Will weakening Treaty provisions in NZ law create more problems than it solves?

On the face of it, the government’s desire to make references to te Tiriti o Waitangi consistent across all legislation sounds reasonable.

As Justice Minister Paul Goldsmith argued, current laws variously require decision-makers to “give effect to”, “recognise and provide for”, “honour” or “have particular regard to” the Treaty and its principles.

The cabinet quietly agreed to the advance the policy in February, after a ministerial advisory group suggested it might be helpful to promote consistent wording for each standard of obligation to the Treaty in legislation.

But the group did not recommend reducing those clauses to a single (low) standard of obligation, merely to “take into account” the Treaty principles.

Concerns had already been raised about this review of the law, including by the Waitangi Tribunal and the United Nations Committee on the Elimination of Racial Discrimination.

With legislation confirming the changes due to be introduced before this year’s general election, one of the National-led coalition’s most controversial policies may again ignite the campaign trail.

Predetermined policy?

The origins of the issue lie in the coalition agreement between National and New Zealand First which sought to “reverse measures taken in recent years which have eroded the principle of equal citizenship”. Specifically, it committed the government 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 normal process to achieve such a policy outcome would begin with defining the problem that exists. Officials can then develop a range of policy options to address that problem.

The relative merits and risks of different approaches can be assessed to inform a ministerial decision. During the Waitangi Tribunal hearing, however, officials acknowledged the normal policy development process has not happened.

As the Waitangi Tribunal noted, the outcome of replacing or removing legislative references to “the Principles of the Treaty of Waitangi” was predetermined by the coalition agreement. The existing problem wasn’t defined, nor was there any consideration of how best to achieve the policy objectives.

As described in Cabinet papers, the policy objective is:

to ensure that where it is appropriate to encapsulate the Treaty or the Treaty relationship in legislation, the provisions are clear as to how the Treaty applies in the context of each legislative regime, to reduce uncertainty and support better compliance.

Read more: What is happening with the government’s contentious review of the Waitangi Tribunal?

Clarifying statutory obligations seems like a sound objective. But as the Waitangi Tribunal also pointed out, this does not appear to reflect the stated purpose in the coalition agreement to “reverse measures taken in recent years which have eroded the principle of equal citizenship”.

Nor does it explain why it has been determined that all Treaty principles clauses should be replaced or removed before any analysis of how clear or unclear those provisions are.

In fact, many provisions describe quite specifically how they will give effect to Treaty rights and obligations.

For example, section 3A of the Climate Change Reponse Act 2002 sets out a detailed list of actions which must be done “to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi”.

These actions include seeking nominations from iwi for appointment to the Climate Change Commission, ensuring Māori are consulted on emissions reduction plans, and taking into account the effects of climate change on Māori in the preparation of national adaptation plans.

It is difficult to see how replacing or removing a provision like this would reduce uncertainty.

‘Significant risk’

There are also Treaty principles clauses which have much broader wording. For example, section 9 of the State-owned Enterprises Act 1986 states: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

These types of clauses are referred to as “operative provisions” as opposed to the more detailed “descriptive provisions” such as those in the Climate Change Response Act.

Operative provisions allow greater discretion for the courts to determine the precise obligations they create in specific circumstances.

It could be argued such clauses might benefit from greater clarity or elaboration. But there may well be situations where greater flexibility and discretion is appropriate – and exactly what parliament intended.

Either way, the Waitangi Tribunal noted that the case law and official guidance built up over several decades make the requirements of Treaty principles “easily discoverable”.

In their Regulatory Impact Statement, Paul Goldsmith’s own officials advised the proposed measure “has no apparent benefits and carries significant risk to the Māori-Crown relationship”. Regional hui with Māori were also reportedly removed from the Treaty clause review plans.

Māori have again raised concerns about the policy at the UN, and there is now an application for an urgent hearing before the Waitangi Tribunal. Further legal challenges are likely.

Little wonder, perhaps, that some are now suggesting the policy could generate opposition on the scale of the the failed Treaty Principles Bill which inspired one of the country’s largest ever protests.