Hana Hana-Rāwhiti Maipi-Clarke tore up the Treaty principles bill in 2024, amid widespread public criticism of the bill’s intention. Now, the government is progressing a new attempt to change the effect of Te Tiriti in law.  (Photo: RNZ/ Samuel Rillstone)

Despite the resounding failure of the Treaty principles bill, the government still plans to repeal or amend a wide range of references to Te Tiriti in law.

The stated goal of this process is to make references to Te Tiriti in legislation more consistent. But that benign intention is hard to take at face value, writes Luke Fitzmaurice-Brown, who says the effect of the changes will be to dramatically reduce the legal impact of Te Tiriti.

This week, the government admitted it’s quietly pushing ahead with a plan to amend a wide range of references to Te Tiriti o Waitangi in legislation. A review of those references, which are often referred to as “Treaty clauses”, was requested by New Zealand First as part of the government’s coalition negotiations. The results of that review have been anticipated since late last year.

But the announcement this week went beyond what had been expected. The proposed changes will take a blowtorch to Treaty law as we know it.

A near-century-old court case is at the heart of how we got to this point.

In 1941, the Privy Council, New Zealand’s highest court at the time, held that while Te Tiriti o Waitangi was clearly more than a “simple nullity”, as Chief Justice Sir James Prendergast put it in 1877, the obligations it creates on governments are not legally binding unless they are also incorporated into legislation.

It was Ngāti Tūwharetoa rangatira Hoani Te Heuheu Tūkino VI, grandfather of the late Tumu Te Heuheu Tūkino VIII, who took the case all the way to the Privy Council in London. His goal was to have the mana of Te Tiriti acknowledged by the state legal system, but his journey was ultimately to no avail — Te Tiriti, as written, remained unrecognised in law.

That 85-year-old ruling still stands, even though it appears increasingly out of touch as the constitutional significance of Te Tiriti becomes more obvious to more New Zealanders.

The compromise we’ve made for the last 40 years, in order to give legal teeth to our founding document, is to insert Treaty clauses into legislation.

When a Treaty clause is included in a law passed by parliament, anyone exercising power under that law must include Te Tiriti within their decision-making. A raft of different laws now refer to “the principles of the Treaty of Waitangi/te Tiriti o Waitangi”, or some variation of that phrasing.

There is no consistent wording for such clauses. Some set a threshold that Te Tiriti be “taken into account”, while others mandate that it be “given effect to” or “honoured”. Some laws mention Te Tiriti itself, but most refer to “the Treaty/te Tiriti”, and most mention “the principles” of those documents, rather than the actual text.

While the concept of “the principles” was the target of the Principles of the Treaty of Waitangi Bill, this new bill (which a cabinet paper indicates will be called the References to the Treaty of Waitangi in Legislation Bill) is primarily targeted at those different thresholds.

Where a Treaty clause exists in legislation, the current government plans to impose a requirement that decision-makers merely “take into account” the principles of the Treaty/Te Tiriti.

This will achieve the goal of consistency, but in doing so it will drastically reduce the government’s obligations, by repealing or amending every reference to the principles which exceeds that bare minimum standard.

It’s yet to be revealed how the small number of Treaty clauses which refer to Te Tiriti itself (rather than “the principles”) will be affected, or the extent to which exceptions will be made for specific pieces of legislation. But either way, it’s clear that the consequences of this bill will be significant.

The proposed changes go against the advice of officials, who told cabinet that making “take into account” the standard for all Treaty clauses “has no apparent benefits and risks significant damage to the Māori-Crown relationship”.

The proposal also ignores the recommendations of the Waitangi Tribunal, which last year concluded that such a change would amount to a further breach of Te Tiriti. It even goes against the recommendations of the Ministerial Oversight Group appointed by the cabinet to review Treaty clauses. That group recommended a much more specific case-by-case approach to reform. But once again, as has been the case throughout this parliamentary term, the government is ignoring the recommendations of experts, in favour of further trampling on Te Tiriti o Waitangi.

We will find out soon exactly which laws will be affected by these changes, but it’s likely to be the majority of the 23 pieces of legislation that were the focus of the review (listed here). At that point, a bill will be introduced to parliament, with a select committee process likely to follow. So there’s a lot more yet to be said about this, and there will be opportunities for people to have their say on this latest attack on Te Tiriti.

As we do so, we must be clear-sighted. Firstly, we should point out the obvious, that the goal of legislative consistency doesn’t require Te Tiriti o Waitangi obligations to be watered down to a bare minimum. It would be far more just to elevate all Treaty clauses to a consistently high threshold, like “honouring Te Tiriti”, rather than a consistently low one, like “taking it into account”.

Secondly, we should remind ourselves that this is only one of an enormous range of anti-Tiriti laws proposed by this government this term. When the Principles of the Treaty of Waitangi Bill was voted down, some members of this government enthusiastically cited that as evidence that their most vocally anti-Tiriti colleagues were a minority. The full support of all three governing parties for the current proposal, along with the dozens of other anti-Tiriti measures they’ve passed in the past two and a half years, should remind us of the absurdity of that claim.

Finally, in my view, it’s also time to re-examine why Treaty clauses in legislation are needed at all. While there’s nothing wrong with including specific guidance in legislation, a major reason that Treaty clauses exist is our acceptance of the falsehood that Te Tiriti o Waitangi is unenforceable. Perhaps the consequences of accepting that legal fiction have finally caught up with us.

Collectively, we can do better than that now. Perhaps it’s time to finish the job that Hoani Te Heuheu Tūkino VI started almost a century ago, and demand that the mana of Te Tiriti be fully acknowledged in law. The government’s latest proposal shows that the need for this is as great as ever.

Dr Luke Fitzmaurice-Brown (Te Aupōuri) is a Senior Lecturer in Law at Te Herenga Waka Victoria University of Wellington. His research covers Te Tiriti o Waitangi, child protection and decolonisation.

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