‘As damaging as the Treaty Principles Bill’: Proposed changes to Treaty clauses revealed

Source: Radio New Zealand

Documents filed with the Waitangi Tribunal have revealed the proposed changes which would set government obligations to the Treaty to no higher standard than to simply “take into account” across nine Acts.

Senior Lecturer in Law at Te Herenga Waka Victoria University Luke Fitzmaurice-Brown (Te Aupōuri) told RNZ the impact of the draft Bill could be as big as the Treaty Principles Bill.

“The effect of what’s being done in limiting all these Treaty clauses to ‘take into account’ could have just as damaging effect on the legal weight of Te Tiriti as the Treaty Principles Bill would have. It’s more technical and so it’s kind of harder, I think, to see through some of the smoke screen of that.”

Practically “take into account”, as opposed to stronger wording such as “give effect to”, would mean Treaty obligations would only be one of a number of considerations for decision makers, he said.

“The other option, which Paul Goldsmith seems to be ignoring, is to say, actually, in all contexts, it should have a higher weight. It should have a higher consideration, like ‘give effect to Te Tiriti.’ So the effect would be to limit, to put a ceiling on the weight that Te Tiriti can be given in any given context, and put a very low ceiling on that.”

The draft Bill stems from the coalition agreement between National and New Zealand First which agreed to conduct a comprehensive review of all legislation that includes ‘The Principles of the Treaty of Waitangi’, and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references.

Justice Minister Paul Goldsmith said over the last 20 years, Parliament had passed a range of laws with all manner of references, sometimes being very vague about what they meant.

Reviewing these would ensure Treaty references were specific and consistent with one another, in the interests of increasing certainty and supporting compliance, he said.

“Some Acts are being reviewed through other processes, and all existing full and final Treaty settlements are being excluded.

“The Advisory Group has completed its review and provided the Government with a variety of recommendations.

“As a first step, the Government has agreed to amend two references to be more specific, and repeal a number of references elsewhere.

“The Government has also agreed a reference to both the Treaty of Waitangi and te Tiriti o Waitangi is preferable and should be used in all relevant provisions going forward.

“We are now consulting with Iwi leaders before introducing legislation. It will also go through a full select committee process where all New Zealanders can have their say, including Māori.”

The Acts in question

A letter dated 2 April, signed by ministers Paul Goldsmith and Shane Jones, to the National Iwi Chairs Forum Pou Tikanga co-chairs Professor Margaret Mutu and Aperahama Edwards set out Cabinet’s decisions on which Acts would be affected by the draft Bill.

Five Acts would have provisions referring to Treaty principles repealed:

• Education and Training Act 2020
• Energy Efficiency and Conservation Act 2000
• Land Transport Management Act 2003
• Organic Products and Production Act 2023
• Smokefree Environments and Regulated Products Act 1990

Two Acts would have provisions consolidated and redundant aspects repealed:

• Crown Pastoral Land Act 1998
• Plant Variety Rights Act 2022

Two Acts would be amended to make Treaty Provisions “more specific”:

• Data and Statistics Act 2022
• Hazardous Substances and New Organisms Act 1996

The letter was one of a number of documents released to the Waitangi Tribunal as part of an urgent inquiry into government changes in education, including the proposed removal of Treaty clauses in the Education and Training Act.

The difference between Treaty principles and clauses

Fitzmaurice-Brown said there was a long history of New Zealand courts saying that Te Tiriti was not in and of itself legally binding on government, going as far back as the famous Wi Parata v The Bishop of Wellington decision in 1887 where Chief Justice James Prendergast declared the Treaty to be a “simple nullity”.

That attitude changed slightly in 1941 in a case brought by Ngāti Tūwharetoa Ariki Hoani Te Heuheu Tūkino VI to the Privy Council in London which found the Treaty had some legal effect but only if it was written into legislation, he said.

“It overruled the old law, which completely diminished Te Tiriti, but it still placed this limitation on needing to put references to Te Tiriti in other legislation to give it any teeth and that kind of still stands. And so we still have this rule that for Te Tiriti to have any legal teeth, it needs to be referenced in other legislation first, rather than what we could do and just say Te Tiriti itself is directly enforceable.”

Fitzmaurice-Brown said Treaty clauses were all those provisions in law that tolf decision makers exercising any sort of statutory authority how to take into account the principles of the Treaty of Waitangi.

Those provisions and the different ways they were worded were how much weight the Treaty was given in any given situation, but the Treaty principles, which the Treaty Principles Bill would have changed, had been developed in laws and in the courts over many years and included rangatiratanga, partnership and active protection among others, he said.

“All of those things are the substantive content of what the Treaty relationship entails and these Treaty clauses are slightly different. They take those substantive things and they say, here’s how much weight you have to give those in any given decision. So, do you have to just kind of have it as one of many considerations, or do you have to really prioritise those, or do those have to be the bottom line?”

Fitzmaurice-Brown said there was a bigger question underlying the debate over this draft Bill, that was the place of Te Tiriti in New Zealand’s constitutional arrangements.

“I’m not sure we need to keep upholding this idea that Te Tiriti itself is not directly enforceable anymore. I think we’ve taken this compromise approach for the last 50 years, really, where actually it’s far more obvious to many people now that Te Tiriti or Waitangi itself is our founding document, should have that constitutional weight, and should be able to be directly enforced by our courts, as constitutional documents are in any other country.”

The draft legislation is not expected to be introduced to the House before early August 2026.

Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.

– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand