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The Waitangi Tribunal has released The Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, concluding the inquiry into the Trans-Pacific Partnership Agreement (TPPA) which has proceeded over three stages.

The inquiry panel comprised Judge Michael Doogan (presiding officer), David Cochrane, Professor Susy Frankel, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson. Hearings were held at the Waitangi Tribunal’s hearing room in Wellington from 17 to 19 November 2020.

Originally, stage 3 of the inquiry included issues relating to engagement, secrecy, and data sovereignty. The issues of engagement and secrecy were resolved through mediation and, as a result, the majority of claims were withdrawn. The two remaining claims contained pleadings relevant to the remaining issue; data sovereignty. As such, the report asks one question: What (if any) aspects of the e-commerce chapter of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership are inconsistent with the Crown’s obligations under te Tiriti/the Treaty?

The Tribunal concluded that the risk to Māori interests arising from the electronic commerce (e-commerce) provisions are significant and that reliance on exceptions and exclusions in the agreement to mitigate that risk falls short of the Crown’s duty of active protection. As a result, the Tribunal found  that the Crown has failed to meet the Tiriti/Treaty standard of active protection and that this failure constitutes a breach of the Tiriti/Treaty principles of partnership and active protection.

Having found Tiriti/Treaty breach, the Tribunal came to the conclusion that it would not be appropriate to make recommendations in the circumstances of this case. This is largely because, over the five years since the inquiry began, a significant shift in the Crown’s position in response to claims has ocurred and a number of processes are underway, or in place, to address concerns. Additionally, the resolution of issues relating to engagement and secrecy through mediation gave the Tribunal significant reason to pause and think carefully about what (if any) recommendations it could make that would remove or mitigate prejudice in ways not already addressed as a result of commitments or processes already underway.

Having considered the relief sought by the claimants, the Tribunal declined to recommend that further e-commerce negotiations be suspended until an effective or proper regime had been designed. The Tribunal agreed with the Trade for All Advisory Board that there is a need for a comprehensive review of Aotearoa New Zealand’s policy and that, until such  review is carried out, the Government should avoid locking the country into any fixed negotiating positions. It is the Tribunal’s understanding that the Crown has accepted this recommendation and the review, which  engages Te Taumata and Ngā Toki Whakarururanga, is currently underway. The Tribunal also saw the recently announced Agreement in Principle between the United Kingdom and New Zealand, which will include a chapter on indigenous trade, as indicative of what is possible without freezing international negotiations altogether.

Overall, the Tribunal acknowledged there will be challenges ahead. However, it described these matters as best left for negotiation and dialogue between the Tiriti/Treaty partners in good faith and within the fora and processes now in place.

 

In June 2019, the Tribunal released Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry. Stage one of the inquiry had addressed two claims, calling on the Tribunal to investigate the Crown’s legislation, policy, actions, and omissions of the primary health care system since the New Zealand Public Health and Disability Act 2000. After hearing evidence throughout 2018 and 2019, the Tribunal made a series of interim recommendations in the Hauora report, and directed the Crown and claimants to inform the Tribunal on the progress made.

After considering the parties’ submissions on their progress, as well as the Crown’s proposed health reforms, in October 2021, the Tribunal issued a further chapter of the Hauora report (chapter 10), setting out its final recommendations. The release of chapter 10 marked the end of the first stage of this ongoing inquiry into the Crown’s response to health inequities experienced by Māori.

The Tribunal’s main finding in Hauora was that the Crown had breached the Treaty of Waitangi by failing to design and administer the current primary health care system to actively address persistent Māori health inequities, and failing to give effect to the Treaty’s guarantee of tino rangatiratanga (autonomy, self-determination, sovereignty, self-government). It also found that the Crown had failed to guarantee Māori adequate decision-making authority regarding the design and delivery of primary health services and to properly support and resource Māori primary health organisations and health providers.

The 2019 report also made three interim recommendations, two of which were time-bound. The first called upon the Crown to explore the concept of a standalone Māori primary health authority, working together with claimants to further assess the extent of the problems in primary health care, and to co-design a set of solutions. Throughout the hearings, both claimant groups broadly suggested creating a national, Māori-controlled agency, organisation, or collective, which would have substantial oversight and control of Māori health-related spending and policy. The Tribunal’s second time-bound interim recommendation required the Crown and claimants to agree upon a methodology to assess the extent of underfunding. Both time-bound interim recommendations required the Crown and claimants to keep the Tribunal updated as to their progress.

In chapter 10, released in 2021, the Tribunal reviewed the progress the parties had made towards fulfilling those interim recommendations. The Crown’s announcement in early 2021 that it would commence significant structural reform within the health sector and establish a Māori Health Authority satisfied the first interim recommendation. The Tribunal evaluated the Crown’s high-level descriptions of the reforms against its 2019 findings and recommendations, emphasising that the Crown needed to ensure the reforms and the Māori Health Authority empowered tino rangatiratanga of hauora Māori. With respect to its interim recommendation on underfunding, the Tribunal expressed its disappointment that an underfunding methodology had not been jointly agreed upon. However, the Tribunal noted that the claimants had commissioned and produced an independent report, which it considered a good starting point towards determining the amount of compensation due to Māori health organisations and providers.

In chapter 10, the Tribunal also called for collaboration to continue between parties to develop a Treaty-compliant primary health care system. Accordingly, the Tribunal’s final recommendations for the stage one inquiry were that:

• the Crown continue to work with claimants in partnership to further develop a Māori Health Authority that empowers tino rangatiratanga;
• the Crown and claimants urgently progress work to agree upon a methodology to calculate underfunding experienced by Māori primary health care organisations and providers since 2000;
• once the Crown and claimants agree upon a methodology, the Crown fully compensate those Māori health organisations and providers that had suffered from underfunding;
• once parties calculate the amount of compensation due, they agree upon a method of payment, whether as a lump sum or in instalments;
• the Crown fully reimburse claimants for the costs of producing the Sapere report, and fund the process required to agree upon an underfunding methodology; and
• the Crown work with the claimants to use the underfunding methodology work to inform future primary health care funding.