An urgent hearing into the Regulatory Standards Bill saw lawyers representing more than 18,000 interested parties argue against the legislation that some fear is as ‘dangerous’ as the Treaty principles bill.

A soon-to-be-introduced piece of legislation has been likened to “constitutional warfare”, with the potential to be as “dangerous” to Māori-Crown relations as the Treaty principles bill. More than 18,000 New Zealanders signalled their opposition to the Regulatory Standards Bill (RSB) by registering their support for a claim to the Waitangi Tribunal led by Toitū te Tiriti, which was heard on Wednesday, a week after the bill’s architect David Seymour announced it would be taken to cabinet to be approved for introduction to parliament by Monday, May 19.

Originally scheduled for June 6, the Wai 3470 claim was brought forward in an urgent hearing this week following the announcement from Seymour, the minister for regulation, that the bill would be read by cabinet sooner than expected. The tribunal loses jurisdiction to consider bills once they are introduced to parliament. After cabinet approves the bill on May 19, it will be introduced to parliament and, if passed as expected, would come into effect by January 1, 2026 – with changes expected to create a framework that would undermine the application of Treaty principles, the tribunal heard.

The bill’s stated aim is “to improve the quality of regulation in New Zealand so regulatory decisions are based on principles of good lawmaking and economic efficiency”. It sets a number of regulatory principles that all regulation should comply with, with an emphasis on personal liberty and property rights.

A cabinet minute on the bill was released on Tuesday, with feedback included in the document from Te Puni Kōkiri that the current proposal “does not recognise either the rights or interests of iwi, hapu and Māori” under the Treaty, nor does it consider the importance of the Treaty – a sentiment repeated in the cabinet paper by the Ministry of Justice. The Ministry for the Environment also noted the proposals “conflict with the principles of New Zealand’s environmental and climate systems which focus on balancing short-term and longer-term interests, and collective, rather than individual, interests”.

Tamaki Legal lawyer Tania Waikato, acting as counsel for Toitū te Tiriti and multiple other claimants, appeared first before the tribunal with the message that the bill “will create one of the most fundamental constitutional shifts in our legal history by elevating the RSB principles” into a position of “constitutionally superior law” above Treaty principles.

Waikato said her claimants’ core concerns with the bill came down to two “prongs”: the first being that her claimants “are prejudiced, and likely to be prejudiced” by the bill, as it “will alter the constitutional arrangements between the Crown and Māori under te Tiriti by stealth, and without the consent by Māori as Treaty partner”. The second prong, Waikato said, was the “fundamentally flawed” consultation process for the bill. She said the failure to meaningfully engage with Māori was “defective, deceptive and inconsistent with te Tiriti and the principles of te Tiriti.

“These breaches are so deeply entrenched into the fabric of the RSB, that they cannot be remedied by simply inserting a Treaty principle into the RSB,” Waikato told the tribunal. “The entire framework as a concept … must be rejected in its entirety.”

Waikato read evidence from senior law lecturer Carwyn Jones, who wrote that the Crown’s actions in drafting this bill had breached the Treaty in a matter that was “as serious and as dangerous as [the Treaty principles bill”. That bill, alongside the draft proposals being considered by the tribunal, represented a “combined legislative pincer movement” with the proposed legislation seeking to finish “what the Treaty principles bill started”, Jones said.

Otago law professor Andrew Geddis also submitted evidence read by Waikato. Geddis highlighted the bill’s first principle of the rule of law, that “every person is equal before the law”, arguing that “may cause it to be applied in order to remove legislative clauses that provide different provisions for Māori, particularly Treaty provisions”. Geddis noted that there were “often good reasons where differential treatment under the law not only is justifiable but actually morally required”, as noted by the Human Rights Commission.

Evidence from Hinemoa Elder specifically pointed to the Mental Health Act, and concerns that the passing of this bill would remove Māori mental health provisions under the RSB’s equality principle. Filmmaker Chelsea Winstanley also submitted written evidence outlining her concerns that this principle would affect funding for te reo Māori and Māori-specific films.

Speaking on behalf of Māori health leader Lady Tureiti Moxon, lawyer Roimata Smail argued the bill would entrench a “health system that is institutionally racist”. Lawyer Tom Bennion, representing Te Roopu Waiora Trust, told the tribunal that Seymour was “hostile to all differential treatment for Māori”. The minister’s law would have the potential to “wipe hundreds of millions of dollars off the value of historic settlements” if the law in practice failed to acknowledge disparities for Māori, Bennion said.

Whāia Legal’s Jamie Ferguson told the tribunal that while the bill was concerned with equal rights, there was no provision to ensure the act would not adversely affect the rights and interests of iwi and hapū. Asked by tribunal member David Williams about his experience in representing Māori legal issues, Ferguson said he had witnessed a change from “good faith” engagement with Māori to simple “box ticking”.

“I personally have a malaise and melancholy about it all,” Ferguson said. “It’s a tragedy. There’s no other word for it.”

Crown lawyer Jason Varuhas said arguments the tribunal had so far heard “often proceeded off an unsustainable degree of certainty as to the adverse affects” of the bill. While it was correct that the Crown had not relied on expert evidence, it did not accept the opinions relied on by claimants as “it is in the nature of opinion evidence, not primary fact”, Varuhas said. 

Concerns of Treaty breaches do not amount to an actual breach, Varuhas noted. He quoted former prime minister Geoffrey Palmer’s description of Aotearoa as the “fastest law-maker in the west” – New Zealand has unique legislative powers which allow parliament to pass laws more quickly than other developed countries, and the government has the authority to use these processes.

On concerns of prejudice against Māori, Varuhas said the bill “cannot be analogised” as having as much power as the Bill of Rights Act, a constitutional statute. “The Crown’s position is the Regulatory Standards Bill does not invariably, or likely lead, to breach of the Treaty,” Varuhas said, “or likely or invariably lead to prejudicial outcomes for Māori.”

Williams asked Varuhas whether the Crown had acted in good faith by bringing the bill to cabinet ahead of the hearing’s original June 6 date, to which Varuhas replied the Crown had acted as directed, but acknowledged that the tribunal and claimants’ need to “mobilise in such haste has not been ideal”.

“That’s good faith?” Williams asked. “We would say, for the reasons that we’ve given, that the Crown has acted in good faith,” Varuhas said.

Lawyer Darrell Naden of Tamaki Legal responded to the Crown’s comments at the end of the hearing, dismissing the claim that the RSB “would not confer or impose on any legal rights or duties, or affect the validity of legislation”. Naden highlighted a requirement of the RSB that all law be measured against it as evidence of its intended scope. “Why all the effort, the expense, so on and so forth, the haste to introduce this to the House, the haste to enactment … all points to how important this legislation is to the Crown.

“The claimants, despite hearing from the Crown today … continue to maintain that what is sought here is an ending of this RSB folly for the sake of a decent society, for the sake of future relations,” Naden said.

The tribunal is expected to submit its findings today.