Government targets 19 pieces of legislation for Waitangi Treaty amendments

Source: Radio New Zealand

The government has agreed to amend references to the Treaty of Waitangi across 19 pieces of legislation.

Justice Minister Paul Goldsmith said the amendments would ensure references to the principles of the treaty are clear and consistent.

“Over the last 30-40 years, Parliament has made all sorts of references to the principles of the Treaty of Waitangi,” Goldsmith said. “Sometimes it’s ‘honour’ or ‘have regard to’ or ‘give effect to’ or ‘take into account’.

“We need to create some consistency here, in the interests of increasing certainty and supporting compliance. A core foundation of our success as a nation is predictability in the law.”

As part of the National-NZ First coalition agreement, the government agreed to conduct a comprehensive review of all legislation 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.

“Twenty-eight acts, such as the Conservation Act, were originally in scope of the review, but this was reduced to 19. Some acts are being reviewed through other processes, and all existing full and final treaty settlements are being excluded.”

“The advisory group has completed its review and provided the government with a variety of recommendations.

“The government has agreed to amend two references to be more specific, repeal seven references and specify no higher standard than to ‘take into account’ should be used in provisions to the Treaty of Waitangi across 10 acts.

“The government has also agreed a reference to both the Treaty of Waitangi and te Tiriti o Waitangi is preferable, and should be used in all relevant provisions going forward.

“These decisions have been made as a first step. Conversations will continue around how this review could go further in the future.”

The government was now consulting with iwi and the legislation would go through a full select committee process, where all New Zealanders could have their say, Goldsmith said.

However, the Waitangi Tribunal’s report into changes to the treaty clauses in the Education and Training Act, released on Friday, found the government had so far only reached out to one national Māori body, the National Iwi Chairs Forum.

“We found Minister Goldsmith’s view that the select committee would otherwise provide a sufficient opportunity for others to provide input to be manifestly inadequate and an insult to Māori,” wrote presiding officer Rachel Mullins.

Which acts will be affected?

Within the 19 acts in scope, the government has agreed to:

Amend two references to be more specific:

• Section 14(a) of the Data and Statistics Act 2022
• Section 8 of the Hazardous Substances and New Organisms Act 1996

Repeal seven 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, to remove potential duplication subject to further advice
• Section 54 of the Plant Variety Rights Act 2022 to remove duplication

Specify no higher standard than to ‘take into account’ should be used in provisions to the Treaty of Waitangi across 10 acts:

• Section 3A of the Climate Change Response Act 2002
• Section 15(3) of the Criminal Cases Review Commission Act 2019
• Section 5 of the Crown Pastoral Land Act 1998
• Sections 4 and 14(a) of the Data and Statistics Act 2022
• Sections 4(2) and 9 of the Digital Identity Services Trust Framework Act 2023
• Sections 9 and 535B(a) of the Education and Training Act 2020
• Sections 3(3)(c) and 12 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
• Sections 3(b)(i) and 9(1)(a) of the Mental Health and Wellbeing Commission Act 2020
• Sections 5(1) and 6 of the Pae Ora (Healthy Futures) Act 2022
• Sections 5(g)(i) and 19(1)(b)(i) of the Water Services Authority – Taumata Arowai Act 2020

Acts being reviewed separately to this process are:

• Conservation Act 1987
• Crown Minerals Act 1991
• Resource Management Act 1991
• Harbour Boards Dry Land Endowment Revesting Act 1991
• Hauraki Gulf Marine Park Act 2000
• Urban Development Act 2020
• Kāinga Ora Homes and Communities Act 2019

Claimants respond

Education union NZEI Te Riu Roa – a claimant in Waitangi Tribunal’s inquiry – is backing the tribunal’s call to pause legislation amending the Education and Training Act’s treaty provisions.

President Ripeka Lessels said the legislation should be paused, until there was meaningful consultation with Māori.

“This crown didn’t just not consult, they didn’t take any of their own official advisers’ advice, but moreover, they didn’t bother to inform themselves about what the impact of their decisions would be on tamariki Māori.”

The tribunal released its report publicly at midday Friday, but half an hour before the report was made public, Goldsmith released the full list of changes to the media.

Lessels questioned whether the timing was deliberate.

“[Goldsmith would] have known that the report from the tribunal was going out today, but putting them out there, I guess in some part on his part to maybe counter the fact that this is what the tribunal is saying.”

Treaty lawyer and Green Party candidate Tania Waikato will present evidence in a separate urgent tribunal hearing looking into the matter in early June.

Weakening the references for “clarity” was just a “convenient excuse” to justify a coalition agreement between National and NZ First, she said.

“New Zealand First said that they wanted to recognise one standard for all New Zealanders. It’s got nothing to do with clarity, it’s got nothing to do with consistency – the courts have been interpreting these statutes for a long time and they are absolutely clear on what all of those different standards mean.”

The government was being underhanded in the way it had dealt with the amendments, she said.

“Not only did they hide it, they continued to say ‘we haven’t made these decisions yet, there’s nothing further for us to disclose to the tribunal’, even though they were under orders from the tribunal to keep them updated about when these decisions were being made.”

Waikato said the Treaty Principles Bill that inspired the largest hīkoi in New Zealand history paled by comparison to what the government was now planning.

“They are trying to take Te Tiriti back into the dark ages and we cannot allow them to do that, without shining the biggest possible light onto what they are doing and holding Minister Goldsmith to account for the absolute hatchet job that he has done on the Māori-crown relationship,” she said.

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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand