Key Takeaways
- The New Zealand Government plans to weaken Treaty of Waitangi obligations, changing clauses from stronger standards like “give effect to” or “honour” to a weaker “take into account” requirement.
- Justice Minister Paul Goldsmith argues the change brings consistency, but Ministry of Justice officials warn it carries significant risk to the Māori‑Crown relationship and offers little benefit.
- Legal scholars, the Green Party, and an independent advisory group criticise the move as a step backwards that marginalises Māori interests and bypasses proper consultation.
- Despite warnings, the Government is preparing a bill to amend multiple pieces of legislation, expecting introduction before the upcoming general election.
Overview of the Government’s Proposal
The Government has announced intentions to dilute legal obligations tied to the Treaty of Waitangi across a range of statutes. Following a sweeping review of legislation containing Treaty‑related clauses—initiated by NZ First as part of the coalition agreement—the Cabinet has agreed that any reference to the Treaty’s principles should be limited to the phrase “take into account.” This would replace stronger formulations such as “give effect to,” “honour,” or “have regard,” thereby lowering the threshold for how decision‑must consider Māori interests. The move is framed as an effort to achieve uniformity in how the Treaty is referenced in law, but it has sparked significant concern among legal experts, Māori leaders, and opposition parties who view it as a substantive weakening of Crown commitments.
Cabinet Decision and Consistency Rationale
Cabinet’s agreement emerged from a desire to tidy up what Justice Minister Paul Goldsmith described as a “patchwork” of Treaty language that had accumulated over three to four decades. According to Goldsmith, Parliament has used varying verbs—sometimes “honour,” sometimes “have regard,” sometimes “give effect to,” and sometimes “take into account”—creating inconsistency that complicates legal interpretation. By settling on a single, lower‑threshold phrase, the Government hopes to simplify compliance and reduce uncertainty for public officials. Goldsmith maintains that “take into account” is an appropriate and sufficient standard for upholding the Treaty’s principles, insisting that the change does not diminish the Crown’s responsibilities but merely aligns them across statutes.
Justice Minister Paul Goldsmith’s Statements
In interviews with 1News, Goldsmith defended the proposal, asserting that the Treaty’s principles should be taken into account as a matter of course. He rejected claims that the new threshold is too low, arguing that it reflects a realistic and workable approach to Treaty obligations. Goldsmith also noted that the Cabinet had considered advice from officials but ultimately chose not to adopt stronger language, emphasizing the Government’s priority of achieving legislative consistency. He contended that the change would not affect the substantive outcomes of decisions, only the wording used to describe how Treaty principles are considered.
Ministry of Justice Officials’ Warnings
Contrary to the Minister’s confidence, Ministry of Justice officials advised against lowering the Treaty obligation threshold. Their briefing warned that the change offered “no apparent benefits,” posed “significant risk to the Māori‑Crown relationship,” and could have “wide‑ranging impacts on Māori social, cultural, economic, and environmental interests.” The officials stressed that existing stronger clauses had been carefully crafted to ensure Māori interests were not easily overridden by competing considerations. They cautioned that diluting these protections could undermine decades of progress in recognising Māori rights and could expose the Crown to legal challenges and reputational damage.
Critique from Associate Law Professor Andrew Erueti
Associate law professor Andrew Erueti described the Government’s plan as “alarming,” arguing that Treaty clauses exist to spell out clear obligations owed to Māori. By replacing precise standards with the vague “take into account,” the proposal would allow other interests to subordinate Māori concerns. Erueti noted that Māori have long challenged the adequacy of “take into account” language, viewing it as a loophole that enables the Crown to prioritise policy expediency over Treaty commitments. He warned that the move represents a major step backwards in the evolution of Treaty jurisprudence and could embolden future governments to further erode Māori protections.
Green Party’s Response via Tamatha Paul
Green Party justice spokesperson Tamatha Paul condemned the Government’s actions, labeling it a “dishonourable Treaty partner.” She argued that pushing through sweeping changes without public disclosure shows a disregard for the Treaty’s spirit and reduces Te Tiriti to a mere consideration rather than a binding obligation. Paul also highlighted a semantic concern: the Government’s wording conflates Te Tiriti o Waitangi (the Māori‑language version) with the English Treaty of Waitangi, two documents she asserts differ markedly in meaning and intent. She criticised the lack of engagement with iwi, hapū, and the wider public, noting that the Waitangi Tribunal had previously warned that the Crown’s process breached the Treaty and called for full Māori inclusion—advice the Government ignored.
Independent Advisory Group’s Advice
The coalition agreement mandated an independent advisory group to guide the Treaty review. The group encouraged retaining a range of terms, including “give effect,” where a strong Treaty obligation was necessary, and warned against repealing Treaty references altogether. Erueti pointed out that the Justice Minister’s decision to adopt the lowest possible threshold directly contradicts this advice. The advisory group also cautioned that removing Treaty clauses from certain laws could create legal vacuums and unintended consequences, stressing that any reform must be grounded in thorough consultation and evidence‑based analysis.
Lack of Consultation Critique
Official advice underscored the absence of meaningful consultation with Treaty partners. The Minister of Justice’s process reportedly excluded iwi, hapū, the general public, and other external stakeholders, violating principles of partnership and participation embedded in the Treaty. Although Goldsmith has since presented the plan to the Iwi Chairs Forum, he acknowledged that the forum’s apparent preference is for no change—a stance he dismissed as “not really an option.” Critics argue that proceeding without genuine Māori involvement not only risks flawed policy but also breaches the Crown’s duty to act honourably under Te Tiriti.
Proposed Legislative Changes and Timing
Goldsmith has signalled intent to remove or weaken Treaty principles clauses in six specific laws, though the exact statutes have not been fully disclosed. Officials told the Minister there is “limited evidence” that current provisions cause uncertainty or that the proposed changes would yield greater certainty. Despite this, a bill is expected to be introduced before this year’s general election, allowing the Government to enact the changes swiftly. The anticipated legislation would affect a broad spectrum of areas potentially touching resource management, health, education, and social services, raising concerns about the scope of impact on Māori wellbeing.
Conclusion and Broader Implications
The Government’s push to standardise Treaty obligations at a minimal “take into account” level has ignited a fierce debate over the Crown’s commitment to Te Tiriti. While officials argue the move brings legal consistency, a chorus of experts, Māori leaders, and opposition parties warns that it erodes substantive protections, sidelines Māori voices, and jeopardises the hard‑won gains of Treaty settlements and jurisprudence. As the proposed bill advances toward parliamentary consideration, the outcome will test whether New Zealand can balance legislative simplicity with its enduring duty to honour the Treaty of Waitangi as a foundational, living agreement.