Tribunal releases report on the CPTPPA

The Waitangi Tribunal has released a pre-publication copy of its Report on the Crown’s Review of the Plant Variety Rights Regime. It is the Tribunal’s stage 2 report for the Trans-Pacific Partnership Agreement inquiry (Wai 2522).

The original claims for this inquiry were lodged in June 2015 by Dr Papaarangi Reid, Moana Jackson, Angeline Greensill, Hone Harawira, Rikirangi Gage, and Moana Maniapoto. Negotiations for the Trans-Pacific Partnership Agreement (TPPA) were underway when the claims were lodged.

The Tribunal heard the claims under urgency and on 5 May 2016 released The Report on the Trans-Pacific Partnership Agreement(external link), which related to the Treaty of Waitangi exception clause of the TPPA. The plant variety rights regime, then undergoing policy development, was reserved for possible further inquiry. Following the signing of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which replaced the TPPA, the Tribunal agreed to inquire further into four remaining issues, including the plant variety rights regime.

For stage 2, the panel comprised Judge Michael Doogan (presiding officer), David Cochrane, Tā Hirini Moko Mead, Kim Ngarimu, and Tania Simpson, and the hearings took place from 4 to 6 December 2019. The Tribunal addressed concerns regarding the reform of the plant variety rights regime that was part of the TPPA and now the CPTPPA. It considered whether the Crown’s process for engagement over the plant variety rights regime and its policy on whether or not New Zealand should accede to the Act of 1991 International Union for the Protection of New Varieties of Plants were consistent with its Tiriti/Treaty obligations to Maori.

The claimants said that the Crown’s process for engagement over the plant variety rights regime and its policy on how to address UPOV 1991 were not consistent with its Tiriti/Treaty obligations of partnership and protection. The Crown argued that its engagement process, consistent with its CPTPPA obligations, was Tiriti/Treaty compliant. The Crown further argued that the outcomes of the review met, and exceeded, the relief originally sought by the claimants in this inquiry and that it had implemented the relevant Tribunal guidance as to what was necessary to meet its Tiriti/Treaty obligations.

The Tribunal found that the claims of Tiriti/Treaty breach in relation to these issues were not made out, and it supported certain aspects of the Crown’s policy. The Tribunal welcomed Cabinet’s decision to not only implement the relevant findings and recommendations of the Tribunal’s 2011 Ko Aotearoa Tēnei report but go further and provide additional measures to recognise and protect the interests of kaitiaki in taonga species and in non-indigenous species of significance.

The Tribunal noted that it was ‘unprecedented’ in its experience that claimants should oppose the Crown when it was seeking to implement the Tribunal’s recommendations. The Tribunal recognised that this was likely to arise from ‘long standing frustration that, in the negotiation of international treaties, the Māori perspective is at the margins, required to react as best it can to timeframes and an agenda set by the Crown (and others)’. In recognition of this, the Tribunal concluded that these issues will be returned to in the final stages of the inquiry later in the year when the issues of engagement and secrecy are to be addressed.

The final version of the report is now available to download: Report on the Crown’s Review of the Plant Variety Rights Regime [PDF, 1.1 Mb](external link)

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