of economic development” (Wenar, 2021, 4.6. para. 6). Thus, no person would envisage a society that works through the exclusion of others lest they be excluded themself.

People do, however, know their circumstances. From these circumstances, people have argued, before the Waitangi Tribunal and elsewhere, that equality may be pursued with reference to the distribution of authority and responsibility that Te Tiriti sets out. It cannot be pursued when these distributions of authority are not present. Rangatiratanga means that Māori are obliged to work out the attributes of equality for themselves and are entitled to pursue them independently, through their own political communities, and through kāwanatanga as culturally equal shareholders in its authority (O’Sullivan, 2024).

Conclusion: He Whakaaro Māori

Every act of oppression serves to strengthen the resistance against it. The course of history shows that the political denial of a people, no matter the process, or the timeframes, leads to long-lasting social, economic and cultural trauma, systemic inequality and, in some cases, violent resistance and revolution. Resistance, as Said (1994) has noted, is not merely a reaction to imperialism, but is an alternative way of conceiving history.

The Cabinet Circular and its directives, have to be considered in the context of a plethora of anti-Māori policy and legislative changes that are fracturing the relationship between Māori and the Crown (Clark and Hill, 19 September 2024). This context is very important, for it positions the Government in direct conflict with Māori. The rationale behind many of the Government’s changes is to “end race-based policies, tackle crime and reduce bureaucracy” (National Party and ACT Party, 2023; National Party and New Zealand First, 2023) This ideology reflects the broad set of political values and priorities the government champions. These priorities are typical of conservative coalitions that seek to limit state intervention, promote individual rights (as opposed to group rights) and prioritise law and order over social equity concerns.

But the changes are widely seen as regressive, provocative and particularly dangerous for Māori. The breadth, depth, scale and speed with which they are being promulgated is unprecedented. Such actions are widely perceived as a targeted and major attack on Māori self-determination, posing an existential risk to the relationship between Māori and the Crown. The reduction of culturally specific programmes that address inequities is not only regressive but places the country on a path toward heightened racial tension. By framing these shifts as “ending race-based policies,” the government risks legitimising systemic inequality and undermining the very essence of partnership and justice embedded in Te Tiriti. This approach threatens to unravel the trust that is vital for any shared future, casting a long shadow over New Zealand’s aspirations for unity and equity.

The Circular ignores the significant historical and structural inequities faced by Māori due to colonisation, systemic racism, and institutionalised inequities. It fails to acknowledge that the disproportionate needs of Māori arise from these historical injustices. Empirical evidence shows that mainstream services do not meet the needs of Māori, and targeted services are essential to address disparities in health, education, and other sectors (Harvard Kennedy School, 2025). The Crown has both ethical and legal obligations under Te Tiriti to protect Māori rights, with targeted services necessary to achieve equitable outcomes. International frameworks, such as CERD, also support targeted measures for marginalised groups. Finally, we note that race-blind approaches have historically failed Māori, and addressing Māori-specific disparities through targeted interventions is both socially and economically beneficial in the long run.

It would appear that the current Government’s “needs-based” policy direction is driven more by ideological concerns than evidence-based policy. Māori public health experts (Loring et al., 2024) have argued that the Coalition’s ‘colour blind’ approach to public services overlooks extensive scientific and empirical data showing that ethnicity is a critical marker of need, especially in healthcare. They highlight that ignoring ethnicity in service allocation undermines the ability to address deeply entrenched disparities, particularly for Māori, who have long faced inequities in health, education, and other areas. They argue that targeted interventions based on ethnicity are essential for effectively allocating resources to those most in need. The directive being pushed by the Coalition through the Cabinet Circular appears to stem from a political stance prioritising a ‘one-size-fits-all’ model, which in practice may perpetuate existing inequities rather than reduce them.

Finally, the Cabinet Circular, along with the broader policy and legislative programme, represents a significant challenge for Māori rights and autonomy. It is deeply concerning that the government has chosen a path that risks undermining the foundations of equity and partnership which Māori have long fought to secure. This is particularly troubling given the speed and intent with which these changes are being implemented, changes that disproportionately harm Māori whānau and the Māori world.

However, amidst these challenges, there is another path forward. The vision of Kīngi Tūheitia for kōtahitanga offers us a way through these divisions (Dalton-Reedy and Gunson, 21 August 2024). His call for unity is not about ignoring our differences but about creating a nation where those differences enrich us. It is a vision of inclusivity, where there is room for everyone – where the rights of Māori are not seen as a threat, but as a foundation for a more just and equitable society for all.