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On Tuesday 5 November 2024, the Waitangi Tribunal released Ngā Mātāpono/The Principles: Part II of the Interim Report of the Tomokia Ngā Tatau o Matangireia – The Constitutional Kaupapa Inquiry Panel on The Crown’s Treaty Principles Bill and Treaty Clause Review Policies in pre-publication format.

This updated report responds to further evidence provided to the Tribunal on the policy development process for the proposed Treaty Principles Bill since May 2024, including the Cabinet paper on the proposed Bill.

The earlier findings and recommendations in the Tribunal’s initial interim report have not changed. Rather, this updated report consists of an additional chapter (chapter 6) that makes further findings on these specific matters.

Regarding the Crown’s policy development for the Bill, the Tribunal found the Crown’s process to develop the Bill has purposefully excluded any consultation with Māori, breaching the principle of partnership, the Crown’s good-faith obligations, and the Crown’s duty to actively protect Māori rights and interests. The Tribunal also found this policy process to be in breach of the principle of good government, as Cabinet has decided to progress the Bill despite it being a policy that is not evidence-based, has not been adequately tested, has not been consulted upon, and fails regulatory standards.

The Tribunal analysed how the proposed content of the Bill does not reflect the texts or meaning of the Treaty/te Tiriti. The Tribunal commented that Principle 1 misinterprets the kāwanatanga granted to the Crown in 1840, which is not an unbridled power restrained only by its own sense of what is in the best interests of everyone. Cabinet’s approval of Principle 2 for introduction in a Bill was found to be a breach of the principles of tino rangatiratanga, kāwanatanga, partnership, and active protection. The Tribunal commented that Principle 2, if enacted, would revoke the promises and guarantees the Queen made to Māori in 1840. The Tribunal held that Principle 3 bears no resemblance to the meaning of article 3 and that Cabinet’s decision to introduce the principle in a Bill was a breach of the Treaty/te Tiriti principles of partnership, equity, and active protection. 

The Tribunal found that these breaches caused significant prejudice to Māori. The Tribunal found that Māori would be particularly prejudiced by the extinguishment of tino rangatiratanga in a legal sense if the Bill were to be enacted. Among other effects, the new principles would apply to all legislation where the Treaty/te Tiriti might be considered relevant. The Tribunal also found that the new principles would advance the discredited agenda of assimilation, as they are designed to end the distinct status of Māori as the indigenous people of this country. The Tribunal commented that, even if the Bill were not enacted, Cabinet’s decision to introduce the Bill would prejudice Māori by further damaging the Māori–Crown relationship. Māori would also feel the brunt of the social disorder and division caused by the introduction of the Bill, including through the select committee process.

The Tribunal confirmed its previous recommendation that the Bill be abandoned. If the Government does not abandon the Bill, the Tribunal recommended that, given the constitutional significance of the issue, the Bill be referred to the Tribunal under section 8(2) of the Treaty of Waitangi Act 1975.

The Tribunal reserved its jurisdiction to hear further evidence and submissions concerning the Bill, should it be enacted.

On Wednesday 22 October 2025, the Waitangi Tribunal  released Ngā Mātāpono/The Principles: Part III of the Report of the Tomokia Ngā Tatau o Matangireia – the Constitutional Kaupapa Inquiry Panel on the Crown’s Treaty Principles Bill and Treaty Clause Review Policies. Part III completes the report, with the Tribunal’s final chapter (chapter 7).

This report concerns the Crown’s decisions on the Treaty clause review since August 2024. The Tribunal found that, if the Crown proceeds with the Treaty clause review as currently planned, this would breach the principles of the Treaty of Waitangi. The Tribunal found that Māori could be prejudiced if the review proceeds in its present form. The potential risks of negative impacts on Māori rights and interests, the Māori–Crown relationship, and the durability of Treaty settlements were all disclosed in the Crown documents provided to the Tribunal. The Tribunal found, however, that it is not too late to refocus the review and its process. The Tribunal said that, if the review focuses on the clarity of Treaty clauses, allowing enough time for robust policy analysis and full engagement with inclusion of Māori in decision-making, the review could be positive and benefit both Māori and the Crown.

The Tribunal noted that there were mixed messages about the purpose of the review. At present, Treaty clauses will have to meet a test in the review that they promote “the fundamental human rights and equality of all New Zealanders and the importance of equality before the law for all in a modern democratic society”. The Tribunal stated that this requirement is already provided for in international and domestic law and is not a principle of the Treaty. It is not based on any policy analysis to justify it, and it breaches the Crown’s Treaty duty to actively protect the rights and interests of Māori.

The Tribunal also found that ensuring clarity of Treaty clauses does not mean repealing those clauses. The current intention to repeal clauses that are considered unnecessary in a review of this particular kind would be inconsistent with the principles of partnership and active protection.

The Tribunal also found that the review as currently planned had been truncated and would leave inadequate time for robust Treaty/te Tiriti policy analysis, engagement with Māori, and involvement of Māori in decision-making. This would be inconsistent with the principle of partnership.

The Tribunal further found that the legal protection of Māori Treaty/te Tiriti rights and interests could be reduced or removed in some key statutes. The Crown was aware that the review could cause “discriminatory outcomes” for Māori. The Tribunal found that such discriminatory outcomes were likely at present and would breach the principle of equity unless changes to the review’s process and scope were made. Moreover, the Tribunal found that the review would breach the principle of redress should the durability of Treaty settlements be undermined.

The Tribunal made several recommendations to the Crown, based on its findings. In summary, the Tribunal recommended that the Crown:

• focus the review on clarity of provisions;
• expand the time for engagement with Māori and involvement of Māori in decision-making;
• take repeals off the table;
• remove the requirement that Treaty clauses must provide for “the promotion of the fundamental human rights and equality of all New Zealanders and the importance of equality before the law for all in a modern democratic society”;
• provide the resources necessary for Māori to participate effectively as demanded in a large-scale review; and
• if amendments or repeals are planned, allow co-design or full reflection of Māori views in decisions, especially in light of the Crown’s partnership obligations and the constitutional dialogue that Treaty clauses represent.

In April 2022, the Waitangi Tribunal confirmed it would inquire into allegations concerning claimant funding in its jurisdiction as a first step in the newly constituted inquiry into the justice system, Te Rau o te Tika. The inquiry panel comprises Judge Carrie Wainwright (presiding), Dr Paul Hamer, Dr Ruakere Hond, and Dr Hana O’Regan. Their resulting report, Whakatika ki Runga, a Mini-inquiry Commencing Te Rau o te Tika: The Justice System Inquiry, focuses on the following four main issues:

• Whether claimants before the Waitangi Tribunal have a right to funding to enable their full participation.
• Whether the Crown accepts, as a matter of principle, that it has an obligation to fund claimants’ participation.
• The adequacy of the Crown’s ‘lead agency approach’ to funding claimants in kaupapa inquiries.
• The adequacy of legal aid under the Legal Services Act 2011 for claimants in the Waitangi Tribunal.

The Tribunal received 53 claims for the inquiry, and 37 parties were granted interested party status, including the Crown Forestry Rental Trust. Three hearings were held in Porirua and Wellington in July, September, and October 2022. The Tribunal heard from over 40 claimant witnesses, including 11 Crown witnesses from eight separate Government agencies, the former president of the New Zealand Law Society, and the Crown Forestry Rental Trust.
The Tribunal found that the Crown breached its Treaty duty to ensure that Māori claimants have the necessary resources to participate fully in all Waitangi Tribunal processes. It was particularly concerned that officials knew about the inadequacies of the present funding arrangements, but Ministers did not act on their advice.

The Tribunal observed that the unavailability of adequate funding compromises claimants’ ability to make and pursue their Tribunal claims, which undermines the Tribunal as a pillar of New Zealand’s constitution. It reinforced that it is the Crown’s responsibility under the Treaty, and under its own Treaty of Waitangi Act 1975, to ensure that claimants can access Tribunal processes easily.

The Tribunal recommended that the Crown and Māori co-design suitable funding arrangements. Until long-term arrangements are agreed, the Tribunal also recommended that the Crown impose a standardised funding protocol for all kaupapa and contemporary inquiries.
The Tribunal further found that claimants and their lawyers have a right to file submissions and evidence in te reo Māori and have them translated into English without cost or inconvenience to them. The Crown and the Waitangi Tribunal Unit must support the use of te reo Māori in the Tribunal, whether orally or in writing.

The Tribunal found that various administrative issues with legal aid in Tribunal proceedings meant that the system falls short in terms of both fairness and the Crown’s Treaty obligations. However, it did not recommend any changes to the Legal Services Act 2011, noting that an examination of legal aid in Aotearoa will form part the wider inquiry and that legal aid provisions in the Tribunal may change as a result of the recommended process of Māori–Crown co-design.
The next phase of the inquiry is Te Tūāpapa o te Tika, which will commence with a series of hui and wānanga in May 2023. This phase will consider how foundational principles of tikanga and justice will be applied in the inquiry. Four Pou Tikanga have been commissioned by the Tribunal to engage with the panel and parties as experts on these matters: Moe Milne, Ruth Smith, Paraone Gloyne, and Rāhui Papa.