Curtailing Treaty settlement obligations – Fast-track


Despite claims to the contrary, the Fast-track Approvals Bill will impact Treaty settlements in some important ways.

Detailed below:

  • The Crown’s Treaty Settlement commitment to a new relationship based in the Treaty seems to be inherently breached by this Bill, which removes the existing legislative weighting given to the Treaty principles.
  • Treaty settlement obligations, joint management arrangements and Mana Whakahono ā Rohe are directly curtailed under the Fast-track Approvals Bill. They become something that must be considered, but can then be ignored.
  • An unreasonably short time is allowed for consultation with iwi, hapū and Treaty settlement entities, and if comments are not made within this time, the right of appeal may be disallowed.
  • Arrangements under Treaty settlements must be complied with by the expert panel, although those arrangements can be modified to align with the purpose of streamlining approvals of significant projects. The relevant Treaty settlement entity or iwi authority may not unreasonably withhold its agreement to modify these arrangements.


All Treaty settlements contain a commitment by the Crown for a new relationship based in the Treaty. For example, Section 13 of the Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, and Te Ātiawa o Te Waka-a-Māui Claims Settlement Act 2014 states, “The Crown with this settlement acknowledges the rangatiratanga of Ngāti Rārua and seeks to restore the Crown’s honour. The Crown hopes this apology and settlement will mark the beginning of a renewed and enduring relationship with Ngāti Rārua based on mutual trust, co-operation, and respect for Te Tiriti o Waitangi/the Treaty of Waitangi and its principles.”

How can that legal commitment possibly be honoured when legislation such as this rides roughshod over the Treaty relationship and makes the Treaty a simple nullity across numerous important pieces of legislation for significant projects?

The Bill requires that people exercising functions under it must act in a manner that is consistent with Treaty settlement obligations. However, beyond this, there seems to be no legal requirement in this Bill on Ministers to uphold Treaty settlements or other arrangements. The input simply forms advice to the decision-making Ministers.


The Bill requires applicants to engage with relevant iwi, hapū and Treaty settlement entities. That information is then included with the application for consideration.

On receipt of an application, Ministers must consult the relevant iwi authorities, Treaty settlement or related entities, hapū, and others. Only 10 days is allowed under the legislation for this process, an impossible amount of time for genuine consultation. After that timeframe a decision may be made without having received input through the attempt at consultation. The rights of appeal (on points of law only) are restricted to those who made comments at this point in the process.

Additionally, the responsible agency will prepare a report for the Ministers, on relevant Treaty settlement obligations, Mana Whakahono ā Rohe and joint management agreements. This report does not bind decision making.

The Ministers “must consider” this report, however, this is a very low legal standard to meet, compared to the requirements of current legislation. It is also less than the Covid-19 Recovery Fast Track consenting process. This information could then be considered but ignored.

Ministers “may decline” an application for referral to the expert panel if they consider it inconsistent with a relevant Treaty Settlement, the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act, the Marine and Coastal Area (Takutai Moana) Act, a Mana Whakahono ā Rohe or a joint management agreement. However, this is a very indeterminate requirement, leaving full discretion with the Ministers.


At the next stage, the expert panel, when assessing applications, must consult with the Minister for Māori Crown Relations: Te Arawhiti, and the Minister for Māori development, who are allowed 5 days to comment on the draft report’s assessment of the project in relation to the relevant Treaty settlement, and any conditions relevant to that assessment.

The expert panel will also gather information on the relevant provisions in Mana Whakahono ā Rohe or joint management agreements. They will assess the projects and make a recommendation to the Ministers on whether the project’s approvals should be granted or declined and conditions.

The expert panel must comply with arrangements under Treaty settlements or certain agreements. They must obtain the agreement of the relevant Treaty settlement entity or iwi authority to adopt a modified arrangement that is consistent with achieving the purpose of this Act, the Treaty settlement Act, iwi participation legislation and certain agreements.

The purpose of the Fast-track Approvals Bill which the modified arrangement must be consistent with, is to “provide a streamlined decision-making process to facilitate the delivery of infrastructure and development projects with significant regional or national benefits”. This means that there will be pressure to streamline the Treaty settlement arrangements and to restructure them to facilitate the approval of (rather than decline or place restrictions on) these significant projects.

The relevant Treaty settlement entity or iwi authority may not unreasonably withhold their agreement to such a modified arrangement. This appears to inherently contradict the direction to comply with the existing arrangements. It is unknown how the courts would assess “unreasonably withhold” in this context. It appears to leave the door open to the Executive unilaterally forcing the hand of Treaty settlement entities or iwi authorities to agree to a modified arrangement that changes their Treaty settlement provisions.


Having considered this report, Ministers then decide whether or not to approve the project. There seems to be no requirement for consultation by the decision-maker at this key point in the process.

Joint Ministers “must not decide to deviate from a Panel’s recommendations, unless they have undertaken analysis of the recommendations and any conditions included in accordance with the relevant assessment criteria”.

This seems to leave full decision making power with the Ministers to make their own decision, against the panel’s recommendations, simply by undertaking an analysis.

The Bill seems to contain no legal tests for Ministers on environment, heritage, Treaty or indigenous rights matters.

I believe it is inaccurate to say that the Bill upholds Treaty settlements and existing arrangements, or that it places sufficient requirements on decision-makers to adhere to these, or that it requires these matters to be given appropriate weight.

It certainly seems to contradict the Crown’s commitments to recognise rangatiratanga, restore the Crown’s honour, and build new and enduring relationships based on mutual trust, co-operation, and respect for Te Tiriti o Waitangi/the Treaty of Waitangi and its principles.

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