The review was led by justice minister Paul Goldsmith, who was joined by then attorney-general Judith Collins, regional development minister Shane Jones and M\u0101ori-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<\/a> James Christmas, was set up to assist them.<\/p>\n \u201cThe rationale for this review has been confused from the start,\u201d legal academic Carwyn Jones told The Spinoff. According to Goldsmith, the changes are being made to create greater certainty<\/a> around the Crown\u2019s 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, \u201cWe\u2019ve ended up popping treaty references into a whole range of statutes without having any clarity\u2026 Vagueness has become a key feature of the landscape as a consequence of more frequent references to the Treaty of Waitangi.\u201d<\/p>\n 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. \u201cIt\u2019s been so well litigated over the last 50 years\u2026 I think it\u2019s actually one of the areas of law where there\u2019s probably more certainty than lots of others.\u201d<\/p>\n Currently, treaty provisions in legislation fall into a number of categories, including operative, ie creating obligations for decision-makers (eg \u201cgive effect to\u201d), 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 \u201cunintended signal\u201d to the courts.<\/p>\n In its report, the MAG strongly urged against removing references to the \u201ctreaty principles\u201d. It also suggested creating a consistent approach for statutory appointment provisions, replacing vague terminology, and consulting meaningfully with M\u0101ori about the changes. In the cabinet paper, Goldsmith accepted removing references to the treaty principles would likely create greater uncertainty.<\/p>\n In a regulatory impact statement (RIS) \u2013 an analysis of the proposals by the Ministry of Justice designed to inform cabinet decisions \u2013 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 M\u0101ori rights\/interests, or remove the treaty provisions in their entirety.<\/p>\n 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 \u201ctake into account\u201d the Treaty of Waitangi. This approach states where a treaty weighting is required, no higher standard than \u201ctake into account\u201d should be used. This change impacts provisions currently requiring decision-makers to \u201cgive effect to\u201d or \u201chonour\u201d the treaty.<\/p>\n In the cabinet paper, Goldsmith said that \u201cgive effect to\u201d standards do not promote balanced decision-making. Conversely, legal experts such as Andrew Erueti<\/a> have suggested the \u201ctake into account\u201d wording allows M\u0101ori interests to be subordinated by competing interests. \u201cOption five has no apparent benefits and carries significant risks to the M\u0101ori-Crown relationship,\u201d noted the RIS, \u201cincluding because it is likely to be seen as intended to reduce the legislative treaty protections available to M\u0101ori. 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.\u201d<\/p>\n According to Carwyn Jones, this indicates \u201cGoldsmith is showing he doesn\u2019t listen to advice. So many of his proposals, the Ministry of Justice officials have advised against, but he\u2019s stormed ahead nevertheless.\u201d\u00a0<\/p>\n 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 \u201ccheckbox\u201d exercise.<\/p>\n \u201cThe standard of \u2018taking into account\u2019 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.<\/p>\n \u201cThe courts could say: \u2018No, you clearly haven\u2019t taken these treaty principles into account, you need to go back and make that decision again\u2019,\u201d Carwyn Jones said. \u201cUnless it\u2019s specifically and explicitly excluded, the Crown may not be able to escape its treaty obligations.\u201d<\/p>\n 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 \u2013\u00a0which in October 2025 found<\/a> 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, hap\u016b or the public, leaving the analysis without a sufficient basis for \u201cinformed decision-making\u201d. They cautioned that progressing with the changes risked causing damage to M\u0101ori-Crown relations.<\/p>\n \u201cYou can tell it\u2019s a departure from the treaty partnership because of the consultation which has taken place,\u201d said Carwyn Jones. \u201cThere were ways in which he [Goldsmith] could have brought in more M\u0101ori participation, engagement, representation in this process, but engagement with M\u0101ori has been just the absolute bare minimum.\u201d<\/p>\nMinister of justice Paul Goldsmith (Photo: Parliament NZ)<\/p>\n
Carwyn Jones (Photo: Supplied)<\/p>\n