Tribunal releases report on CPTPP

The Waitangi Tribunal has released its Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership in pre-publication format. This is the final stage in an inquiry which began in 2016 into claims concerning the Trans-Pacific Partnership Agreement.

Originally, the issues for this final stage of inquiry included the Crown’s engagement with Māori over the Trans-Pacific Partnership Agreement (TPPA) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and the secrecy of those negotiations. The issues of engagement and secrecy were resolved through mediation and, as a result, were outside the scope of this stage of the inquiry.

The remaining issue concerned the e-commerce provisions of the CPTPP and data sovereignty. The question addressed in this report is:

What (if any) aspects of the e-commerce chapter of the CPTPP are inconsistent with the Crown’s obligations under te Tiriti/the Treaty?

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

This breach arose as a result of the way the Crown settled its e-commerce mandate for the TPPA/CPTPP. This was based upon preserving consistency with existing domestic policy settings and prior international agreements. In the Tribunal’s assessment, this largely reactive or passive position is insufficient because governance of the digital domain has important implications for the integrity of the taonga that is mātauranga Māori. Because mātauranga Māori is at the heart of Māori identity, it is not an interest or consideration readily amenable to some form of balancing exercise when set against other trade objectives or the interests of other citizens and sectors. The Tribunal also finds that it is not an issue that the Crown should decide unilaterally.

At the same time, the Tribunal recognises that issues of data sovereignty and the protection of mātauranga Māori in the digital domain are not matters that Māori can resolve alone. The appropriate level of protection of mātauranga Māori in international trade agreements, and in the governance of the digital domain more generally, is first and foremost a matter for dialogue between te Tiriti/the Treaty partners. If compromise or adjustment is necessary considering what is achievable in international negotiations, then those are also matters for good-faith dialogue between the Crown and Māori.

Having found Tiriti/Treaty breach and prejudice, the Tribunal considered what (if any) recommendations should be made in order to mitigate or remove the prejudice or to prevent others from being similarly affected in the future. It came to the conclusion that it would not be appropriate to make recommendations in the particular circumstances of this case.

This is largely because over the five years since the inquiry began, there has been a significant shift in the Crown’s position in response to the claims. This shift mirrors evolving government policy, reflected in recent work to develop a whole of government response (Te Pae Tawhiti) to the Ko Aotearoa Tēnei (Wai 262) report. In addition, it also reflects government policy and development in response to the Trade for All Advisory Board’s report. The Crown and claimants were able to resolve, through mediation, concerns relating to engagement and secrecy. The Tribunal saw this as a 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 and processes underway.  Such processes include the work of a Māori advisory body known as Te Taumata, which was established after the Tribunal issued its first report in 2016 and, more recently, the establishment of Ngā Toki Whakarururanga as a result of the mediation agreement.

Having carefully 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 has 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 wider policy settings that affect digital trade and that, in the meantime, the government should avoid locking the country into any fixed negotiating positions. The Tribunal notes that the Crown has accepted this recommendation and that a review is underway with the engagement of Te Taumata and Ngā Toki Whakarururanga. 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.

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

The Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – Pre-publication Version is now available to download:

Report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership(external link)

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