Govt proposes to weaken legal obligations to Treaty of Waitangi

The Government has proposed to weaken legal obligations to the Treaty of Waitangi, 1News can reveal.

Following a sweeping review of legislation containing Treaty clauses, initiated by NZ First in the coalition agreement, Cabinet has agreed to limit obligations to the Treaty principles to no more than "take into account".

That means any existing clauses that enforce a higher standard, such as "give effect to", would go.

Justice Minister Paul Goldsmith said the decision was made to achieve more consistency.

"Over 30 or 40 years, Parliament has made all sorts of references to the principles of the Treaty. Sometimes its "honour", sometimes it's "have regard", sometime's its "give effect to", sometimes it's "take into account" and we wanted to give some consistency to that."

He told 1News he didn't accept that the proposed threshold was too low.

"It's absolutely appropriate, the principles of the Treaty should be taken into account."

But his own Ministry of Justice officials warned against lowering the threshold, advising that it had "no apparent benefits", carried "significant risk to the Māori-Crown relationship", and "has the potential for wide-ranging impacts on Māori social, cultural, economic, and environmental interests".

Goldsmith said Cabinet "don't agree with that".

"We're trying to achieve a level of consistency."

But associate law professor Andrew Erueti said the proposed change was alarming.

"Treaty clauses specify clearly what obligations are owed to Māori under legislation. To adulterate those, and to diminish those, is a major step backwards."

He said Māori had been challenging the use of the term "take into account" in Treaty clauses for some time.

"Basically, it means Māori interests can be subordinated by other competing interests."

The Greens' justice spokesperson Tamatha Paul condemned the Government's move to weaken Treaty provisions across multiple pieces of legislation.

"Pushing through these sweeping changes in secret shows this Government is a dishonourable Treaty partner," Paul said.

"The Government's changes diminish the mana of Te Tiriti by making it a mere consideration as opposed to something that must be honoured."

Paul added that the proposed changes "also conflates Te Tiriti o Waitangi with the Treaty of Waitangi, but these two documents are worlds apart in their meaning".

"The fact that the Government tried to do this without telling anyone speaks volumes. They know this is wrong.

"Provisions that currently require decision-makers to 'give effect to' or 'honour' the principles of Te Tiriti will be gutted."

She added that the Government had "left out" Māori, iwi, hapū and the wider public during the consultation process.

"It's abhorrent that this Government consistently makes sweeping decisions about Te Tiriti without engaging its Treaty partners," Paul said.

"The Waitangi Tribunal found the Crown's process would breach Te Tiriti and said the review should be refocused with full engagement and inclusion of Māori in decision-making. The Government ignored both warnings."

The coalition agreement to conduct the review said it should "replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references".

Some laws have been excluded from the review, including Treaty settlement legislation.

An independent advisory group was established last year to provide advice to ministers.

It encouraged the use of multiple terms, including "give effect", where a standard of Treaty obligation was needed.

Erueti said the Justice Minister's decision was at odds with that.

"The minister hasn’t accepted that advice. He’s gone for the lowest threshold possible."

The group also warned against repealing references to the Treaty principles altogether.

But Goldsmith has proposed to remove Treaty principles clauses in six laws.

Officials told the Minister there was "limited evidence" available to support the assumption that existing provisions were causing uncertainty or that the options being considered by the Minister would result in greater certainty.

"Overall, the suite of proposals in the Cabinet paper carries significant risks due to the lack of consultation with Treaty partners and the potential for some proposals to negatively affect Māori interests," the advice said.

"The potential benefits of the proposals are low and do not outweigh costs to the Māori-Crown relationship and Māori interests."

Official advice emphasised the lack of consultation on the proposed changes.

"The Minister of Justice directed a process that has not included engagement with iwi and hapū (as Treaty partners), the general public or other external stakeholders," officials said.

Goldsmith has now put the plan before the Iwi Chairs Forum.

"I haven't seen detailed responses but my impression is that they prefer nothing change but that's not really an option."

A bill is expected to be introduced before this year's general election.