The Government’s proposal to weaken and remove Treaty clauses from a range of laws is now at the centre of an urgent Waitangi Tribunal hearing in Wellington.
Law lecturer Carwyn Jones told the tribunal it was his opinion that the proposal amounted to one of the most wide-ranging legislative breaches of Te Tiriti in modern history.
“If the Crown’s proposal proceeds, it will be one of the darkest days for Te Tiriti in all of its 186 years.”
The two-day hearing comes following a sweeping review of legislation containing Treaty clauses, initiated by NZ First in the coalition agreement.
Last month at the conclusion of the review, Justice Minister Paul Goldsmith announced the Government had agreed to limit obligations to the Treaty principles across 10 laws to a standard no higher than "take into account".
Treaty clauses across seven laws would be removed entirely, he said.
"Over the last 30 or 40 years, Parliament has made all sorts of references to the principles of the Treaty of Waitangi. Sometimes it’s ‘honour’, or ‘have regard to’, or ‘give effect to’, or ‘take into account’.
“We need to create some consistency here, in the interests of increasing certainty and supporting compliance. A core foundation of our success as a nation is predictability in the law.”
Northland iwi Ngāti Hine is the lead claimant in the Waitangi Tribunal’s urgent inquiry – supported by a number of interested parties.
While giving evidence today, Jones said the Government’s rationale for amending treaty clauses “didn’t stack up”.
“In all instances, repeal is likely to increase, rather than decrease, uncertainty,” he said.
Ministry of Justice advice to the Government, contained in a Regulatory Impact Statement, raised the same concern.
“There is limited evidence available to support the assumption existing provisions are causing uncertainty and the proposals would result in greater certainty,” the advice said.
The Smokefree Environments and Regulated Products Act 1990 is among the seven laws set to have its treaty clause repealed under the proposal.
Section 3AB currently requires the Minister to consider the risks and benefits to Māori before preparing regulations relating to requirements for smoked tobacco products.
Members of Te Rōpū Tupeka Kore, a collective of tobacco cessation experts and community advocates dedicated to eradicating nicotine harm, said the legislation should be left alone.
Shane Bradbrook told the tribunal that tobacco had already killed Māori at an alarming rate, and the Treaty clause offered a level of protection to ensure they were engaged-with.
“You rip that out, and it stops a pathway for that considered, mature conversation, in this case, about a product that addicts and kills.
“If you take it out… they don’t necessarily need or have a desire to speak to us.”
In his brief of evidence, Bradbrook said it would also remove the ability to leverage equity-focused approaches to tobacco harm.
“Particularly when we’ve done by-Māori, for-Māori approaches, that have been reflective of tino rangatiratanga,” he said.
“Be it health promotion programmes, cessation programmes to help people quit. That allows our ability to get into our community and provide services and messaging directly to our people. It’s a very low bar to wind all of that back."
He added: “This approach undermines the legal weight of the Treaty”.
Hone Harawira, also speaking on behalf of Te Rōpū Tupeka Kore, said any attempt to remove references to the Treaty principles in respect of Smokefree legislation would cause “significant prejudice to Māori”.
In his proposal to Cabinet, Goldsmith noted Treaty clauses requiring decision makers to “give effect” to the Treaty principles was considered stronger than one required someone to “take into account”.
But he said requirements to “give effect” to the Treaty principles “did not promote the balanced consideration of all relevant factors in decision-making” and “take into account” was the more appropriate standard.
The hearing will conclude tomorrow.
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