The Daily Blog | 10 May 2016

The Waitangi Tribunal report on the TPPA claim

by Jane Kelsey

The Waitangi Tribunal’s report on the Trans-Pacific Partnership Agreement (TPPA) is a paradox. Time and again the Tribunal says it is ‘troubled’ and ‘concerned’ about aspects of the TPPA and its implications for Maori.

It does not buy the Crown’s assurance that ‘nothing in the TPPA will prevent the Crown from meeting its Treaty obligations to Maori’, or that claimants’ concerns about investor-state dispute settlement (ISDS) and the chilling effect on governments’ decisions are overstated. It agrees that the ‘full constitutional reach of the Treaty relationship may not be as clearly protected and preserved under the TPPA as it might be’ and the Treaty of Waitangi exception is limited in scope. Nor is there any evidence that the Crown has attempted to review the Treaty exception that’s been rolled over since the Singapore free trade agreement in 2001, despite the much higher risks in the TPPA, let alone to actively engage with Maori to learn and respond to their concerns.

Yet the Tribunal holds that the Crown did not breach the principles of the Treaty of Waitangi because the Treaty exception is likely to operate in the TPPA substantially as intended and therefore can be said to offer a reasonable degree of protection to Maori interests.

There are ways to make sense of this. But before explaining the report, it’s important to stress the positive take-home message. The Tribunal claim has raised awareness among Maori, the media, politicians, and the Tribunal and created a new level of confidence and capacity to challenge these agreements. The government was forced to defend its position and failed on most of the major arguments. It was saved by pragmatism that may apply only to the TPPA.

There is a new starting point for Maori to challenge other mega-FTAs that the government is trying to negotiate behind closed doors and to demand a real say in what is done, why and how. The Maori Party’s submission to the select committee proposed a Treaty of Waitangi (Free Trade Agreements) Bill setting out some base lines. The iwi chairs are already in talks with the government on future changes, having been excluded from the TPPA process, while others are determined not to leave it to them. Various hapu, iwi, and wananga are taking initiatives to educate themselves. Activists and advocates, such as organics producers and health professionals, are discussing what to do next. Internationally, the UN Rapporteur on Indigenous Peoples Victoria Tauli-Corpuz has just held regional consultations in Peru and Thailand focused on implications of ISDS, with Maori attending each.

The limitations on the Tribunal’s report need to be seen in this broader context. Three main factors that explain the outcome.

First, the claimants’ arguments and demands were politically controversial, requiring the Tribunal to take a risk in supporting them. That was always a huge ask. The TPPA is a long and incredibly complex technical document that was kept secret, aside from leaks, until the urgent hearing began in November. Any tribunal would struggle to deal with the details even with a full inquiry, let alone an urgent report. Most impacts of the TPPA will arise in the future and require speculation about what might happen.

Crown Law played every trick in the book. It blocked the hearing until the Agreement was signed, then said it was too late to make any changes. After the Tribunal said several times that the Crown couldn’t introduce a second expert opinion that took a different line than its first expert, it circulated it anyway; its legal arguments and evidence then shifted to reflect that excluded evidence. Almost every decision of the Tribunal faced implied threats of judicial review.

As I have pointed out over many years, the Waitangi Tribunal itself is an agency of the Crown as part of the judicial system. Members are appointed by the government. In this Tribunal they included three Pakeha men – a Maori land court judge, a former National Party cabinet minister, and a special counsel to a major law firm – along with a kaumatua of great mana, but who is not a lawyer, and a younger Maori woman with experience in the commercial world.

All up, it was unlikely that the Tribunal in this claim would opt to talk truth to power.

The second factor reflects the problems with a Tribunal claim heard under urgency. The Tribunal narrowed the broad range of arguments to just two questions it considered central and that could be addressed in the very narrow time frame.

The first question was whether the Treaty of Waitangi exception, which has been included in New Zealand’s free trade agreements (FTAs) since the Singapore FTA in 2001 but never been reviewed, was effective. This excluded the impacts of the TPPA on intellectual property arising from the Tribunal report on the Wai 262 claim on traditional knowledge, the requirement for New Zealand to adopt UPOV 1991, a convention on plant variety rights, rights to affordable medicines. The Treaty exception was seen as not relevant to them and therefore outside the scope of the inquiry (even though the Tribunal could have found that the fact the Treaty exception did not apply to them showed it was inadequate).

The second urgency issue was the Crown’s future engagement with Maori after the signing. By focusing only on the future, the manifest failure to consult with Maori before and during the negotiations was reduced to background information.

The Tribunal’s conclusions relate only to these two narrowly defined issues.

The third factor is more systemic. The Tribunal’s mandate under the Treaty of Waitangi Act 1975 is inquire into claims that an action or omission of the Crown is inconsistent with the ‘principles of the Treaty’. I have a longstanding antipathy to the concept of Treaty ‘principles’, which provides the wriggle room to avoid applying a more direct interpretation of Te Tiriti o Waitangi and He Whakaputanga (the Declaration of Independence 1835).

Interpretation of the ‘principles’ of the Treaty dates back to court cases in the 1980s, when Maori successfully challenged the State-owned Enterprises Act in 1987, fisheries, coal privatisation, sale of the broadcasting spectrum, among other disputes. But the principles, as enunciated by the courts, government agencies, and then the Waitangi Tribunal, effectively reconcile the conflict between Te Tiriti o Waitangi, which affirms Maori rangatiratanga, and the Treaty of Waitangi, where Maori cede sovereignty to the Crown, in favour of the Crown.

The TPPA Tribunal said the recent Waitangi Tribunal report on Te Tiriti and He Whakaputanga found there was no cession of sovereignty, at least by iwi from the North, was not relevant. It adopted the previous interpretations the Crown had the right to govern but must provide active protection for Maori interests. That ‘active protection’ was reduced to steps it was ‘reasonable for the Crown to take in the situation’.

So long as these Treaty ‘principles’ hold sway, Maori rights under Te Tiriti will be subordinated to the government’s broader assessment of national interests, provided it has taken some positive steps to protect Maori interests in the overall scheme. In the context of the TPPA and similar deals, the government will always claim that its assessment of competing factors should hold sway. This poses a much bigger constitutional challenge to give real meaning to tino rangatiratanga in Aotearoa today.

All the main documents from the Waitangi Tribunal hearing will be posted on tpplegal.wordpress.com by the end of this week, along with a reference guide to the Tribunal’s report.