Trans-Pacific Partnership and Māori Rights

The Foreign Affairs, Defence and Trade Select Committee is currently undertaking an examination of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). I made a submission to the Committee, focusing on the impact on Māori rights (see also the Māori and Te Tiriti paper that is part of the ‘Expert Paper Series’ on the TPP). The substance of my submission is reproduced below.

Submission

  1. I oppose New Zealand’s ratification and implementation of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) because it erodes the rights of New Zealanders in return for, at best, negligible economic gain.
  2. I am particularly concerned about the effect of the CPTPP on Māori rights and my submission focuses on those issues.

Māori rights and the CPTPP

  1. The CPTPP addresses a number of areas of law and policy, including intellectual property rights and environmental regulation, which Māori maintain are currently inconsistent with the principles of the Treaty of Waitangi. By extending the interests of foreign parties, who do not have Treaty obligations, into these areas, the CPTPP places further obstacles to Treaty rights being properly recognized.
  2. To give one example, the Waitangi Tribunal reported in 2011 on the Wai 262 claims addressing law and policy across a range of government activity, including environmental management and intellectual property rights – matters covered by the CPTPP. That report found the current law and policy settings in these areas were inconsistent with Treaty principles and made specific recommendations for reform that would address those inconsistencies. Nearly seven years later, the government has not yet formally responded to the Tribunal’s recommendations. Getting movement in these areas can only become more difficult once the CPTPP is ratified.
  3. I would urge the Committee to ascertain whether any government agencies have undertaken any form of stock-take on the issues raised by the Wai 262 report and how these matters are likely to be affected by the CPTPP.

The Treaty of Waitangi exception

  1. The Treaty of Waitangi exception that is included in the CPTPP is insufficient to protect Māori rights.
  2. It protects actions which are “favourable to Māori” but it is not clear that the exception would permit the New Zealand government to put in place measures which were designed to give effect to Treaty of Waitangi rights but applied more generally. For example, would the New Zealand government be open to challenge from oil companies if it instituted a blanket ban on fracking based on Treaty rights?
  3. The exception relies on the New Zealand government to recognise something as a Treaty right in the first place. As we have seen with issues such as the foreshore and seabed and freshwater rights, the government is often slow to recognise Treaty rights. This also raises points to the issue that something which is not recognised as a Treaty right by one government but then recognised as such by a subsequent government may fall outside of the Treaty exception in the CPTPP because it may be seen as being “arbitrary”.

Consultation with Māori

  1. Consultation with Māori in relation to the CPTPP has been extremely limited and certainly not of the standard required by the UN Declaration on the Rights of Indigenous Peoples.
  2. Māori ought to have been consulted particularly on issues relating to how our rights would be affected by the CPTPP and how we would like to see our rights protected.
  3. Relying on discussions in relation to previous free trade agreements is not adequate as the content and scope of previous agreements is not identical to the CPTPP.

Waitangi Tribunal’s Report on the Trans-Pacific Partnership Agreement

  1. In 2016, the Waitangi Tribunal reported on the Treaty of Waitangi exception in the Trans-Pacific Partnership Agreement or TPPA (now reproduced in the CPTPP). Although the Tribunal found that the exception offered a reasonable degree of protection to Māori interests, the report also highlighted serious concerns in relation to Investor-State Dispute Settlement (ISDS), stating (at p 50):

“We are not in a position to reach firm conclusions on the extent to which ISDS under the may prejudice Māori Treaty rights and interests, but we do consider it a serious question worthy of further scrutiny and debate and dialogue between the Treaty partners. We do not accept the Crown’s argument that claimant fears in this regard are overstated.”

  1. The Tribunal further noted (at p 51):

“…we remain unconvinced that ISDS under the TPPA is low risk or not substantially different from exposure to ISDS under existing FTAs to which New Zealand is party.”

  1. The Tribunal also recommended that the Crown adopt a protocol that would govern New Zealand procedure in the event it became a party to an ISDS in which the Treaty exception clause was relevant (see p 57). There was agreement amongst the expert witnesses that such a protocol should include:
  1. a commitment to invoke the Treaty exception if there is an ISDS case concerning Māori;
  2. a policy to lead expert Māori evidence where the Treaty exception may be invoked;
  3. amicus curiae briefs for Māori to be encouraged;
  4. a policy commitment to regular dialogue and consultation over the course of an ISDS case if it raises issues of concern to Māori;
  5. in a case where the Treaty exception clause may be raised, Māori representation could be included as part of the New Zealand team;
  6. a commitment to select an arbitrator with knowledge of Treaty principles and tikanga (and investment arbitration); and
  7. if necessary, cooperate with the State of the investor to make a joint submission on interpretation of the Treaty exception (in the event it was considered that the arbitration tribunal was at risk of coming to an erroneous view).

17.    No such protocol has been announced and so Māori rights remain as much at risk under the CPTPP as they were under the TPPA. The New Zealand Government has done nothing to address the concerns raised by Māori or to even act on the findings and recommendations of the Waitangi Tribunal to fully protect Māori rights.

Recommendation

18. I recommend that the Committee find that the ratification and implementation of the CPTPP is not in the national interest because it erodes the rights of New Zealanders in return for, at best, negligible economic gain.

Whakatōhea Mandate Report

On 17 April, the Waitangi Tribunal released the pre-publication version of The Whakatohea Mandate Report. 

I wrote a brief comment on some aspects of the Tribunal’s findings that originally appeared on the Radio New Zealand website 0n 18 April 2018:

If the Crown is going to get its Treaty negotiations right, it needs to seriously engage with tikanga Māori and Māori legal traditions in the settlement process.

Yesterday, the Waitangi Tribunal released the Whakatōhea Mandate Inquiry Report. In this report, the Tribunal determined that the Crown had indeed breached Treaty principles in its settlement negotiations with Whakatōhea, in particular, finding that the Crown’s recognition of mandate “was not fair, reasonable, and made in good faith”.

This is not the first time that Crown policy and practice relating to the recognition of a mandate to negotiate the settlement of historical Treaty claims has been challenged.

Mandating is an important part of the Treaty settlement process. It is vital that those who say they have the authority to negotiate the settlement of the historical claims of their community do, in fact, hold that mandate from their people. The Crown acknowledges this and has established processes for determining whether or not to recognise the mandate of a group seeking to enter into negotiations. So, why is the Crown still doing things here which are not fair, reasonable, or undertaken in good faith?

This particular issue relating to mandate stems from a broader flaw in the Crown’s approach to Treaty settlements, that is, a failure to properly engage with Māori legal traditions in this process. In the Whakatōhea Mandate Inquiry Report, the Tribunal identified one of the problems with the Crown’s approach was that there was insufficient weight placed upon the objections of a number of smaller hapū. Despite the fact that there were well-known and long-standing differences of opinion about settlement negotiations within Whakatōhea, and that the hapū of Whakatōhea had explicitly stated that the process for settling their claims needed to be driven by hapū, the Crown chose to look at the support of individual members rather than the support (or otherwise) of the various hapū.

The Crown could hardly have been unaware of the problems with this approach. The Tribunal raised similar criticisms of Crown process in the Ngāpuhi Mandate Inquiry Report in 2015. The Tribunal has made recommendations to the Crown, across a number of reports, about how to address flaws in the mandating process. For example, it has recommended that the Crown take a more active role in monitoring the mandating strategy; that it must be impartial in its dealings with different Māori groups and preserve not damage relationships between them; and that it ought to ascertain the support, not only of individuals, but of hapū.

Although, in each of the various mandate reports, the Tribunal has focused on addressing the particular flaws in each case, there is an overarching issue: a failure to prioritise Māori legal traditions. If the Crown had given greater attention to the tikanga of, for example, Whakatōhea and Ngāpuhi, it might well have behaved differently in both these negotiations. The ongoing relationships between different communities within the settling groups would certainly have been given greater priority. Instead, often political or administrative expedience has driven Crown actions. In relation to Whakatōhea, the Tribunal took the view that “the Crown has focused too much on the goal of achieving a speedy settlement, including meeting arbitrary deadlines for key milestones, to the detriment of Whakatōhea.”

In the Ngāpuhi Mandate Inquiry Report, the Tribunal offered the following concluding observations:

“…it is crucial to the ultimate success of the settlement process that the negotiating structure is robust and has the full support of those whom it claims to represent, and whose grievances it intends to put to rest. There is a real danger, if the wairua is not there, if the focus is more on economic stimulus than on healing the injuries of the past, if tikanga is pushed to one side to remove what are perceived as impediments to progress, that the opposite will happen: that further grievances will be caused.”

Tikanga and Māori legal traditions must be central to the settlement process. If the Crown recognises this then it can avoid creating further grievances through issues such as the problematic mandate process identified in the Whakatōhea negotiations. That will provide the foundation for durable settlements that contribute to the goals of reconciliation and make good on the promise of the Treaty partnership.

UN committee encourages constitutional protections for Māori rights

On 29 March, the United Nations Committee on Economic, Social, and Cultural Rights adopted its concluding observations on the implementation of economic, social and cultural rights in New Zealand.

I wrote a short comment on the Committee’s report, originally published on The Spinoff on 12 April 2018:

Concerns were expressed last week by the United Nations Committee on Economic, Social and Cultural Rights – a panel of experts established to monitor the implementation of rights recognised in the International Covenant on Economic, Social and Cultural Rights (ICESCR) – that New Zealand still isn’t pulling its weight.

The ICESCR covers a range of fundamental human rights such as labour rights, rights to education, adequate living conditions, housing, and health. As a party to the ICESCR, New Zealand formally reports to the committee every five years. Alongside the government report, this process also provides the opportunity for the Human Rights Commission and NGOs to submit reports to the committee. Following consideration of the submitted reports, including oral presentations and questions from committee members, the committee releases its ‘concluding observations’.

The committee’s concluding observations on New Zealand’s recent report included positive comments about work undertaken by government to protect migrant workers from exploitation, secure health rights for Pasifika, and advance gender equality in public life. The committee also welcomed the government’s commitment to prioritising matters such as reducing child poverty, increasing the minimum wage, overhauling both mental health and education systems, and more effectively addressing the housing crisis in New Zealand.
However, the committee also identified a number of areas of concern. These included issues relating to equality between men and women (in employment and other contexts), matters relating to conditions of work, the minimum wage, unemployment and underemployment, concerns about the unaffordability of housing in New Zealand, mental health and addiction services that are insufficiently responsive, and the prevalence of domestic and gender-based violence. In many of these areas, the committee expressed particular concerns about the disparities that persist between Māori and Pasifika and other population groups.

An overarching concern expressed by the committee is that economic, social and cultural rights are not fully incorporated into New Zealand law and do not have effective enforcement mechanisms or remedies. The committee specifically pointed to the lack of enforceability of Māori rights under the Treaty of Waitangi and recommended that the New Zealand government ‘take immediate steps’ to work with Māori in developing the constitutional role of the Treaty of Waitangi, including addressing the proposals put forward in the 2016 Matike Mai Aotearoa report. The committee expressed concern that Waitangi Tribunal recommendations are not binding and are frequently ignored. The committee determined that the government should ensure that it acts on all recommendations from the tribunal, ‘including in its landmark report Ko Aotearoa Tēnei’.

The recommendations for constitutional protection and other mechanisms to ensure enforceability of rights are of particular concern to the committee because if rights are not enforceable, then they really just exist subject to political whim, and so they cannot really be said to be effectively protected at all. Which is why similar concerns about the lack of constitutional recognition of Māori rights have previously been expressed by other UN entities (see, for example, reports on the state of Indigenous rights in New Zealand written by successive special rapporteurs on the Rights of Indigenous Peoples here and here).
It is notable that the committee identified the recommendations made in the report of Matike Mai Aotearoa – the Independent Working Group on Constitutional Transformation – as an essential part of constitutional development and the effective protection of human rights here in Aotearoa. Matike Mai Aotearoa was formed under the auspices of the National Iwi Chairs Forum. Professor Margaret Mutu was appointed to chair the group and Moana Jackson was invited to be its convenor. Further members were nominated by iwi and other organisations or co-opted for particular expertise or experiences. The terms of reference given to the groups were:

“To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.”

The group held over 250 hui between 2012-2015 and gathered feedback on Māori constitutional aspirations. The working group produced a report in 2016, which identified six different constitutional models. These models are intended to indicate the range of possibilities that may be deployed to give effect to the values in tikanga and the Tiriti relationship. These models, described at a relatively high-level, aim to recognise the integrity and independence of both rangatiratanga and kāwanatanga and provide options for further discussion.

To date, the government has not really engaged with the Matike Mai report. It would be great to see the government participate in a constitutional discussion that begins from the basic premise of the Matike Mai report, that New Zealand’s constitutional arrangements ought to be underpinned by tikanga and Te Tiriti.

It is also significant that the committee made specific reference to the Waitangi Tribunal’s report, Ko Aotearoa Tēnei. Released in 2011, Ko Aotearoa Tēnei is the Waitangi Tribunal’s report on claims in the long running Wai262 inquiry that related to mātauranga Māori and New Zealand law and policy affecting Māori culture and identity. Although the Tribunal explicitly stated that the inquiry was not addressing constitutional issues, the broad ranging nature of the subject matter meant that the Tribunal was dealing with Māori participation in decision-making across the whole of government – from intellectual property to environmental management to rongoā Māori to international treaty-making. Across the range of policy areas that were considered, the key for the Tribunal was to ensure Māori are able to exercise genuine decision-making authority and that government agencies are required to deal with the Māori interests in a way that is consistent, transparent and accountable. These are important characteristics for the kind of protection and enforcement mechanisms with which the committee is concerned. If, for example, the Tribunal’s recommendations that aimed at ensuring that Māori have a more substantial and more direct role in New Zealand’s international treaty negotiations had been adopted, it is likely that the Trans Pacific Partnership agreement would have included more certain and effective protections for Māori rights.

The committee’s recommendations may well be timely. On Saturday, Kelvin Davis kicked off a series of consultation hui to inform the setting of the scope and priorities for the new Crown/Māori Relations portfolio. The observations made by the Committee on Economic, Social and Cultural Rights provides important guidance on developing that relationship in ways which better recognise and protect Māori rights. Let’s encourage the minister to take that guidance on board.

Crown/Māori Relations

The Minister for Crown/Māori Relations, Kelvin Davis, is in the middle of a series of consultation hui that is aimed at gathering feedback on the directions and priorities of the government in the new Crown/Māori Relations portfolio.

Here is a short piece I wrote on the possibilities of this portfolio just ahead of Waitangi Day this year, originally published in The DomPost and on stuff.co.nz :

At this time of year, as we move from the celebrations at Rātana pā to the commemorations of the Treaty signing at Waitangi, the Crown/Māori relationship is inevitably in the spotlight. But there are signs that this year may mark a shift in how the Government views the Treaty partnership – away from seeing it through a lens of historical grievance, claims and contestation.

“Currently, the Crown/Māori relationship is anchored to the negotiating table,” said Prime Minister Jacinda Ardern in her address to the Federation of Māori Authorities conference in November. “My vision is that we as a country realise the promise of the Treaty… I don’t want this Government to rest until Māori and non-Māori are true partners in Aotearoa. Now, that isn’t just about recognising historic rights or settling historic wrongs, it is about the quality of lives that people live.”

Governor-General Dame Patsy Reddy echoed these comments in the Speech from the Throne at the State Opening of Parliament: “It is time to start considering what the Treaty relationship might look like after historical grievances are settled. To consider how we, as a nation, can move forward in ways that honour the original Treaty promise.”
One person who will be giving this particular thought is Kelvin Davis, in the newly created role of Minister of Crown/Māori Relations. But what is this new portfolio all about? And will it make a tangible difference?

The basic concept of a Crown/Māori Relations portfolio does seem like an idea whose time has come. There has been considerable focus on the settlement of historical Treaty breaches over the past 25 years. Though many aspects of Crown settlement policy remain highly problematic, this process is necessary to provide remedy and renew the Treaty relationship.

Despite its flaws, it has provided the context in which some innovative co-governance mechanisms have been developed and many constructive relationships established between iwi and government agencies.

But inclusive and effective management of natural resources and mutually beneficial relationships between Māori and government shouldn’t be dependent on the existence of historical breaches of the Treaty. The partnership created by the Treaty was always intended to be much broader than that.

For example, many settlements provide for iwi to have greater input in the delivery of social services to their members. This is a future-focused expression of partnership. It is not redress for historical Treaty breaches, though the impetus might stem from the consequences of historical breaches. It is also relevant to addressing the socioeconomic circumstances of Māori in urban areas, perhaps living outside of their iwi’s traditional territory.

There is no reason to insist on viewing initiatives like this through the lens of iwi claims of Treaty breach or historical reparations. This is not only limiting, but self-defeating. If we take the Treaty partnership seriously, these things should be business as usual for Aotearoa in the 21st century.
This new portfolio clearly creates opportunities for more consistent, more sophisticated, and more effective participation of Māori in public life. According to Ardern, “Te Tiriti o Waitangi must be at the heart of the Crown/Māori relationship. This portfolio represents the opportunity to grow and strengthen this relationship as our country moves into the post-settlement era.”

We will have to wait to see whether the new Government’s actions match the rhetoric.
The proof of the pudding is, as ever, in the eating. But the establishment of the Crown/Māori Relations portfolio should be seen as a positive step. This is a chance to make real, beneficial changes for Māori and for the country as a whole.
The task of getting the policies and practices right in order to fulfil this potential may seem daunting to the new minister and his officials. But they should take heart from the fact we have, in the Treaty, a framework for a respectful and productive partnership as applicable to Crown/Māori relations in the 21st century as it was in 1840.

19th Century Land Purchases and the Crown’s Fiduciary Duties to Māori

Here is a post I wrote for the International Association of Constitutional Law blog on Proprietors of Wakatū and Others  v Attorney-General [2017] NZSC 17:

On 28 February 2017, the New Zealand Supreme Court issued one of the most important decisions from a New Zealand court in the last 25 years. In Wakatū v Attorney-General, the majority found that the Crown owed fiduciary duties to reserve 15,100 acres of land for the benefit of the customary Māori owners. This is a very different pathway for dealing with Māori claims of historical land loss than the systematised and politically negotiated settlements that have predominated since the mid-1990s.

This case relates to the purchase of land from Māori in the Nelson area in the north of the South Island in 1839. Importantly, this purchase took place before the Treaty of Waitangi was signed between Māori and the British Crown in 1840. The Treaty of Waitangi is regarded as ‘a founding document of government in New Zealand’ . The Treaty provided for the British Crown to establish governmental authority in New Zealand and guaranteed that Māori rights would be protected, including rights and authority in relation to land. Under the Treaty, Māori also granted the Crown the exclusive right of pre-emption over lands which the customary owners wished to sell.

The Crown’s exclusive right to purchase land from Māori and to extinguish native title was the basis of the Land Claims Ordinance adopted by the Governor and Legislative Council in 1841. The Land Claims Ordinance 1841 provided a mechanism whereby any private purchase of land from Māori that was purported to be have been made before 1840 would be investigated by Commissioners to validate the purchase.

The 1839 purchase of land that was the subject of this case was investigated in 1845 in accordance with the Land Claims Ordinance. Commissioner William Spain determined that the Māori of the area had sold 151,000 acres of land on the basis that one-tenth would be reserved for them. Lands which were used for occupation, cultivation or burial grounds were also to be retained by Māori. However, the full one-tenth was never allocated and other sites were not separated out from the purchase as they ought to have been under the terms of the Crown grant. After the land was cleared of native title by Commissioner Spain’s award in 1845, the Crown managed parts of the land which had been identified as forming part of the one-tenth reserve. The plaintiffs in this case alleged that the Crown failed to set aside the complete area of land that was promised to be reserved and so was in breach of fiduciary duties it owed to beneficiaries of the reserve land.

In the High Court, Clifford J found that there was no express trust created because there was not sufficient certainty of intention to create a trust relationship. Nor did Clifford J find that a constructive trust existed. Rather, he took the view that it would not be appropriate to overlay ‘a private law characterisation of arrangements’ that he deemed to be ‘fundamentally political matters’. Clifford J also considered the possibility of the existence of other fiduciary duties, however, he ultimately concluded that the plaintiffs could not be said to represent the customary owners of the land and as such did not have standing to bring a claim of breach of fiduciary duty.

The Court of Appeal upheld the decision of the High Court, except it determined that the second plaintiff, Mr Rore Stafford, a tribal elder, did have standing to bring a claim of breach of fiduciary duty by virtue of his customary leadership role of at least part of the wider collective group.

The Supreme Court, by a 4-1 majority, overturned the Court of Appeal’s decision. It unanimously dismissed the cross-appeal by the Attorney-General against the determination of the Court of Appeal that Mr Stafford has standing to pursue the claim.

The majority did not agree with the Court of Appeal’s view that the Canadian case of Guerin v The Queen could be distinguished from the present case. In her judgment, Elias CJ noted (at [385]):

The obligation to act in the interests of the Indian band in Guerin is entirely comparable with the obligation which arose through alienation under the Land Claims Ordinance through the terms approved in Spain’s award. As in Guerin, fiduciary obligations arose because the Crown acted in relation to “independent legal interests” (in Guerin, as in the present case, existing property interests) and on behalf of Maori. The Crown’s obligations in the present case are, if anything, amplified by the nature and extent of Maori property and its recognition in New Zealand from the first engagements of the Crown in the Treaty of Waitangi. The resulting obligation, as was recognised in Guerin, was “in the nature of a private law duty”; in this “sui generis relationship” it was “not improper to regard the Crown as a fiduciary”.

In summary, the majority found that:

  1. the Crown did owe fiduciary duties to the customary owners in respect of the intended reserves land;
  2. Mr Stafford had standing to bring a claim based on the breach of those duties; and
  3. Mr Stafford’s claim was not time-barred by the Limitation Act 1950.

There are many interesting aspects to this decision (see, for example, recent commentary by Professor Alex Frame and Professor David Williams). From a public law perspective, perhaps the overarching point to note is that this is the first time that the New Zealand courts have recognised that the Crown has enforceable fiduciary duties to Māori in relation to 19th century land purchases. That is, the Supreme Court of New Zealand has recognised private law duties can exist in the context of Māori claims of historical land loss. This is significant because, for the past thirty years, those issues have been dealt with through the Treaty of Waitangi framework in the Waitangi Tribunal (a quasi-judicial commission of inquiry) and then by negotiated redress. The Treaty of Waitangi is not independently legally enforceable in the domestic courts and the Waitangi Tribunal’s recommendations are, for the most part, non-binding.

The Wakatū decision relies on the particular set of circumstances that were at play in the purchase and validation process and, clearly, does not create a general fiduciary duty on the Crown owed to all Māori. At the same time, the circumstances in Wakatū are unlikely to be unique. In any case, even if the political negotiation process continues to dominate the settlement of historical land claims, from now on, those negotiations will all take place in the shadow (or the light?) of the Wakatū decision. The relationship between Māori and the Crown will continue to sit firmly within the public law sphere, but the parameters of that relationship will inevitably be shaped by the pressures of the kinds of private law duties that were found to exist in Wakatū.

The Wakatū case itself now returns to the High Court to determine issues of liability, defence and relief. Many people, not least those engaged in the negotiation of historical land claims, will be watching the outcome with interest.

Tikanga & Law wānanga – Wairoa, 15 Oct

On Saturday 15 October 2016, I’ll be facilitating a wānanga on Tikanga and Law at Taihoa marae in Wairoa. This wānanga will look at some Ngāti Kahungunu stories to see where, in these stories, we can identify law – how are rights and obligations allocated? how are these enforced? who has authority to make decisions? what factors are taken into account?

The aim is to explore ways of strengthening Māori law and think about how we can use tikanga to resolve legal issues that our communities are dealing with.

See the pānui at the link below for more details and please register for free here if you would like to attend.

Pānui for Tikanga & Law wānanga, Wairoa, 15 October 2016: tikangalaw_wairoa

Waitangi Tribunal Report on the TPPA

The Waitangi Tribunal today released its Report on the Trans-Pacific Partnership Agreement. The headline is that the Tribunal did not find a breach of the principles of the Treaty of Waitangi in relation to the text of the Trans-Pacific Partnership Agreement (TPPA) and the form of the Treaty exception clause (cl 29.6). However, the Tribunal does note a number of serious concerns about the rights of foreign investors to bring claims against the New Zealand government under the TPPA and “the extent to which those claims or the threat or apprehension of them, may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwsise Treaty-consistent measures”. The Tribunal also makes a number of suggestions aimed at improving government engagement with Māori in relation to international treaty negotiations.

Claimants had initially sought an urgent hearing in June 2015 but at that time it appeared that there was no prospect of a Tribunal inquiry being completed before TPPA negotiations concluded. The Tribunal determined that there would be grounds for an urgent hearing once the text of the TPPA was released. TPPA negotiations continued through until October 2015 and the agreed text was made public on 6 November 2015. The Tribunal then convened an urgent hearing which was held from 14-18 March 2016 and was narrowly focused on two issues:

(a) whether or not the Treaty of Waitangi exception clause is indeed the effective protection of Māori interests it is said to be; and

(b) what Māori engagement and input is now required over steps needed to ratify the TPPA (including by way of legislation and/or changes to Government policies that may affect Māori).

The Tribunal looked to the findings of the Wai 262 Tribunal, which had recommended a sliding scale of Māori engagement in the development of international treaties that would be commensurate with the impact of those treaties on Māori interests. The Tribunal determined that “Māori interests are entitled to a reasonable degree of protection when those interests are affected by international instruments entered into by the New Zealand Government” and noted that it therefore needed to attempt the complex task of assessing the level of Māori interest in the TPPA.  The claimants contended that there were significant Māori interests at stake because the TPPA will restrict the Crown’s policy options across a range of different areas. The Crown, on the other hand, argued that “To the extent that Māori interests are impacted, those interests are primarily held as investors, businesses, or land owners.” The Tribunal disagreed:

“We find ourselves unable to accept the Crown’s characterisation of Māori interests put at issue by the TPPA as simply those they may hold as investors, businesses, or land owners. This seems to us to be an overly reductionist approach to Māori interests, and to the reach of the TPPA. It also misses in fundamental ways the findings and recommendations of the Wai 262 Tribunal.”

The Tribunal undertakes a detailed examination of the text of the Treaty exception. In doing so it relies on the evidence of three key expert witnesses, Dr Penelope Ridings (who gave evidence for the Crown), Professor Jane Kelsey (who gave evidence for the claimants) and Amokura Kawharu (who was commissioned as by the Tribunal). In terms of the scope of the Treaty exception, the Tribunal noted that “[t]he expert witnesses agree that the Treaty exception does not cover each and every act which the Crown might perform in fulfilment of its Treaty of Waitangi obligations.” This suggests to me that the TPPA is likely to constrain the Crown’s ability to implement Treaty-consistent law and policy.

The claimants also raised concerns that the Treaty exception clearly applied to state-state disputes but was unclear as to whether it also applied to investor-state dispute settlement (ISDS). In relation to this point the Tribunal noted

“At one point or another all three of the expert witnesses said that there was some ambiguity. Despite Ridings’ conclusion that the ambiguity is insignificant, this causes us some concern. The fact that the wording is materially unchanged from the Singapore FTA, which did not have ISDS provisions, is also of concern.”

The claimants also raised concerns about the potential chilling effect that potential litigation might have on government policy-making. In respect of these issues, the Tribunal found:

“We do not have the time, expertise, or sufficient evidential base to make findings as to whether the investment regime in the TPPA is likely to chill the capacity or willingness of the New Zealand Government to honour its Treaty obligations to Māori. If the TPPA is ratified, it will be a complex question of fact to determine whether a particular Crown act or omission in the face of an ISDS claim (or the threat or apprehension of one) is the result of prudent risk management, or the improper curbing of legitimate policy action due to a chilling effect. While the debate over the chilling effect can be factually and semantically complex, we do not doubt that it is an issue.”

Importantly, even though the Tribunal ultimately concluded that the Treaty of Waitangi exception in the TPPA offers a reasonable degree of protection to Māori interests, the report also highlights serious concerns in relation to ISDS, stating:

“We are not in a position to reach firm conclusions on the extent to which ISDS under the TPPA may prejudice Māori Treaty rights and interests, but we do consider it a serious question worthy of further scrutiny and debate and dialogue between the Treaty partners. We do not accept the Crown’s argument that claimant fears in this regard are overstated.”

and

“…we remain unconvinced that ISDS under the TPPA is low risk or not substantially different from exposure to ISDS unbder existing FTAs to which New Zealand is party.”

And the Tribunal did appear to leave open the door for future claims challenging Crown actions taken to implement aspects of the TPPA:

“If prejudice is alleged in future because of some Crown action or omission (short of introduction of a Bill) or inaction, then it remains open for Māori to submit a claim alleging a breach of the principles of the Treaty of Waitangi.”

The Tribunal also recommended that the Crown adopt a protocol that would govern New Zealand procedure in the event it became a party to an ISDS in which the Treaty exception clause was relevant. There was agreement amongst the expert witnesses that such a protocol should include:

  • a commitment to invoke the Treaty exception if there is an ISDS case concerning Māori;
  • a policy to lead expert Māori evidence where the Treaty exception may be invoked;
  • amicus curiae briefs for Māori to be encouraged;
  • a policy commitment to regular dialogue and consultation over the course of an ISDS case if it raises issues of concern to Māori;
  • in a case where the Treaty exception clause may be raised, Māori representation could be included as part of the New Zealand team;
  • a commitment to select an arbitrator with knowledge of Treaty principles and tikanga (and investment arbitration); and
  • if necessary, cooperate with the State of the investor to make a joint submission on interpretation of the Treaty exception (in the event it was considered that the arbitration tribunal was at risk of coming to an erroneous view).