NZ lags on Indigenous rights – professor

The outcome of this election is unprecedented and highlights significant uncertainty about the direction of travel for Aotearoa New Zealand’s commitment to te Tiriti rights, human rights and indigenous peoples’ rights.

Though, irrespective of the outcome, those rights remain extremely vulnerable under our current constitution – no matter who is in power.

This is partly because, the way our current constitution operates, it is possible for Parliament, led by the executive, to override rights. This means it is politics, not law, that can determine whether Indigenous rights are upheld.

We are an outlier in this globally. In comparable countries indigenous rights aren’t up for negotiation in a coalition deal or subject to the whim of the government of the day. This is not okay; rights should be enshrined in law, not dependent on the ebbs and flows of political power or – worse – used as bargaining chips.

We witnessed the vulnerability of rights in action following the 2023 general election when the minority ACT Party, led by David Seymour, made the introduction of the Treaty Principles Bill to Parliament part of the coalition agreement formed with National and New Zealand First.

There is no doubt that this bill was a threat to Māori rights, which it actively sought to undermine, undoing decades of incremental work to slowly build a country based on respect for our founding constitutional document, te Tiriti o Waitangi, the Treaty of Waitangi.

The bill was fundamentally inconsistent with Te Tiriti, creating more social division than we have seen in this country since the passing of the Foreshore and Seabed Act in 2004.

New Zealand has a poor reputation on the global stage for the way our political system fails to protect rights. In July this year, the Human Rights Commission released an analysis which found the then-government’s proposals to amend references to the Treaty of Waitangi in 19 pieces of legislation were inconsistent with domestic and international human rights standards.

And in an international context generally, it is starkly apparent that New Zealand’s constitution has extremely weak constitutional protections of Māori rights compared with other countries.

In Canada, First Nations, Métis and Inuit aboriginal and treaty rights have been protected as higher law since 1982. Under the Canadian constitution those rights trump inconsistent law, meaning that Canadian law must respect those rights or risk being overturned. 

The Sámi people, who inhabit the region in the north of Norway, Sweden, Finland and far-western Russia, have individual, independent Sámi parliaments in three of those countries and a Saami Council operates across the four countries. This ensures that Saami have a say in law-making and authority in their regions.

Closer to home, in November 2025 in Australia, a treaty was signed between Victoria First Nations and the Victoria state government under which Aboriginal peoples’ self-determination is recognised. The treaty is being given effect through procedures facilitating Aboriginal participation in government especially.

A First Peoples’ Assembly acts as the official voice and is comprised of elected traditional owners.

At the same moment last year in New Zealand, the UN Committee on the Elimination of Racial Discrimination (CERD) issued a raft of “must do better” recommendations for New Zealand with regards to our ability to protect indigenous rights. It expressed concern about reduced Māori political participation following the changes to Māori wards; the 2025 Electoral Act amendments that abolished same-day voting registration and barred prisoners from voting; and the initiatives of the Treaty Principles Bill.

Minister for Māori-Crown relations Tama Potaka noted that the inquiry offered “useful insights on issues of considerable importance to New Zealand”. However, the Government took no direct action to address the recommendations.

And herein lies the problem: there is no constitutional requirement for the government to uphold rights, be they under te Tiriti or international law, or human rights of universal application.

If National, NZ First and ACT form the next government, there is a risk of the Waitangi Tribunal being effectively disestablished, ongoing weakening of Tiriti | Treaty clauses in legislation, potential continued undermining of tikanga Māori and discussion about the abolition of the Māori seats.

With a Labour-led coalition (perhaps with agreements of confidence and supply), while some parties might seek more fundamental constitutional transformation to better align with te Tiriti | the Treaty, the approach by Labour will likely be too incremental and conservative to effect the urgently needed changes I outline in my new book, Sovereignty: The Case for Constitutional Transformation.

These changes are needed in the interests of not only indigenous rights, but equality, the rule of law, democracy, legitimacy, legality, international legal obligations, human rights and – just as importantly – to protect against dangerous and divisive “us and them” politics.

What this election makes abundantly clear is that constitutional questions need a more stable home than in the horse-traded and incoherent policies of the government of the day.

There is a pathway toward this, as I explore in Sovereignty, that would lift New Zealand’s rights record and steer us forward as a stronger and more unified nation.