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.