The Waitangi Tribunal has now completed its urgent inquiry into aspects of the TPPA and issued a report with its findings. (For background on this inquiry, please see our previous articles Waitangi Tribunal claim over New Zealand’s participation in the TPPA, and Waitangi Tribunal declines to hear full TPPA claim.) .
The Tribunal considered whether the Treaty of Waitangi exception clause in the TPPA provided adequate protection for Māori interests. It also considered further steps the Crown should take in the implementation of the TPPA in order to best protect its obligations to Māori. The Tribunal did not have time in its constrained inquiry window to engage in a full review of the intellectual property provisions of the TPPA.
The TPPA contains a clause that nothing in the TPPA shall preclude New Zealand adopting measures it deems necessary to accord more favourable treatment to Māori. The Crown relies on this provision in the TPPA as support for its view that nothing in the TPPA will preclude it fulfilling its Treaty obligations to Māori.
The Tribunal found that the Treaty exception clause does provide sufficient protection to Māori, and the Treaty of Waitangi was not breached by the Crown signing up to the TPPA with this Treaty exception clause in it. However it has expressed significant concerns about the Treaty exception clause and the process for negotiating the TPPA.
The Treaty exception clause in the TPPA remains unchanged from the form in which it first appeared in the Singapore FTA. The Tribunal found that the Crown failed to take into account the development of jurisprudence since the Singapore FTA, or the fact that the scope of the TPPA is much broader than previous FTAs New Zealand has entered into.
A concern for the claimants is that the Treaty exception clause can only be invoked when the Crown deems it necessary to take steps to provide Māori more favourable treatment. The self-judging nature of this raises concerns for the claimants given the Crown's track record of Treaty breaches. The Tribunal did not consider this to be a significant issue, noting that the normal recourse for Māori to object to the Crown's action through the Waitangi Tribunal remains.
Another significant concern for claimants was the chilling effect of the TPPA. As New Zealand is subject to the risk of investor state dispute settlement (ISDS) provisions in the event that an investor is unhappy about New Zealand’s performance under the TPPA, claimants were concerned that the Crown might not take steps it may have otherwise taken as a result of concerns about ISDS claims. Again the Tribunal was of the view that while the ISDS protections could modify or inhibit political behaviour in ways that might prejudice Māori Treaty rights, the usual recourse for Maori will still apply through the Waitangi Tribunal.
Accordingly, the Tribunal concluded that the clause provides for a reasonable degree of protection for Māori interests, but did note that it did not provide for the perfect degree of protection. It noted that it was not able to envisage every situation in the future where the Treaty exception clause might be relied upon, so as to be able to fully address the nature of the protection it provides.
In terms of the future steps the Tribunal considers the Crown should take regarding the implementation of the TPPA, the Tribunal noted its concern that the Crown has misjudged the nature, extent and strength of the Māori interests at issue in the TPPA. The Tribunal noted that contrary to the findings of Wai 262 report, the Crown did not seek or provide a realistic opportunity for Māori to identify their interests in the TPPA as a Treaty partner. It expressed its concern that the Crown has not adequately taken the recommendations of the Wai 262 Tribunal into account.
The Wai 262 report set out extensive recommendations for the Crown about the process it should follow in negotiating international agreements. The Tribunal found in negotiating the TPPA, the Crown failed to take these recommendations into account.
The Tribunal has suggested that the Crown adopt a protocol that would govern New Zealand procedure in the event that it becomes a party to the ISDS provisions under the TPPA. That protocol would be developed in dialogue with Māori to set out the approach New Zealand would take in the event that its actions are challenged under the TPPA in circumstances where the Crown might like to rely on the Treaty exception. The Tribunal has adjourned its inquiry into the future steps the Crown should take, so that the Crown can continue to report on its approach to these issues, and the Tribunal may make further recommendations as a result.
The Tribunal has expressly left open its ability to comment on the steps the Crown takes to comply with UPOV 91, whether through assenting to UPOV 91, or establishing alternative compliance measures.