This is a single section from Chapter 5. Read the full chapter here.

In the event of a conflict between the proposed legislation and the principles of the Treaty of Waitangi, does the legislation include additional measures to safeguard Māori interests?

If legislation has the potential to come into conflict with the rights or interests of Māori under the Treaty, additional measures should be considered to ensure recognition of the principles of the Treaty or the particular rights concerned.

Two general classes of measures may be included in legislation to acknowledge or safeguard Māori rights and interests under the Treaty:

  • General measures—These provisions relate to the manner in which the legislation is administered or the way a power is exercised. For example:
  • section 4 of the Conservation Act 1987 provides: “This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”;
  • section 9 of the State-Owned Enterprises Act 1986 provides: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”; and
  • section 4 of the Crown Minerals Act 1991 provides: “All persons exercising functions and powers under this Act shall have regard to the principles of the Treaty of Waitangi (Te Tiriti o Waitangi)”.

Even subtle differences in the wording of legislation (for example, the contrast between “give effect to” and “have regard to”) may have significant effects and must be carefully considered with the benefit of legal advice.

  • Specific measures—In these provisions, the Treaty and its principles are tied to specific mechanisms by which they are recognised in the legislation. For example, section 4 of the Environmental Protection Authority Act 2011 provides:

“In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi,—

(a) section 18 establishes the Māori Advisory Committee to advise the Environmental Protection Authority on policy, process, and decisions of the EPA under an environmental Act; and

(b) the EPA and any person acting on behalf of the EPA must comply with the requirements of an environmental Act in relation to the Treaty, when exercising powers or functions under the Act.”

Other examples include section 4 of the New Zealand Public Health and Disability Act 2000 and section 7 of the Public Records Act 2005.

Specific measures have been the usual approach since 2000. They have the advantage of demonstrating that the Government has actively worked through what is required in order to recognise and safeguard what the principles of the Treaty mean in the particular context. In doing this, the provisions provide greater certainty than general measures.

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