The controversial cabinet decision was made quietly, going against Ministry of Justice advice. But despite broad changes set to be made to a range of laws, one expert says ‘the Crown may not be able to escape its treaty obligations’.

The government is pressing ahead with a suite of changes to legislation with references to the Treaty of Waitangi, despite warnings from its own officials that there are “no apparent benefits” and “significant risk” with the proposals.

The Spinoff has viewed several government documents, including a February cabinet paper signing off on the proposed changes, which include repealing the treaty references in a number of laws and weakening the Crown’s treaty obligations to no stronger than “take into account” in others.

The decision, which was not announced publicly, is the outcome of a promise in the 2023 National-New Zealand First coalition agreement to review all legislation that references the principles of the Treaty of Waitangi. Initially, 28 pieces of legislation fell under its scope, but this was later narrowed to 23. Due to redactions in the cabinet paper, it’s not clear which acts besides the Education Training Act 2020 are having clauses repealed or amended, though 1 News has reported clauses will be removed from six laws.

The review was led by justice minister Paul Goldsmith, who was joined by then attorney-general Judith Collins, regional development minister Shane Jones and Māori-Crown relations minister Tama Potaka in a ministerial oversight group. A ministerial advisory group (MAG) comprising lawyer David Cochrane as chair, alongside iwi leader Marama Royal, lawyer John Walters and lawyer and recently announced Act Party candidate James Christmas, was set up to assist them.

“The rationale for this review has been confused from the start,” legal academic Carwyn Jones told The Spinoff. According to Goldsmith, the changes are being made to create greater certainty around the Crown’s obligations in legislation containing references to the principles of the Treaty of Waitangi and the treaty itself. Speaking to The Spinoff about the review in 2024, Shane Jones said, “We’ve ended up popping treaty references into a whole range of statutes without having any clarity… Vagueness has become a key feature of the landscape as a consequence of more frequent references to the Treaty of Waitangi.”

But according to Carwyn Jones, with 50 years of jurisprudence behind it, treaty law is one of the most well-established and definitive areas of law in the country. “It’s been so well litigated over the last 50 years… I think it’s actually one of the areas of law where there’s probably more certainty than lots of others.”

Currently, treaty provisions in legislation fall into a number of categories, including operative, ie creating obligations for decision-makers (eg “give effect to”), and descriptive, ie describing how treaty responsibilities are fulfilled within an act. In its final report delivered in August last year and seen by The Spinoff, the MAG made a number of recommendations, including replacing broad operative provisions with descriptive provisions. These descriptive clauses would clearly identify the specific sections within an act that must be complied with. If no specific provisions could be identified, the group advised repealing the general clause, provided it would not send an “unintended signal” to the courts.

In its report, the MAG strongly urged against removing references to the “treaty principles”. It also suggested creating a consistent approach for statutory appointment provisions, replacing vague terminology, and consulting meaningfully with Māori about the changes. In the cabinet paper, Goldsmith accepted removing references to the treaty principles would likely create greater uncertainty.

In a regulatory impact statement (RIS) – an analysis of the proposals by the Ministry of Justice designed to inform cabinet decisions – finalised in November 2025, it is noted that officials presented four options to the justice minister: keep the status quo and gradually review as legislation is updated, retain provisions but use operational measures to improve clarity, amend provisions to specify exact actions or Māori rights/interests, or remove the treaty provisions in their entirety.

Instead of choosing one of these four paths, notes the RIS, Goldsmith introduced at a late stage a fifth option of standardising and limiting all obligations on the Crown to “take into account” the Treaty of Waitangi. This approach states where a treaty weighting is required, no higher standard than “take into account” should be used. This change impacts provisions currently requiring decision-makers to “give effect to” or “honour” the treaty.

In the cabinet paper, Goldsmith said that “give effect to” standards do not promote balanced decision-making. Conversely, legal experts such as Andrew Erueti have suggested the “take into account” wording allows Māori interests to be subordinated by competing interests. “Option five has no apparent benefits and carries significant risks to the Māori-Crown relationship,” noted the RIS, “including because it is likely to be seen as intended to reduce the legislative treaty protections available to Māori. As this was a late proposal from the minister of justice, there has been insufficient time to fully understand the impacts of this proposal for each provision affected.”

According to Carwyn Jones, this indicates “Goldsmith is showing he doesn’t listen to advice. So many of his proposals, the Ministry of Justice officials have advised against, but he’s stormed ahead nevertheless.” 

Despite this, the academic said there would still be an onus on the government to consider te Tiriti and explain its reasoning behind decisions being made, and this would be more than a “checkbox” exercise.

“The standard of ‘taking into account’ does carry weight. It still provides a lever for the courts to examine the process and consider whether principles are pretty being taken into account in making a decision.

“The courts could say: ‘No, you clearly haven’t taken these treaty principles into account, you need to go back and make that decision again’,” Carwyn Jones said. “Unless it’s specifically and explicitly excluded, the Crown may not be able to escape its treaty obligations.”

In its regulatory impact statement, the Ministry of Justice advised the proposed changes were likely to lead to costly legal challenges and claims before the Waitangi Tribunal – which in October 2025 found the treaty clause review would likely breach the principles of the treaty. Justice officials also warned the proposal failed to meet the quality assurance standard due to an absence of consultation with iwi, hapū or the public, leaving the analysis without a sufficient basis for “informed decision-making”. They cautioned that progressing with the changes risked causing damage to Māori-Crown relations.

“You can tell it’s a departure from the treaty partnership because of the consultation which has taken place,” said Carwyn Jones. “There were ways in which he [Goldsmith] could have brought in more Māori participation, engagement, representation in this process, but engagement with Māori has been just the absolute bare minimum.”

According to the cabinet paper, Goldsmith was planning to consult with the leaders of the Iwi Chairs Forum while the bill was being drafted, and 1 News has reported that the plan is in front of them now. “I haven’t seen detailed responses but my impression is that they prefer nothing change, but that’s not really an option,” the minister told 1 News.

With just 200 days until the election, Goldsmith said legislation would be introduced to parliament “in the next couple of months”.