Protecting Te Tiriti · Evidence Series · Part 10
Would removing Treaty references restore rangatiratanga?
No — not by itself. A statutory Treaty clause usually tells a Crown or public decision-maker how to exercise a power that the statute already gives it. Repealing that clause can weaken or alter the restraint on the decision-maker. It does not automatically transfer the underlying power to hapū, return jurisdiction, revive an earlier constitutional institution, or identify who now exercises tino rangatiratanga.
Current 2026 Treaty-reference reviewMinistry of JusticeCabinet ManualPositive statutory authority
This part tests a specific proposition: that removing Treaty references from Crown legislation might free rangatiratanga from the Crown system. It does not assume Treaty clauses are sufficient protection. Part 09 already showed they can preserve language without preserving governing power. The question here is whether deleting them performs the opposite constitutional act and restores that power.
1. First identify what a Treaty clause actually does
A Treaty or Treaty-principles provision inside a statute normally operates on powers created by that statute. It may require a Minister, agency, board, regulator or other statutory actor to “give effect to”, “have regard to”, “take into account”, act consistently with, or otherwise consider Te Tiriti or Treaty principles when exercising those powers.
The Ministry of Justice states that Treaty rights are enforceable in court where legislation expressly gives them legal effect. The Cabinet Manual likewise records that the Treaty is referred to in many statutes, used by courts as an aid to interpretation, and relevant to public decision-making.
The Treaty clause is usually a rule controlling the exercise of an existing state power. The clause and the power are two different legal components.
2. Removing the rule does not remove the state power
Suppose a statute gives a Minister power to make a decision and separately requires the Minister to take Treaty principles into account. If Parliament repeals only the Treaty requirement, the statutory power does not disappear unless the amendment also says so.
The Minister remains the statutory decision-maker. What changes is the legal standard governing the Minister's exercise of that power.
Remove a Treaty duty
A Crown or statutory decision-maker has fewer, weaker or differently expressed Treaty obligations when exercising an existing power.
Restore rangatiratanga
A Māori, hapū or rangatira authority acquires or resumes legally operative decision-making power over an identified subject or jurisdiction.
Those are not the same legal event.
3. The Government's 2026 review gives us a live example
The current review of Treaty references makes the distinction concrete. The Ministry of Justice records that Cabinet decided on 23 February 2026 that, within the final scope of the review, Treaty standards should be no stronger than “take into account”. Stronger formulations such as “give effect” are proposed to be reduced to that standard.
The review reached a final scope of 19 Acts. The Government also proposes repealing seven Treaty-related references across several Acts, while rewriting other provisions to be more specific and standardising references to both te Tiriti o Waitangi and the Treaty of Waitangi.
As at 4 September 2026, the Ministry's current review page still describes those repeals as proposed. The review excluded Treaty settlement legislation and several Acts that underpin specific Crown–Māori arrangements.
It changes the statutory instructions applying to state decision-makers. Nothing in the published review outcome says that a repealed Treaty clause causes the corresponding governmental power to vest instead in hapū or rangatira.
4. “Give effect to” and “take into account” are different standards — neither identifies a new sovereign
The Government's own review treats these formulations as different levels of Treaty obligation. A requirement to “give effect to” constrains a decision-maker more strongly than a requirement merely to “take into account”.
Reducing the standard can therefore have real legal consequences. It may increase the discretion available to the statutory decision-maker and decrease the strength of a Treaty-based challenge to a decision.
But neither formulation answers the separate question of who holds the underlying jurisdiction. Changing the weight given to Treaty considerations does not, without more, reallocate the office, power or function itself.
| Change | Immediate legal effect | Automatic restoration of rangatiratanga? |
|---|---|---|
| “Give effect to” → “take into account” | Weakens the statutory standard the state decision-maker must satisfy. | No. |
| Delete a Treaty-principles reference | Removes that express statutory route for Treaty principles to control the decision. | No. |
| Repeal the statutory power itself | Removes a state power, subject to the rest of the amending scheme. | Still not necessarily. The replacement authority must be identified. |
| Vest decision-making in a hapū or Māori institution | Positively allocates authority to the named institution within the defined jurisdiction. | Potentially — depending on mandate, scope, durability and legal effect. |
5. Current law already shows what positive recognition looks like
Part 09 identified the Ngā Wai o Maniapoto (Waipā River) Act 2012 as a useful control example. Its statutory principles expressly say that rangatiratanga includes Maniapoto decision-making within the Maniapoto rohe and tino rangatiratanga over Maniapoto knowledge and resources.
That is legally different from deleting a Treaty reference from another statute. It positively identifies an authority, a community, a territorial relationship and decision-making content.
If a reform is said to restore rangatiratanga, look for the operative words that actually vest, recognise, protect or make binding the relevant Māori decision-making authority. Absence of a Crown Treaty clause is not a substitute for those words.
6. Historical non-cession does not make statutory repeal self-executing restoration
The Te Paparahi o Te Raki Stage 1 finding remains important: for the February 1840 signatories examined, rangatira did not cede their authority to make and enforce law over their people and territories.
But Part 06 established the present domestic-law position: state institutions currently exercise binding statutory authority through the New Zealand legal order. A historical finding that authority was not ceded in 1840 and a modern statutory mechanism for recognising or restoring authority are separate legal questions.
Therefore, even if one concludes historically that rangatiratanga was retained, it does not follow that deleting a 1975-, 1986-, 2002- or 2022-era statutory Treaty provision automatically makes the modern statutory jurisdiction disappear or revert to a pre-1840 decision-maker.
Historical proposition
What authority was held, promised, shared or retained in the relevant historical agreement?
Present operative proposition
What institution has legally enforceable authority now, and by what instrument can that authority be altered?
7. Could removing Treaty clauses still expose something important?
Yes. Removing the clauses can make the underlying constitutional structure easier to see. If a public authority retains the entire statutory power after its Treaty duty is removed, that demonstrates that the Treaty clause was a restraint or instruction operating inside the state system rather than the source of the state power itself.
That observation can be constitutionally significant. It may support an argument that Treaty clauses are not an adequate substitute for independent rangatiratanga. But it still does not mean their removal produces independent rangatiratanga.
A mechanism can be insufficient without being useless. Treaty clauses may restrain Crown power without constituting Māori power. Removing the restraint because it is not the same as rangatiratanga can leave more Crown discretion, not more Māori authority.
8. The 2026 reform therefore needs to be audited provision by provision
It would be inaccurate to say every removal has the same effect. Some provisions duplicate other protections; some use broad principles language; some impose stronger operative standards; some are being rewritten rather than deleted. The Ministry itself distinguishes those categories.
The correct method is therefore statute-specific:
| Audit question | What to identify |
|---|---|
| What power exists? | The actual Minister, agency, board or regulator exercising statutory authority. |
| What Treaty clause controls it? | The precise current wording and whether it is mandatory, interpretive, procedural or declaratory. |
| What is being removed or substituted? | Deletion, “take into account”, descriptive wording, standardisation, or another replacement. |
| What power remains afterwards? | Whether the state actor keeps the same function and discretion. |
| What Māori authority is created? | If none is created, the amendment should not be described as restoration of rangatiratanga. |
9. What would an actual restoration mechanism have to do?
If the objective were substantive restoration rather than merely reforming Crown Treaty duties, the legal architecture would need to answer questions Part 09 identified:
Who holds the authority? Hapū, rangatira, iwi institutions, a mandated assembly, a joint body, or another structure?
Over what subject? Whenua, wai, taonga, social services, local regulation, revenue, justice, natural resources, or another defined sphere?
What powers? Consultation, consent, rule-making, administration, adjudication, spending, appointment, enforcement, or independent decision-making?
What happens on overlap? Is there negotiation, concurrent jurisdiction, a consent rule, a joint forum, or a dispute-resolution mechanism?
Can Parliament remove it unilaterally? If so, the durability of the restored authority remains a constitutional issue.
Deleting words can remove a legal obligation. Restoring jurisdiction requires a positive answer to authority, subject matter, powers, boundaries, institutions and durability.
10. The finding for this series
The evidence supports a clear conclusion: removing Treaty references or Treaty-principles clauses does not, by itself, restore tino rangatiratanga. It changes the Crown-law framework governing public power. Depending on the provision, it may remove, weaken, clarify or replace a Treaty-related restraint on a state decision-maker.
If the underlying statutory power remains with the Crown or another state institution, then the allocation of authority has not been restored merely because the Treaty instruction has disappeared.
A removal could form part of a wider constitutional redesign that genuinely reallocates authority. But that result must appear in the operative machinery. It cannot be inferred from repeal alone.
The false binary is now exposed. We do not have to choose between “Crown Treaty clauses equal rangatiratanga” and “delete Crown Treaty clauses and rangatiratanga automatically returns”. Both propositions skip the decisive question: where does operative authority actually sit after the legal change?
Primary and official sources
Ministry of Justice — 2026 review of Treaty references, scope and proposed changes ↗
Minister of Justice — 15 May 2026 announcement of 19-Act review outcome ↗
Ministry of Justice — Treaty rights and statutory enforceability ↗
Cabinet Manual, Appendix A — Treaty references, interpretation and public decision-making ↗
Ngā Wai o Maniapoto (Waipā River) Act 2012 — positive recognition of Maniapoto decision-making ↗
Waitangi Tribunal — Stage 1 Te Raki findings on retained authority ↗
Waitangi Tribunal — 2026 Treaty Principles Reform urgent inquiry and report ↗