ANALYSIS: The full extent of the Government’s plans to rewrite Treaty clauses across New Zealand law has been revealed through previously redacted Cabinet documents, exposing internal warnings, legal concerns and policy decisions that appear to go far beyond a simple “clarification” exercise.
The documents, many of which had not previously been available in full, reveal ministers had already agreed in principle to weaken Treaty obligations across legislation, repeal some Treaty-related provisions entirely, and standardise Treaty obligations so they sit no higher than “take into account”.
The release of the material came only after the Waitangi Tribunal granted an urgent inquiry into the wider Treaty clause review earlier this month.
The wider Treaty clause review has triggered growing opposition from iwi, Māori organisations and legal groups, who argue the reforms could significantly weaken how Te Tiriti is recognised and applied across New Zealand law.
What began as a claim brought by Ngāti Hine has since expanded into an urgent inquiry now involving more than 20 other interested parties, including the National Iwi Chairs Forum, New Zealand Māori Council, Māori Women’s Welfare League, Te Whakakitenga o Waikato, urban Māori organisations and iwi groups from across the country.
Claimants argue the proposed reforms could weaken Māori influence over decisions affecting whenua, taiao, health, education and wellbeing, while unilaterally reducing Treaty obligations across legislation before any laws have even been introduced.
In granting urgency, the Waitangi Tribunal said the claims met the “high threshold” required for an urgent inquiry and warned the reforms could cause “significant and irreversible prejudice” to Māori if allowed to proceed without scrutiny.
The Crown had initially been due to provide the unredacted documents to the Tribunal earlier in the week, but was granted leave for an extension until Friday afternoon.
Earlier on the Friday, however, Justice Minister Paul Goldsmith publicly released further details outlining which legislation the Government intends to amend, repeal or weaken under the review.
The release process itself has become a significant part of the controversy surrounding the review.
Many of these documents were released following disclosure requests made through the Tribunal inquiry process.
As a result, internal Cabinet material and legal assessments became public far earlier and in greater detail than would typically happen through standard proactive release or Official Information Act processes.
The papers show the Government’s legislative direction was already substantially advanced internally while Tribunal scrutiny into the process itself was intensifying.
Timing alignment with Tribunal report into Education and Training Act
Today, the Tribunal released a stage one report following the urgent inquiry into proposed changes to Treaty provisions within the Education and Training Act, where the redacted Cabinet documents were first publicly revealed.
Those documents then prompted a second urgent inquiry into the wider Treaty clause review, which is yet to be heard.
In its report into the Education and Training Act inquiry, the Waitangi Tribunal warned the proposed reforms risk eroding Treaty protections within the education system and criticised aspects of the Crown’s consultation and review process.
Despite the findings, the Government signalled no intention to pause or reconsider the wider legislative review.
The Government’s position also highlights a tension between its public approach to the Tribunal process and its continued advancement of the review itself.
When the Tribunal earlier this month granted an urgent inquiry into the broader Treaty clause review, Goldsmith’s office declined to comment publicly, saying:
“I’m afraid Ministers do not comment on matters before the Tribunal. They’re treated the same way as judicial processes.”
However, the Government has confirmed which legislation would be amended, repealed or weakened under the reforms.
The documents, released on the same day as the Waitangi Tribunal’s report into the Education and Training Act inquiry, show ministers had agreed in principle to:
- Weaken Treaty obligations across legislation
- Repeal several Treaty-related provisions entirely
- standardise Treaty obligations so they sit no higher than “take into account”
- apply that approach to future legislation.
,
Officials also warned ministers the process risked damaging Māori Crown relationships, reducing Māori protections in law, and triggering further legal action.
The papers reveal ministers were aware the Waitangi Tribunal had already found the broader review process risked breaching Treaty principles and prejudicing Māori, but chose not to alter course.
“I acknowledge these findings and recommendations,” Goldsmith wrote in the Cabinet paper.
“However, I consider that the purpose and process of the review, as agreed by Cabinet, are necessary to effectively address the issue of certainty in legislation and to better support compliance.”
The documents also expose a significant divide between ministers and the Government’s own Ministerial Advisory Group.
While ministers proposed repealing some Treaty clauses and capping Treaty obligations at the relatively weak “take into account” threshold, the advisory group warned against removing references to Treaty principles entirely, arguing doing so could create more legal uncertainty rather than less.
“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,” the Cabinet paper records.
Officials also warned ministers the lack of consultation with Māori before policy decisions were made would likely have “adverse effects on the Māori Crown relationship”.
The Ministry of Justice’s own Regulatory Impact Assessment Quality Assurance Panel also criticised the process, finding the analysis did not meet quality assurance standards due to tight timeframes, ministerial constraints, and the lack of consultation with iwi and hapū.
“The Panel considers these constraints have meant that the analysis is not sufficiently developed to form a basis for Ministers to make informed decisions,” the paper states.
As noted, the release of the documents coincided with a major public escalation of the Government’s reform programme, making it clear there was no intention of halting any amendments.
Less than half an hour before the embargo lifted on the Waitangi Tribunal’s report into the Education and Training Act inquiry, Goldsmith publicly announced the Government had agreed to amend 19 pieces of legislation to make Treaty references “clear and consistent”.
When approached for a response to the Tribunal’s recommendations and asked whether the timing of the Government’s announcement was intentional, Goldsmith’s office said:
“Minister has received the report and will consider it in due course.
The Government’s position remains unchanged.”
The government insists that the public will be able to have its say during the select committee process and that consultation with iwi is underway.
However, this Government has repeatedly signalled it is prepared to proceed with significant legislative reform despite strong opposition through consultation and select committee processes.
Most relevant to Treaty within legislation are the recent Resource Management Act reforms, where iwi and Māori submitters raised concerns about the weakening of Treaty provisions, yet the legislation proceeded with no substantive change following submissions.
The Government has agreed to the following legislation as part of the review
Repeal seven Treaty references:
- Section 536A(1) of the Education and Training Act 2020
- Section 6(d) of the Energy Efficiency and Conservation Act 2000
- Sections 4 and 5(1)(b) of the Organic Products and Production Act 2023
- Section 3AB of the Smokefree Environments and Regulated Products Act 1990
- Section 84(b) of the Crown Pastoral Land Act 1998
- Section 54 of the Plant Variety Rights Act 2022.
Amend two references to make them more specific:
- Section 14(a) of the Data and Statistics Act 2022
- Section 8 of the Hazardous Substances and New Organisms Act 1996.
Lower Treaty obligation thresholds to no higher than “take into account” across provisions within ten acts, including:
- Climate Change Response Act 2002
- Criminal Cases Review Commission Act 2019
- Crown Pastoral Land Act 1998
- Data and Statistics Act 2022
- Digital Identity Services Trust Framework Act 2023
- Education and Training Act 2020
- Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
- Mental Health and Wellbeing Commission Act 2020
- Pae Ora (Healthy Futures) Act 2022
- Water Services Authority – Taumata Arowai Act 2020.
