Govt moves to replace or repeal Treaty principles clauses from laws

The Government's plan to repeal or replace all references to the Treaty principles in legislation is now underway.

Documents released to 1News show dozens of laws will be up for review, including at least 40 acts with Treaty principles clauses. It is unclear if a further 22 pieces of legislation, which refer specifically to the Treaty of Waitangi, could also change.

Law lecturer Luke Fitzmaurice-Brown said the process would be a massive undertaking.

"A worry that a number of people have is that this proposed review of Treaty provisions is happening in the wider context of a government which is showing a willingness to ignore Te Tiriti," he said.

"The Waitangi Tribunal has criticised its approach on Oranga Tamariki and on Māori wards.

"We saw the [repeal of the] Māori Health Authority passed before the tribunal had time to examine it, so it all amounts to a wider pattern of the Government essentially hoping to ignore or diminish its Te Tiriti responsibilities."

In its coalition deal, NZ First agreed with National 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'".

Following a review, the party wants to, "replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references".

NZ First Minister Shane Jones said many of the Treaty clauses were too vague.

"There's certainly a case to refine the Treaty references in the 40 to 50 pieces of legislation," he said.

"We've got to bring some more specificity and certainty, so it doesn't undermine decision-making and investment."

The first Treaty clause appeared in 1975 when the Treaty of Waitangi Act was passed.

It established the Waitangi Tribunal and gave it the power to "make recommendations on claims relating to the practical application of the Treaty principles". Since then more than 60 laws, excluding Treaty settlements, have referred to the "Treaty" in various ways.

Lawyer Roimata Smail said the Treaty was also increasingly being used in the courts.

"We expect to see it in our laws and, increasingly, the courts are starting to really understand and apply to Te Tiriti across cases — right up to the Supreme Court."

With growing recognition of the Treaty in statute, she has written a book, Understanding Te Tiriti, to help New Zealanders understand what the texts actually mean.

Smail said: "I've had to reprint the book multiple times. It's exciting to know that New Zealanders really want to know the basics about Te Tiriti."

However, critics of the review are concerned it will be an attempt by the Government to erase Te Tiriti from the law.

At an urgent inquiry into the policy by the Waitangi Tribunal earlier this month, lawyer Annette Sykes said she was concerned it already had a pre-determined outcome.

"It has an objective of replacing and then repealing," she said.

"It's about the obliteration and erasure of our Te Tiriti in the statute of this country."

Fitzmaurice-Brown said references to the Treaty in the legislation were inconsistent.

"So that in itself is probably a valid issue and worth examining," he said.

"On its face, it's not a terrible idea, but there's that real concern given the wider context."

There are different types of Treaty clauses, but the majority are considered "generic" because they can apply to all decisions under an act.

"In some laws like the Conservation Act or the State Owned Enterprise Act, the Treaty clause says 'nothing in this law should be interpreted inconsistently with the Treaty'".

Jones said the "generic" clauses needed to go.

"The will be no further extension in terms of generic, ambiguous Treaty clauses."

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