Dr Carwyn Jones. (Photo supplied)
Justice minister Paul Goldsmith is ploughing ahead with the most damaging legislative attack on Māori seen in a generation, based on nothing much more than his own “view”, says Treaty expert Carwyn Jones.
Carwyn gave evidence this week to the urgent Waitangi Tribunal inquiry into the Treaty Clauses Review, which seeks to repeal or amend references to the Treaty across a suite of existing statutes.
Here, he gives a summary of what he told the Tribunal, and why he believes the Crown is acting in bad faith.
The government’s proposals to either repeal or amend the Treaty provisions in 19 pieces of legislation to a standard no higher than “take into account” will, if enacted, constitute the most wide-ranging legislative breach of Te Tiriti in modern history.
The combined effect of the comprehensive suite of proposed changes will be to either completely remove or significantly diminish the legal effect of Te Tiriti across all affected statutes.
This is a significant constitutional recalibration that will be detrimental and prejudicial to Māori.
It’s the most damaging collection of legislative Treaty proposals I’ve seen in my career, breaching Te Tiriti on a scale and breadth that we haven’t yet witnessed in our lifetimes.
What’s the supposed rationale?
The stated rationale for the Treaty Clause Review decisions made by the cabinet on February 23, 2026, can be traced back through a Regulatory Impact Statement.
The Regulatory Impact Statement sets out the background to the review in a section entitled “Diagnosing the Policy Problem”.
It begins by reciting the requirement in the 2023 coalition agreement between the National Party and New Zealand First to “conduct a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes ‘The Principles of the Treaty of Waitangi’ and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references”.
The timeline then jumps to September 2024, when the cabinet agreed to a review of Treaty references in law “to reduce uncertainty and support better compliance”.
What the Regulatory Impact Statement fails to document in that brief background is that the full text in the relevant section of the coalition agreement for the Treaty clause review states:
“The Coalition Government will reverse measures taken in recent years which have eroded the principle of equal citizenship, specifically we will . . . conduct a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes ‘The Principles of the Treaty of Waitangi’ and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references.”
This additional context for the review — as being intended “to reverse measures taken in recent years” that the coalition government believes have “eroded the principle of equal citizenship” — is critical to understanding the later cabinet decisions, particularly where those decisions ignore requested advice from independent advisers and ministry officials.
What did the ministerial advisory group say?
In May 2025, the cabinet established a ministerial advisory group to advise on whether it should retain, amend, or repeal references in legislation to the Treaty principles.
The group delivered its final report in August 2025. Critically, its recommendations did not include any recommendations to repeal Treaty provisions, nor any overall blanket recommendation to reduce the Treaty standard in relevant legislation to no higher than “take into account”.
In fact, many of the recommendations in the advisory group’s report were to continue with the existing “give effect to” Treaty standard.
What did the Ministry of Justice say?
The Regulatory Impact Statement prepared by ministry officials on the proposals set out five options for each provision that was within the scope of the review. These were:
Option One: Retain Status Quo.
Option Two: Non-legislative change.
Option Three: Amend to be more prescriptive.
Option Four: Repeal.
Option Five: Amend all Treaty standards to be no higher than “take into account”.
Importantly, the officials noted that Option Five was a “late addition” proposed by the Minister of Justice, Paul Goldsmith.
The preferred options selected by this process were either Option One (retain the status quo) or Option Three (amend Treaty references in law to make them more prescriptive).
Critically, the Regulatory Impact Statement concluded that Goldsmith’s Option Five “is not a preferred option in this RIS.”
It noted that Option Five had the potential for wide-ranging impacts on Māori social, cultural, economic, and environmental interests, and further stated that “it has not been possible to fully explore or quantify those impacts in the time available”.
The statement’s cost-benefit analysis of the proposals concluded that:
“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 Mãori interests.
The potential benefits of the proposals are low and do not outweigh costs to the Mãori-Crown relationship and Mãori interests.
There is limited evidence available to support the assumption that existing provisions are causing uncertainty and that the proposals would result in greater certainty.
In all instances, repeal is likely to increase, rather than decrease, uncertainty.
Option Five has no apparent benefits and carries significant risk to the Mãori Crown relationship, including because it is likely to be seen as intended to reduce the legislative Treaty protections available to Mãori. As this was a late proposal from the Minister of Justice, there has been insufficient time to fully understand the impacts of this proposal for each provision affected.”
The conclusions were consistent with the recommendations of the ministerial advisory group.
What did the Minister of Justice say?
In his cabinet paper on the matter, the Minister of Justice, Paul Goldsmith, confirmed that:
The Ministerial Advisory Group does not recommend repeal of references to the “Treaty principles”. It considers that the phrase “Treaty principles” now has fifty years of jurisprudence behind it, and that any change would be likely to increase uncertainty rather than decrease it.
Further on, the Minister provided the only explanation for his recommendation to repeal the Treaty provisions in five key Acts, namely that it was “in consultation with my colleagues”.
He noted that it was the Minister of Education, Erica Stanford, who proposed removing Treaty references from sections of the Education and Training Act.
Goldsmith then proposed his own option, Option Five.
The reasoning he provided was this: “In my view, requirements to ‘give effect’ to the Treaty principles do not promote the balanced consideration of all relevant factors in decision-making and ‘take into account’ is the more appropriate standard.”
It is on the basis of that single, lone sentence, unsupported by the ministerial advisory group which had been specifically appointed to assess the legislation subject to review, or any additional evidence at all, that Goldsmith went on to make a recommendation to the cabinet to amend affected laws to a Treaty standard no higher than “take into account”.
In the same paper, Goldsmith revealed that he agreed with the Minister of Education Erica Stanford that an additional eight provisions in law that only refer to the Treaty (but not the principles) should be included in the review “for consistency”.
Stanford subsequently sought cabinet decisions on two of those provisions: a section relating to school boards of trustees, and a section relating to the duties of councils.
There was no rationale at all given for why these statutory references to the Treaty itself, rather than to the principles of the Treaty, which was the basis of the review recorded in the coalition agreement, were included, other than “for consistency”.
Yet this was a fundamental decision to extend the scope of the review, given that direct references to the Treaty or Te Tiriti are far more powerful, both legally and constitutionally, than references to the principles of the Treaty alone.
Assessment of the rationale for cabinet decisions
The preceding discussion shows that cabinet decisions to repeal Treaty provisions and amend Treaty standards to “take into account” were neither recommended by the ministerial advisory group nor the preferred options of Ministry of Justice officials who prepared the Regulatory Impact Statement.
Goldsmith’s late inclusion of Option Five wasn’t accompanied by any further assessment, evidence or rationale beyond the single sentence in a cabinet paper noting that it was his “view”.
Similarly, the decision to extend the scope of the review to include the multiple direct references to the Treaty in the Education and Training Act had no further rationale beyond two ministers agreeing to do so “for consistency”.
In effect, Goldsmith has substituted his own view and that of “his colleagues” for 15 of the 19 Acts within the scope of the Treaty Clauses Review and adopted an approach that ignores the advice of both his Ministry of Justice officials and the recommendations of the advisory group that was specially appointed to advise on the review.
It would seem, therefore, that the real objective of the Crown’s proposals is to reduce the legislative Treaty protections available to Māori. The outcome of replacing or removing references to Treaty principles appears substantially predetermined by the coalition agreement itself.
In light of the Regulatory Impact Statement’s conclusions, which offer no support for the repeal of the Treaty provisions, and the unexplained late addition of Option Five by Goldsmith, which wasn’t even put forward by, let alone recommended by, the ministerial advisory group, it’s my view that the Crown’s actions support serious consideration by the Waitangi Tribunal of a rare finding of bad faith.
The Crown’s duty of active protection isn’t just being breached in these circumstances — it’s being flagrantly disregarded.
The Crown’s proposals to implement amendments of this scale, without any detailed assessment of the effects, without a sound policy rationale, and without meaningful consultation with Māori, will form part of the most wide-ranging legislative breach of Te Tiriti in modern history.
I’m particularly concerned about the cumulative and long-term detrimental effects, particularly for our younger generations, in relation to matters including climate change response, mental health, the public healthcare system, water services, digital identity, activities in the Exclusive Economic Zone, education and training, data and statistics, criminal case reviews and Crown pastoral land.
Failure to consult
The consultation process directed by Goldsmith has not included engagement with iwi and hapū, the general public, or external stakeholders.
The ministerial advisory group’s recommendations for engagement weren’t followed, and Goldsmith instead chose to consult the National Iwi Chairs Forum on the relevant decisions, but only after cabinet approval, by which point the bill was already being drafted and awaiting only its final approval.
Such “consultation” is woefully inadequate given the breadth and significance of the proposals and their likely impact on all Māori across a wide range of statutes and subject matter.
The opportunities for Māori to influence the proposed reforms were virtually non-existent, despite the ministerial advisory group’s recommendation “that targeted engagement also be undertaken with settled iwi/hapū and groups relevant to each Act”, which Goldsmith chose to ignore.
This breach of the Crown’s duty of consultation is, on its own, a significant source of real prejudice to Māori because the specific impacts of each repeal or amendment will only be examined after implementation.
The National Iwi Chairs Forum has opposed, in the strongest possible terms, both the proposed legislative amendments and the process followed to date. They have entirely rejected the process for engagement with them, which sought their comments within an extraordinarily short timeframe and in circumstances where the cabinet had already made substantive decisions.
Meaningful consultation involves more than notifying Māori communities of proposals after key policy decisions have already been made.
Partnership requires genuine participation in shaping proposals that may affect Treaty rights and constitutional relationships.
Conclusion
Treaty clauses play an important role in New Zealand’s legal system by giving practical effect to Tiriti obligations across a wide range of statutory contexts.
The Crown has failed to demonstrate that the widespread repeal and amendment of the Treaty clauses proposed is necessary to address any clearly identified systemic problem.
Rather, the Crown’s failure to heed the advice of its own specially appointed advisory group and Ministry of Justice officials only reinforces the view that the true rationale for the proposed reforms appears to be the ideological tenets outlined in the coalition agreement.
If these proposals proceed, it will be one of the darkest days for Te Tiriti in the last 186 years.
Dr Carwyn Jones (Ngāti Kahungunu) is Pūkenga Matua (Lead Academic) of Ahunga Tikanga (Māori Laws and Philosophy) at Te Wānanga o Raukawa, and Honorary Adjunct Professor, Te Kawa a Māui (School of Māori Studies) at Te Herenga Waka Victoria University of Wellington.
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