Analysis: 1News Māori Affairs Correspondent Te Aniwa Hurihanganui explains why the Government’s plan to weaken legal obligations to the Treaty of Waitangi could become as controversial as the Treaty Principles Bill.
When the weather’s bad, you can “take into account” that it’s raining and still decide to go outside without an umbrella.
The same is true on a good day. You can “take into account” that the sun is out, and still decide to not wear sunscreen.
Because taking something into account doesn’t require action. In legal settings, the requirement is merely an obligation to consider - not to comply, not to enforce, and not to commit. It carries no expectation to change the outcome.
That is why the revelation that the government plans to weaken treaty obligations in legislation to a standard no higher than “take into account” has already triggered backlash.
Ministry of Justice officials warn it could significantly harm Māori-Crown relations, 1News can reveal. (Source: 1News)
It would markedly weaken existing legal obligations to “give effect” or “honour” the Treaty principles. And there’s concern that if backed by Parliament, the changes would see the Treaty principles overshadowed by other considerations.
Justice Ministry officials warned against the move, saying it had no apparent benefits, risks significantly harming the Crown’s relationship with Māori and could lead to litigation.
It also said there was a “potential for wide ranging impacts on Māori social, cultural, economic, and environmental interests” and lacked consultation with treaty partners.
An independent advisory group weighed in too. It recommended making Treaty clauses more descriptive, but it did not suggest reducing them to the weakest standard currently in use.
The irony here is that Justice Minister Paul Goldsmith took all of that advice “into account” and pushed ahead with the plan anyway. He now has the approval of the Cabinet.
He told 1News he didn’t “ignore” the advice, he just “disagreed” with it.
Rumblings of discontent
But he may come to regret that decision if the current rumblings of discontent among te ao Māori grow to anything like those seen over the controversial Treaty Principles Bill - legislation that would have redefined the principles altogether.
The government will not want another colossal hīkoi on its hands before the election.
But comparisons to the Treaty Principles Bill are already being drawn. Northland leader Pita Tipene has described it as “the Treaty Principles Bill by stealth”.
This proposal is very different, but he argues it has the same effect of “undermining Te Tiriti o Waitangi.”
His iwi, Ngāti Hine, has now filed an urgent claim with the Waitangi Tribunal. The Tribunal has yet to grant an urgent hearing, but it marks the first indication of the kind of legal challenge officials warned could follow.
And it mirrors the early response from Māori when the Treaty Principles Bill was first proposed.
Goldsmith has defended his decision, saying it is simply about achieving “consistency” in the way Treaty clauses are currently worded in legislation.
But another way to achieve consistency without the risk of widespread opposition could have been to raise the legal threshold across the board to “give effect” to the Treaty principles.
He may have chosen to dismiss the warnings of his officials, as the Government did when similar concerns were raised about risks to the Māori-Crown relationship during the Treaty Principles Bill.
But if the early signs of opposition are anything to go by, the fallout could be just as significant.
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