Waitangi Tribunal declines to hear full TPPA claim

Article  \  6 Aug 2015

The Waitangi Tribunal has now released its decision on the application for an urgent hearing regarding the Crown's negotiations towards the Trans-Pacific Partnership Agreement (TPPA). For more background on these claims, see our articles Waitangi Tribunal claim over New Zealand's participation in the TPPA and Crown rejects proposal for independent review of Treaty of Waitangi exception clause in TPPA.

The Tribunal has declined to hold an urgent hearing on the Crown's negotiations towards the TPPA. It notes the insufficient time between the filing of the claims and the anticipated conclusion of the negotiations in August 2015 to hold an urgent hearing. 

The claimants argued the claims could not have been filed sooner, as prior to the US passing its fast track legislation in Congress, the timeframe in which the TPPA was anticipated to be concluded was not clear.  However, the inference of the Tribunal's decision is the claims were filed at too late a stage to enable an urgent hearing.

However, the Tribunal has agreed it will hold an urgent hearing to review the signed agreement, and in particular, the Treaty of Waitangi exception clause, once the terms of the agreement are released. This means that if an agreement is reached in the coming weeks (as the Government is hopeful that it will be), the Tribunal will look at the final agreement prior to its introduction into Parliament, and will consider whether:

  1. the Treaty of Waitangi exception clause is an effective protection of Māori interests
  2. what Māori engagement and input is required before the TPPA is ratified into NZ law.

Should the TPPA negotiations not result in an agreement in the coming weeks, and negotiations are delayed until after the 2016 US presidential elections, the Tribunal has signalled that it may revisit its decision. This means we may yet see a Tribunal inquiry into the Crown's position on the secrecy of the negotiations, and the lack of engagement with Māori in relation to those negotiations. In particular, the Tribunal's decision references the fact the Crown is allowed, under its terms of negotiation, to engage with stakeholders, including disclosing what is in the draft text and what points are being negotiated. The Tribunal notes the US and Australia are conducting similar engagements with their stakeholders. This suggests the Crown's decision to not engage with Māori and not discuss the terms of the agreement with Māori could be challengeable under the Treaty.

In light of the current uncertainty about whether the TPPA will be concluded in the coming weeks or months, the scope of the inquiry the Tribunal will ultimately undertake remains to be seen. However, the Tribunal has at least committed to a review of the agreement once reached.

The Tribunal delayed the release of its decision until the Hawaii round of negotiations was concluded, so as to not influence those negotiations.