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He aha ai? The role of Te Tiriti in policy and legislative development

Home Insights He aha ai? The role of Te Tiriti in policy and legislative development

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Contributed by: Emmeline Rushbrook, Steven Sutton and Tessa Cooksley

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Published on: February 07, 2023


Over the course of the last five years, we have seen a much increased focus within policy and legislative development processes on Te Tiriti o Waitangi the Treaty of Waitangi or Māori perspectives. This often involves the inclusion of specific questions within discussion papers and consultation papers aimed at identifying Te Tiriti/Māori interests in any given issue.

Sometimes we're asked about why policymakers are asking these questions. This article provides a short summary of the current rules and practices in place that support these lines of inquiry. If you or your team would like a more fulsome update or refresher on this area, including on the principles of Te Tiriti and their place within New Zealand law, please get in touch.

Te Tiriti o Waitangi/the Treaty of Waitangi

Te Tiriti comprises a preamble and three articles:

  • Article 1: the government gained the right to govern;

  • Article 2: the Crown promised that Māori had the right to make decisions over the resources and taonga they wished to retain;

  • Article 3: the Crown promised that its obligations to citizens were owed equally to Māori.

Cabinet Manual 2017

The Cabinet Manual acts as the guiding set of rules binding Ministers and therefore, by extension, the public service. The introduction to the Cabinet Manual describes Te Tiriti as one of the major sources of New Zealand's constitution, which:

… may indicate limits in our polity on majority decision-making. The law may sometimes accord a special recognition to Māori rights and interests such as those covered by Article 2 of the Treaty. And in many other cases the law and its processes should be determined by the general recognition in Article 3 of the Treaty that Māori belong, as citizens, to the whole community. In some situations, autonomous Māori institutions have a role within the wider constitutional and political system. In other circumstances, the model provided by the Treaty of Waitangi of two parties negotiating and agreeing with one another is appropriate. Policy and procedure in this area continues to evolve.

The Cabinet Manual itself requires that Ministers must confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme (7.65). In particular, Ministers must draw attention to any aspects of a bill that have implications for, or may be affected by the principles of Te Tiriti (among other things, such as the New Zealand Bill of Rights Act 1990).

Cabinet Office Circular 2019

A Cabinet Office Circular "Te Tiriti o Waitangi / Treaty of Waitangi Guidance" issued in October 2019 sets out guidelines agreed by Cabinet for policymakers to consider Te Tiriti in policy development and implementation. It requires, among other things, that policymakers identify any Te Tiriti/Māori interests in a given issue, consider what arguments could be made that their work is inconsistent with Te Tiriti, and look at issues from the perspective of tikanga values. One approach to recognising interests is "Treaty clauses" in legislation. Recent examples include:

  • the Water Services Entities Act 2022, the Water Services Legislation Bill, and the Water Services Economic Efficiency and Consumer Protection Bill (the Three Waters legislation); and

  • the Natural and Built Environment Bill, and the Spatial Planning Bill (the RMA replacement).

Legislation Design and Advisory Committee – Legislation Guidelines

The Legislation Guidelines from the Legislation Design and Advisory Committee have been endorsed by Cabinet as the government's key point of reference for assessing whether draft legislation is consistent with accepted legal and constitutional principles. The current version of the Guidelines was issued in September 2021.

Linking to the Cabinet Manual requirements above, the Guidelines set out that as a preliminary step to legislation the policy objective and purpose of proposed legislation needs to be defined. This includes asking whether all Māori rights and interests that may be affected have been identified. The Guidelines encourage early engagement with Māori and recommends that the Crown Law Office, Te Arawhiti/Office for Māori Crown Relations, and Te Puni Kōkiri/Ministry of Māori Development should be consulted to assist with the identification of interests that will be affected.

Public Service Act 2020

More broadly, the Public Service Act 2020 is the legislation under which all departments operate and sets out the role of the public service in supporting the Crown’s relationship with Māori under Te Tiriti and in achieving the government’s objectives of improving services and outcomes for Māori. The Act, for example, means that chief executives of government departments as employers must now recognise the specific aims and requirements of Māori and the need for greater Māori involvement in the public service. This legislation too, therefore, is a new and powerful lever influencing the increased focus on Te Tiriti within policy and legislative design.

This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.

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