Waitangi Tribunal claim over New Zealand's participation in the TPPA

Article  \  20 Jul 2015

A group of prominent and broadly representative Māori have filed a claim before the Waitangi Tribunal, asking the Tribunal to examine the Crown negotiations towards the Trans-Pacific Partnership Agreement (TPPA). Part of the relief sought is immediate implementation of the recommendations in the Wai 262 report related to international agreements. The claimants have asked the Tribunal to hear the claim urgently, in light of the imminent expected finalisation of the TPPA. 

Following the filing of this claim, other claims have been filed on behalf of iwi (tribes), including one on behalf of Ngāpuhi, relying on the Tribunal's recent finding that Māori did not cede sovereignty through the signing of the Treaty of Waitangi in 1840. The Ngāpuhi claim claims that it is not appropriate for the Crown to enter into the TPPA before it has considered the implications of the Tribunal's finding on sovereignty. 

The claim addresses several concerns with the TPPA. In relation to the intellectual property aspects of the TPPA, the claimants state that:

'the TPPA will place greater emphasis on the economic values of intellectual property at the expense of other values important to Māori, as recognised in Te Tiriti [the Treaty of Waitangi] and the UNDRIP [The UN Declaration on the Rights of Indigenous Peoples], such as communal knowledge systems and the cultural and spiritual relationship that indigenous peoples have with their natural environment, and their responsibilities as kaitiaki.'

Consequently, the claimants state there is a real risk New Zealand's accession to and ratification of the TPPA would result in a loss of Māori intellectual property rights.

Other specific intellectual property issues raised by the claimants include a reference to leaked documents, which suggest the TPPA will require New Zealand to adopt UPOV 91. Claimants say this is contrary to the recommendations the Tribunal made in Wai 262, and will provide for intellectual property protection of plants in a way that limits the ability of traditional communities to engage in traditional practices like seed exchange programmes. The claimants also raise concerns that signing up to UPOV 91 will give plant variety rights to anyone who discovers an indigenous species, without regard to any rights Māori may have in those indigenous species. 

In the Crown's response, it has stated that its negotiations towards the TPPA are being conducted in the best interests of New Zealand, and as such are proper exercise of its kāwanatanga responsibilities. The Crown has defended the necessity of the negotiations being conducted in secret, to enable the Crown to negotiate in the best interests of New Zealand. The Crown has outlined a range of steps it has taken which it says demonstrate that it has been considering Māori interests under the Treaty and has been consulting with Māori in relation to the TPPA.

The Crown also places emphasis on the fact that the TPPA, like all recent free trade agreements, will contain an exception clause relating to the Treaty of Waitangi. The Treaty of Waitangi exception clause enables the New Zealand government to provide preferential treatment to Māori where it is required to fulfil its obligations under the Treaty. The claimants have challenged the adequacy of this clause, partly on the basis that only the Crown can decide when to apply the exception clause, which means that if the Crown and Māori disagree as to the Crown's obligations under the Treaty, Māori have no ability to invoke the clause. The Crown's reliance on the Treaty of Waitangi exception clause can also be challenged by other international parties.

The Crown has stated that it expects the TPPA negotiations to be concluded by August.  This leaves little time for the Tribunal to consider these claims, even under urgency, and it seems unlikely that any substantive Tribunal comment could be made before the end of TPPA negotiations. The Crown argues that following the signing of the agreement, New Zealand will undergo its ratification phase, and this is the appropriate time to deal with any issues raised by the claimants. 

The Tribunal will hear arguments on whether to hear the claims on an urgent basis on 23 July.