Trans-Pacific Partnership Agreement Claims before the Waitangi Tribunal

The Waitangi Tribunal recently heard arguments as to whether it ought to grant an urgent hearing of claims opposing the Crown signing the Trans-Pacific Partnership Agreement (TPPA). On 7 July 2015 the Chairperson of the Waitangi Tribunal appointed Judge Mike Doogan (Presiding Officer), Tania Simpson, David Cochrane, Sir Doug Kidd, and Sir Tamati Reedy as the panel to inquire into the TPPA claims and to determine, as a preliminary step, whether the claims ought to be granted an urgent hearing. Yesterday, the Tribunal released its decision declining an urgent hearing on the terms sought by the claimants but indicated that there was a good case for the Tribunal to grant urgency or priority to hearing these claims once the text of the TPPA is available.

The claimants include a number of prominent Māori individuals, such as Moana Jackson, Hone Harawira, Angeline Greensill, Papaarangi Reid, and Rikirangi Gage. Subsequent claims relating to the TPPA were lodged by other individuals and organisations, including the New Zealand Maori Council (though it now appears that the Council is dealing with some internal issues in relation to their claim). The claimants’ key concerns are that the Crown’s actions in relation to the TPPA have failed to recognise tino rangatiratanga as guaranteed under the Treaty of Waitangi. Moreover, entering into the TPPA will constrain the Crown’s ability to give effect to its obligations under the Treaty. In short, there is a conflict between Māori rights and the TPPA and the Crown has not meaningfully consulted with Māori in order to understand Māori views or be fully informed of how Māori rights will be affected. The claimants have also expressed concern about the secrecy with which the Crown has approached the TPPA negotiations which has left Māori “unable to exercise their rights under te Tiriti to engage in an informed way in decision-making on the TPPA”. The Statement of Claim alleges that the proposed TPPA will cause the claimants prejudice including loss of Māori intellectual property rights; the ability for foreign states and investors to challenge Crown policies that aim to fulfill Treaty obligations; and constraining access to affordable medicines, and prejudicial effects on Māori forestry rights and ability to exercise kaitiakitanga.

In his memorandum-directions of 14 July 2015, Judge Doogan identified two issues that make it difficult for the Tribunal to determine whether to grant an urgent hearing of these claims. The first is the secrecy of the TPPA negotiations and the fact that the text of the TPPA will not become publicly available until its terms have been agreed by the parties. The second issue is the timing of the TPPA negotiations. TPPA trade ministers met from 28-31 July 2015 in Hawai’i and it was originally envisaged that negotiations could be concluded in late July-early August 2015. The Tribunal resisted recommending that the Crown delay negotiations to enable a Tribunal inquiry to take place but it is clear that the Tribunal would not have been able to substantively inquire into and report on the complex issues involved in these claims within a matter of a few weeks. As it turned out, the TPPA negotiations in Hawai’i could not reach agreement on a number of substantive issues and so it appears the TPPA timeline will inevitably be delayed in any case.

When hearing arguments on the matter of urgency, Tribunal members questioned the Crown about their consultation with Māori and how this could be done effectively given the secrecy surrounding the TPPA negotiations. The lack of transparency has also been an issue of concern for other New Zealanders who remain wary about the TPPA.

Dealing with the practical issues of both timing and secrecy feature prominently in the Tribunal’s decision on the matter of urgency released yesterday. The Tribunal reiterated its concern about the late stage at which the claims were filed when the deficiencies in the Crown process that were alleged were evident much earlier. Confirming its preliminary view, the Tribunal noted:

Even allowing for the fact that an assessment of prejudice is inherently difficult given the secrecy of the TPP negotiations, we are not convinced that there is a proper basis to intervene, or attempt to intervene and exercise what limited recommendatory or inquiry powers we have at this final stage of the TPP negotiations.

However, that was not the end of the matter. The Tribunal remained concerned that Māori would be prejducially affected by New Zealand entering into the TPPA but noted that the secrecy of the TPPA negotiations made it impossible to assess the nature and extent of any prejudice at this stage. The Crown had rejected the suggestion that an independent lawyer be appointed to review the Treaty exception clause in the TPPA which might have gone some way to assuring the claimants that Māori interests are being protected. So, the Tribunal concluded, there are still outstanding issues to be addressed and they can be properly considered as soon as the text of the TPPA is made available. The two key issues that the Tribunal identified are:

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

(b) what Maori 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 Maori).

It may be that if the final stages of the TPPA negotiations are pushed out beyond the 2016 US Presidential election that broader issues could be considered in the inquiry. The Tribunal indicated that it would issue further directions once the TPPA timeframes become clearer, but that in principle, it would appear appropriate for a hearing of these claims to proceed as soon as possible after the text of the TPPA is made available.