The hīkoi protesting against the Treaty Principles Bill in Wellington in November 2024. Photo: RNZ / Reece Baker
The government has breached Te Tiriti o Waitangi, with its policies negatively impacting Māori rights, a new report has found.
The report - written by the Aotearoa Centre for Indigenous Peoples and the Law (Te Wai Ariki) - has outlined several Te Tiriti breaches made by the 54th government during its term.
The report - in tandem with Te Hunga Roia Māori (the New Zealand Law Society) and the People's Action Plan Against Racism in Aotearoa reports - will be presented at the United Nations Committee on the Elimination of Racial Discrimination (CERD) in its 23rd and 24th periodic UN reviews in November.
The submission argues that the current coalition government's policies negatively impact Māori rights and remove certain protections, stating "the government is actively and profoundly aggravating New Zealand's constitutionally racist foundation in a way we have not seen for at least half a century".
It claims that they are ignoring the impact of land confiscation and decades of systemic injustice and discrimination towards Māori - actions that in breaches the rights of Māori which CERD has described as permanent rights.
Te Wai Ariki co-director Professor Claire Charters (Ngāti Whakaue, Tūwharetoa, Ngā Puhi, Tainui) said the whole constitution was fundamentally opposed to, or in contradiction to, Te Tiriti o Waitangi because it keeps all power in one place.
'Racially discriminatory' laws highlighted in the report include the Marine and Coastal Area (Takutai Moana) Act 2011 and Electoral Act Amendment Bill 2025.
A large number of rights-breaching bills and legislation have been identified by the three reports affecting equality, political rights, equal rights in employment, housing, health and education and training.
Some of those are:
- Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act
- Sentencing (Reinstating Three Strikes) Amendment Act
- The Pae Ora Amendment Act
- Fast-track Approvals Act
"What they're doing now is creating and exacerbating existing inequality... I definitely think that all these pieces of legislation are especially racially discriminatory.
"It's no surprise when you have policy, particularly from ACT and also New Zealand First that is about, amongst other things, not recognising the UN Declaration on the Rights of Indigenous Peoples and reinterpreting what Te Tiriti o Waitangi means so that it is saying what it does not say."
In July, UN Special Rapporteur on the rights of Indigenous Peoples Albert K Barume issued a letter to government ministers expressing a number of concerns, including about David Seymour's Regulatory Standards Bill. Seymour criticised the letter.
"The whole constitutional structure, whereby the parliament legislature can ignore Te Tiriti o Waitangi is a treaty breach," Charters said.
She added that the disestablishment of the short-lived Te Aka Whai Ora, the Māori Health Authority, was also a form of a treaty breach.
"When you take away a mechanism that is designed, at least in part, to improve those statistics so that we at least come up to the same standard as our fellow citizens, then I would say creates an inequality or exacerbates an existing inequality."
It came down to structural racism, where a community was disadvantaged by unfair systems, she said.
"When you've got, on the collective level, that Māori are indigenous peoples and should also have some sort of authority about how we are regulated or they are regulated. Just like the Crown has its own system, or the settler state has its own kind of system.
"Currently, we live under a different peoples and states system and without any recognition of our own tikanga or our own law or our own governance. So that, at a kind of collective level, also creates inequality."
Claire Charters was appointed Rongomau Taketake (Indigenous rights governance partner) at the Human Rights Commission for one term from March 2023 Photo: Supplied / Chris Loufte
'There needs to be some reform of New Zealand's constitution'
Te Wai Ariki is concerned about the current government's "exacerbation of racial discrimination towards Māori" through unconstitutional and mass legislation changes.
Recommendations stated in the report call for constitutional transformation, and not incremental reform.
It warns that "without transformation, Parliament remains unchecked and continues to pass laws in breach of Indigenous peoples' rights".
Constitutional transformation in Aotearoa New Zealand must be centred on te Tiriti (and He Whakaputanga) in recognition of their status as the founding constitutional documents of this nation.
Such constitutional transformation would also result in greater compliance with recommendations from UN human rights treaty bodies, special procedures and other international mechanisms designed to monitor Aotearoa New Zealand's human rights record, the report states.
"There has to be some strong check on Parliament, on the Crown, so that it can't do that on its political whim of the day," Charters said.
She said there are many examples, or basic features, of western liberal democracies from around the world that New Zealand can take note of.
"The most well-known is generally the US where the constitution includes freedom from discrimination, and the Supreme Court can overturn legislation that breaches those rights.
"New Zealand is an absolute outlier, and that we can't check our Parliament or make sure or overturn racially discriminatory laws."
Collectively, the reports ask the UN CERD to record that the 54th government's reforms are racially discriminatory and in breach of International Convention on the Elimination of All Forms of Racial Discrimination, reaffirm the constitutional status of Te Tiriti o Waitangi and the Waitangi Tribunal, recommend an independent investigation into racial discrimination and legislative harm in Aotearoa, urge constitutional transformation consistent with Matike Mai Aotearoa, establish enhanced UN monitoring and in-country consultations with Māori and affected communities.
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