Govt to change or remove Treaty of Waitangi provisions in 28 laws

The Government has identified 28 pieces of legislation, dating back to 1986, that will have their Treaty of Waitangi provisions scrutinised with a view to change or repeal the clauses.
The NZ First-National coalition agreement commits the Government to conducting 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’.
The coalition document says the Government will replace all such references with specific words relating to the relevance and application of the Treaty – or repeal the references entirely.
The first Treaty provisions clauses appeared in law in 1975, with clauses mentioning Te Tiriti and the Crown’s obligations appearing in dozens of laws.
Last month, Cabinet agreed to the scope and purpose of the review, confirming the specific 28 laws that will have their Treaty provisions changed or scrapped.
These range from the Resource Management Act and the Education and Training Act, through to the Smokefree Environments and Regulated Products Act and the Hauraki Gulf Marine Park Act. No Treaty settlement laws are included. (Full list below)
While the review came out of a NZ First policy, the work is being led by Justice Minister Paul Goldsmith, who told Newsroom there was “a habit of forming, of just throwing in a Treaty reference – a very broad one – in every piece of legislation that was coming along without much thought as to what the actual consequences of that would be or wouldn’t be”.
During the past three decades, Parliament had not always been clear about what specific Treaty provisions meant or were trying to achieve, Goldsmith said.
“That’s left the courts, and the agencies themselves, and businesses and local councils all to free-range as to what it does mean and doesn’t mean.
“And that’s created uncertainty, and frankly some outcomes that need some revision,” he said.
“We’re trying to honour Treaty commitments, while at the same time, never losing sight of the basic expectations of people living in a modern, democratic society, primarily to be treated equally and to have equality before the law.”
Goldsmith said reconciling those two things was where the challenge lay.
He talked about making Treaty provisions more consistent, clearer and more specific. But this review was likely to lead to some of these clauses being removed from legislation – both retrospectively and when new bills came before Parliament.
Last month, NZ First senior MP Shane Jones told Newsroom: “Our approach is to strip as many references as possible from the bills where the principle references either don’t make sense, or they need to be clarified, or they’re redundant.”
Jones also said the Government would need to decide whether it should be “a Treaty references abolition bill or whether it should be more forensic”.
The Government has been heavily criticised for its decision to repeal the provision in the Oranga Tamariki Act obliging that children’s agency to honour Te Tiriti o Waitangi.
The Act-National coalition promise to remove Section 7AA led to push-back from officials, experts, iwi and the public. A select committee is due to report back on the repeal bill next month.
Meanwhile, the Government has also removed the planned Treaty provisions in corrections legislation when making other substantive changes.
Goldsmith said he knew this policy was controversial, and he wouldn’t underestimate the “wide variety of opinions”.
“We expect it will be something that people will have plenty to say on.”
The Justice Minister said it was too soon to say whether the changes would be made through an omnibus bill, or through individually amending each piece of legislation.
He said it also was not yet clear how many of the 28 laws would have the Treaty clauses deleted altogether.
The Ministry of Justice was developing a framework for the review, and would consult more than a dozen departments over the relevant pieces of legislation.
Once the process and the framework was developed it would be used to decide how Treaty clauses needed to be reworded or which ones would be repealed. That same framework would be used when Parliament was considering new bills or amendment bills in the future.
Goldsmith said the Government was trying to be “more disciplined”. If there was a specific requirement for a Treaty provision that could be appropriate, but it needed to be clearly articulated as to what that meant, or didn’t mean.
The previous Government had similarly created the Treaty Provisions Oversight Group to look at the specific wording and purpose of Treaty provisions when creating new legislation. 
A 2022 paper from Te Arawhiti looks to provide guidance to policymakers looking to include Treaty provisions in legislation, noting the inclusion of Treaty clauses had helped improve Māori-Crown relations and hold the Crown accountable for future actions.
The previous Government’s programme did not include retrospectively changing or repealing any Treaty clauses in existing legislation. But it did recognise the need for consistency and clarity when including Treaty provisions.
“A recent proliferation of Treaty clauses, however, has raised questions about the extent to which they are the product of well-considered policy and careful analysis of their legal and practical effect,” Te Arawhiti said.
“If Parliament’s intended effects of a Treaty clause are not clear there is a risk they will not be implemented, potentially leading to unintended or adverse consequences both in the portfolio area and for the Māori Crown relationship.”
While this Government is not yet at the stage of amending or removing Treaty clauses under the new policy framework, the coalition did recently remove a planned Treaty provision from the Corrections Amendment Bill.
The coalition removed one of the new sections of the bill regarding the Crown’s Te Tiriti obligations in its amended version of the proposed legislation.
Māori currently make up 48 percent of the prison population; for women it’s 57 percent. Those proportions rise when looking at the remand population.
Green Party justice spokesperson Tamatha Paul has been a vocal opponent of the Government’s decision to remove that Treaty provision from the Corrections Amendment Bill, and told Newsroom the Treaty provisions would have created some accountability for Corrections.
“Removing the Treaty provisions will make the over representation of Maori in custody and in our prisons even worse,” she said.
“It would be disingenuous to believe that the presence of Treaty provisions would change things overnight … But what it would show is that Corrections have a legislative commitment to addressing that over-representation, because it makes the chief executive accountable.”
Paul said it would hold Corrections accountable for providing all people in prison with access to culturally appropriate reintegration and rehabilitation programmes, and it required there to be a strategy to reduce the number (and proportion) of Māori in custody.
Treaty provisions also gave government departments an anchor when creating strategies for better Māori outcomes, or when making a bid for improved resources, she said.
Paul said she understood the point the Government was trying to make regarding clarity and consistency, but said across the board the provisions were working as intended – leading to more specific strategies, increased resources, and better understanding, consultation and overall Māori-Crown relations.
Removing (or failing to write in) Treaty provisions entirely was “a full-blown attack and assault on Māori and on Te Tiriti,” she said, adding that this was happening in the context of the Treaty Principles Bill, the repeal of Section 7AA, and the changes to the Marine and Coastal Areas Act.
“This idea that the coalition agreement takes precedence over the founding document of our nation, should give everybody cause for concern.” 
Goldsmith said the Government would not unduly rush the consultation process or the changing of legislation. 
Goldsmith said this policy affected everybody and it was important to provide an efficient opportunity for a meaningful discussion.
“I’m fully anticipating it’s going to be a big part of our programme for the next couple of years,” he said.
Legislation in-scope of the review