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TPPA Update

 Waitangi Tribunal declines urgent hearing now but “satisfied that there is a good case for the Tribunal to grant urgency or priority to the hearing of these claims once the text of the TPPA is available

“The issues for urgent inquiry being:

(a) whether or not the Treaty of Waitangi exception clause is indeed the effective protection of Māori  interests it is said to be; and

(b) what Māori  engagement and input is now required over steps needed to ratify the TPPA (including by way of legislation and/or changes to Government policies that may affect Māori ).

Such a hearing can take place as soon as possible following the release of the text of the TPPA itself. If negotiations on terms and text of the TPPA are concluded in the next few days in Hawaii, we are informed that the revised and authoritative text of the TPPA is likely to be available towards the end of August or early September 2015. Further directions will issue once timeframes for release of the TPPA become clear.

We are satisfied that there is a strong case for an urgent hearing of this kind for the following reasons:

(a) We understand the TPPA in both substance and reach is substantially different from previous free trade agreements. The efficacy of the Treaty reservation clause in such an agreement is unclear and untested.

(b) The confidentiality requirements of the TPPA negotiations do not prevent ministers and officials from providing information and documents to persons outside government including Māori . It is New Zealand’s negotiating practice not to do so. This can be contrasted with the approach of Australia and the United States. For example, corporate interests appear to be directly involved in developing the United States negotiating position. In any event, international negotiations will take second place to domestic analysis once negotiations conclude and the formal ratification process of each state

(c) The Crown argues for the inclusion of the Treaty of Waitangi exception clause on the basis that it is a constitutional requirement, but its domestic engagement appears to be based on a view of selected Māori  organisations as stakeholders rather than Māori  more generally as Treaty partners.

(d) The TPPA apparently includes intellectual and cultural property, foreign investment, state owned enterprises, genetic resources, indigenous rights, New Zealand flora and fauna and use of natural and physical resources. Evidence of the degree of engagement with Māori  appears to date, relatively limited and selective.24 Lack of proper engagement andfollow up with Ngāti  Kahungunu raises particular concern.

(e) The Wai 262 Tribunal released its report Ko Aotearoa Tenei in 2011. It contains a number of findings and recommendations of direct relevance to matters put in issue in these claims. The Government is still considering its response and we are told there are no domestic policy decisions in response to Wai 262. Evidence filed on behalf of the Crown referred to the Wai 262 report as being helpful to the Ministry’s trade negotiation practice, but it remains unclear whether or not the Crown truly has met its Treaty responsibilities in the negotiation of the TPPA.

(f) The secrecy of the TPPA negotiations and their potential impact upon Māori heighten the Crown’s duty of active protection. It is appropriate that there be an opportunity for inquiry and report prior to ratification of the TPPA.”

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