Timeline of Māori Resistance to Globalisation
This timeline captures the progression of Māori resistance to a globalisation agenda that is premised on Western values and priorities, and sustained pressure to ensure that Māori rights, interests, duties and responsibilities as tangata whenua under Te Tiriti o Waitangi, based on He Whakaputanga o Te Rangatiratanga o Nu Tireni, are protected and enhanced.
NZ’s 1st bilateral FTA with Australia, no Tiriti protection
New Zealand signed its first bilateral FTA, the Australia New Zealand Closer Economic Relations Trade Agreement. There is no reference to the Treaty of Waitangi in that agreement or any of the many subsequent extensions of that agreement.
Indigenous Intellectual Property Conference in New York
Dell Wihongi (Te Rarawa) and Moana Jackson (Ngāti Kahungunu, Ngāti Porou) attended an Indigenous Intellectual Property Conference in New York to exchange experiences with other indigenous peoples, which fed into the Wai 262 claim.
Wai 262 kaupapa began
A group of Māori rights activists challenged the Crown about policies and laws that were taking away Māori control over taonga. In October 1991 Saana Murray-Waitai (Ngāti Kurī), Dell Wihongi (Te Rarawa), John Hippolite (Ngāti Koata), Tama Poata (Te-Whānau-o-Ruataupare, Ngāti Porou) Witi McMath (Ngāti Wai) with the assistance of lawyer Moana Jackson (Ngāti Kahungunu, Ngāti Porou) lodged the Native Flora and Fauna Claim with the Waitangi Tribunal. Their aspiration was for rangatiratanga, “Māori control over things Māori” tangible and intangible, based on He Whakaputanga o Te Rangatiratanga o Nu Tireni and Te Tiriti o Waitangi.
Adoptation of the Mataatua Declaration
First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples at Whakatane, Aotearoa was hosted in June 1993 by the Nine Tribes of Mataatua. Over 150 delegates from fourteen countries attended, including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA, and Aotearoa. The Conference adopted the Mātaatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples.
Mataatua Declaration presented to the UN
Mataatua Declaration was presented to the United Nations Commission on Human Rights Sub-Commission on Prevention of Discrimination and Protection of Minorities in July 1993 as part of the United Nations International Year for the World’s Indigenous Peoples.
National Māori Congress hui on Intellectual Property
National Māori Congress convened a hui on Intellectual Property where Moana Jackson explained why the proposed Trade Related Intellectual Property Rights (TRIPS) agreement being negotiated in the Uruguay Round of negotiations to extend the General Agreement on Tariffs and Trade (GATT) was irreconcilable with tino rangatiratanga and Māori responsibilities as kaitiaki of mātauranga.
National Māori Congress rejects the new World Trade Organization, saying Māori are exempt from its provisions
National Māori Congress challenged the Crown’s failure to seek the consent of Māori and other New Zealanders to the outcome of global trade negotiations that led to the establishment of the World Trade Organization, including on intellectual property rights. The Congress said it did not consent to the adoption of those agreements and Congress members would consider themselves exempt from its provisions.
Submissions on the law to implement the new WTO raised its constitutional confict with Te Tiriti
Many submissions on the GATT (Uruguay Round) Act to implement those agreements raised constitutional issues about the Treaty of Waitangi, including from National Māori Congress. The parliamentary debate relied on rebuttals by government officials and politicians that shows a profound ignorance of Te Ao Māori and said it was Māori who did not understand the agreements.
Amendment to the WTO implementing law to protect Treaty of Waitangi, drafted by Wai 262 lawyers narrowly lost
Wai 262 lawyers worked with NZ First MP Tau Henare to include protection for mātauranga Māori in the law through an amendment to insert the following new part: Part XIII. Treaty of Waitangi Non-violation: “105. Treaty of Waitangi protection—Nothing in New Zealand’s acceding to the General Agreement on Tariffs and Trade or New Zealand’s membership of the World Trade Organisation shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” The amendment was lost by 42 votes to 40. The final Act has protections for information about animal remedies and pesticides, but no protections for mātauranga Māori. The government promised Māori rights would be dealt with in a review the next year.
WTO comes into force with no Tiriti protections
The WTO came into force on 1 January 1995. Its agreement on Trade Related Intellectual Property Rights (TRIPS) affects mātauranga, and has no protections for Te Tiriti. An agreement on services and foreign investment involving land, health, education, environment, tourism, etc (the General Agreement on Trade in Services of GATS) also has no Tiriti protections and only protects the right to discriminate in favour of Māori commercial or industrial undertakings in services.
Crown tries to extend intellectual property laws to adopt UPOV 1991
The Crown intended to adopt a new Intellectual Property Law Reform Bill that would implement even broader intellectual property law changes, including to allow New Zealand to adopt the International Convention for the Protection of New Varieties of Plants (UPOV 1991) that would give breeders extensive property rights of breeders over taonga species. Four hui on this were organised with Māori in late 1994, who strongly rejected the proposal.
Wai 262 claim lodged with Waitangi Tribunal
The Wai 262 claim was amended to include the international Agreement on Trade-related Intellectual Property Rights (TRIPS) and the related legislation, along with an application for urgency that was supported by indigenous peoples in Canada and internationally. The claimants said the Crown had not consulted fully with Māori and the proposed laws posed a risk of significant and lasting prejudice to the claimants.
Māori activists threatened with sedition for challenging the Asian Development Bank’s impacts on indigenous Peoples
Activists Annette Sykes and Mike Smith were threatened with sedition charges for their criticisms of the Asian Development Bank neoliberal policies and the impacts of its projects on indigenous peoples at a media conference in Auckland, where New Zealand was hosting the ADB’s annual meeting. Māori Party MP Hone Harawira used this example to support the repeal of sedition laws in 2007.
Wai 262 claim urgency hearings began
The Wai 262 claim had been granted urgency in 1995, but the first Wai 262 hearing was not until 1997, held at Motuti. The Inquiry’s hearings went on for another 6 years.
Māori campaign against the Multilateral Agreement on Investment
A leaked text revealed secret negotiations for a Multilateral Agreement on Investment (MAI) were being negotiated in the rich countries’ club, the OECD. The MAI draft guaranteed foreign investors’ special rights and protections that they could enforce directly against governments in offshore tribunals (“investor-state dispute settlement” or ISDS) when new laws or policies had a negative effect on the profits or value of their investments. The MAI focused attention of Māori, including media, politicians and officials, on the growing number and importance of international economic agreements and implications for Te Tiriti. Māori activists, media, MPs and even TPK officials condemned the potential impact on the Treaty of Waitangi, Māori right to control indigenous knowledge and resources, and their exclusion from international treaty negotiations that had major implications for them. The MAI, especially its Tiriti impacts, became a major issue in Parliament.
Māori business invited to a side-meeting for indigenous businesses at APEC in Vancouver
Māori businesses participated in a side-meeting of indigenous businesses in Vancouver on the side of the APEC meetings being hosted there, while other indigenous groups protested.
Māori hikoi to Wellington to protest the MAI
In April 1998 Māori led a hikoi from Te Tai Tokerau across the Harbour Bridge and down to Parliament to oppose the MAI.
National government agree to a Treaty Impact Assessment of the MAI and drafted a Treaty of Waitangi Exception
The National government reluctantly agreed to conduct a Treaty Impact Assessment of the MAI and drafted a Treaty of Waitangi Exception. Before the impact assessment was finished, MAI negotiations collapsed in 1998 under the pressure of international campaigns. But the MAI’s investment rules and investor-state dispute settlement (ISDS) were included in later FTAs.
Select Committee report on Intellectual Property Reform Bill raises Māori rights to cultural property and intellectual property rights
The select committee report on the Intellectual Property Law Reform Bill said:
We recognise that this bill is a narrow one, relating to matters required by our international obligations. Nevertheless, we raised the issue of cultural property and intellectual property rights, particularly relating to Maori. We were advised that the ministry is engaged in a broader work programme which includes issues relating to Maori cultural property and intellectual property rights. The ministry is currently engaged in a review of the Trade Marks Act 1953, and intends to report to the Government at the end of November 1998 with final proposals for reform of the Act. As well as the review of the Trade Marks Act 1953 the ministry has recently commenced a wider examination of Maori cultural property and intellectual property rights. Due to the complexity of the issues and the need for extensive consultation this work is expected to take some time. …
We recognise that this bill is a narrow one, relating to matters required by our international obligations. Nevertheless, we raised the issue of cultural property and intellectual property rights, particularly relating to Maori. We were advised that the ministry is engaged in a broader work programme which includes issues relating to Maori cultural property and intellectual property rights. The ministry is currently engaged in a review of the Trade Marks Act 1953, and intends to report to the Government at the end of November 1998 with final proposals for reform of the Act. As well as the review of the Trade Marks Act 1953 the ministry has recently commenced a wider examination of Maori cultural property and intellectual property rights. Due to the complexity of the issues and the need for extensive consultation this work is expected to take some time. …
Māori businesses were invited to participate on the fringes of APEC in Malaysia
Māori businesses were invited to participate on the fringes of APEC (Asia Pacific Economic Cooperation) being hosted by Malaysia in 1998. A delegation of Māori businesses was sponsored to take part in APEC’s business forum.
NZ hosted APEC in Auckland, Crown sought to engage Māori in APEC activities
New Zealand hosted APEC in Auckland in 1999. The Crown wanted to profile Māori as part of New Zealand’s image, positively engage senior Māori figures, mainstream Māori businesses into APEC activities, and constructively engage Māori groups and spokepersons alongside NGOs. MFAT and TPK set up regional “dialogue workshops” with Māori. One officials paper suggested free trade would minimise the role of the “governor” and support Māori aspirations for rangatiratanga.
Māori regional workshops on APEC were critical of lack of Māori inputs to decisions and sceptical of potential benefits
The Māori workshops delivered a different message from the Crown’s. Key concerns from the Wellington workshop in May 1999 included the lack of voice in APEC for Māori small businesses, with the New Zealand representatives on the Business Advisory Council being drawn from the large corporates; the need for Māori input into policy-making before the government formulated its position; the need for honesty in portraying the position of Māori in the New Zealand economy; the need for a strategy to improve the position of Māori labour and Māori businesses in the mainstream economy; and the need to build domestic capacity and reduce disparities at home before attending to the rest of the Asia Pacific region. There were also real doubts about what APEC would deliver to Maori and what the fall-back position was for Māori if globalisation does not work.
Lack of Treaty protection raised with PM Helen Clark as new WTO services negotiations begin
The WTO services agreement (General Agreement on Trade in Services/GATS) has no Treaty protections, only limited rights to discriminate in favour of Māori businesses. Negotiations began in the WTO to extend the GATS, giving more rights and protections to foreign services corporations. Building on the protests against the MAI, Prime Minister Helen Clark came under pressure to provide more effective protections. The GATS negotiations never concluded.
Negotiations for an FTA with Singapore result in development of a Treaty of Waitangi Exception
When New Zealand began negotiating a free trade agreement with Singapore the Labour government came under pressure from Māori to provide stronger protection. The Labour government altered the Treaty Exception drafted for the MAI to refer to providing more favourable treatment for Māori, including under the Treaty of Waitangi. National opposed it in the Select Committee because it went beyond the Treaty to include closing the gaps, when it actually made the exception more limited than National’s proposed MAI version. In Parliament, the ACT Party called it “deeply racist” and a denial of “one law for all”, but supported the Treaty that created a single sovereignty and property rights. National described the Treaty Exception as cover for Labour’s controversial “closing the gaps” policy, with Lockwood Smith (later NZ Ambassador to the UK) referring to the “stupidity” of including the Treaty Exception. New Zealand First said Māori disadvantages were domestic problems that should be addressed internally. Green MP Keith Locke said enabling some preference to Māori was “a sop” to bring over Māori who had opposed the WTO and MAI.
NZ Singapore FTA (Closer Economic Partnership) comes into force with Treaty of Waitangi Exception unchanged
The NZ Singapore Closer Economic Partnership came into force with a Treaty of Waitangi Exception . It allows the Crown to give “more favourable treatment” to Māori, including to honour Treaty obligations, with no right for Singapore to challenge what those obligations are. Other aspects of the government measure can be challenged, including whether the government’s action amounts to “more favourable treatment” (eg positive discrimination) as opposed to not doing something (eg not implementing an IP obligations), plus some other conditions. That wording has remained unchanged ever since, despite greatly expanded scope of FTAs and criticisms of its limitations.
Singer Moana Maniapoto made a documentary on intellectual property rights after being threatened with legal action for performing under her name in EU
Moana Maniapoto was threatened with a 100,000 Euro law suit for performing in Europe in her own name because a German had trademarked the word “Moana” for a wide range of uses, including branding of games, cosmetics, even toilet paper. Moana had to replace all the promotions and advertising and appear as Moana and the Tribe featuring Moana Maniapoto! A Moana and Toby Mills made a documentary for TVNZ in 2005 called “Guarding the Family Silver” which exposed the exploitation of mātauranga Māori by global corporations and the role of western intellectual property laws and free trade agreements.
FTA with Chile, Singapore and Brunei, more of the same
The FTA with Chile, Singapore and Brunei repeated the Singapore FTA’s Treaty of Waitangi Exception. The scope of the agreement was expanded to further restrict regulation of intellectual property rights, government procurement, services and investments, including binding MAI-style guarantees for foreign investors enforceable through international arbitration or ISDS. But the Treaty Exception was not revisited in light of that much wider scope.
Wai 262 claim amended again as Te Waka Kai Ora challenged proposals to create an Australia NZ Therapetuic Products Authority
The Wai 262 claim was amended again when Te Waka Kai Ora – a rōpū of Māori organics growers practitioners formed in 1999 – challenged the creation of an Australia New Zealand Therapeutic Products Authority (NZTPA) as part of the CER agreement with Australia.
The proposed NZTPA would be a joint regulatory agency under a common Australia/NZ framework that would subordinate and redefine tikanga under Western concepts. That would displace kaupapa Māori pedagogy and kaitaki responsibilities to protect mātauranga Māori based on their own epistemologies from time immemorial.
The claimants insisted that putting traditional knowledge in the public domain did not authorise its unfettered use. By setting rules for protection that followed Western norms and disqualified Māori practices, the regime failed to effectively prevent the exploitation and appropriation of Māori knowledge. The TPA regime therefore denied the tino rangatiratanga guaranteed to whanau, hapu and iwi with respect to taonga Māori under Te Tiriti. 100 years after the Tohunga Suppression Act, the Crown’s assumption of the power to regulate was continuing the colonisation that oppressed Māori traditional methods of healing and wellbeing.
The claimants also challenged the practice of international treaty making through carefully managed dialogue and non-existent consultation. There was a single 2 hour hui at the end of the process at which the Crown had a closed mind, insisting there was no risk to Māori so no need to consult. Interlocking international agreements imposed a ‘new constitutionalism’ that limits future choices and privileges international capital
FTA with Thailand
FTA with Thailand repeated the Treaty of Waitangi Exception from the Singapore FTA
FTA with China repeated the Treaty of Waitangi Exception from the Singapore FTA
Negotiations for the Trans-Pacific Partneship Agreement were launched
Negotiations for the Trans-Pacific Partnership Agreement were launched after US announced it would join the negotiations to extend the “P-4” (NZ, Chile, Singapore and Brunei) and Australia, Canada and other countries came on board.
FTA with Hong Kong China
FTA with Hong Kong China repeated the Treaty of Waitangi Exception from the Singapore FTA.
First round of TPPA negotiations
The first round of TPPA negotiations began in March 2010. The next five years of negotiations were conducted in secret. The public, and Māori, only saw leaked texts.
FTA with Malaysia
FTA with Malaysia repeated the Treaty of Waitangi Exception from the Singapore FTA
Wai 262 Report Ko Aotearoa Tenei released
The Waitangi Tribunal report into Wai-262 Ko Aotearoa Tēnei was finally released. The report found “In many respects, current laws and government policies fall short of partnership, instead marginalising Māori and allowing others to control key aspects of Māori culture”. But it fell short of the claimant’s vision and aspiration seeks to restore “te tino rangatiratanga o te Iwi Māori in respect of flora and fauna and all of our taonga”. While it was critical of the Crown’s approach to international agreements such as the TRIPS it set a low bar for Crown obligations in international treaty making.The report was especially disappointing in supporting the idea of a “sliding scale” of Māori interests which could be determined by the Crown as the basis for the extent to which they needed to engage Māori in decisions, which was strongly criticised in the later TPPA claim.
Investment protocol between Australia and NZ signed with no Treaty protection
A new investment protocol under CER gave special rights and privileges to Australian investors and Investments in New Zealand, and vice versa. Like other agreements with Australia, these are only enforceable in domestic courts. There is no Treaty of Waitangi protection.
NZ joined the WTO’s agreement on government procurement, with the Singapore FTA Treaty Exception
NZ joined the WTO’s agreement on government procurement. It included the Treaty of Waitangi Exception from the Singapore FTA.
Wai 1040 Report on Te Paparahi o te Raki (Wai-1040) affirms Māori did not cede sovereignty. The Stage 2 report on what that means for today is still awaited
The Tribunal report on Te Paparahi o te Raki (Wai-1040) into the meaning and effect of te Tiriti o Waitangi/the Treaty of Waitangi found that the Northern rangatira did not cede their sovereignty to the British Crown in February 1840 upon signing the Tiriti/Treaty. How these findings affect the principles of the Tiriti/Treaty today was left to the Stage 2 inquiry, which has yet to report.
Wai 2522 claim on the TPPA launched
In June 2015 five claimant groups (which grew to 9) requested an urgent hearing on the TPPA in the Waitangi Tribunal. The Tribunal declined urgency while TPPA negotiations were still underway, but said it would hold hearings as soon as the final text became available.
TPPA negotiations concludes with the most extensive FTA ever for NZ. The National Government still relies on the 2001 Treaty Exception
TPPA negotiations concluded in October 2015 and the text was released in November. The 30 chapters went beyond any previous agreements including for intellectual property, services, investment, government procurement, electronic commerce, food labelling, among others. National’s trade minister Todd McClay said the TPPA protected the Crown’s rights to meet its Treaty obligations based on the 2001 Treaty Exception.
Māori responses to the TPPA were mixed
Politicians faced challenges at Ratana and Waitangi. Ngāti Whatua blessed an Auckland Town Hall meeting with a powhiri, at which politicians from Greens, Māori Party, NZ First and Labour’s leader Andrew Little all said they opposed the deal.
The Iwi Chairs asked Ministers in August 2015 for confidential engagement on the text before it was signed to ensure Te Tiriti o Waitangi and Wai 262 were protected. The Minister did not reply until 4 February, the day it was signed.
Some Māori business entities, such as the Federation of Māori Authorities (FoMA) and Parininihi ki Waitotara saw opportunities for the Māori economy and accepted government assurances that te Tiriti would not be impacted upon by the TPPA.
Stage 2 of Wai 1040 Te Paparahi o te Raki launched. Issue 1 is political engagement between Māori and Crown
Issue 1 for Stage 2 of Te Paparahi o te Raki (Wai-1040) was tino rangatiratanga, kāwanatanga and authority: political engagement between Māori and the Crown. Dr Moana Jackson’s evidence on tikanga set out the long tradition, principles and practices of treaty making by Māori, which would never have been ceded to the Crown. Jane Kelsey traced current practices for international treaty making to an imperial construct that is not Tiriti-compliant and argued that “one voice for two nations” can be achieved through mutually agreed processes and outcomes. The Tribunal has yet to report on Stage 2.
FTA signed between NZ, Australia and ASEAN
FTA with South Korea repeated the 2001 Treaty of Waitangi Exception from the Singapore FTA.
National Government announced the TPPA would be signed on 4 February in Auckland
The TPPA government announced the TPPA would be signed in Auckland on 4 February by Ministers from all 12 countries. Ngāti Whātua o Orakei led a protest march up Queen St, with estimates ranging between 10,000 and 25,000 people. That was followed by a Hikoi to Waitangi for Waitangi Day.
Waitangi Tribunal urgency hearing on the Wai 2522 TPPA Inquiry
In March 2016 the Waitangi Tribunal began urgency hearings on 2 issues: whether the Treaty of Waitangi Exception was effective protection of Māori interests in the TPPA; and what engagement with Māori is required prior to ratification. The report was released on 5 May. The Tribunal relied on “Treaty principles” developed by the courts and tribunal, which largely reflect the English text, to find the Crown had not breached its Treaty obligations. It said the Treaty Exception was not perfect, and did not provide the total protection claimed by the Crown. But it was likely to “operate substantially as intended” and could “be said to offer a reasonable degree of protection for Māori interests” affected by the TPPA.
The Tribunal did say the Crown may have “misjudged and mischaracterised the nature, extent and relative strength of Māori interests” put at issue by the TPPA and suggested future dialogue on an appropriate Treaty Exception for future agreements. It was also concerned that foreign investors’ could sue the government over future measures to implement Treaty obligations (the ISDS process resisted in the MAI) and suggested a Māori and the Crown should develop a protocol to govern procedures if such a case arose and the Treaty Exception was relied on.
The part of the Wai 2522 claim on the TPPA and Wai 262 relating to rangatiratanga and kaitiakitanga over Plant Variety Rights was deferred because of “ongoing policy development”. The Tribunal recognised there may need to be a further stage to the claim. In September 2016 the Wai-2522 claimants confirmed they wished the inquiry to continue.
USA withdraws from TPPA. Wai 2522 Stage Two hearing deferred
The US withdrew from the TPPA. Stage Two of the Tribunal inquiry was adjourned again while the Crown and the other 10 remaining parties to the TPPA decided what to do.
New Labour Government, and coalition partner NZ First change their position, supporteding the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Some original TPPA rules were suspended
The Labour Party became the government in coalition with NZ First. Both parties had opposed the TPPA. They changed positions and NZ joined the remaining 10 countries in a revised TPPA called the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). The CPTPP suspended some rules in the TPPA (mainly on intellectual property), but otherwise remained the same, including the Treaty Exception. The NZ Government negotiated individual side-letters with Malaysia, Vietnam, Peru, that agreed not to apply ISDS (direct enforcement by foreign investors) between them under this agreement. The Wai-2522 claimants objected to the Crown’s repeated failure to involve its Tiriti partners in these processes.
NZ began de facto negotiations with the UK for an FTA
The Crown began de facto negotiations for a FTA with the United Kingdom through a series of “policy dialogues” while the UK was negotiated its exit from the EU.
CPTPP concluded, signed and entered into force
The CPTPP was concluded in January, signed in March and entered into force on 30 December 2018.
NZ began FTA negotiations with the EU
Negotiations for an FTA with the European Union were launched in June.
Four issues were agreed for Stage 2 of the Wai 2522 claim on the TPPA
A Statement of Issues for Stage Two of the Tribunal claim was issued in February. It was agreed that the remaining issues to be addressed in the claim would be: 1) Crown engagement with Māori; 2) the secrecy surrounding Crown negotiations; 3) obligations regarding the plant variety rights regime (UPOV 1991); and 4) data sovereignty. A hearing for all four issues was set down for December.
The Wai 2522 Issue 3 on plant variety rights regime was heard in December
The Tribunal proposed hearing only Issue 3 in December because the government was planning to legislate on plant variety rights in mid-2020, which meant the Tribunal would no longer have authority to inquire into that issue. The remaining issues were deferred until 2020.
The TPPA required New Zealand, within three years, either to adopt UPOV 1991 (which the Wai-262 report agreed would breach Te Tiriti) or a sui generis law that gave effect to UPOV 1991 while allowing the protection of indigenous plant species consistent with the Crown’s Treaty obligations, subject to certain conditions. The Tribunal’s questions for Issue 3 were whether the Crown’s engagement process with Māori over the plant variety rights regime and its policy decision under the TPPA was consistent with its Tiriti/Treaty obligations to Māori.
The Crown did not engage with Māori at all before adopting the TPPA obligation. The claimants said Crown’s proposed plant variety regime was framed through a Pakeha lens that diluted kaitiakitanga and the prospect for Te Pae Tawhiti to develop a regime that embodied rangatiratanga and kaitiakitanga. The TPPA limited how the Crown could meet its obligations and the time frame for doing so.
The Labour Government launched Te Pae Tawhiti to address Wai 262 issues
In August, the Labour Government launched Te Pae Tawhiti to address the issues related to mātauranga Māori in the Wai 262 inquiry, working alongside Te Taumata Whakapūmau representing the original claimants. The cross-agency work programme included three broad kete of issues: tāonga works me te mātauranga Māori, including Māori data governance; tāonga species me te mātauranga Māori, including plant varieties; and Kawanatanga Aorere/Kaupapa Aorere, international instruments and forums. This was 2 years after the TPPA was signed and the CPTPP had already entered into force and while other negotiations covering similar rules were underway.
In response to criticisms of MFAT’s flawed engagement in Wai 2522 claim, the Crown organised the establishment of Te Taumata to advise it on trade issued
The claimants strongly criticised MFAT in the Wai 2522 Inquiry for its poor, or complete lack of, engagement with Māori during the TPPA, the inadequacy of the Treaty Exception, the Crown’s failure to implement its Tiriti responsibilities and protect Māori rights, interests, duties and responsibilities, and MFAT’s lack of cultural competence. Counsel’s submissions said there needed to be an independent Māori entity to fill that gap. MFAT responded by holding several hui in March 2019 to create an engagement mechanism with Māori on trade policy and negotiations, which was a short cut version of what was proposed. The creation of a Taumata was supported at a hui in Rotorua in April 2019 and members were nominated from the floor.
MFAT agreed the Terms of Reference for Te Taumata, whose primary objective is to implement an engagement strategy and structure that is reflective of Te Tiriti o Waitangi. But the details of the terms of reference cement in the status quo that the claimants’ challenged throughout the Wai 2522 claim at not being Tiriti-compliance: implementing the Cabinet’s 2001 limited strategy for Engagement with Māori; ensuring the limited existing Treaty Exception is included in agreements; effective communication strategies with Māori, Crown and other key stakeholders; and ensuring adequate resources to deliver on these.
Wai 2522 Tribunal report on Issue 3 Plant Varieties Regime found no Tiriti breach
The Wai 2522 Tribunal’s report on the plant varieties issue came out in May. Te Tiriti was again reduced to court-derived Treaty principles: the Tribunal said Crown engagement “was in good faith and reasonable in the circumstances” and Cabinet’s legislative proposal went beyond what the Wai-262 report required in balancing kaitiaki interests with other interests. The policy outcomes were not “so deficient” that they should be delayed pending the completion of Te Pae Tawhiti. The Tribunal acknowledged that Māori were frustrated that Māori perspectives were always at the margins and reactive to Crown agendas and timeframes, but it said progress can be incremental and “partial progress is still progress”. Despite that finding, New Zealand missed the three-years deadline in the CPTPP because the implementing legislation moved slowly through Parliament, Māori submissions were highly critical of an approach that was limited by the TPPA’s requirements, and Te Pae Tahiwiti to implement Wai-262 remained stalled.
The Wai 2522 Mediation on issues of Engagement and Secrecy results in Agreement to establish Ngā Toki Whakarururanga
The Crown and Wai-2522 claimants agreed in July 2020 to take Issues 1 (engagement) and Issue 2 (secrecy) to mediation. That took place on 1-2 October. The Mediation Agreement sets out the separate kaupapa of the claimants and of the Crown. It provides for the establishment of Ngā Toki Whakarururanga as a Māori entity accountable to Māori that will act to promote and protect Māori rights, interests, duties and responsibilities. Ngā Toki Whakarururanga will be resourced by MFAT, which will ensure it has meaningful influence over trade policy at all stages of negotiations.
The Tribunal heard the final issue in Wai 2522 claim on rules on “electronic commerce” (digital) in the TPPA/CPTPP
In November 2020, the Waitangi Tribunal heard the final issues in the Wai 2522 inquiry on e-commerce and data sovereignty: “what, if any, aspects of the electronic commerce chapter of the CPTPP were inconsistent with the Crown’s obligations under Te Tiriti/the Treaty?”
NZ UK FTA negotiations were formally launched
Steering Group established to initiate establishment of Ngā Toki Whakarururanga
The claimants authorised a Steering Group to initiate the establishment of Ngā Toki Whakarururanga. Two claimants, Pita Tipene (Ngāti Hine) and Moana Maniapoto (Tūwharetoa), were appointed as co-convenors. A Memorandum of Understanding with MFAT provided funding for an establishment process that was expected to take six months, but was delayed by a combination of Covid-19 and MFAT’s demands for input into their ongoing negotiations.
Crown continues FTA negotiations and seeks input from Establishment Group
At the same time as the co-convenors were trying to create a new Tiriti-based relationship with the Crown, MFAT was demanding input into many ongoing negotiations. In the spirit of manaakitanga, whanaungatanga and kotahitanga the Establishment Group proactively shared their analysis and information with other interested Māori entities, but not all other entities were willing to reciprocate.
Co-Convenors of the Ngā Toki Whakarururanga Establishment Group signed an information sharing protocol with MFAT
An information sharing protocol was agreed with MFAT in September 2021. This provides for monthly calls between the Co-Convenors (Moana Maniapoto and Pita Tipene) and MFAT’s Deputy Secretary for Trade and Economics Vangelis Vitalis, who was the co-signatory of the Mediation Agreement, supported by briefings from the technical advisers to each. Where necessary, the Establishment Group’s technical advisers (Maui Solomon, Annette Sykes and Jane Kelsey) may agree to confidentiality protocols to enable access to draft texts for the purpose of providing briefings to the co-convenors and input to the Crown.
MFAT agreed to seek disclosure of texts from countries with which it is negotiating.
Working Party to establish Ngā Toki Whakarururanga meets to consider the proposal for the entity
A Working Party to establish Ngā Toki Whakarururanga that was drawn from a wide range of affected Māori entities and communities met in Auckland on 18 July to develop the kaupapa and framework for the new entity. Several “pods” were formed to develop ideas that were then pooled to provide the basis for a proposal that was discussed and supported at a zoom hui of Working Party members on 18 December.
NZ hosted APEC with a Māori agenda. The interim Ngā Toki Whakarururanga rōpū developed a Tiriti-based MoU, Te Rangitukupu to guide the process
New Zealand was the host for Asia Pacific Economic Cooperation (APEC) in 2021. All meetings were virtual because of Covid-19. MFAT established a “Māori Success 2021” agenda before Ngā Toki Whakarururanga became involved in mid-2001 and insisted on a Tiriti-based Memorandum of Understanding Te Rangitukupu that was based on the Mediation Agreement kaupapa. Traci Houpapa from FoMA and Pita Tipene from Ngā Toki Whakarururanga chaired the oversight rōpū also called Te Rangitukupu.
Ngā Toki Whakarururanga leads Māori input drafting an Indigenous Peoples Economic and Trade Cooperation Arrangement alongside APEC
A Ringa Raupa Rōpū was established to developed an Indigenous Peoples Economic and Trade Cooperation Arrangement as a side deal among a small number of APEC members. Ngā Toki Whakarururanga led the co-design with MFAT. The political conditions of APEC produced a much diluted outcome and it remains to be seen what benefits can be achieved over the next few years in cooperation with iwi taketake from other participating countries (currently Canada, Australia, Taiwan).
Tiriti o Waitangi Audit template developed to assess Ngā Toki Whakarururanga compliance with te Tiriti and its kaupapa
A “pod” developed a Tiriti o Waitangi Audit template, based on the four articles of Te Tiriti, to ensure that Nga Toki Whakarururanga complies with its kaupapa and responsibilities under the Mediation Agreement. This template was adapted to audit the Tiriti-compliance of MFAT’s APEC 2021 processes and outcomes. The report was delivered in June 2022.
MFAT established a Māori Reference Group for the UK FTA
MFAT established a Māori Reference Group on the UK FTA that comprised FOMA, Iwi Chairs, Te Taumata and, from its 2nd meeting, Ngā Toki Whakarururanga. The Group met virtually four times. There was a common position that Te Tiriti must be at the centre of the FTA and Māori must have a seat at the negotiating table. Neither happened.
Ngā Toki Whakarururanga wanted to discuss the impacts for Māori and Te Tiriti of the entire FTA, including intellectual property, environment and digital trade, but the Crown effectively restricted discussions to a proposed Indigenous Trade chapter. Ngā Toki Whakarururanga drafted an alternative to MFAT’s proposal for that chapter to reflect Tiriti-based equivalence of Māori and the British/NZ Crown, advance and protect Māori interests, and empower Māori at the decision making table. All the other entities endorsed this as a gold standard, including to Ministers, but this text was not reflected in the final version of the Māori Trade and Economic Cooperation chapter in the FTA.
Technical advisers to the Ngā Toki Whakarururanga Establishment Group signed a confidentiality agreement that allowed them to see an edited version of the UK FTA text near the end of the negotiations. By that time most of their input was too late to have any significant influence on the negotiations, even if MFAT had been willing to adopt it.
Ngā Toki Whakarururanga prepared an interim Tiriti o Waitangi Assessment of the “Agreement in Principle” for the UK NZ FTA
An Agreement in Principle between the United Kingdom Crown and New Zealand Crown was announced in October 2021. That summary reflected both governments’ views. Ngā Toki Whakarururanga prepared an Interim Tiriti assessment of the agreement against the four articles of Te Tiriti and the claimants’ Mediation Agreement kaupapa. That was circulated among Māori entities in the MFAT-established Māori Reference Group and claimants.
Wai 2522 Tribunal reports on electronic commerce (digital) finds CPTPP breached the Crown’s obligations of active protection of mātauranga Māori
The Waitangi Tribunal’s final report on Wai 2522 in November 2021 found the TPPA/CPTPP chapter on electronic commerce breached the Crown’s obligation of active protection for mātauranga Māori. The establishment group of Ngā Toki Whakarururanga prepared a summary of the implications of that report for trade policy and negotiations in ppt format and circulated that to the claimants and other interested Māori.
The core issue was Māori data sovereignty and Māori data governance, which are also linked to the Wai 262 claim. The Tribunal said that concerns about mātauranga captured in digital format are fundamental to Māori identity, such as whakapapa, mana and mauri. It found a material risk that the TPPA/CPTPP rules could limit the Crown’s policy space and weaken or chill its political commitment to its domestic Tiriti/Treaty obligations, including giving effect to Māori data sovereignty and Māori data governance. The Crown’s reliance on protections, including the Treaty of Waitangi Exception, was not sufficient to provide active protection from these risks. But, despite finding the Crown breached its Tiriti obligations, the Tribunal declined to make recommendations and relied on processes already underway through the Mediation Agreement.
The Tribunal warns: CPTPP e-commerce provisions could set a precedent and make them more difficult to change in future FTAs
The Tribunal’s report raised major issues for negotiations, especially the UK FTA and the EU FTA, whose provisions were expected to mirror the TPPA/CPTPP and repeat the breach of the Crown’s obligations. Ngā Toki Whakarururanga took these up with Ministers and raised concerns in an Information Memorandum to the Waitangi Tribunal. There was also a problem of what to do with existing agreements, such as the TPPA/CPTPP.
NZ UK FTA was signed with no new protections for Māori and te Tiriti
The NZ UK FTA was signed on 28 February in London and the 1700 page text was made public. Ngā Toki Whakarururanga also issued a media release, did interviews, published articles and generated debate in the Māori and the general media.
The digital chapter was the same as CPTPP, with promises of an early review that has no guaranteed outcome. The IP chapter remains a major problem for Q=Wai 262 and Te Pae Tawhiti. A Māori Trade and Economic Cooperation chapter was included that had lots of rhetoric but no requirements for action. There were other problems, but a positive that there was no direct investor enforcement of its rules (ISDS).
Ngā Toki Whakarururanga prepared a Tiriti assessment of the UK NZ FTA
Ngā Toki Whakarururanga prepared a Tiriti-based Assessment of the FTA against the four articles of Te Tiriti o Waitangi and the kaupapa of Ngā Toki Whakarururanga: “Mana whakahaere in the global domain is informed by Rangatiratanga and Kāwanatanga working together in a mana-enhancing relationship of equals consistent with Te Tiriti o Waitangi and He Whakaputanga o Te Rangatiranga on Nu Tireni.” The comprehensive assessment called the Crown in both the UK and NZ to account for its failure to honour its obligations under Te Tiriti o Waitangi in the FTA and for ongoing breaches, including those affecting Wai 262 and digital trade.
The Tiriti assessment and summaries in 7 ppt modules (Overview; Te Tiriti and Rangatiratanga; Māori trade and economic cooperation chapter; Mātauranga Māori, Wai 262 and Te Pae Tawhiti; Mātauranga Māori, data and digital trade; Māori exporters, kaimahi and wāhine Māori; and Te Taiao) were circulated to claimants, Māori networks, Ministers, Māori MPs, and as a submission to the select committee. Ministers, the UK High Commissioner and the Māori Labour caucus were invited to discuss the Tiriti assessment, but only the Caucus agreed to do so.
UK NZ FTA text tabled in Parliament, submissions made based on Tiriti assessment
The FTA and the Crown’s National Interest Analysis prepared by MFAT was tabled in Parliament on 11 February. The select committee gave people 10 days to table submissions and 10 minutes to speak to them. Maui Solomon presented the Tiriti assessment as Ngā Toki Whakarururanga’s submission at the select committee.
Trade Minister continues to claim Māori rights fully protected in UK FTA
Trade Minister Damien O’Connor said these criticisms were “not unexpected”, that Māori leadership groups had been widely consulted and generally endorsed what the FTA achieved, and he was “absolutely” confident the UK trade agreement fully upheld the Crown’s Treaty of Waitangi obligations, even though it repeated the CPTPP e-commerce breaches and the Treaty of Waitangi Exception was unchanged. The government was still considering the Wai 2522 Tribunal’s recommendations, including whether to review the Treaty Exception.
Tiriti Audit of APEC 2021 designed by Ngā Toki Whakarururanga shows MFAT needs to up its game
Te Rangitūkupu, the MoU for APEC 2021, said there should be a Tiriti audit based on the template developed by Ngā Toki Whakarururanga. That report was completed in June and identified many areas for MFAT to improve, in particular by establishing an ongoing Tiriti-based relationship rather than a project based approach to each MFAT activity, with a properly resourced independent entity.
Ngā Toki Whakarururanga technical experts provided input on the draft EU FTA text
Ngā Toki Whakarururanga technical experts received the EU NZ draft text just before Christmas and provided input over the following weeks that sought to ensure effective protection and promotion of Māori rights, interests, duties and responsibilities under He Whakaputanga me Te Tiriti o Waitangi.
NZ EU FTA was concluded with some improvements, based on input from Ngā Toki Whakarururanga establishment group, but is still not Tiriti-compliant
The FTA with the EU was concluded in June. Some parts relating to digital provided some better protections for Māori, but there was no improvement with other matters like Wai 262 and Intellectual Property and no change to the Treaty Exception. A Māori Trade and Economic Cooperation chapter was basically the same as the UK FTA, with lots of rhetoric and no requirements for action.