Wednesday, 29th July, 2015

Crown rejects proposal for independent review of Treaty of Waitangi exception clause in TPPA

On 23 July, the Waitangi Tribunal held a hearing on whether to grant urgency to Māori claimants seeking to challenge the Crown's entrance into the TPPA. As discussed in our previous article, Māori have raised several concerns in relation to the proposed TPPA, including a claim that it will adversely affect Māori intellectual property rights.

In the course of last week's hearing, claimants proposed that an independent barrister review the Treaty of Waitangi exception clause.

The Treaty of Waitangi exception clause is a clause in free trade agreements that allows New Zealand to provide preferential treatment to Māori, where required to fulfil its obligations under the Treaty of Waitangi. The other parties to the free trade agreement cannot challenge this preferential treatment to Māori. 

The Tribunal, while not making an order, was in favour of an independent barrister being appointed to review the clause. However, the Crown sought instructions from ministers, and has declined to accede to the request.

The Crown's position is that revisiting the Treaty of Waitangi exception clause could throw open other negotiated terms, which have been agreed with the other parties to the TPPA.

The Crown also states that revisiting the wording of the clause might jeopardise the clause as a whole.

The Crown restated its position that the Treaty of Waitangi exception clause is 'a valuable and effective protection of Māori interest'. Accordingly, there is unlikely to be an independent review of the Treaty of Waitangi exception clause, meaning that the claimants' concerns about the suitability and effectiveness of the clause will remain.

The Tribunal's ruling on urgency remains to be released, and is expected soon.