The Waitangi Tribunal

The Interim Regulatory Standards Bill Urgent Report concerns the proposed Regulatory Standards Bill, which, subject to Cabinet approval, may be introduced to the House of Representatives on 19 May 2025. The Bill is derived from the commitment in the New Zealand National Party–ACT New Zealand coalition agreement to pass, as soon as practicable, a Regulatory Standards Act to ‘improve the quality of regulation’. The Act would introduce several principles of ‘good law-making’ by which future legislation and regulation would be measured. It also allows for prior legislation and regulation to be reviewed and examined for consistency with these principles.

The Crown accepted that its policy development for the Bill occurred without targeted engagement with Māori. The Tribunal found that this was in violation of the Crown’s obligation to consult with Māori in good faith and therefore violated Treaty principles of partnership and active protection.

Regarding the substance of the Bill, the Tribunal found that, if it were to be enacted, it would be of constitutional significance, as it seeks to influence the way Parliament makes law, and therefore it is inherently relevant to Māori.

The Tribunal therefore found that, if the Regulatory Standards Act were enacted without meaningful consultation with Māori, it would constitute a breach of the principles of the Treaty of Waitangi, and specifically the principles of partnership and active protection. The Crown would also be in breach of Treaty principles if it were to introduce the Bill to Parliament without any further consultation with Māori.

The Tribunal found that these breaches have caused, or will cause, prejudice to Māori and that the Crown’s action in progressing the policy without engaging with Māori adequately has been damaging to the relationship between Māori and the Crown. The Tribunal also found that the absence of meaningful engagement with Māori on the potential but unknown impacts of the legislation has caused stress and uncertainty, resulting in further prejudice. 

The Tribunal recommended that the Crown immediately halt the advancement of the Regulatory Standards Bill to allow for meaningful engagement with Māori and the dialogue envisioned by the Treaty partnership. In particular, the Crown should meaningfully engage with Māori on whether the proposed legislation is necessary, what further exemptions in the Bill may be required to protect Māori rights and interests, and the potential impact of the proposed ‘rule of law’ principle on Government measures in place to pursue equitable outcomes for Māori.

The Tribunal reserved its jurisdiction to reconsider these issues should the Regulatory Standards Bill be enacted.

The panel comprised Judge Nathan Milner (presiding), Vanessa Eparaima MNZM, Derek Fox, Dr Hana O’Regan ONZM, Kevin Prime MBE, CNZM, and Professor Emeritus David Williams.

Nō te rā nei ka puta i Te Rōpū Whakamana i Te Tiriti o Waitangi tōna pūrongo e kīia ana ko Kei Ahotea Te Aho Matua e pā ana ki te tono kōhukihuki i kawea e Te Rūnanga Nui, te māngai mō ngā whānau Kura Kaupapa Māori Te Aho Matua. E whakapae ana ngā kaitono kīhai i tika te whai wāhitanga, te whai whakaarotanga atu a te Karauna ki Te Rūnanga Nui, ki ngā Kura Kaupapa Māori rānei i roto i te tukanga arotake me te whakahou i Ngā Kura o Āpōpō, mai i te tau 2018 ki te tau 2022.

 

Kua tuhia tēnei pūrongo ki te reo Māori. I hua ai tēnei whakatau whai muri i ngā wānanga ki ngā kaitono me te Karauna, me te whai tautoko i a rātau. Kua tāpirihia ki tētahi āpitihanga ngā upoko 3 ki te 7 kei roto i te reo Pākehā o te pūrongo, kia mārama ake ai te pūrongo.

 

Ko te whakatau a te Taraipiunara, he maha ngā takahi a te Karauna i ngā mātāpono o te Tiriti e pā ana ki te noho rangapū me te whakamarumaru i te wā o te arotake me te whakahou i Ngā Kura o Āpōpō. Kīhai te tukanga a te Karauna i eke – mai i te whakatau ki te whakaara i te arotakenga i te tau 2018, tae noa ki te pūrongo mātauranga nō te Hereturikōkā 2022 i whakatakoto i ngā kōwhiringa mō te whakahou ki ngā Minita a Hipkins rāua ko Davis. Kei ngā upoko 4 me te 5 o te pūrongo ngā taipitopito mō ēnei kitenga, me te kōrero pono e hāngai ana. Ko tētahi āhuatanga i kitea e te Taraipiunara, kāore i ea te whai wāhi a ngā kaitono ki ngā mahi waihanga kaupapa here, me te koretake rawa o te Karauna ki te whakamōhio atu ki te aronga o ngā mahi kaupapa here.

 

I kitea e te Taraipiunara e rua ngā huarahi nui i takahi ai ngā whakaritenga kaupapa here a te Karauna i ōna here Tiriti ki ngā Kura Kaupapa Māori Te Aho Matua whai muri i te whakahou i Ngā Kura o Āpōpō. Tuatahi, kīhai te Karauna i whakatinana i te rautaki me ngā kaupapa here e hāngai ana ki te whakatika i ngā hiahia o ngā Kura Kaupapa Māori, he mea takahi i ngā mātāpono o te noho rangapū, te whakamarumaru, te wairua tōkeke me te kōwhiringa. Tuarua, i kitea e te Taraipiunara he mea takahi ngā whakaritenga onāianei i ngā mātapono Tiriti o te noho rangapū me te wairua tōkeke nā te mea kāore Te Rūnanga Nui – te māngai mō ngā whānau Kura Kaupapa Māori Te Aho Matua – i whai mana ki ngā whakatau whakamutunga mō ngā kaupapa here e pā ana ki ngā Kura Kaupapa Māori.

 

Nā ngā takahitanga a te Karauna i whakahāwea nuitia ngā kaitono, me te mea anō kāore i ngā kaitono te mana e tika ana kei a rātau i raro i te rangapū mahitahi o te Tiriti, ki te waihanga i ngā kaupapa here e hāngai ana ki ngā Kura Kaupapa Māori Te Aho Matua.

 

Hei whakatika i tēnei hēnga he maha ngā tūtohunga a te Taraipiunara, tae atu ki te tohutohu kia mahitahi te Karauna me ngā kaitono ki te waihanga i ngā kaupapa here mō ngā Kura Kaupapa Māori Te Aho Matua ki ngā kaupapa pēnei i te hanga whare, te tautoko i te marau, me te whakamahere whatunga. Mō te pae tawhiti, e tūtohu ana te Taraipiunara kia ū te Karauna ki te whakatū i tētahi rōpū mātauranga whaimana motuhake – ko te tikanga ka waihangatia tōna korahi me āna mahi ki te taha o te hunga whaipānga Māori, tae atu ki ngā kaitono. Kei te upoko 7 te roanga ake o ngā taipitopito mō ngā tūtohunga a te Taraipiunara.

 

 

Kei Ahotea Te Aho Matua is a report on an urgent claim bought by Te Rūnanga Nui and the Kura Kaupapa Māori Te Aho Matua whānau it represents. The claimants allege that the Crown did not sufficiently involve or consider Te Rūnanga Nui or Kura Kaupapa Māori in the Tomorrow’s Schools review and reform process, from 2018 to 2022. 

 

The report is produced in te reo Māori. This decision was made following discussion with, and support from, the claimants and the Crown. English versions of chapters 3 to 7 of the report are included in an appendix, to assist in understanding of the report.

 

The Tribunal found the Crown breached Treaty principles of partnership and active protection in several instances during the Tomorrow’s Schools review and reform. It found the Crown’s process throughout lacking – from the decision to initiate the review in 2018 to the August 2022 education report that provided Ministers Hipkins and Davis options for reform. These findings, and the relevant factual narrative, are set out in detail in chapters 4 and 5 of the report. A consistent theme the Tribunal found was insufficient involvement of the claimants in key policy development steps, and very poor communication from the Crown on the direction of policy work.

 

The Tribunal found that the Crown’s policy arrangements in the wake of the Tomorrow’s Schools reforms breach the Crown’s Treaty obligations to Kura Kaupapa Māori Te Aho Matua in two critical ways. First, the Crown has failed to implement bespoke policy and strategy to address the needs of Kura Kaupapa Māori, in breach of the principles of partnership, active protection, equity, and options. Secondly, the Tribunal found current arrangements breach Treaty principles of partnership and active protection because power to make final decisions on policy settings affecting Kura Kaupapa Māori is not shared with Te Rūnanga Nui, who act on behalf of Kura Kaupapa Māori Te Aho Matua whānau.

 

The Crown’s breaches caused considerable prejudice to the claimants, including that the claimants do not have the powers they should, under the Treaty partnership, to shape policy applicable to Kura Kaupapa Māori Te Aho Matua. 

 

To remedy this harm, the Tribunal made several recommendations, including that the Crown work with the claimants to develop specific policies for Kura Kaupapa Māori Te Aho Matua in areas like property, curriculum support, and network planning. In the longer term, the Tribunal recommended that the Crown commit to establishing a stand-alone Kaupapa Māori education authority, the precise scope and functions of which are to be developed with Māori stakeholders, including the claimants.