NZ Free Trade Agreements Impacting on Māori
Overview of free trade agreements impacting on Māori that have come after the Trans-Pacific Partnership Agreement (last updated December 2022).
Trans-Pacific Partnership Agreement (TPPA)
Countries involved
New Zealand, Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, the United States and Viet Nam.
History and status
Negotiations concluded in October 2015. TPPA was signed 4 February 2016 in Auckland, met with massive protests led by Māori. US withdrew after signing and the Agreement never entered into force. Labour, NZ First and the Greens opposed NZ adopting the TPPA, including at the select committee.
Main issues for Māori
- No genuine engagement prior to or during negotiations.
- No seat at the negotiating table.
- Standard inadequate Treaty of Waitangi Exception dating back to 2001.
- No direct Māori economic benefits and speculative gains from general effect.
- Foreign investors have strong rights (eg mining, water) enforceable in offshore tribunals.
- Stronger intellectual property rules than those challenged in Wai 262.
- New rules on digital and data threaten mātauranga Māori, Waitangi Tribunal found they breached Crown’s Tiriti obligations.
- NZ must adopt new plant varieties rules that threaten rōngoa and mātauranga with uncertain exception.
- Stronger rights for drug companies make medicines much more expensive.
MFAT on benefits/interests for Māori
Māori/Tiriti submissions to select committee
Select committee report
Submissions on TPPA implementing law
Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)
Countries involved
New Zealand, Australia, Canada, Chile, Japan, Malaysia, Mexico, Peru, Singapore, and Viet Nam. Brunei Darussalam has yet to ratify. The UK, China, Taiwan, Ecuador, South Korea, Thailand have asked to join.
History and status
TPPA parties minus the US rescued the TPPA, renamed it, and suspended but did not remove some controversial provisions. The new government of Labour and NZ First, after opposing the TPPA, supported the CPTPP. The Agreement was signed March 2018, NZ ratified, entered into force on 30 December 2018. The review of CPTPP is now due. NZ is the chair in 2023.
Main issues for Māori
- No genuine engagement prior to or during negotiations.
- Some engagement over the pending review, but will be difficult to secure changes.
- No seat at the negotiating table.
- Standard inadequate 2001 Treaty of Waitangi Exception.
- NZ required to adopt new plant varieties rules that threaten rongoā and mātauranga in Tiriti-compliant way. Deadline to do so was missed and Māori continued to challenge the law adopted in November 2022 as not Tiriti compliant. The Green Party and Te Paati Māori opposed (and Act for non-Tiriti reasons).
- Stronger rights for drug companies make medicines much more expensive (some TPPA rules were suspended).
- Foreign investors have strong rights (eg mining, water) enforceable in offshore tribunals.
- Investor-state dispute settlement (ISDS) limited in with some countries; unclear how NZ will implement no ISDS policy in review.
- Stronger intellectual property rules than the rules that were challenged in Wai 262.
- New rules on digital and data threaten mātauranga Māori, same rules as Waitangi Tribunal found breached Crown’s Tiriti obligations.
- Other parties have to agree to revisit the e-commerce rules to address Treaty breaches; what will the Crown do to comply with Te Tiriti if they so no?
- No direct Māori economic benefits and general gains were speculative.
- Unclear what can be done if CPTPP review shows no real economic gains.
TPPA chapters kept in CPTPP
Māori/Tiriti submissions to select committee
Select committee report
Joint Declaration on Promoting Progressive and Inclusive Trade
Countries involved
New Zealand, Canada, Chile.
History and status
When CPTPP was near the end of negotiations, new governments were elected in Canada and NZ. They made a side agreement to cooperate on gender, labour rights, regional development, SMEs, climate change, environment and indigenous peoples to introduce some “progressive” aspects to CPTPP. A long list of very general matters they will work together on. No institutional arrangement or resources. There would be a review within three years of CPTPP entering into force (30 Dec 2018, so 30 Dec 2021) to examine effectiveness of CPTPP with respect to all those groups, including Indigenous peoples. That review was disrupted by Covid and is currently underway. NZ will have responsibility as chair of CPTPP in 2023.
Main Issues for Māori
- No involvement of Māori in the decision to have the Declaration or its content.
- Involvement in the review.
- No role for Māori in operation of the Declaration.
- No institutional mechanism to deliver it and no commitment to resources.
- Declaration affirms the UNDRIP but does not give it effect.
- Review is of CPTPP in relation to indigenous peoples, not a review of action under this declaration.
MFAT on benefits/interests for Māori
None located.
Te Tiriti o Waitangi analysis
Pending.
New Zealand-United Kingdom FTA
Countries involved
New Zealand and United Kingdom (England, Wales, Scotland, Northern Ireland).
History and status
Negotiations began June 2020, FTA was agreed in principle in October 2021, signed 28 February 2022. NZ tabled the FTA in Parliament, held a select committee hearing, and introduced a law to implement the FTA. As of December 2022 the UK has yet to complete the same processes.
Main issues for Māori
- UK refused to accept it had Te Tiriti and He Whakaputanga responsibilities as the Crown.
- Engagement during negotiations was too late to have real influence.
- Crown (England) negotiated with the Crown (New Zealand) with no independent Māori seat at the negotiating table, as rangatiratanga to kāwanantanga.
- Has the standard inadequate 2001 Treaty of Waitangi Exception.
- Offers Māori-specific economic benefits in an unenforceable cooperation chapter with no guarantee of resources, but some role in decisions on implementation.
- General economic gains could benefit Māori production sectors but amounts are minimal.
- NZ must adopt new plant varieties rules similar to TPPA that can threaten rōngoa and mātauranga.
- Stronger private intellectual property rights challenge Māori rangatiratanga and
kaitiakitanga over mātauranga. - No effective protections for taonga, including Ka Mate (the haka), just vague promises to talk.
- Environment chapter talks about Māori values but rules themselves contradict them.
- Foreign investors have strong rights (eg mining, water) but are not directly enforceable in offshore tribunals (ISDS).
- Rules on digital and data threaten mātauranga Māori, similar to CPTPP rules the Waitangi Tribunal found breached Crown’s Tiriti obligations. Promise of a review in two years with Waitangi Tribunal findings in mind.
MFAT on benefits/interests for Māori
Māori/Tiriti submissions to select committee
Select committee report
Te Tiriti o Waitangi analysis
New Zealand-European Union FTA
Countries involved
New Zealand, European Union and its 27 Member States (Austria, Belgium, Bulgaria,Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden).
History and status
Negotiations began March 2017. Agreement was reached June 2022. The agreed text was released, but is being checked and translated for EU countries. Then it needs to go through long processes in the EU (no guaranteed agreement) and the NZ select committee and parliament process (a formality).
Main issues for Māori
- There was more engagement during negotiations, with some influence but at the margins.
- Standard inadequate 2001 Treaty of Waitangi Exception was retained.
- EU would not involve indigenous peoples, eg Saami, because it would make the deal politically complicated by going to member state levels.
- Foreign investors have strong rights (eg mining, water) but they are not directly enforceable in offshore tribunals through ISDS.
- Māori-specific economic benefits are in an unenforceable cooperation chapter with no role in decisions on implementation.
- General economic gains could benefit Māori production sectors but amounts are minimal.
- No guarantee of resources and no role in decisions on implementation.
- Mānuka honey gets lower tariffs but name protection is not guaranteed and is subject to further agreement.
- Intellectual property rights still challenge Māori rangatiratanga and kaitiakitanga over mātauranga.
- Digital chapter has more protection for mātauranga Māori but there are still problems in other chapters.
- Data rules are to be kept under review and assessed after three years, informed by Wai 2522 Waitangi Tribunal report and NZ’s commitment to engage Māori on protections.
- Sustainability chapter covers labour, environment, gender, biological diversity, with
vague recognition of importance of traditional lifestyles, but nothing concrete. - Sustainability chapter has obligations relating to fisheries that can impact on commercial and customary fishing and on small local fishers. These need analysis (similar to World Trade Organisation fisheries issues).
- Sustainability chapter has obligations relating to forestry, also need deeper analysis.
- Supports a precautionary approach where there are serious risks to environment or health, pending research.
- Interested persons/corporations have a right to comment/lobby on proposed new laws.
- No role for Māori on the sub-committee overseeing the sustainability (or any) chapter.
MFAT on benefits/interests for Māori
The chapter acknowledges Te Tiriti/The Treaty as a foundational document of constitutional importance to Aotearoa New Zealand…
Submissions
Pending.
Select Committee report
Pending.
Te Tiriti o Waitangi analysis
Digital Economy Partnership Agreement (DEPA)
Countries involved
New Zealand, Singapore, Chile are original members. Canada, South Korea, China seeking to join.
History and status
This is the first stand-alone digital trade agreement. Originally by three CPTPP parties and adopted CPTPP e-commerce into the DEPA text. More countries are seeking to join, including non-CPTPP countries, which requires changes to the text. But DEPA has no formal provisions to review the rules.
Main issues for Māori
- DEPA imports CPTPP text on e-commerce/digital that Tribunal said was a Tiriti breach.
- Standard inadequate 2001 Treaty of Waitangi Exception.
- Can there be a review of DEPA to address those breaches?
- Risk that new version is enforceable; original text was not (relied on enforcement through CPTPP).
- Would other parties agree and if not what will Crown do to address ongoing breaches?
- Can these Treaty breaches be addressed at least for other countries that join?
- If UK joins, can any changes on digital in UK FTA be carried over to DEPA? If not, which text applies?
Select committee
report
None.
Regional Comprehensive Economic Partnership (RCEP)
Countries involved
Australia, New Zealand, South Korea, China, Japan and ASEAN (Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam). India was involved but withdrew at the end.
History and status
Negotiations began in 2012 between ASEAN and 6 countries that already have FTAs with them. Signed November 2020, entered into force January 2022. RCEP is less extensive that TPPA/CPTPP in subjects covered and nature of the rules.