The broader Treaty clause review faces a separate and urgent Waitangi Tribunal inquiry.
Earlier this month, the tribunal granted urgency to the wider review process, saying proposed changes to Treaty clauses across legislation carried constitutional significance and warranted urgent scrutiny.
The tribunal said the education law inquiry initially focused on the repeal of school boards’ Treaty obligations and changes to Te Mātaiaho, the New Zealand Curriculum.
Justice Minister Paul Goldsmith announced the Government would proceed with changes despite the Waitangi Tribunal’s recommendations. Photo / Getty Images
But on the eve of hearings in April, Crown lawyers revealed that the Cabinet had already agreed to a much broader package of Treaty clause changes across the Education and Training Act without consulting Māori.
Those proposals included downgrading Treaty obligations in multiple sections of the act to no more than a requirement to “take into account” Te Tiriti, changing references to include both texts of the Treaty, and amending or repealing some Treaty obligations altogether.
The report also examined possible changes to broader purpose clauses within the act that currently require parts of the education system to “honour” or “give effect to” Te Tiriti.
In its letter to ministers, the tribunal said the Crown had failed to engage meaningfully with Māori before making decisions of constitutional significance.
“We have found the Crown’s approach to the reforms has breached the Treaty principles of partnership, active protection and good government, and caused prejudice to Māori,” the tribunal wrote.
“We recommend you correct course and immediately halt the advancement of the proposed amending legislation.”
It said that, if changes to Treaty clauses were objectively needed, they should instead be developed through “meaningful engagement with Māori in their co-design”.
The report was particularly critical of the Government’s consultation process, noting that Cabinet decisions were made without broader Māori engagement and despite earlier warnings from the Waitangi Tribunal during the Ngā Mātāpono inquiry into the Treaty clause review process.
The Waitangi Tribunal has urged ministers to halt reforms and begin meaningful co-design with Māori. Photo / Te Kakenga Kawiti-Bishara
It found the Crown pursued a “Treaty-inconsistent course” by engaging only with the National Iwi Chairs Forum after substantive decisions had already been made.
The tribunal also criticised Justice Minister Paul Goldsmith’s reliance on the select committee process as sufficient consultation, describing that position as “manifestly inadequate and an insult to Māori”.
The report said ministers proceeded despite repeated official warnings that timeframes were too constrained, policy analysis was incomplete, and not enough was known about the potential impacts on Māori interests and the Māori-Crown relationship.
In one of its strongest findings, the tribunal compared the reforms to the Government’s controversial Treaty Principles Bill.
“In summary, the decision to diminish the Crown’s Treaty obligations in the act to one of the lowest standards of ‘take into account’ … represents a major breach of the Treaty and its principles.
“It is as bad as the Treaty Principles Bill in its attempt to erase the Crown’s duty to comply with the agreement made between Māori and the Crown in 1840. It may even be worse, because the Treaty Principles Bill, in theory, was never going to be enacted.”
The tribunal said the proposed reforms formed part of a broader pattern of “Treaty-inconsistent” lawmaking by the Government, pointing to reforms involving Oranga Tamariki, Māori wards, the Marine and Coastal Area Act and the Regulatory Standards Bill.
Among the key recommendations, it called on the Government to:
– Immediately halt the advancement of the amending legislation intended to effect the Education and Training Act;
– Meaningfully engage and co-design any future amendments with Māori;
– Take urgent steps to repair the Māori-Crown relationship.
NZEI Te Riu Roa president Ripeka Lessels welcomed the findings, saying they confirmed Māori had been sidelined in major education decisions.
“We welcome the tribunal’s findings, which clearly outline how the Government’s recent actions have bypassed Māori and undermined the principle of partnership and active protection.
“By moving unilaterally to downgrade Te Tiriti in education, the Government has ignored the principles of good government and caused direct prejudice to Māori.
“It is now important that the Crown heeds this call to halt the proposed changes to the Education and Training Act and begins the work of repairing the relationship with Māori.”
Lessels said educators expected the Crown to honour its constitutional obligations and uphold an education system that served ākonga Māori.
The tribunal noted that further findings could follow during stage two of the urgent inquiry, which continues to examine the repeal of school boards’ Treaty obligations and changes to Te Mātaiaho, the New Zealand Curriculum.
Education Minister Erica Stanford. Photo / Mark Mitchell
Education Minister Erica Stanford has been approached for comment.
Less than half an hour before the embargo on the tribunal’s report lifted, Goldsmith announced that the Government would press ahead with wider Treaty clause changes across 19 pieces of legislation, signalling no intention to halt the reforms, despite the tribunal’s recommendations.
He and other ministers received a copy of the report before it was published publicly.
“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,” he said.
The Education and Training Act remains among the laws affected, with proposed changes including repealing section 536A(1) and downgrading Treaty standards in sections 9 and 535B(a) to “take into account”.
Goldsmith said the Government was seeking greater “consistency” in how Treaty clauses operated across legislation.
“Over the last 30 or 40 years, Parliament has made all sorts of references to the principles of the Treaty of Waitangi. Sometimes it’s ‘honour’, or ‘have regard to’, or ‘give effect to’, or ‘take into account’. We need to create some consistency here.”
He said consultation with iwi was underway and the legislation would proceed through the select committee process.