The Government has been reviewing a number of Treaty references across legislation in Aotearoa.
While this is being framed as a move to create “clarity” and “consistency”, it could weaken protections that uphold Te Tiriti o Waitangi and reduce accountability to Māori.
What’s happening?
The Government has been reviewing Treaty of Waitangi references in laws across different sectors.
Treaty references are sections within legislation that require decision-makers to recognise and uphold Te Tiriti o Waitangi and its principles. These references currently exist in many laws including those that guide education, housing, environment, local government, and health.
The review is looking at whether these clauses should be changed, standardised, or in some cases removed.
The Government says this is about simplifying legislation and ensuring consistency. However, many legal experts, iwi leaders, and public health voices have raised concerns about what this could mean in practice.
Comparison with the Treaty Principles Bill in 2024
You might be wondering “OK, but what’s the difference between this and the Treaty Principles Bill in 2024?”
The language can be a bit confusing, so here’s a quick rundown for clarity.
First, let’s define three different words you might’ve heard when people mention the Treaty:
- Articles
- Principles
- References (or clauses)
The Articles of the Treaty are the specific historical clauses that were written and signed in 1840. The Treaty is essential to sovereignty, rights, and governance of our nation. But because the historical context in which the Treaty was signed is very different from today, there needs to be a way for the Treaty to continue to apply in our modern context. That’s where the principles come in.
The principles are a set of legal interpretations of the Treaty. These principles have been developed by the courts so that the Treaty’s intent can be applied in modern contexts. There is no complete “list” but generally the principles are centred around three main themes: partnership, protection, and participation [1].
Treaty references (or clauses) are when the Treaty and its principles are mentioned in legislation. For example, some pieces of legislation have “give effect to the principles of Te Tiriti o Waitangi (the Treaty of Waitangi)” or “honour Te Tiriti o Waitangi (the Treaty of Waitangi).” These references are legal mechanisms that ensure the Treaty has influence on laws.
So, how does this current plan of the Government differ from that of the Treaty Principles Bill that was proposed in 2024?
The Principles of the Treaty of Waitangi Bill in 2024 set out to narrowly redefine the principles in Parliament rather than the courts. In other words, the focus was on the principles of the Treaty themselves.
The recently announced Treaty references reform sets out to do something different — change or remove the language in different pieces of legislation that make the Treaty and its principles legally actionable.
The Treaty Principles Bill was about redefining principles. The Treaty references reform is about when and how the Treaty and its principles apply. The key similarity is that both represent a move away from partnership and weaken safeguards that protect Māori rights and wellbeing.
The details
According to sources, as of early May the Government’s Treaty clauses reform would completely remove some references to the Treaty in these laws:
- Smokefree Environments and Regulated Products Act 1990
- Education and Training Act 2020
- Organic Products and Production Act 2023
- Energy Efficiency and Conservation Act 2000
- Crown Pastoral Land Act 1998
- Plant Variety Rights Act 2022
References will be weakened to say “to be taken into account” in these laws:
- Pae Ora (Healthy Futures) Act 2022
- Crown Pastoral Land Act 1998
- Education and Training Act 2020
- Mental Health and Wellbeing Commission Act 2020
- Criminal Cases Review Commission Act 2019
- Climate Change Response Act 2002
- Data and Statistics Act 2022
- Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012
- Water Services Authority – Taumata Arowai Act 2020
- Digital Identity Services Trust Framework Act 2023
These laws will be affected by amending Treaty clauses:
- Data and Statistics Act 2022
- Hazardous Substances and New Organisms Act 1996
Why does it matter?
Treaty references are one of the ways Te Tiriti o Waitangi is given effect in everyday decision-making.
In simple terms, these references help ensure that the Crown considers its obligations to Māori, Māori rights and interests are recognised in law, and decision-makers engage with Māori.
In law, wording matters. Changing phrases like “give effect to” into “take into account” can weaken how strongly agencies are required to act on Treaty obligations.
This really matters for health. Māori often have worse health outcomes because of past and ongoing unfair treatment and barriers in the system. Treaty references help make sure the Government is held responsible and works to make things fairer.
Our concerns
Weakening Te Tiriti protections
Treaty references are practical mechanisms that make the Treaty have legal force. Weakening or removing these references risks reducing Crown accountability.
Reduced participation
The Government ignoring advice by experts (including the Waitangi Tribunal) to pause this legislative reform risks sidelining Māori voices in decisions that affect them.
Ongoing Māori health inequities
Te Tiriti provides a foundation for equitable health policy. Without strong Treaty references in law, progress toward a healthy future for Māori could be undermined.
Systemic impacts
Weakening or removing Treaty references could shape policy direction for decades. Long-term impacts of this could be devastating for Māori.
Our position
Hāpai Te Hauora sees Te Tiriti o Waitangi as fundamental to achieving health equity in Aotearoa. Treaty references are commitments that help ensure Māori rights, partnership, protection, and participation are upheld in practice. We are concerned that removing or diluting these references risks entrenching inequities.
Call to action
Public engagement processes related to the Treaty references review are underway. These proposed changes are expected to be developed into a Bill in the coming months.
We encourage whānau, iwi, and hāpori to:
- Stay informed
- Raise awareness within your networks
- Have your say when public consultation and submission opportunities open
Hāpai Te Hauora will continue to keep whānau updated as more information becomes available.
References
- Hayward, Janine. “Principles of the Treaty of Waitangi – ngā mātāpono o te Tiriti o Waitangi – What are the treaty principles?” Te Ara – the Encyclopedia of New Zealand. Last modified January 16, 2023. https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti-o-waitangi/page-1.
