Cabinet decisions on Treaty-reference review to drive multiple statute amendments

Cabinet has capped Treaty obligations at a “take into account” standard across a group of key statutes, directing downgrades of stronger duties and repeal of several provisions, with significant consequences for public, commercial, environmental and human-rights litigation.

Cabinet sets new ceiling for Treaty obligations in legislation[S1]

Following an advisory review, Cabinet has decided that no statutory reference to Treaty obligations within the review’s final scope will use a standard higher than “take into account”, establishing that stronger formulations such as "give effect" must be downgraded in the affected Acts.[S1] This decision, taken on 23 February 2026, marks a deliberate recalibration of how the Crown’s obligations under Te Tiriti o Waitangi and the Treaty of Waitangi are expressed in legislation.[S1]

Cabinet’s position is framed around the concept of "Treaty standards", which the Justice Ministry describes as indicating "the strength or nature of the Crown’s Treaty obligation" in a given statutory provision.[S1] In practical terms, any provision within the review’s scope that currently requires decision‑makers to "give effect" to Treaty principles or to apply any higher threshold will be amended so that the duty is expressed only as an obligation to "take into account" the relevant Treaty considerations.[S1]

These changes will not be confined to a single policy area. Cabinet has endorsed a programme of amendments across 19 Acts managed by 11 agencies, with particular significance for regimes governing land, energy, education and commercial regulation, all of which are frequent sites of public, environmental, economic and human‑rights litigation.[S1]

From broad Treaty clauses to descriptive drafting

Beyond capping the strength of Treaty obligations, Cabinet has decided that broad Treaty-reference provisions will be replaced with more descriptive clauses in selected statutes.[S1] The Justice Ministry identifies section 8 of the Hazardous Substances and New Organisms Act 1996 and section 14(a) of the Data and Statistics Act 2022 as provisions where this shift from general to specific drafting will occur.[S1]

The review explicitly targets legislative references to "the principles of the Treaty of Waitangi", reflecting a commitment recorded in the Government’s coalition agreement to either replace such references with wording that explains the relevance and application of Treaty principles, or to remove them altogether.[S1] Cabinet’s latest decisions convert that political commitment into a concrete set of drafting instructions.

Alongside the substantive changes, Cabinet has approved a standardisation exercise for Treaty references. All affected provisions will be redrafted to refer to both "the Treaty of Waitangi" and "te Tiriti o Waitangi", a change that the Justice Ministry characterises as purely drafting-oriented and not altering the underlying policy of each Act.[S1]

Repeal of selected Treaty-related provisions[S1]

The review outcome also includes the repeal of certain Treaty-related clauses that fall within the final scope.[S1] The Justice Ministry’s summary specifies that Cabinet has agreed to remove:

• Sections 4 and 5(1)(b) of the Organic Products and Production Act 2023;[S1]
• Section 54 of the Plant Variety Rights Act 2022;[S1]
• Section 3AB of the Smokefree Environments and Regulated Products Act 1990.[S1]

All three provisions were drafted to incorporate Treaty considerations into regulatory regimes affecting economic activity and public health. Their repeal, combined with the downgrading of stronger Treaty standards to a "take into account" formulation elsewhere, points to a broader policy direction: narrower and more constrained forms of Treaty recognition in general regulatory statutes, particularly where commercial and product regulation are involved.[S1]

Litigation and interpretive consequences

Although Cabinet’s decisions are expressed at the level of drafting instructions, their impact will be felt most sharply in courtrooms and tribunals, where Treaty-related provisions often shape the scope of public, environmental and commercial law duties.

Under New Zealand’s text-and-purpose based interpretive approach, courts treat the specific wording of statutory obligations as central to determining how far public decision‑makers must go to honour Treaty interests. A duty to "give effect" to Treaty principles has typically been understood as imposing a more robust, outcome‑oriented obligation than a duty merely to "take into account" those principles, which allows greater room for competing policy considerations.

By setting "take into account" as the ceiling for Treaty obligations in the covered statutes, Cabinet has signalled its expectation that courts should no longer read stronger Treaty duties into those regimes via phrases like "give effect" or "recognise and respect".[S1] Once the amendments are enacted, litigants challenging decisions in areas such as land administration, energy infrastructure, environmental management or commercial regulation will face a materially altered statutory landscape.

In public and environmental law, many disputes turn on whether an agency has properly discharged a Treaty-related duty when granting consents, authorisations or approvals. With "take into account" as the uniform standard, claimants are likely to argue more intensively over process and reasoning quality—whether the decision‑maker genuinely engaged with Treaty interests—rather than seeking judicial enforcement of stronger, substantive outcome obligations.

In commercial and human‑rights litigation, the same change may narrow arguments that rely on Treaty clauses as interpretive levers to expand regulatory protections or constraints. Where Treaty provisions are repealed altogether—such as in the Organic Products and Production, Plant Variety Rights and Smokefree regimes—counsel will have fewer textual footholds to invoke Treaty principles directly in statutory interpretation.[S1]

The scope and mechanics of the review

The Justice Ministry describes the initiative as a review of provisions in legislation that reference the principles of the Treaty of Waitangi, undertaken to provide "certainty" about how such references operate.[S1] Cabinet’s February 2026 decisions follow consideration of a report from an independent Advisory Group, overseen by an Oversight Group comprising senior public-sector leaders.[S1]

After reviewing a wider body of legislation, Cabinet settled on a final scope of 19 Acts managed by 11 agencies for the first tranche of amendments.[S1] Within that scope, the review distinguishes between:

• Substantive Treaty-standard changes, where duties are downgraded to "take into account";[S1]
• Descriptive rewrites, where broad Treaty clauses are replaced with detailed descriptions of how Treaty considerations must be applied;[S1]
• Standardisation changes, ensuring consistent bilingual reference to the Treaty and te Tiriti, which the Ministry stresses do not alter policy;[S1]
• Repeals of selected Treaty-related sections, such as in the Organic Products and Production, Plant Variety Rights and Smokefree Acts.[S1]

Cabinet has invited the Minister of Justice to issue drafting instructions to the Parliamentary Counsel Office to implement these decisions, moving the process from policy to legislative form.[S1] The Justice Ministry notes that the review arises out of the Government’s coalition agreement, which committed to examining all legislative references to "the principles of the Treaty of Waitangi" and either replacing them with specific wording or removing them.[S1]

Strategic implications for Treaty jurisprudence

The move to a uniform "take into account" standard sits alongside the Government’s broader project of clarifying the role of Treaty principles in public law. Previous Cabinet guidance, such as the 2019 Cabinet circular on Te Tiriti o Waitangi policy-making, has urged officials to consider Treaty obligations at the policy-design stage. The current review, in contrast, operates at the level of statutory text, with direct consequences for adjudication and legal remedies.

For litigators and judges, the new drafting will likely prompt reassessment of precedent built on stronger Treaty clauses in the affected Acts. While the Courts remain bound by existing case law on the Treaty and administrative law generally, they will now confront a set of provisions that consciously avoid imposing higher obligations than "take into account" and, in some regimes, remove Treaty references altogether.[S1]

In practical terms, the development sets up a series of test cases once the amendments take effect. Disputes over land disposal, infrastructure approvals, environmental permissions, or regulatory licensing under the amended Acts will provide early opportunities for courts to define the outer limits of what "take into account" requires—including the extent to which robust consultation, consideration of Māori interests, and mitigation of adverse impacts are mandated under the recalibrated statutory language.

At the same time, because Cabinet has directed that references to both the Treaty and te Tiriti be retained and standardised, Māori parties and public‑interest litigants are likely to argue that the symbolic and constitutional status of the Treaty remains woven into the statutory scheme, even if the operative standard has been lowered.[S1] How far that argument carries in judicial reasoning will be a central question in the next phase of New Zealand’s Treaty jurisprudence.