The TPPA and the Treaty
The following commentary is provided by Dr Carwyn Jones (Ngāti Kahungunu and Te Aitanga-a-Māhaki), a Senior Lecturer at Victoria University of Wellington’s Faculty of Law.
The following commentary is provided by Dr Carwyn Jones (Ngāti Kahungunu and Te Aitanga-a-Māhaki), a Senior Lecturer at Victoria University of Wellington’s Faculty of Law.
In comedy they say that “timing is everything”. There isn’t a whole lot that is funny about the Trans Pacific Partnership Agreement (TPPA) but holding the signing in Auckland in the week leading up to Waitangi Day does show an incredible sense of timing. Waitangi Day of course celebrates the signing of a treaty that permitted the Crown to share in the exercise of public power in Aotearoa and guaranteed a range of Māori rights. The TPPA places limits on both the government’s regulatory ability and the recognition of Māori rights. Actually, now that I think about it, maybe there is some comedy to be found in all of this – that is, if you like your comedy very, very black.
In recent weeks, I’ve been involved in the public discussion around the TPPA and its effects on Māori rights. I co-authored a paper on this topic (which can be found, with others relating to the TPPA, at www.tpplegal.wordpress.com ). Our view is that the TPPA represents a significant impediment to the recognition of rights under the Treaty of Waitangi. While lobbyists and government have dismissed these concerns by pointing to the Treaty of Waitangi exception clause that is included in the TPPA, there are technical reasons why I think the TPPA does impose an additional barrier to developing Treaty-consistent law and policy, notwithstanding the exception clause. But even if you don’t feel like you need the technical detail about Māori rights and the TPPA, this is an instance where the example of how Treaty of Waitangi rights have been dealt with is illustrative of broader issues that ought to be of direct concern to all New Zealanders.
The principles of the Treaty, supported by the UN Declaration on the Rights of Indigenous Peoples, direct that where Māori interests are at stake, Māori ought to be consulted about how their rights will be affected and how those rights ought to be protected. In part, this is just good practice for making fully informed decisions. This has not happened in the case of the TPPA. In fact, the whole of the TPPA has been negotiated without meaningful discussion with the New Zealand public. The government’s approach has been to tell us not to worry our pretty little heads about it because they’ll decide what is important and let us know the outcome.
In the case of Māori rights, the outcome is the Treaty of Waitangi exception clause. The text of the Treaty exception is virtually the same as that used in free trade agreements for years and trade lobbyists argue that, because there have been no challenges from foreign parties related to these exception clauses, things must be working perfectly. But the concerns around Treaty of Waitangi rights are not that the TPPA expressly prohibits the government from fulfilling its Treaty obligations but rather that it creates incentives for the government to avoid taking any action which might potentially be open to challenge. Given that many areas of New Zealand law and policy have been found to be inconsistent with Treaty principles, one might have thought that the government would be virtually continuously needing to call on these Treaty exceptions as it strives to correct this. And yet that doesn’t seem to have been the case. I am not aware that the New Zealand government has ever invoked a Treaty exception clause. That is the key weakness of an exception clause like the one in the TPPA. It relies on the New Zealand government being willing to act outside of the general rules of the agreement in order to protect Treaty rights. Governments tend to be reluctant to do this because they do not want other parties to make use of exceptions that may be applicable to them. Despite the existence of the Treaty exception, the TPPA is therefore likely to have a chilling effect on the government’s will to comply with its Treaty obligations. This is of real concern because the TPPA covers areas of law and policy such as intellectual property rights, environemental regulation, and others in which Māori have long-standing concerns about the recognition of Treaty of Waitangi rights.
Neither the process nor the substance of the TPPA text is satisfactory. It certainly does not meet the standards required of a reasonable Treaty partner, acting in good faith. Hosting the signing of the TPPA just two days before Waitangi Day only serves to underline what a tasteless joke this all is.
Well, you’ve got to laugh, I suppose.
Or else you’d cry.