Waitangi Tribunal hears it could get an 'anti-Waitangi Tribunal' in new ACT bill

Wednesday, 14 May 2025

Tama Potaka reacts to Richard Prebble's sudden resignation from the Waitangi Tribunal, explaining the appointment process and sharing his surprise at the decision.

The Waitangi Tribunal would meet its legal mirror in an anti-Waitangi Tribunal overseeing 'corrupted' principles of law, an urgent inquiry into ACT's Regulatory Standards Bill has heard.

The Waitangi Tribunal inquiry heard the bill could wipe out all Treaty clauses in legislation by the next election in 2026.

Crown lawyers said it was 'baked in' to the proposed bill that laws are allowed to differ from its regulatory principles. The bill does not have a 'hard legal edge'.

All Treaty clauses could be wiped from law books and an 'anti-Waitangi Tribunal' set up under ACT's latest bill, the Waitangi Tribunal has heard.

The urgent inquiry into the Regulatory Standards Bill, set for introduction to Parliament on Monday, heard the bill was part of a 'legislative pincer movement' alongside the now-failed Treaty Principles Bill.

Lawyer Tania Waikato appearing for claimants Toitū Te Tiriti at the Waitangi Tribunal urgent inquiry into the Regulatory Standards Bill.

Crown lawyers, however, said the bill's proposed regulatory principles would not have a 'hard legal edge' or enforce any legal duty on lawmakers. Baked into the proposal was an allowance for deviations from its standards, they said.

The tribunal was forced to fast-track the inquiry as it loses jurisdiction over bills once they’re introduced in to Parliament. This means it will have to release its findings before Monday, the date that the bill is expected to be introduced.

Lawyer for claimants Toitū te Tiriti, Tania Waikato, said the proposed bill created a 'regulatory constitution breach' of the Treaty. The bill would alter the constitutional arrangements between Māori and the Crown by stealth and without the consent of Māori.

She said the consultation process with Māori was 'defective, deceptive and inconsistent with Te Tiriti'.

Te Tiriti expert Dr Carwyn Jones said the Regulatory Standards Bill would create an “anti-Waitangi Tribunal”.

The bill would force laws - both new and existing - to be checked against a set of regulatory principles such as ensuring equality for all people under the law. There would not be a principle covering the Treaty. It would likely come into effect from January 1, next year.

Waikato said it would create 'one of the most fundamental constitutional shifts in our legal history'.

It would elevate the regulatory principles above Treaty principles, into a position of 'constitutionally superior law'.

According to evidence provided by law expert Professor Andrew Geddis, all Treaty clauses could be wiped out of all legislation by the next election under the bill.

Waikato spoke on evidence by Treaty expert Dr Carwyn Jones who said the bill would create an 'anti-Waitangi Tribunal'. This would be through the planned regulatory standards board set up to hear complaints from the public, or take direction from ministers to hold inquiries into bad regulation.

Jones said it was not difficult to see the parallels between the proposed board and the Waitangi Tribunal.

'It appears the regulatory standards board will mirror the Waitangi Tribunal's jurisdiction, in terms of being given a set of principles with which it may assess all existing regulation for consistency, upon receiving a complaint… and then make non-binding… findings.'

The board could then systematically recommend removing Treaty principles inconsistent with the bill's 'corrupted formulation of the rule of law', Jones said.

Meanwhile, all Treaty clauses - not included in settlements - could be wiped out of all legislation by the next election under the bill, Waikato said, outlining evidence from law expert Professor Andrew Geddis.

This would include all district and regional councils as well, she said.

She said the group's primary recommendation was the bill be abandoned immediately.

'The claimants do not seek an amendment… to include Treaty principles, as the entire process, framework and content are fundamentally inconsistent with the Treaty and the principles of the Treaty.'

Deviations would be allowed

ACT leader and Regulation Minister David Seymour extracted a promise to pass the bill as part of his party’s coalition deal with National.

Crown lawyer Jason Varuhas said the board's decisions would be non-binding and could only look at a piece of legislation - not deal with individual cases.

All of the mechanisms in the proposal 'contemplate that there can be a deviation from the principles', he said.

'It's baked into the proposal that there can be, and it's anticipated that there will be, deviations from the principles and ministers just have to give explanations for those deviations.'

He said the latest Cabinet paper on the bill said it would not 'confer or impose any legal rights or duties or affect the validity of any legislation'.

The bill does not have a 'hard legal edge', he said.

If a regulatory principle covering the Treaty was added, the board would have jurisdiction over Treaty matters - putting it in competition with the Waitangi Tribunal, said Varuhas.

The bill would not tie any executive branch or parliament to any policy setting, he said.

'It's not about compliance, rather it sets out considerations for lawmakers to take into account.'

ACT leader David Seymour extracted a promise to pass the bill as part of his party’s coalition deal with National.