Claims of a “lack of honour” and questions over political decision-making dominated the opening day of the Waitangi Tribunal’s Treaty clause review inquiry, as officials faced scrutiny over consultation gaps and transparency concerns.
The two-day hearing, Te Tinihanga o Ngā Mātāpono o te Tiriti – the Treaty Principles Reform Urgent Inquiry, opened in Wellington on Tuesday, with Secretary of Justice Andrew Kibblewhite and Deputy Secretary Caroline Greaney among the first Crown witnesses called before the Tribunal.
The inquiry is examining Cabinet decisions to amend, standardise or repeal references to the principles of Te Tiriti o Waitangi across 19 pieces of legislation.
Kibblewhite and Greaney’s evidence shows officials initially recommended retaining 17 Treaty provisions, amending nine and repealing only three, while warning that repealing Treaty clauses would generally increase rather than reduce uncertainty.
Officials also cautioned that replacing references to Treaty principles with references to Te Tiriti itself was unlikely to achieve the Government’s stated objective of improving clarity and certainty.
The evidence further revealed officials repeatedly raised concerns about the pace of the review and the absence of consultation with iwi and hapū.
A Ministry briefing warned compressed timeframes had constrained analysis, limited officials’ ability to test assumptions underpinning the review and prevented consultation with iwi and hapū as Treaty partners.
The Ministry’s final Regulatory Impact Statement recorded that engagement with iwi and hapū had not occurred during the review process, despite consultation being one of the principal ways the Crown makes informed decisions and acts in good faith toward Māori.
The Ministry’s own Quality Assurance Panel concluded the analysis did not meet quality assurance standards because of constrained timeframes, limited analysis and the absence of consultation.
Under questioning from Jamie Ferguson, counsel for Te Whakakitenga o Waikato and the National Iwi Chairs Forum, Kibblewhite acknowledged the criteria used to assess Treaty provisions evolved through discussions with ministers.
Kibblewhite said officials initially focused on questions of clarity, but ministers later sought analysis on whether Treaty provisions were “necessary” as well.
The exchange highlighted one of the central tensions emerging from the inquiry, where official policy advice ended, and political judgment began.
The hearing also revealed several documents had not been included in the Crown’s initial evidence bundle, with Tribunal members and counsel repeatedly requesting additional material.
Asked whether political considerations only came into play when Cabinet made final decisions, Kibblewhite rejected that distinction.
“Ministers are appropriately and inherently political actors,” he said.
“I think every Cabinet decision is a political decision at the end of the day.”
Kibblewhite told the Tribunal officials apply policy frameworks, legislative guidance and analytical tools when developing advice, while ministers consider that advice alongside electoral mandates, political judgment, and other factors.
The Secretary for Justice also stressed the continuing significance of Te Tiriti within government decision-making.
“The Treaty is a backdrop for all of the actions and decision-making of government at large,” he said.
Later adding: “I think there is always an obligation on the Crown to be mindful of the Treaty in all its processes.”
Ferguson’s questioning also revealed that, as late as September 2025, officials were still proposing a broader engagement process than what was ultimately adopted.
Documents discussed before the Tribunal showed officials had proposed targeted engagement with iwi, hapū and affected stakeholder groups, meetings with the National Iwi Chairs Forum, and consultation on an exposure draft before final Cabinet decisions were made.
At that stage, officials were contemplating an initial Cabinet decision in October, followed by consultation and engagement, before returning to Cabinet for final decisions in December.
The Tribunal heard those plans largely fell away as the review progressed.
Ferguson also highlighted Ministry advice, warning that engaging only with already-identified groups would be insufficient in some cases and “could harm the Māori Crown relationship”.
Questions were also raised about transparency.
A September draft Cabinet paper contained standard wording proposing proactive release of the paper.
However, by the time the final Cabinet paper was approved in February, ministers had decided not to release it proactively.
Under questioning, Kibblewhite said proactive release was generally regarded as accepted good practice, but could not identify precisely when the decision not to release the paper was made.
‘Lack of honour’ - Lead claimant
Claimants told the Tribunal the process demonstrated a broader failure by the Crown to engage meaningfully with Māori before making decisions affecting Treaty protections.
Appearing for Ngāti Hine, lead claimant counsel Season-Mary Downs, argued the review failed to recognise that Treaty provisions operate differently across different laws and affect iwi, hapū and whānau in different ways.
“The Māori interest in respect of each law that is proposed to be reformed and the Treaty clauses within those are different,” she told the Tribunal.
“They’re different for every whānau, hapū and iwi also. Each have their own nuance and each have their own context within which these laws operate.”
Downs said the type of Treaty-based analysis needed to understand those impacts was missing from the Crown’s policy work.
“That type of analysis is completely absent from within the considerations that have been laid out in the Cabinet papers and advice.”
She said Ngāti Hine’s experience illustrated why a blanket approach to Treaty clauses risked overlooking the realities faced by individual iwi.
Downs noted Ngāti Hine has spent more than two decades participating in the Te Paparahi o Te Raki Waitangi Tribunal inquiry, a process that has examined the impacts of Crown laws and legislation on the iwi.
She said Ngāti Hine also remains unsettled with the Crown.
“They are based in Te Tai Tokerau and the submissions explain that they have the greatest inequity in this country,” Downs said.
She pointed to evidence from Ngāti Hine kaumātua Te Waihoroi Shortland, who said iwi leaders met ministers at Waitangi in February, around the same time Cabinet was considering decisions on the Treaty clause review.
Despite those meetings taking place during a critical stage of the process, Downs said iwi were not informed the review was underway.
“At not one point did the Government tell Ngāti Hine that they were progressing the clause review.”
“In our submission, this speaks to the lack of honour.”
Downs said this highlighted a wider failure by the Crown to engage with Māori before decisions were made and demonstrated how Treaty partners had been excluded from a process that could significantly affect Māori rights and interests.
She urged the Tribunal to use its full powers to record the impacts of the review and its implications for future generations.
“The claimants are aware that the Tribunal cannot compel the Crown to do anything. But what they do ask the Tribunal to do is to use its full powers and make findings and recommendations.”
“They ask that the Tribunal fully record the nature of this policy and the impacts that it will have on their people,” she concluded.
‘Significant constitutional recalibration’ - Dr Jones
Constitutional law expert Dr Carwyn Jones, appearing for Toitū Te Tiriti, challenged the Government’s central justification that the review was intended to improve clarity and certainty.
“That doesn’t connect with the decisions that have been made,” he told the Tribunal.
Jones said Ministry of Justice officials themselves had concluded repeal of some Treaty provisions was likely to increase rather than decrease uncertainty.
In his view, the cumulative impact of the proposals would extend well beyond individual statutes.
“The Crown’s proposals will also result in a significant constitutional recalibration of Te Tiriti throughout New Zealand law,” he said.
Jones argued the reforms would reduce Treaty protections across a wide range of legislation and damage the Māori-Crown relationship.
He described the package as “the most wide-ranging legislative breach of Te Tiriti in modern history” and warned that if implemented, it would amount to “one of the greatest assaults on Te Tiriti in all its 186 years.”
He also criticised the Crown’s consultation process, describing it as “woefully inadequate” given the breadth of the proposals and their likely impact on Māori.
Smokefree legislative impact
Other claimants highlighted the practical impacts they say could result from repealing Treaty provisions in specific legislation.
Prominent leader, Hone Harawira, appearing on behalf of Te Rōpū Tupeka Kore, provided a practical example of what claimants say is at stake.
Harawira opposed the government’s plans to repeal Treaty provisions within smokefree legislation as part of the 19 pieces of legislation in the review, arguing those protections stemmed directly from decades of Māori-led advocacy and political leadership.
“Any attempt to remove references to the principles of the Treaty of Waitangi in respect of smokefree legislation will be a major breach of the Treaty principles of partnership, active protection and good government, causing significant prejudice to Māori,” he said.
Harawira said smokefree legislation had been built on Māori leadership and broad cross-party support, and argued removing Treaty protections would undermine those gains.
He also questioned whether the select committee process could substitute for early engagement with Māori communities.
One of the reasons the Māori Affairs Committee’s smokefree inquiry was successful, he said, was because it travelled to communities rather than expecting people to engage solely through Wellington-based processes.
Tribunal members also explored whether a future select committee process could address concerns about consultation.
Asked whether a select committee inquiry modelled on the Māori Affairs Committee’s Smokefree inquiry could provide a meaningful avenue for engagement, Harawira said it could, provided it genuinely took the process to communities.
“If the minister was willing to invite the Māori Affairs Committee to take this kaupapa, you could absolutely ensure far greater representation, not just for Māori,” he said.
Harawira said taking the committee around the country would allow people to be heard directly, rather than relying on more traditional Wellington-centred parliamentary processes.
“Take that committee on the road so that people can be heard all around the country.”
He said that approach would give people a much greater opportunity to engage with issues surrounding Te Tiriti and its principles.
The Crown maintains ministers were entitled to make political decisions and that consultation opportunities remain available through engagement with the National Iwi Chairs Forum and the select committee process before any legislation is enacted.
The inquiry continues on Wednesday with evidence from iwi leaders, health advocates, legal experts and Māori organisations.
