New Zealand government quietly moves to remove Treaty of Waitangi principles references from legislation
Chelsea Daniels interviews NZ Herald chief political reporter Jamie Ensor about the government's low-profile review of Treaty of Waitangi principles clauses across 23 pieces of legislation.
Summary
The government's largely unannounced decision to amend or repeal Treaty of Waitangi principles references across multiple pieces of legislation is examined by NZ Herald chief political reporter Jamie Ensor, to amend or repeal references to the principles of the Treaty of Waitangi across multiple pieces of legislation. The review stems from a National–New Zealand First coalition agreement and was discovered not through a government announcement but through a memorandum filed on the Waitangi Tribunal website. Justice Minister Paul Goldsmith has confirmed cabinet decisions have been made, but specific details about which legislation will be affected have not yet been publicly released. Critics, including the Green Party, warn that weakening the language of treaty obligations — for example, shifting from "give effect to" to "take into account" — could reduce the Crown's accountability to Māori and potentially trigger legal challenges. The discussion also touches on the consultation question: while the government conducted some consultation with specific Māori groups and affected stakeholders as part of the review process, he notes this falls short of the broader public input that would normally accompany a select committee process, and critics are likely to argue it has not been wide or deep enough.
Key Takeaways
FULL TRANSCRIPT
Introduction
Chelsea Daniels: The government has quietly agreed to repeal several references to Treaty principles within laws. The move, which wasn't publicly announced, follows a coalition agreement to review Treaty provisions across 23 pieces of legislation. Ministers argue the changes will bring greater clarity and consistency, but critics warn it could strain Māori-Crown relationships even further and could trigger legal challenges. So what does that all mean, and does it echo the deeply controversial Treaty Principles Bill in any way? Today on The Front Page, NZ Herald chief political reporter Jamie Ensor is with us to break it all down.
What are Treaty principles references in legislation?
Jamie, let's start with the basics. When we talk about references to the principles of the Treaty of Waitangi in legislation, what does that actually mean?
Jamie Ensor: The principles of the Treaty were first mentioned back in the Treaty of Waitangi Act 1975, and it said that Māori could go to the Tribunal if they had an issue with a government policy or a government action which they believed was inconsistent with the principles of the Treaty. And since then, over time, the mention or the reference of the principles has been added to a number of pieces of legislation. Most people will think of the principles of the Treaty in the context of David Seymour's Treaty Principles Bill. What that tried to do was define what those principles are, because Parliament and legislation hasn't actually said what those principles are. Instead, it's been left to the likes of the courts, to a government document back in the 1980s under the fourth Labour government, which kind of characterised what those principles are. But Parliament itself has never said what they are.
The National–New Zealand First coalition review
Chelsea Daniels: So all of this has come from a review that was promised in the National–New Zealand First coalition agreement. Tell me about that. What did they actually want to have a look at?
Jamie Ensor: National and New Zealand First agreed to have a review that would look at all these references to the Treaty principles, and they would try to make them more specific — replace them with more specific words which highlighted the context of the Treaty within that piece of legislation and how the Treaty could be applied within that specific piece of legislation — or they would repeal the references. The concern from the government, the concern from New Zealand First, was that these references had become a bit too open-ended, a bit too generic, and that was leading to a wide interpretation of what was meant by the legislation. It was going to the courts, it was leading to long litigation in some cases. Shane Jones has highlighted this in the context of resource management, within the context of the environment — that when people went to do some things, another party might say this is inconsistent with what the legislation was saying with regards to the principles of the Treaty, and that would tie things up in the court process. So New Zealand First wanted to have a look at all these references and try to make them more specific, and therefore hopefully make it clearer for people what was actually meant by the reference in the legislation.
Chelsea Daniels: Because when you take things to courts — and people may not know this, I've sat through a lot of court trials myself, and a lot of it is arguing for half a day over the word "the" and "and" and "maybe" and all these different things. So basically what I'm assuming is happening is that they can just tighten that up so when it does get to the courts it doesn't get hung up spending three days talking about whether something means A or B.
Jamie Ensor: That's exactly right. And that's the concern by New Zealand First — they want a more productive economy, they want things to happen more quickly. But instead, a lot of the discussion and a lot of the debate at the court is around those very specific mentions of the Treaty principles and how to interpret that. And I think that comes to the point that David Seymour was trying to make, which is that we don't actually have a definition for those principles. The courts have put something forward, things have been developed over time, but there is nothing black and white in legislation to say what that actually means.
The significance of the language shift
Chelsea Daniels: The change in language — saying that principles have to be "taken into account," that's the phrasing that people have kind of landed on here. What's the significance of that phrasing?
Jamie Ensor: What it seems like the government has landed on — and I say "seems" because the government actually hasn't put out any real announcement or explainer on the actions they are taking — what the government seems to have done is amend some references in some pieces of legislation. And in one case, the Climate Change Response Act, they have said that instead of a strong level of obligation to consider the Treaty, they'll just have something that says "take into account the principles of the Treaty." At the moment, in that Climate Change Response Act, it says you have to give effect to the Treaty by doing a certain number of things. We'll have to wait and see how exactly they're going to amend it. But some people, some commentators, believe that is weakening the obligation to the Treaty. I should also mention that the government has announced that it will repeal some of these references in some pieces of legislation, but we so far don't know which specific legislation they are talking about.
Chelsea Daniels: I was about to say — so details are being withheld about exactly what legislation will have their references repealed and what's being changed. Why do you think that is?
Jamie Ensor: It's unclear at the moment. One view is that a lot of these pieces of legislation that the government reviewed — there are about 23 within the scope of this review — a lot of them aren't household names. They aren't pieces of legislation that we deal with on a day-to-day basis. So there's one view that the big changes or the amendments or potential repeals are going to affect some of these lesser-known pieces of legislation. And the government, and particularly New Zealand First, have made a big deal of this review in the past. They may be concerned that their voters, their supporters, will see that they're actually only editing small things or small pieces of legislation, and they aren't getting essentially what they promised. So that might be why they haven't yet highlighted the exact pieces of legislation. They may also just be waiting for a more formal announcement when they know exactly how they're going to edit these pieces of legislation, and they may reveal it at that point.
Chelsea Daniels: Because I was thinking as well — you use the word "quietly," and nobody really knew that this was happening. Well, they kind of did, but didn't really know that it was happening. It hasn't been announced yet, like you said. And is this something that you'd say they've tried to kind of hide? Because I know the Treaty Principles Bill didn't go swimmingly for ACT in the eyes of the public.
Jamie Ensor: They may be concerned about the perception of this, even if it doesn't actually turn out to be all that big a deal, even if it is just editing some lesser-known pieces of legislation. They may be concerned about what the perception of that is. It may also just be a case that they haven't made a big flashy announcement because they're waiting to get their ducks in a row — waiting to know exactly how they're going to amend everything, the wording of it, because they want to be prepared for questions. But as you say, it has been quite a quiet process. We know this review has been taking place over the past year. We know it was part of that coalition commitment. But they actually made the decisions, or at least one of the decisions about the outcomes of this review, back in February, and we haven't heard anything since then. So it definitely suggests that they are wanting to construct a narrative around what they're doing — that they want to make sure this is presented to the public in the right way.
How the story was discovered
Chelsea Daniels: How did you find out about this?
Jamie Ensor: I was just going through publications on the Waitangi Tribunal website and I found a document filed by lawyers for the government. It was a memorandum highlighting that Cabinet had made some decisions with regards to the Treaty clauses review. I believe the Waitangi Tribunal asked the Crown, back last year, that any updates that were made as part of the review be communicated to the Tribunal. And so I found this memorandum, and it dealt specifically with the changes being made to the Climate Change Response Act. So that prompted me to go and ask the government what other decisions have you made, have you made decisions about other pieces of legislation — and that's what led to Paul Goldsmith, the Justice Minister, who's in charge of this, coming to me and saying, here's kind of an overview of what we're doing, without the specific details.
Chelsea Daniels: People generally don't realise that journalists do have a lot of boring reading lists on the weekend that we read through, and most of it doesn't amount to anything.
Jamie Ensor: Absolutely. A lot of the time you're just going through documents and you find nothing. It doesn't lead to a story. But I was a bit surprised because I would have expected the government to have highlighted cabinet decisions, especially something relating to a coalition commitment. So finding that memorandum on the Waitangi Tribunal website was quite surprising.
What Justice Minister Paul Goldsmith has said
Chelsea Daniels: So what has Justice Minister Paul Goldsmith said about this?
Jamie Ensor: He's highlighted again why the government wanted to do this review — around creating more clarity, providing more specific words in legislation to highlight the purpose of these Treaty references in those pieces of legislation. In terms of what the outcome has been, he's said that they had an advisory panel which provided ministers with advice, so that work is wrapped up. They provided a number of recommendations to the government, and the government, as a first step, has taken these decisions to amend some references and repeal some other ones. Going forward, the government is finalising the legislation that they will put forward to amend these references or repeal these references, and that's something we're hoping to see before the end of this current parliamentary term.
Responses from other parties
Chelsea Daniels: What have other parties said, if anything, about this?
Jamie Ensor: The Green Party has put out a press release. They're quite concerned about the idea that it could be weakening the obligations to the Treaty. They've said that when you have a reference to "giving effect to" something, that's quite specific — it highlights the actions that you have to take — whereas "taking into account" is a bit more generic. You don't really have to show how you're taking it into account. So they're concerned about some of that wording. But like I said, we still have to see exactly that final wording, how the government will actually put this into legislation — that's going to be a really significant thing.
How this differs from the Treaty Principles Bill
Chelsea Daniels: Now, I know as soon as we talk about changing anything to do with the Treaty or the principles, everyone thinks about the Treaty Principles Bill. What makes this different? Can we differentiate the bill and what's happening here?
Jamie Ensor: So we had the principles referenced in legislation across a variety of different pieces of legislation. What the Treaty Principles Bill tried to do was define specifically in law what those principles were, because at the moment there are only ideas put out there by the courts through court cases, and through a government document under the fourth Labour government — Parliament has never defined what those principles are. So that's what the Treaty Principles Bill was trying to do. What this review was trying to do was go through those actual references that are currently in legislation and find ways of making them potentially a bit more specific within the context of that single piece of legislation. So it's a bit more of a nuanced, more individual process around what does the Treaty mean within that piece of legislation, as opposed to the Treaty Principles Bill, which was defining in general what those principles are.
What happens next
Chelsea Daniels: When should we find out? Is this a pre-budget, post-budget thing, or just by the end of the year?
Jamie Ensor: I don't have a specific timeline, but you would expect some legislation will be put forward before the end of the parliamentary term. This was a coalition commitment, so they'll want to get that wrapped up before the end of this parliament. We don't know if they're even going to be in a coalition after the upcoming election, so you'd expect they'll want to get that all tidied away. But we'll have to wait and see — legislation does typically take months to get through the parliamentary process, and there isn't that long left in the parliamentary term. So the exact way that they decide to push this through is yet unknown.
Chelsea Daniels: When does Parliament actually officially wrap up?
Jamie Ensor: Parliament is expected to wrap up probably early October. There's always a period before an election where Parliament dissolves, everyone leaves, goes out into their communities, campaigns. So we've still got a few more months to go before that officially happens. There's definitely time if a government wants to push through more legislation. They may use the urgency tool if they wish — that's something they can use to get around having to go to select committees. We're not sure yet if that's something they'll use in this case, but it's definitely at their disposal.
Chelsea Daniels: Is this the kind of thing that you'd expect there to be a select committee or public consultation?
Jamie Ensor: You normally would — this is quite a significant thing and you'd want to hear from the public. But it should be noted that the government's intention as part of that review was to consult with specific Māori groups and some stakeholders that would be affected. So there has been somewhat of a consultation process. There'll probably be an argument that that hasn't been wide enough or long enough. There has been some level of consultation, but definitely not at the level that you would normally get if it were to go to a select committee.
Chelsea Daniels: Thanks for joining us, Jamie.
Jamie Ensor: Thank you.