Briefing Paper on Digital Sovereignty and Governance

Ngā Toki Whakarururanga brings a Te Tiriti o Waitangi perspective to the trade policy space, which requires the Government of Aotearoa New Zealand (the Crown) to uphold and actively protect Māori rights to exercise authority over our lands, waters, resources and all taonga, including data and the digital ecosystem, as well as Māori laws, beliefs and philosophies.

• Knowledge/information/data – mātauranga – is fundamental to Māori being. It is a “taonga” over which Māori exercise rangatiratanga or supreme authority under Te Tiriti o Waitangi.
• Māori have rights, interests, duties and responsibilities to preserve, protect and continue to develop our mātauranga (knowledge – in all its forms) and ensure it is used for the collective good.
• United Nations Rapporteurs on Health and on Privacy have highlighted the need to develop Indigenous Peoples’ rights and state parties’ commitments in The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Special Rapporteur on Privacy in his report on Big Data and the right to privacy in 2017:

encourages Governments and corporations to recognise the inherent sovereignty of
indigenous peoples over data about them or collected from them, and which pertain to
indigenous peoples’ knowledge systems, customs or territories.

Because mātauranga Māori is at the heart of Māori identity it is not an interest or
consideration that is readily amenable to some form of balancing exercise when set against
other trade objectives, or the interests of other citizens or sectors…

…We are not convinced that reliance on exceptions and exclusions [which includes the Treaty
of Waitangi Exception] is sufficient to meet the active protection standard…

We are working with the Government of Aotearoa NZ to remedy these breaches in the CPTPP
and DEPA, and prevent them recurring in future trade agreements, including IPEF.

• Closure of policy space and policy options to meet state obligations under Te Tiriti o Waitangi and UNDRIP.
• Rules on data that entrench the control of Big Tech over the digital ecosystem, including a near- monopoly on the raw material of data and the ability to set the terms for participation by Indigenous Peoples and businesses in the digital domain.
• Secrecy of source codes and algorithms that perpetuate racism, profiling and other bias and protect violators from scrutiny and accountability.
• Ability of offshore digital operators to circumvent domestic jurisdiction and effective enforcement.
• “Transparency” rules that empower Big Tech, and the US, lobbies to seek changes to existing laws, and to prevent the adoption of new laws, they don’t like, such as indigenous data and governance regimes.

• Ensure that Parties retain their domestic policy space, including through a comprehensive carve=out to protect the rights, interests, responsibilities and duties of Indigenous Peoples. Aotearoa NZ has proposed such a carveout in the Joint Statement Initiative on E-commerce being negotiated by some members of the WTO:

1. Nothing in this Agreement shall preclude a Party/Member from adopting or maintaining
measures it deems necessary to protect or promote rights, interests, duties, and
responsibilities of indigenous peoples in its territory, including in fulfilment of its obligations
under its legal, constitutional or Treaty arrangements with those indigenous peoples.

2. The Parties/Members agree that the interpretation of a Party’s/Member’s legal,
constitutional or Treaty arrangements with indigenous people in its territory, including as to
the nature of its rights and obligations under it, shall not be subject to the dispute settlement
provisions in this agreement.

• Ensure that governments can require that data, including financial data and data governed by telecommunications rules, is held within the source country to enable the effective governance of the digital eco-system, including a regime of indigenous data sovereignty and digital governance.
• Ensure that any rules, such as those on source codes and algorithms and presence of cross- border suppliers of digital and digitalised services, enable effective and proactive identification of human rights breaches, legal action, and enforcement of decisions, by public agencies and bypersons who are adversely affected
• Require effective protection of collective privacy, including of metadata, not just providing a regime for the privacy of an individual’s personal information.
• Provide positive incentives for Indigenous Peoples, and Indigenous small businesses to develop digital systems and digital products based on Indigenous values, including through public procurement and local preferences, and reject any rules that constrain those developments.
• Reject proposals in IPEF that empower Big Tech corporations, or foreign states, to seek changes to existing laws or to lobby against new laws and policies that provide effective protections for Indigenous peoples.