700 Treaty settlement commitments caught in conservation reform crossfire
The Government’s Conservation Amendment Bill is more than a rewrite of conservation law. Released documents show the reforms interact with about 700 Treaty settlement commitments in the conservation portfolio, with unresolved questions over how some of those commitments will be upheld in the new system. That matters because Treaty settlements were meant to settle past breaches and reset the Crown-iwi relationship – not become arrangements the Crown can unilaterally reshape when existing commitments become inconvenient.
Changes to section 4 affect Treaty settlements
I have written previously about the implications of the Conservation Amendment Bill for section 4 of the Conservation Act in Part 1 of this pair of articles.
Section 4 is one of the strongest Treaty principles clauses in legislation, and requires those interpreting and administering the Act, and the other conservation enactments specified in Schedule 1, to give effect to the Treaty principles. That is a high threshold to meet, and as my previous analysis shows, the addition of section 4A through the Bill would reduce this legal obligation for policy, plans, concessions and land disposals to merely inviting comments and considering those comments, or consulting.
Changing the meaning of section 4 in these key areas also impacts on Treaty settlements, because many settlements reference section 4 directly. Thus, the meaning of Treaty settlements would be changed unilaterally by narrowing what is required to meet section 4 requirements in certain circumstances.
At the time of negotiation, the government required that settlements were not to include provisions if they were already in existing laws. Therefore, amending the Conservation Act upends the legal landscape as it was at the time of settlement – and removes significant protections for iwi rights and interests that were justifiably assumed to be continuing.
700 Treaty settlement commitments affected by conservation reforms
The conservation reforms agreed by Cabinet in June 2025 interacted with about 700 Treaty settlement commitments in the conservation portfolio. Cabinet paper talking points for the Minister of Conservation, Tama Potaka, from 22 September 2025 outlined that about 90% of those commitments can be upheld in the new system with relatively minor consequential changes, and Cabinet approval was sought for those changes which would then be included in the Bill at introduction. The paper noted that, “PSGEs will have views on whether these arrangements are sufficient. I expect further fine-tuning through select committee if needed.”
A preliminary timeline for engagement with Post Settlement Governance Entities (PSGEs) on Treaty settlements showed letters to be sent to PSGEs in March and April 2025, with engagement from April to July, escalation meetings in August and September, and final policy decisions by Cabinet in September. It was expected that the Bill would be introduced in November of the same year.
This timeline was subsequently revised, with PSGEs expected to receive formal proposals prior to Christmas 2025, at a similar time to the Bill being introduced, with formal engagement with PSGEs ongoing throughout the select committee process, and the Bill having its third reading in July 2026.
The complex issues remaining at that point were described as approximately 30 settlements having statutory planning roles; the status of environmental plans, vision, strategies and legal weightings (such as Waikato River and Taranaki Maunga); the intent of the Ngāi Tahu membership on the NZCA being undercut by the changing role of the NZCA; and 13 settlements which provided for Conservation Board membership, again with the intent of redress being undercut by the changing role of Conservation Boards. Possible solutions were identified but redacted in the released documents.
Advice to the Minister in August 2025 noted that to avoid undermining Treaty settlements and the Māori-Crown relationship more broadly, amendments to the conservation system will uphold Treaty settlements.
Much of the content on this has been redacted, however it did note that, “obtaining individual and locally bespoke agreements could undermine your intent for a nationally consistent approach to management planning.”
It noted that engagement with a range of PSGEs had occurred across 2025 to discuss, in good faith, what equivalence or carve outs of redress look like in the context of regulatory reform, rather than to seek agreement.
Officials’ risk assessment was that there were high risks to Crown-Māori relations, durability of Treaty settlements and timeframes for the Conservation Act Amendment Bill.
They recommended that, “the Crown writes to post-settlement governance entities, and groups in negotiations, outlining your intention to proceed with reform, whilst upholding Treaty settlement redress preferably (but not necessarily) with agreement, on what timeframes, Cabinet’s decisions on standard and complex redress, and outlining the process should agreement not be possible before enactment.”
On 29 September 2025, Cabinet agreed to carry over to the new system co-approval and/or co-development roles for PSGEs directly provided through Treaty settlements in relation to statutory planning documents; and the substantive effect of legal weightings provided through settlement redress. It was also decided to include temporary arrangements preserving redress commitments to enable further engagement on about 45 more complex commitments prior to enactment.
Advice to the Minister on 17 October 2025, which accompanied letters for his approval to send to PSGEs, noted that various PSGEs, iwi and hapū had “raised concern about potential impacts of reform on their Treaty settlement commitments and the level of engagement thus far.”
The letter encouraged engagement, through the select committee process and alongside it, however, it also stated, “It is important to me to understand your views on how best to uphold Treaty settlement redress, and for us to seek agreement where possible.”
At this point it had become clear in the documents that the Government intended to proceed with the reforms on its own time-frame, regardless of whether agreement was reached on how to uphold Treaty settlement legislation.
The Government intended to introduce the Bill in December 2025, and pass it prior to the election. It was delayed, which the documents released suggest was due to the change to the purpose of the Conservation Act to enable economic development “to the greatest extent practicable” being added in late in the piece, rather than because of iwi engagement. That cabinet paper noted that the scale of drafting required would mean it cannot be delivered during the current parliamentary term.
Iwi engagement becomes litigation
The delay did, however, allow further discussions with iwi. From the outside this appears to have not gone so well, as Te Rūnanga o Ngāi Tahu announced court action to protect its Treaty settlement in November 2025.
The Crown sought a stay arguing that it infringed parliamentary sovereignty and the Parliamentary Privilege Act, as the Bill was already being prepared for Parliament. The court put the proceedings on hold, with the effects on the Ngāi Tahu Treaty settlement to be scrutinised after enactment. The Conservation Amendment Bill was subsequently introduced in May 2026.
Former Attorney General, Chris Finlayson, spoke last week on a panel at the EDS conference about whether current law-making practices are putting the constitution at risk. He used the Ngāi Tahu court action on the conservation reforms as an example, saying, “I find in many areas that the executive is increasingly purporting to act on behalf of Parliament… a good example of that is weaponising parliamentary privilege”.
He went on to say that he “chaired the privileges committee that looked at that issue many years ago, and it was never intended that parliamentary privilege be appropriated by the Crown to prevent the courts looking at the proposed reforms in that way.”
Rights of first refusal to land disposals
An aspect of the Conservation Amendment Bill which has attracted most attention is the sale and exchange provisions, which would have technically enabled up to 60% of public conservation land to be disposed of – subject to much weaker tests than current disposals, but with caveats on land which is subject to Treaty claims. This may have been unexpected to many, as transfer of conservation land was generally off the table during settlement negotiations.
When asked by Radio New Zealand whether iwi will get first right of refusal on any conservation land the government plans to sell, Potaka said that is already locked in. However, his answer referred to the commitments in Treaty settlements that will be upheld – he did not say that the Bill would extend and strengthen that right for all iwi.
A close read of the Bill shows that there does not appear to be a clause creating any new first right of refusal for iwi. Under the Bill land exchanges and disposals could not be authorised if they would trigger a right of first refusal or a right of offer or return, unless the holder of the right has agreed in writing.
Whether this applies in any given situation depends on the finer wording of the Treaty settlements in question. Some right of first refusal clauses are broad, potentially covering all conservation land. Others pertain only to specific sites. Some are only triggered by sales. Others may also be triggered by exchanges. Some iwi may not have right of first refusal clauses pertaining to conservation land in their settlements at all.
Following significant public backlash, the government has now agreed that the exchange and disposal provisions will be removed from the Bill, and earlier this week Minister Potaka wrote to the select committee to convey that.
Despite this, Shane Jones, Deputy Leader of NZ First made it clear on a panel at the EDS conference last week that he wishes to dispose of significant areas of conservation land, and would push that even more strongly in any coalition negotiations after the upcoming election. Given that the Bill will now not be passed until after the election, it remains to be seen whether those clauses could be reinserted in a few months’ time.
A process and a Bill which breach Treaty commitments?
Although the Government had expressed its commitment to upholding the intent of Treaty settlement commitments, the released documents show that in practice it pursued a rushed process that arguably breached the Treaty principles and pushed on without reaching agreement. Furthermore, the Conservation Amendment Bill was introduced before mutual agreement had been reached on how to uphold Treaty settlements in the new law.
The process is like to breach the Treaty principles, in addition to the outcome impacting the terms of Treaty settlements without the agreement of the other party to those binding agreements which are enshrined in legislation. Iwi, of course, are the party which received those settlements in recognition of past injustices and to set the foundations for a new relationship for the future.
Officials warned the Minister of this in their papers, suggesting that, “You could seek to pause the introduction of the bill by 18 to 24 months to provide more time for good faith engagement and testing of proposals to enable PSGEs and the Crown to be better informed in their decision-making”. This wording is an implicit warning to the Crown that their process could be in breach of the Treaty principles, which include good faith and informed decision making, and therefore subject to judicial review or a Waitangi Tribunal claim.
By pushing through with legislation prior to reaching agreement, Treaty settlement arrangements are up in the air, litigation is suspended in court, and trust in the Crown significantly damaged.
Rhianna Morar, Associate of Kāhui Legal, spoke on the same panel at the EDS conference:
“We’re not talking about an absence of good faith anymore. We’re actually talking about calculated, intentional breaches and intentional disregard for the Treaty. And that is really problematic because the Treaty is enduring”.
Also on that panel, Paranihia Walker, Special Counsel at Kāhui Legal, spoke further on the conservation reforms. She said, “There is going to be an impact on Treaty settlements, and a lot of that discussion is being parked to be had after the enactment of the legislation, and that’s just simply not okay. It’s a breach of settlements.”
She noted that each settlement is a compact with the particular iwi, a recommitment to the Treaty relationship as it was expressed in te Tiriti o Waitangi, and often negotiated over decades.
“For something as fundamental as Treaty settlements, which represent a renewed commitment to our founding document, that’s just not okay.”
Paranihia described how Treaty settlements are usually supported by all members of the House when they are enacted because of their significance to our nation and future, however “things are playing out at the moment which will undermine those arrangements, and they’re perfectly happy to move ahead without the… agreement of the Treaty partner.”
A process and a Bill which breach Treaty commitments?
Although the Government had expressed its commitment to upholding the intent of Treaty commitments, the released documents show that in practice it pursued a rushed process that arguably breached the Treaty principles and pushed on without reaching agreement. Furthermore, the Conservation Amendment Bill was introduced before mutual agreement had been reached on how to uphold Treaty settlements in the new law.
The Government’s determination to push ahead regardless of whether iwi had agreed to change the terms of their Treaty settlements is hard to reconcile with the purpose of settlements: to reset the Crown-iwi relationship on the basis of te Tiriti o Waitangi and/or the Treaty principles. The process is likely to also breach the Treaty principles, and the obligations Section 4 and Treaty settlements place on the Crown for this process.
Officials warned the Minister of this in their papers, suggesting that, “You could seek to pause the introduction of the bill by 18 to 24 months to provide more time for good faith engagement and testing of proposals to enable PSGEs and the Crown to be better informed in their decision-making”. This wording is an implicit warning to the Crown that their process could be in breach of the Treaty principles, which include good faith and informed decision making, and therefore subject to judicial review or a Waitangi Tribunal claim.
By pushing through with legislation prior to reaching agreement, Treaty settlement arrangements are up in the air, litigation is suspended in court, and trust in the Crown significantly damaged.
Rhianna Morar, Associate of Kāhui Legal, spoke on the same panel at the EDS conference: “We’re not talking about an absence of good faith anymore. We’re actually talking about calculated, intentional breaches and intentional disregard for the Treaty. And that is really problematic because the Treaty is enduring”.
Also on that panel, Paranihia Walker, Special Counsel at Kāhui Legal, spoke further on the conservation reforms. She said, “There is going to be an impact on Treaty settlements, and a lot of that discussion is being parked to be had after the enactment of the legislation, and that’s just simply not okay. It’s a breach of settlements.”
She noted that each settlement is a compact with the particular iwi, a recommitment to the Treaty relationship as it was expressed in te Tiriti o Waitangi, and often negotiated over decades.
“For something as fundamental as Treaty settlements, which represent a renewed commitment to our founding document, that’s just not okay.”
Paranihia described how Treaty settlements are usually supported by all members of the House when they are enacted because of their significance to our nation and future, however “things are playing out at the moment which will undermine those arrangements, and they’re perfectly happy to move ahead without the… agreement of the Treaty partner.”
A promise to collaborate, a threat to double down
The Minister announced at the EDS conference that he would work with Forest & Bird and EDS to explore suitable wording for what has since been coined the “Shane Jones clauses”. These clauses, as currently written, would require DOC to enable economic development on all public conservation land “to the greatest extent practicable”.
This was a somewhat surprising move, given that engagement with iwi had not resolved issues, and in at least one situation has resulted in court action. On Tuesday Potaka updated this announcement, and posted on Facebook that he had “asked the Committee to work with conservation groups, iwi and others to make sure we get these changes right”.
Whether this creates a genuine opportunity to pause the Bill and reach agreement with iwi remains to be seen. Government documents suggested 18–24 months would be needed for good faith engagement and informed decision-making. The select committee report is currently due on 12 November 2026.
The delay of the Conservation Amendment Bill being introduced to Parliament for its first reading means that it will not be passed before the election. It will therefore be the next Government that is the key decision-maker about whether to pass it, and in what form.
Shane Jones made clear to the EDS conference that NZ First will campaign on the economic development of public conservation lands and opening them up to industry. He said:
“God as my witness, if we form part of the next Government, we will be pushing for the DOC department to drive more economic outcomes from the DOC estate… The longer you stop that from happening, you empower politicians like me, who will seek even more vigorously in the event that we govern again, to demand that our coalition partners make it happen.”
This could mean that NZ First doubles down through coalition negotiations leading to the retention of the economic development provisions as written, and the return of the sale and exchange provisions, potentially with even more permissive settings than those in the current Bill.
The Conservation Amendment Bill is shaping up to be a significant election issue, and one that is likely to unite most New Zealanders regardless of their political leanings.
UPDATE: Submissions deadline extended - submissions to the select committee close at midday on 13 July 2026.
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