Prime Minister Christopher Luxon agreed to an unprecedented number of policies from Winston Peters and David Seymour directed at Maori or the Treaty of Waitangi.
Audrey Young is the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018.
OPINION
If iwi feel as though they are being subject to a tsunami of anti-Māori policies under the coalition Government, it is probably because of the sheer breadth of measures accepted in National’s agreements with Act and New Zealand First.
Some policies were campaigned on by all three parties, such as abolishing the Māori Health Authority and making Māori wards harder to set up.
The irritation with “over-use” of Māori language rested more with NZ First.
Other policies were promoted by just one party. Act wanted to define the Treaty of Waitangi in law, while New Zealand First wanted a review of Treaty principles clauses already in law and a stop to new ones.
Prime Minister Christopher Luxon agreed to a raft of policies on a scale not seen in any previous coalition agreements. Waikato-Tainui’s Tukoroirangi Morgan at the Koroneihana celebrations in August accused Luxon of “throwing Māori under the bus”.
The fact that the policies primarily affect Māori and/or the Treaty of Waitangi and were agreed to without consultation with Māori (outside of the election) makes them ipso facto in breach of the Treaty by today’s standard.
That has put the Government on an unprecedented collision course with the Waitangi Tribunal, which is already viewed with scepticism by the three parties comprising the coalition.
The following make up the wave of policies that are currently before the House, have been dealt with or will appear on the Government’s agenda this term:
TREATY OF WAITANGI PRINCIPLES BILL
Aim: To replace the principles that have been developed over 30 years (including partnership, good faith, active protection, and redress) with three principles set out in statute which claim to be based on the Treaty (civil government, rights of hapū and iwi Māori, and rights of equality).
Comment: On the basis of the Cabinet paper approving its drafting, it will please no one. It says it will not alter the text of the Treaty (which is an impossibility in any event) but by directing the way in which it will be interpreted, the law would change its meaning in effect. It says on the one hand it recognises Māori rights at the time the Treaty was signed, then says it will only recognise those rights if they are set out in law. It is not often that the Māori Law Society and Hobson’s Pledge agree but in this case, they both oppose the proposal for being the dog’s breakfast it is. Officials oppose the bill. It has no support other than Act and will be voted down after its select committee hearings.
Progress: The bill is being drafted, will be introduced to Parliament in November and go to a select committee for six months.
CABINET OFFICE CIRCULAR
Aim: To direct policy-makers and decision-makers in Government, primarily ministers and the public servants, to emphasise need over race when it comes to targeting, commissioning and designing public services.
Comment: A new Cabinet Office Circular was issued stating that when considering proposals for services targeted to specific population groups, agencies must provide a strong analytical case for any targeting. A policy requiring 8% of Government procurement contracts to go to Māori providers was ditched. The moves are aimed at avoiding situations, for example, in which Māori patients or businesses are given higher priority because of their ethnicity. The new Cabinet Office circular, CO (24) 5, was promoted by Act and NZ First. It is in addition to Cabinet Office Circular CO (19) 5 Te Tiriti o Waitangi/ Treaty of Waitangi Guidance, issued in 2019 under the Labour - New Zealand First Government. The 2019 circular was the first such guidance to the public service on the Treaty since 1989. The 2019 circular sets out guidance for varying degrees of Treaty consideration and consultation required with Māori. It ranges from regular to co-design of policy by Māori, depending on the extent to which the policy affects Māori.
Progress: Cabinet Office Circular CO(24)5 was issued last week.
FORESHORE AND SEABED DECISION
Aim: To overturn a Court of Appeal decision (Edwards) that effectively struck out Parliament’s high test for hapū and iwi to get customary title in their part of the foreshore and seabed.
Comment: Parliament’s intent in 2011 was that hapū and iwi had to show they had exclusive use and occupation since 1840 of the relevant part of the foreshore before getting customary title. The Court of Appeal said iwi had to hold it at 1840, not since 1840, a huge difference which is likely to lead to most of the coastline ending up in customary title. Minister Paul Goldsmith said last week that National had campaigned on the measure but the Court of Appeal decision wasn’t released until the week after the election, so it couldn’t have. Despite his sloppiness in defending the move, the court decision was so diametrically different to what the law previously said that the Government has a strong case for reinstating its meaning and trying to make it court-proof. The big unknown is to what extent the bill will overturn the effects of the original High Court Edwards decision. The bill will probably attract the greatest protest as opponents depict it as a “confiscation”.
Progress: The policy detail has been approved by Cabinet and a bill is being drafted. It is scheduled to be introduced this month and be passed by Christmas.
CO-GOVERNANCE
Aim: To put an end to any expectation that a Treaty partnership means giving Māori an equal say or veto in how things are run. Part of Act and NZ First’s coalition agreements.
Comment: The primary target for this policy in the coalition agreements with both Act and New Zealand First was Labour’s Three Waters reforms. The initial backlash by councils was because the assets of 67 councils were going to be controlled by four mega entities across the country to run drinking water, wastewater and stormwater. The proposed structure gave iwi arms-length influence, an equal say along with council on a regional committee to select the panel that would appoint the governance board of four mega entities. It was a way to keep the prickly issue of water ownership and control away from the courts but it was a badly sold policy. The coalition’s repeal has calmed things temporarily but still waters run deep.
Progress: The bill repealing Labour’s structure was repealed in February.
WAITANGI TRIBUNAL
Aim: The stated aim is to amend the Waitangi Tribunal legislation to “refocus the scope, purpose, and nature of its inquiries back to the original intent of that legislation”. It is a NZ First initiative.
Comment: Harder than it looks. The tribunal as a quasi-judicial body is part of the Government’s conflict with the judiciary. The policy is a nostalgic bid to turn the tribunal back to the good old days when it had wide respect because it produced robust historic reports about historic Governments which were presented and received with civility. It is a response to the growing pile of reports on contemporary inquiries castigating contemporary Government on a broad range of issues - which are duly ignored. It was a policy negotiated before the tribunal’s series of urgent inquiries and angry reports issued this year over the coalition’s Section 7AA, Māori wards, the principles bill, and last week’s report on the foreshore and seabed decision - the Marine and Coastal Area (Takutai Moana) Act. The slight problem with the policy is the tribunal was set up in 1975 to look at contemporary breaches. Its mandate to look back was introduced in 1985. This is likely to be the hardest policy to implement without a root-and-branch approach.
Progress: No progress to date on the policy.
TREATY PRINCIPLES CLAUSES IN LEGISLATION
Aim: Review all legislation referring to the principles of the Treaty of Waitangi (except where it is related to Treaty settlements) and replace all such references with specific words relating to the relevance and application of the Treaty, or repeal the references.
Comment: It may not be as controversial as it sounds. Between 2000 and 2018, law drafters moved away from generic sounding Treaty clauses, also known as operative clauses, such as decision-makers must uphold the principles, or take account of or, at the lower end of the sliding scale, acknowledge the principles. They have preferred more bespoke “descriptive” principles setting out how the Government believes the law meets its Treaty obligations. What is not known is how changes to Treaty clauses will change the courts’ interpretations some of which have been controversial. A Supreme Court decision involving Ngai Tai ki Tamaki and DoC’s administration of the Conservation Act in granting concessions in the Hauraki Gulf. The court rejected DoC’s previous policy which held there was no basis for preferential entitlement to concessions in favour of any party.
Progress: No progress to date on setting up the review.
MĀORI WARDS ON COUNCILS
Aim: To reinstate a local referendum to veto or approve the establishment of Māori wards on local councils to be vetoed by a local referendum.
Comment: One of the first things the last majority Labour Government did in 2021 was to get rid of the requirement since 2002 for a council to hold a referendum with the support of 5% of local electors to endorse Māori wards. Fourteen councils tried and two succeeded under the old law. Under Labour’s new law, 45 councils had Māori wards. All but two (Kaipara and Upper Hutt) have confirmed they want them to stay and must put the issue to a local referendum at the 2025 local body elections. Supporters say it brings Māori to the decision-making table when they would otherwise be absent. Opponents argue that it is race-based politics and also that a Māori councillor can represent a smaller group than a general ward (although that is how the US senate works with Wyoming having the same number of senators as California).
Progress: The Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Bill was passed in July.
TE AKA WHAI ORA, THE MĀORI HEALTH AUTHORITY
Aim: To abolish the Māori Health Authority which was established in July 2022 to work in partnership with Te Whatu Ora, Health NZ, to develop policies to improve Māori health outcomes with some ability to commission services.
Comment: Te Aka Whai Ora was set up without evidence that it would improve Māori health outcomes but the rationale was that the previous structure had definitely not worked and it was time to try something else. It was originally proposed in a Cabinet paper to give the Māori Health Authority a veto over Health NZ but that was diluted to working alongside each other. Another important structure remains in place, the iwi partnership boards, to give direction to local health challenges, but with the overall health system in crisis, the system has not yet settled.
Progress: The law disestablishing Te Aka Whai Ora was passed in February.
SECTION 7AA OF THE ŌRANGA TAMARIKI ACT
Aim: To remove section 7AA of the Oranga Tamariki Act which sets out practical obligations of the chief executive to reduce disparities for Māori children in care as a commitment to the Treaty of Waitangi.
Comment: Act Minister Karen Chhour believed section 7AA meant cultural considerations for Māori kids was being put ahead of safety and wellbeing. She says it was responsible for a particular case of a reverse uplift, when three Māori children were removed from their Pākehā foster parents. She also says that social workers had told her it was behind other examples of poor decisions about kids’ placements. The section was put into the law in 2019 with the support of National in an attempt to involve whānau, hapū and iwi more in child protection. Chhour’s was the first clash-point between the Government and the Waitangi Tribunal this term after refusing a summons to give evidence – later ruled to a lawful summons by the tribunal. Her officials opposed the repeal.
Progress: The bill is before the social services and community select committee.
TE REO MĀORI
Aim: Make all public service agencies have their primary name in English, except for those specifically related to Māori and require them to communicate primarily in English except those primarily related to Māori.
Comment: The policy was a response to a trend under the previous Government for public agencies to use Māori names such as Waka Kotahi, Kāinga Ora, Ōranga Tamariki, Whatu Ora, Taumata Arowai, Te Pūkenga, and Whaikaha, for example, and in response to grumpy viewers who didn’t like weather presenters introducing Māori names for cities such as Kirikiriroa for Hamilton, Ngāmotu for New Plymouth and Ōtautahi for Christchurch. The previous use was not part of a policy prescription but coincided with a greater focus within the public sector on Treaty compliance and public interest in te reo Māori. Simeon Brown is the only minister known to have formally followed it up – with NZTA/Waka Kotahi. Most of the Māori names continue to be used by the public and the ministers of the organisations. It was promoted by NZ First which, ironically, has one of the best Māori orators in New Zealand, Shane Jones.
Progress: Almost non-existent.
Expectations tempered around return to surplus in 2027/28.