Year 176

Around this time of year I usually try to do a bit of a stocktake of the previous 12 months, taking in the broad landscape of the Treaty relationship. It is intended to be a reflective overview, taking a step back from issues to get perspective and context. But this year will be a little different, because while there is as ever a whole lot of activity taking place across a range of law and policy, when looking back at the Treaty’s 176th year, scanning the horizon, there are two big issues which, it seems to me put everything else in the shade: the Trans-Pacific Partnership (TPP) and the Te Ture Whenua Māori reforms. Both of these issues have been bubbling away for some time but it is within the last 12 months that things have really heated up on both fronts. And both have seen significant developments on the eve of Waitangi Day.

First, the TPP.  It seems to me that there are many things to be concerned about with regards to the TPP. One area is the way in which Māori rights will be affected. I’ve set out the reasons why, despite the Treaty of Waitangi exception clause, I think the TPP is problematic for Māori in a paper that I co-authored with colleagues from the University of Auckland. I’ve tried to express some of the same points in a few media spots over the last little while (see here and here and here). Essentially, the central issue is that the TPP gives parties without Treaty of Waitangi obligations an interest in NZ law and policy in areas where Maori already have concerns about Treaty compliance. The exception is weak in part because it relies on NZ government to have the will to stand outside the general rules of the TPP (and we’ve seen with issues such as foreshore and seabed and water rights that the government is often reluctant to recognize Treaty interests at the best of times). Other TPP parties may still challenge NZ govt action under the exception (even if not the NZ government’s interpretation of the Treaty of Waitangi). And the exception clause does not address issues that do not involve favourable discrimination for Maori (for example, a universally applicable ban on fracking might be deemed necessary to protect Māori interests under the Treaty and such action would not be covered by the exception clause). Under all of this of course is a process that has fallen well short of the expectations around consultation that arise from Treaty principles and the UN Declaration on the Rights of Indigenous Peoples. But, as I say, there are many other aspects of the TPP that are worrying. The full text of the TPP is available on MFAT’s website and for good analysis and information on different parts of the TPP, I would encourage everyone to take a look at the series of expert paper that are available here.

The review of Te Ture Whenua Māori Act/The Māori Land Act 1993 has also illustrated a disturbing “government knows best” attitude. In May 2015,  the government released a draft bill (or ‘exposure bill’) for discussion and consultation purposes. I have noted previously that I thought the original consultation process was entirely unsatisfactory for a major reform of a complex piece of legislation which will have significant consequences for Māori. The review of Te Ture Whenua Māori Act was subsequently the subject of three urgent claims made to the Waitangi Tribunal. The Tribunal convened an urgent hearing of these claims in November and December 2015. Yesterday, just a day before Waitangi Day, the Tribunal released a draft chapter from its report on these claims. The release of the draft chapter ahead of the remainder of the Tribunal’s report is explained in the Presiding Officer’s letter of transmittal as follows:

The tribunal suddenly faces the situation that the Crown has decided to embark on a further series of ‘informational hui’ on 9 February 2016 only weeks before our full report was to be released. The tribunal has reached conclusions on the treaty implications of the process of the review and the consultation undertaken by the Crown with Māori.

Because of the importance of those conclusions, we consider it is very important for the Crown and the February hui participants to at least have some opportunity to be informed as to the tribunal’s views on the treaty implications of the review process and consultation methods utilised now, rather than afer those hui conclude.

The Tribunal found that

the Crown will be in breach of Treaty principles if it does not ensure that there is properly informed, broad-based support for the Te Ture Whenua Maori Bill to proceed. Maori landowners, and Maori whanau, hapu, and iwi generally, will be prejudiced if the 1993 Act is repealed against their wishes, and without ensuring adequate and appropriate arrangements for all the matters governed by that Act.

The Tribunal recommended that the Crown ensure there was  properly informed, broad-based support for any amendments to Te Ture Whenua Māori Act. If such support cannot be achieved for the current proposed reforms, then, the Tribunal recommends, the Crown ought to engage with Māori stakeholders to determine what amendments to the current Act are necessary or desirable.

The issues relating to both the TPP and the Te Ture Whenua reforms look likely to rumble on for some time yet. I know that these are just two issues (albeit, big and important issues) that engage the Treaty relationship. But they do seem to encapsulate a sense of the health of that Treaty relationship as it enters its 177th year.

The Herald disagrees with me on the TPP

The editorial in the NZ Herald today suggests that Māori are being poorly advised on the TPP. In particular the editorial takes issue with some comments of mine that were published in the Herald this week. My explanation of why Māori (and other New Zealanders) ought to be worried about the TPP was “difficult to understand”. I will try to clarify a few points that the editorial writer seems to be confused about.

First, the editorial asserts that Māori rights have not been affected by free trade agreements that are already in place. The evidence for this is the continuation of the Treaty settlement process. Treaty settlements have not been challenged for providing favourable discrimination to Māori.

There is a simple reason for this: Treaty settlements do not provide favourable discrimination to Māori. These settlements are negotiated agreements to provide redress for Crown action that has been in breach of its Treaty obligations. Most settlements represent 2-3% of the value of land that was taken in breach of the Treaty. The Crown is the party that is receiving favourable treatment in Treaty settlements.

If Treaty settlements are going to move us towards any kind of reconciliation, the government also needs to stop creating new Treaty breaches. That means it needs to make current law and policy consistent with Treaty principles. This is an area where there has been very little movement. To give one example, the Waitangi Tribunal reported in 2011 on a set of claims addressing law and policy across a range of government activity, including things like environmental management and intellectual property rights – some of the things which are covered by the TPP. This report found the current law and policy setting in these areas were inconsistent with Treaty principles and made specific recommendations for reform that would address those inconsistencies. Nearly five years later, the government has not yet formally responded to the Tribunal’s recommendations. This is an indictment on the government. The possibility that any action it takes might be open to challenge under a free trade agreement I am sure has not helped to stiffen the government’s resolve to give effect to Māori rights.

Which leads to the issue of whether the Treaty exception in the TPP and other free trade agreements really do prevent the government from being challenged on these matters. Contrary to what trade lobbyists would have us believe, the Treaty exception in the TPP does not exempt government action from challenge. The government’s interpretation of the Treaty is not able to be challenged but their actions may be. If another party to the TPP views such action as “arbitrary or unjustified discrimination” or “as a disguised restriction on trade in goods, trade in services and investment”, then actions of the New Zealand government can be challenged. This is explicitly set out in the Treaty exception clause. This clearly does not remove the threat of challenge to actions the government might take  to fulfill its Treaty obligations. And even if other TPP parties do not have strong legal arguments to support a claim of unjustified discrimination, the threat of a challenge is usually enough to give a government second thoughts. To give one example noted by a United Nations Independent Expert:

Ethyl Corporation, a Virginia corporation with a Canadian subsidiary, submitted a claim alleging that a Canadian statute banning imports of the gasoline additive MMT breached the obligations of Canada. Rather than fight, Canada withdrew the ban, notwithstanding health dangers.

Most importantly, the process by which the TPP has been negotiated should not be acceptable. The government has specific obligations to engage with Māori over matters which will affect Māori rights. Throughout the TPP negotiations, there was little attempt to find out what Māori concerns were or how Māori would like to see their rights protected. Much as I love being told by editorial writers and retired diplomats how grateful Māori should be, I would much rather the government took its obligations to Māori seriously, ensured that there was good information publicly available throughout the TPP negotiations, and actually worked with Māori as partners as the Treaty envisaged.