Provisions in legislation like the Fast-Track Act and proposed Regulatory Standards Bill could mean that “Treaty settlements will be honoured when convenient, but reinterpreted or revised when they stand in the way,” writes Melanie Nelson. (Image: RNZ)

The coalition government says it will honour past Treaty settlements, a commitment made in the agreement between New Zealand First and National.

But since the election, several government moves have raised serious doubts about whether that promise still holds, writes Melanie Nelson

Early red flags that the coalition was hostile to Māori were hard to miss: the removal of the Māori Health Authority, threats to delete references to Te Tiriti from legislation, and the quiet abandonment of initiatives co-designed with Māori.

But when ministers announced the Fast-track Approvals Bill, they were eager to emphasise that it would uphold Treaty settlements. This sounded reassuring to those who value agreements being honoured.

However, Treaty settlements are not the Treaty. They provide only partial redress for historic breaches of Te Tiriti and its principles, usually amounting to just one to two percent of what was lost. They do not codify all Māori rights and interests.

Furthermore, many Treaty settlements include a legislative commitment to a new relationship between the Crown and iwi which is based in Te Tiriti o Waitangi or its principles. Growing Treaty-based relationships and giving effect to Te Tiriti itself are part and parcel of upholding Treaty settlements.

Consideration of Te Tiriti in law typically relies on the inclusion of Treaty principles clauses. A swathe of common law has developed over decades to guide how those principles apply in different contexts.

The Fast-track Approvals Act, which became law in December 2024, contains no Treaty principles clause.

It bypasses decades of case law built on statutes like the Conservation Act and sweeps aside many of the protections for iwi and hapū interests when new projects are considered.

More troubling still, there are now suggestions that even Treaty settlements themselves may be seen as negotiable by the Crown, despite statements in the coalition agreement that they would be upheld.

Section 5 of Schedule 3 of the Fast-track Approvals Act requires the expert panel to comply with Treaty settlement arrangements. But this is immediately undercut: the panel may seek agreement from the relevant iwi authority or settlement entity to modify those arrangements — and that agreement must not be unreasonably withheld.

In effect, if co-governance commitments and statutory acknowledgements obstruct the fast-track process, the Crown can seek to alter them. This quietly shifts the burden of proof to iwi who must justify why their agreed settlement should not be changed, and can allow changes to occur without the iwi’s consent.

Other provisions reinforce this approach. Section 17 allows only 20 working days for iwi, hapū, and Treaty settlement entities to submit written comments on referred projects. Miss the deadline, and your views may be ignored — and crucially, you also lose the right to appeal. Section 99 restricts appeals to points of law, and only for those who submitted comments, locking out those excluded by time or capacity constraints.

Clause 21 does allow ministers to decline a project if it conflicts with a Treaty settlement, the Takutai Moana Act, or agreements such as Mana Whakahono ā Rohe. But this is entirely at their discretion.

Taken together, these clauses and provisions signal a concerning shift in the Crown’s approach. Treaty settlements will be honoured when convenient, but reinterpreted or revised when they stand in the way.

The Regulatory Standards Bill goes even further

The Regulatory Standards Bill (RSB) creates a broader and more systemic threat to Treaty settlements. It imposes a narrow set of principles to be considered in law-making and to review most existing laws. These include prioritising property rights, individual liberties, formal legal equality, and cost-benefit analysis. Any inconsistency between law and these principles must be publicly justified.

Technically exempt from this process are Treaty settlement bills and acts, as well as the Marine and Coastal Area (Takutai Moana) Act. Nonetheless, the bill rewires the wider legal and policy framework in which those settlements operate.

As Rahui Papa put it in evidence to the Waitangi Tribunal urgent inquiry on the RSB: “Treaty settlements and Treaty settlement legislation do not exist or operate in a vacuum — they are interwoven, both expressly and implicitly, with multiple pieces of legislation that affect iwi, hapū and Māori — and which are at risk of future erosion through the operation of the proposed bill.”

RSB risks unravelling settlement frameworks

The Waikato River Authority’s submission on the RSB gives a concrete example of the risk of Treaty settlement erosion.

The authority’s co-management framework and Te Ture Whaimana — the settlement-based vision and strategy for the Waikato and Waipā Rivers — are embedded across a wide web of laws, especially the Resource Management Act (RMA).

The problem is that these broader statutes are not exempt from the RSB. This means the legal architecture that gives effect to Treaty commitments — outside the narrow scope of settlement legislation — is exposed to reinterpretation or repeal.

The RMA requires the Waikato Regional Plan to “give effect to” Te Ture Whaimana. The river authority fears this linkage — which gives legal force to Treaty intentions — could be undermined by the RSB’s mandated reviews of other legislation. If the bill proceeds unchanged, the legal standing of Te Ture Whaimana and the settlement framework it supports could be quietly dismantled — not through repeal, but through omission.

As the authority puts it, unless the RSB is amended, “it will be in direct conflict with the Waikato River Acts and undermine the significant Treaty settlement arrangements between River Iwi and the Crown.”

Pou Taiao of the National Iwi Chairs Forum warns this isn’t merely technical. In natural resource negotiations, the Crown typically requires redress to operate within existing statutory frameworks. Settlements depend on provisions in broader laws to remain effective. If these are weakened or removed, the integrity of settlements is put at risk.

The Tūwharetoa Māori Trust Board submission warned that even their proprietary and fiduciary arrangements over Taupō Waters, which are not part of a formal settlement, could be affected by the RSB’s reach.

As Te Ātiawa o te Waka-a-Māui wrote in their submission: “It was not to be anticipated, at the time of settlement, that the entire legal system might be put on the table to be rewritten in a way prejudicial to te Tiriti and the outcomes Te Ātiawa seek . . . To allow this possibility, barely a decade following settlement, would be a fundamentally bad-faith action by the Crown.”

Further, as Pou Taiao notes, many additional agreements, processes, and relationships have grown from these settlements since enactment — involving the Crown, local authorities, and third parties. These are grounded in the spirit and substance of Treaty redress but often fall outside the narrow definition of settlement legislation. The RSB does not exempt them, nor does it protect redress mechanisms arising from deeds of settlement that sit outside formal statutes.

Treaty settlements are not static or confined to the legislation that enacts them. Most explicitly commit to an evolving, Te Tiriti-based relationship between the Crown and iwi.

These commitments, often formalised through Crown apologies, are not symbolic — they are binding elements of the settlement itself. This is an inherent part of the Treaty settlements that the coalition agreement with New Zealand First commits to uphold.

A pattern of exclusions — but not protections

Excluding Treaty settlements from the bill doesn’t protect them. As Natalie Coates explained in her oral submission on behalf of Te Hunga Rōia Māori, these carve-outs serve to shield the Crown from liability — not to prevent harm to Māori.

She highlighted the hypocrisy of elevating property rights as a core regulatory principle while continuing to disregard Māori property rights. In New Zealand, property rights are already robustly protected — except, it seems, when they belong to Māori. From historic confiscations to contemporary exclusions, the pattern persists.

Coates pointed to Māori rights in the foreshore and seabed being the only property rights specifically excluded from both the property protections under the RSB and its guidance towards fair compensation when property rights are taken or impaired by legislation, as a clear example.

A contradiction the Crown cannot paper over

The coalition agreement cannot be interpreted as a licence to pass legislation that undermines the very settlements it promises to uphold.

The RSB may technically leave Treaty settlements untouched but it guts the surrounding frameworks that allow them to function, evolve, and be built upon.

If the government is serious about honouring its commitment to Treaty settlements, it cannot support legislation that systematically undermines the conditions required for the broader settlement frameworks and Treaty based relationships to thrive.

Melanie Nelson (Pākehā) is a consultant, educator, speaker and writer. She hosts the Coherent podcast on political issues and Weaving our Worlds to promote cross-cultural understanding. She is also a licensed Māori language translator and interpreter. Melanie is a graduate of Te Panekiretanga o te Reo Māori / Institute of Excellence in the Māori Language and holds a master’s degree in Māori Language Excellence — Te Tohu Paerua o te Reo Kairangi.

E-Tangata, 2025