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.
- 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.
- 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
- 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.
- 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.
- 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
- The Treaty of Waitangi exception that is included in the CPTPP is insufficient to protect Māori rights.
- 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?
- 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
- 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.
- 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.
- 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
- 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.”
- 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.”
- 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:
- 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).
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.
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.