Human Rights Commission Warns Treaty Clause Overhaul Could Increase Legal Uncertainty

Commission urges Government to reconsider proposed Treaty clause reforms, saying the changes risk greater uncertainty rather than greater clarity.


Lead image: The Human Rights Commission is urging the Government to abandon its plans to change or repeal Treaty clauses. Photo: Screenshot / Human Rights Commission


The Human Rights Commission says the Government's proposed review of Treaty of Waitangi clauses could weaken constitutional protections while increasing legal uncertainty and litigation. The Government rejects that view, arguing the reforms are intended to create greater consistency and improve certainty across New Zealand's laws.


Report by eLocal

The Human Rights Commission (HRC) has called on the Government to abandon its proposed overhaul of Treaty of Waitangi clauses, warning the changes could have the opposite effect to that intended by creating greater constitutional uncertainty.

In a submission released this week, the Commission argues the coalition's proposals are "constitutionally regressive" and could weaken existing Treaty protections while increasing the likelihood of future litigation. The submission follows the Government's announcement that it intends to amend or remove Treaty references across 19 pieces of legislation.

Justice Minister Paul Goldsmith has said the review is designed to provide greater consistency in how Treaty obligations are expressed in legislation. He has argued that over several decades Parliament has adopted a range of different Treaty formulations, creating unnecessary complexity for those required to interpret and comply with the law.

The Human Rights Commission disagrees with that assessment. Indigenous Governance Partner Dayle Takitimu said clarity is better achieved by applying established human rights principles while continuing to honour Treaty obligations, rather than reducing or removing statutory references. The Commission argues the proposed reforms could weaken accountability, increase legal disputes and place additional pressure on Crown–Māori relations.

The submission also criticises the consultation process, saying Māori were not adequately involved in developing the recommendations. It recommends that any future constitutional or legislative changes affecting Treaty obligations be developed in partnership with Māori rather than through the current review.

For its part, the Government has rejected suggestions that it is lowering Treaty obligations. Goldsmith said the coalition does not accept that characterisation and maintains the objective is simply to create greater legislative consistency. Under the current proposal, references to Treaty principles would be removed from seven Acts, modified in ten others and made more specific in two pieces of legislation. The Government has said iwi will be consulted through the normal parliamentary select committee process.

The National Interest Test

At eLocal, major constitutional reforms are examined against one overarching question:

Does this make New Zealand stronger?

That question is not intended to predetermine the answer. Instead, it provides a consistent framework for evaluating significant constitutional change.

Among the questions New Zealanders may wish to consider are:

  • Will the proposals improve legal certainty or create greater uncertainty?
  • Will they strengthen democratic accountability?
  • Will they enhance social cohesion and national unity?
  • Will they provide a more stable constitutional framework for future generations?
  • Will they strengthen confidence in New Zealand's institutions and the rule of law?
  • Will they improve New Zealand's long-term national resilience and prosperity?

These are ultimately questions for Parliament and the public to debate. Whatever conclusions New Zealanders reach, constitutional reform has consequences that extend well beyond the current parliamentary term and will shape the country's legal and democratic framework for decades to come.

Source: RNZ / Craig McCulloch; Human Rights Commission.

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