The Government has proposed a significant reduction in the legal obligations tied to the Treaty of Waitangi. Following a comprehensive review of legislation initiated by NZ First in the coalition agreement, Cabinet has agreed to limit obligations to Treaty principles to a threshold of “take into account.”
This shift means that existing legal clauses requiring a higher standard of obligation, such as those stating the government must “give effect to” Treaty principles, would be removed. Justice Minister Paul Goldsmith stated that the move is intended to create consistency across various references made by Parliament over the last 30 to 40 years.
The Drive for Consistency
Minister Goldsmith argued that parliamentary references to the Treaty have varied wildly, using terms such as “honour,” “have regard,” and “give effect to.” He maintains that requiring principles to be “taken into account” is an appropriate threshold.
However, this position contradicts advice from the Minister’s own Ministry of Justice officials. These officials warned that lowering the threshold carries “significant risk to the Māori-Crown relationship” and could have wide-ranging impacts on Māori environmental, economic, social and cultural interests.
Legal and Political Backlash
Associate law professor Andrew Erueti described the proposal as a “major step backwards,” noting that “take into account” essentially allows Māori interests to be subordinated by other competing interests.
The Greens’ justice spokesperson, Tamatha Paul, condemned the move as “dishonourable,” arguing that it diminishes the mana of Te Tiriti by turning a requirement to honour the document into a mere consideration. Paul also noted that the proposal conflates the Treaty of Waitangi with Te Tiriti o Waitangi, documents she describes as “worlds apart in their meaning.”
Warnings of Risk and Secrecy
An independent advisory group established last year had encouraged the employ of multiple terms, including “give effect,” when a specific standard of obligation was necessary. They further warned against the total repeal of Treaty principle references.
Despite this, Minister Goldsmith has proposed the complete removal of Treaty principles clauses in six different laws. Officials noted there was “limited evidence” to suggest that existing provisions were causing the uncertainty the Minister seeks to resolve.
Critics and officials have highlighted a lack of consultation, noting that the process did not include engagement with the general public, external stakeholders, or iwi and hapū. The Waitangi Tribunal previously found that the Crown’s process would breach Te Tiriti, a warning the Government reportedly ignored.
What Comes Next
The plan has now been presented to the Iwi Chairs Forum. While Minister Goldsmith suggested that the Forum likely prefers no changes, he stated that maintaining the status quo is “not really an option.”
A bill incorporating these changes is expected to be introduced before the general election this year. This could potentially lead to a restructured legal framework for how the Crown interacts with Treaty principles across multiple pieces of legislation, excluding Treaty settlement legislation.
Frequently Asked Questions
What is the primary change being proposed?
The Government plans to limit legal obligations to the principles of the Treaty of Waitangi to a “take into account” standard, removing higher obligations such as “give effect to.”
Why does the Government believe this is necessary?
Justice Minister Paul Goldsmith stated the decision was made to achieve consistency, as Parliament has used various different terms to reference Treaty principles over the last 30 to 40 years.
What risks have been identified by officials?
Ministry of Justice officials warned that the changes have “no apparent benefits” and could pose significant risks to the Māori-Crown relationship and Māori social, cultural, economic, and environmental interests.
Do you believe legal consistency in legislation outweighs the demand for specific, high-standard obligations in Treaty partnerships?
