Treaty clauses: Tribunal hears of 'unrelenting assault' on Māori rights

The Waitangi Tribunal has been told plans to weaken and remove treaty clauses in a range of laws are racist and an attempt to erode Māori rights.

Its two-day urgent hearing in Wellington today is coming to an end following fiery submissions from iwi and expert witnesses.

Treaty references are set to be scrapped from six acts and weakened across 10 laws to a standard no higher than “take into account”.

A sweeping review of treaty clauses across the statute book was initiated by NZ First in the coalition agreement, but the proposed changes were brought to cabinet by Justice Minister Paul Goldsmith.

Both the Data and Statistics Act 2022 and the Digital Identity Services Trust Framework Act 2023 currently required decision-makers to give effect to the Treaty principles and engage with Māori.

Kirikowhai Mikaere, lead technician of the National Iwi Chairs Forum’s Data Iwi Leaders Group (Data ILG), told the tribunal the group received no formal engagement approach on the proposed changes to the acts, despite being identified as a key stakeholder.

The Data ILG had regular meetings with the Department of Internal Affairs and Statistics NZ under a Mana Ōrite relationship agreement.

“When we raised this kaupapa in our regular meetings, we were advised there were no substantive updates, or the Ministry of Justice was presented to us as the lead agency, not DIA or Statistics NZ.

“Under these proposed amendments, the trust we placed in the Crown and its systems has been eroded.”

Mikaere said the cost to rebuild that trust and re-establish “what was already hard won” would mean resources would be diverted away from the actual work.

She said the shift from "give effect to" standard in both acts, to a "take into account" was not a matter of semantics.

“It is the difference between obligation and option and, for iwi Māori, that distinction determines whether the Crown acts or simply notices.”

Mikaere said the distinction had never been more consequential than in an AI-driven economy where digital identity system determined how people were seen, verified and served by the government.

“Digital identity is not a neutral technology. It encodes assumptions about who people are, how they are categorised and whose data frameworks govern them. Without a firm treaty obligation embedded at the foundation of these systems, the protection of Māori identity data, whakapapa-linked information, and collectively held digital assets become subject to political appetite rather than enforceable right.”

Presenting on behalf of Te Whakakitenga o Waikato, the representative governing body for the iwi, and the National Iwi Chairs Forum, Tukoroirangi Morgan said the coalition Government was intent on eroding and dismantling Māori rights.

“Since this coalition Government was elected more than two years ago, we have watched the unrelenting assault on our rights and interests under the Tiriti o Waitangi.“

The iwi was not consulted about the proposed changes, he said, which undermined the tribe’s Raupatu Claims settlement signed in 1995, and the Waikato River settlement signed in 2010.

Te Whakakitenga o Waikato represented 33 hapū, 68 marae, and more than 100,000 iwi members. It was the trustee of the Waikato Raupatu Lands Trust and the Waikato River Trust.

Donna Flavell, chief executive for Te Whakakitenga o Waikato, said one of their primary concerns was the lack of meaningful engagement.

“A single subsequent communication on one statute alone cannot be reasonably described as consultation and this is not engagement in any Te Tiriti compliant sense," she said.

“The Crown’s position that iwi are now being engaged and consulted in is, in our view, misleading and offensive and, for Waikato, those legislative changes are not abstract. They directly affect systems that we are actively working within whether it’s education, health, child and wellbeing, environmental management and data sovereignty.”

Throughout their oral submission to the tribunal, Morgan was highly critical of the current Government.

“I can only characterise this Government as the most racist, anti-Māori government ever to come to power,” he said.

Morgan compared the current Government to previous ones led by John Key, Helen Clark and Jim Bolger more than once. He said the Government lacked transparency in comparison to predecessors.

When asked by tribunal member Dr Paul Hamer about whether the tribe's appearance in front of the tribunal was because they were “getting no joy” with a direct approach to the Government, Morgan was introspective.

“As the first iwi to have negotiated a Treaty settlement you would have thought that our established track record, and our rapport not only with this Government, but with previous governments, would amount to something – would amount to something meaningful. That’s why we’re here.”

He said Waikato did not often appear in front of the tribunal but its concern and disappointment with the constant changes made by the Government that was “always moving the goal post” was too great.

“It’s no wonder that we have to resort to every forum to make our case, to remind our people that, actually, trust and confidence means something.

“Now, I could say that about the John Key government, I could say that about the Helen Clark government. I could certainly say that about the Jim Bolger government. This Government? Is a joke. Absolute joke.

“So, we’re here because of our sheer disappointment and our mounting concern on behalf of our people of this unrelenting assault on our rights and interests under the mana o te treaty of Waitangi. That’s the reason why we’re here. I can’t make it any plainer than that.”

The Justice Minister's office was approached for a response but said ministers did not comment on matters before the tribunal.