From “Give Effect” to “Take Into Account”: Legislative Tidying or a Retreat From Treaty Obligations?
by abbey smith & ashling shand
Introduction
The government has committed to conducting a comprehensive review to clarify or repeal references to the principles of te Tiriti o Waitangi (the Treaty of Waitangi) in legislation. Treaty references (or clauses) are sections within legislation that directly mention the Treaty and its principles, such as partnership, active protection and redress, creating a legal obligation for government agencies and decision-makers to act in accordance with te Tiriti. Justice Minister Paul Goldsmith assures the review will create legal clarity and consistency in the law. However, this decision has sparked concern amongst iwi, academics and the wider community about the potential implications of these changes. This article interrogates how the review of Treaty references in legislation may implicate the force of te Tiriti in domestic law, revealing how the dilution of Indigenous authority upsets Aotearoa New Zealand's constitutional foundations and international obligations.
Development and Legal Architecture
The review stems from the National-NZ First coalition agreement signed in November 2023 and formally initiated in September 2024, when Cabinet identified 28 acts within the original scope of consideration. From May 2025 to February 2026, a Ministerial Advisory Group and a Ministerial Oversight Group refined the scope, eventually narrowing the review to 19 Acts. As of April, the Minister of Justice has contacted the National Iwi Chairs Forum seeking to engage on the proposed changes before legislation is introduced and referred to a select committee consultation.
10 of the 19 Acts will be amended to specify a standard to ‘take into account’, replacing previous stronger wording such as “give effect to” or “to honour” the Treaty. A further seven references will be repealed, completely removing Treaty obligations from the statutory scheme. Two other references are subject to amendments to make them more specific. These changes affect legislation across 11 agencies, directly impacting the operation of major statutory schemes in education, public health, environmental management, transport and local government.
This reform differs from the 2024 Treaty Principles Bill, which sought to redefine the principles themselves. Instead, the current review targets the statutory mechanisms that make Treaty principles legally enforceable,shifting from the meaning of the principles to the force of the obligations. The proposed amendments would effectively set the ceiling at the lowest Treaty standard, prompting significant concern regarding the partnership and safeguards protecting Māori rights.
Diminishing the Enforceability of Te Tiriti
Treaty references are legal mechanisms that give Te Tiriti legal effect in day-to-day governance. References bind the Crown, shape obligations to Māori, guide the interpretation of statutes by the courts, and provide an enforceable standard for Māori to take action against the Crown. In legislation, wording matters; formulation changes from ‘give effect’ to ‘take into account’, shift Treaty obligations from substantive constraints on the Crown to merely procedural considerations that can be acknowledged and set aside. Weakening these clauses is therefore not an exercise in legislative tidying. Māori have raised concerns that diluting or removing Treaty references could shape policy direction for decades; risking the entrenchment of inequities, reducing Crown accountability, and creating devastating long-term impacts for Māori.
The Treaty is a foundational document, forming an integral part of the constitutional order. Treaty clauses are a primary mechanism by which te Tiriti remains actively incorporated into that constitutional framework, ensuring its principles retain practical effect in modern governance. The courts have developed a substantial body of jurisprudence through these clauses, anchoring obligations in partnership, active protection, informed decision-making, and good faith. The proposed reforms risk unsettling established case law and diminishing the constitutional status the Treaty has come to hold. The Review risks a regression of Maori-Crown relations through significant constitutional disruption.
Process, Power and the Strain on Māori-Crown Relations
The Waitangi Tribunal has reported that the Crown has 'breached Treaty principles of partnership, active protection and good government' in its approach to amending Treaty provisions in the Education and Training Act, causing prejudice to Māori. The Crown made the proposals prior to consulting with Māori, and reaching out to only one iwi authority after substantial decisions had been made. Officials repeatedly warned that the reforms' impacts were unclear and that the proposed measure "has no apparent benefits and carries significant risk to the Māori-Crown relationship." As the Tribunal observed, downgrading obligations to as low as 'take into account' signals a retreat from the Crown's constitutional commitments significantly in areas such as health and education, where Māori face entrenched inequities.
These concerns are intensified by the exclusion of Māori from meaningful consultation. The established independent advisory group encouraged the use of multiple terms, including “give effect,” where a standard of obligation was needed and warned against repealing references altogether. Departing from these recommendations and failing to engage with Māori at the constructive stages reflects a legislative development process which lacks the collaborative constitutional practices expected under te Tiriti. The result is a reform operation that appears predetermined rather than co-developed, raising questions about whether the Crown has met its obligations of informed decision-making and partnership. Where sweeping legislative changes proceed without informed engagement of those directly affected, they risk undermining the legitimacy of the outcome and eroding public confidence in the Crown's commitment to good-faith governance. For example, academics and opposing parties have raised the perception that the review may serve as a means to sidestep the failed Treaty Principles Bill whilst achieving similar outcomes. The Treaty Principles Bill collapsed amid significant public uproar and nationwide controversy, prompting concerns that pursuing similar changes through a quieter legislative review process may appear to circumvent democratic resistance, illustrating the degree of constitutional strain created by the process alone. By and large, these factors magnify the risk of destabilising an already uneasy relationship between Māori and the Crown, not just by the substance of the reforms but also the manner in which they have been pursued.
International Perspective on Treaty Obligations
International human rights law increasingly expects states to strengthen Indigenous recognition and participation, not dilute it. In 2010, Aotearoa endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a comprehensive instrument designed to address historical injustices and assist governments in recognising and protecting Indigenous rights. The declaration is non-binding to nations but carries significant political, moral and persuasive force. Key principles include Indigenous self-determination, participation in decision-making, and the free, prior, and informed consent of Indigenous peoples, which should be obtained before implementing any legislative measures that may affect them. Strong Treaty references operationalise these commitments and ensure meaningful reflection of international standards within Aotearoa’s legal framework.
In late 2025, the UN Committee on the Elimination of Racial Discrimination released a report expressing concerns regarding the undermining of Treaty principles. The committee urged the preservation and strengthening of existing partnership arrangements established under the Treaty-relevant legislation. Removing the obligation for governments and agencies to act in accordance with Treaty principles is a clear departure from these international recommendations and a regression in the protection of Māori rights.
New Zealand is often represented as a global leader in Indigenous rights, largely due to te Tiriti. However, from a legal and constitutional perspective, experts have argued that New Zealand actually falls behind other nations. Provided that legal tests are met, courts in Canada and the United States have the jurisdiction to strike down legislation that breaches Indigenous treaties. By comparison, in Aotearoa, the legislative framework is founded on parliamentary sovereignty, meaning Parliament holds the supreme authority to enact, amend or repeal legislation. Courts are unable to invalidate Treaty principles and Indigenous rights. Weakening Treaty references will further widen the gap between Aotearoa and other jurisdictions that are progressing towards stronger constitutional recognition and protection of Indigenous rights.
Repairing Māori-Crown Relations
Following the proposed Treaty Principles Bill and weakening of Treaty references, significant distrust has arisen between Māori and the Crown. In addition to the immediate halt of reforms to legislation, the Waitangi Tribunal has recommended that the Crown engage in meaningful consultation with Māori to ensure partnership-based decision-making processes which are consistent with Te Tiriti obligations. Not doing so risks ostracising iwi, increasing social division, and further entrenching intergenerational inequities experienced by Māori across areas such as health, education, housing, and criminal justice. There must be more than just symbolic acknowledgement of Te Tiriti; Māori must have a meaningful impact in the development of legislation and policy affecting their communities.
Conclusion
Treaty references are a central legal mechanism that give effect to te Tiriti and ensure its principles safeguard Māori rights and interests. The proposed changes risk diminishing the constitutional significance of te Tiriti by transforming Treaty clauses from substantive legal obligations to considerations that may be more easily disregarded. International jurisprudence continues to place greater emphasis on states recognising and elevating Indigenous rights. The Crown must prioritise reconciliation and meaningful consultation with Māori to foster long-term partnerships, social cohesion and equitable outcomes across Aotearoa.
Waiho i te toipoto, kaua i te toiroa
(Let us keep close together, not far apart)