Rapua ngā tuhinga ruku tātari

The Report on the Trans-Pacific Partnership Agreement, released on 5 May 2016, is the result on an urgent inquiry into a number of claims made by Māori that the Crown has breached the principles of the Treaty of Waitangi in joining the Trans-Pacific Partnership Agreement (TPPA).

The TPPA is a free trade agreement between New Zealand and 11 other Pacific Rim countries, including the United States and Japan. The Government negotiated the inclusion of a clause in the TPPA that allows it to take ‘measures it deems necessary to accord more favourable treatment of Māori… including in fulfilment of the Treaty of Waitangi’.

Claimants before the Tribunal said that this ‘Treaty exception clause’ would not protect their Treaty rights, and that the TPPA gave too much power to foreign investors.

The time available to the Tribunal to report was limited, and so it confined its inquiry to two issues:

• Whether the Treaty of Waitangi exception clause is the effective protection of Māori interests it is said to be; and
• What Māori engagement and input is now required over steps needed to ratify the TPPA, including by way of legislation or changes to Government policies which may affect Māori.

The Tribunal found that the exception clause should ‘provide a reasonable degree of protection to Māori interests’. The inclusion of a Treaty clause in the TPPA, and in earlier free trade agreements, was ‘to the credit of successive New Zealand governments’, the Tribunal said.

Nevertheless, the Tribunal expressed concern about the right of foreign investors to bring claims against the New Zealand Government. Under the TPPA, an investor may choose to bring a claim against the country in which they have invested, if it thinks the investment has been damaged by the State. This takes place under a system known as investor–state dispute settlement (ISDS).

An ISDS panel decides the case and can order compensation, although it cannot order the country to change its laws or practices.

The Tribunal was concerned that the right to bring ISDS claims, or the threat or apprehension of them, ‘may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwise Treaty-consistent measures’.

In addressing its second issue, of what steps the Crown should now take, the Tribunal also looked at the adequacy of the Crown’s consultation with Māori before the TPPA text was completed. It was critical of the process, but made no findings on that topic.

The Tribunal suggested that question of a possible chilling effect, as well as an appropriate Treaty clause for future trade agreements, should be the subject of further dialogue between the Crown and Māori.

The Wai 2522 claim was lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. The claim, together with eight others, was heard by the Tribunal in March 2016. In addition, many Māori from throughout the country were recognised as interested parties in the inquiry.

The Tribunal comprised Judge Michael Doogan (presiding officer), David Cochrane, Tania Simpson, Tā Tāmati Reedy, and Sir Douglas Kidd.