The Context
Ngā Rangatira and the Crown established He Whakaputanga/Declaration of Independence in 1835 and signed Te Tiriti o Waitangi in 1840. Māori were guaranteed ongoing control of their people, resources and lives, while the Crown was responsible for their own.
On 30 June 2022, the NZ government and the European Union (EU) concluded a free trade treaty. Only the Crown was at the negotiating table for NZ. It will be signed some time in 2023. The free trade treaty creates obligations on NZ that impact on Māori rights, interests, duties and responsibilities under Te Tiriti.
Assessing Compliance of the NZ-EU FTA with Te Tiriti o Waitangi
This Tiriti o Waitangi assessment holds kāwanatanga in Aotearoa NZ to account by measuring the EU FTA against the Crown’s obligations under the four articles of Te Tiriti o Waitangi and the kaupapa of Ngā Toki Whakarururanga in the Mediation Agreement between Māori claimants and the Crown in the Waitangi Tribunal Inquiry on the Trans-Pacific Partnership Agreement (TPPA), also known as Wai 2522.
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 o Nu Tireni.
Te Tiriti Assessment Framework
Separate assessments have been made of:
- Te Tiriti o Waitangi and Rangatiratanga
- Māori Trade and Economic Cooperation chapter
- Mātauranga Māori, data and digital trade
- Mātauranga Māori, Wai 262 and Te Pae Tawhiti
- Māori exporters, wāhine and kaimahi
- Te taiao.
The Right to Exercise Tino Rangatiratanga
Kāwanatanga denied our Rangatiratanga
There was more timely information sharing than with the UK FTA, but Kāwanatanga alone decided:
- that only the Crown should negotiate;
- what would be negotiated;
- what information would be shared on what terms;
- whether and how far to actively protect Māori rights, interests, duties and responsibilities;
- not to correct the flawed Treaty of Waitangi Exception;
- acceptable trade-offs that deny our Rangatiratanga; and
- that only Kāwanatanga should govern the arrangement.
Māori Trade and Economic Cooperation (chapter 20)
The chapter contains lots of good rhetoric, and is to be implemented in a manner consistent with Te Tiriti and tikanga, but the content is even more token than the UK FTA.
It lists four possible areas of “cooperation”.
The chapter describes that EU and NZ must agree and there is no obligation to do or fund any of those activities; it claims Māori benefit from many other chapters but ignores the known risks; it doesn’t apply to Indigenous Peoples within the EU.
The chapter says that Māori and other “relevant stakeholders” may be invited to participate in activities. There are sub-committee with responsibility for the chapter (which the UK FTA has).
Māori only have a voice through a Domestic Advisory Group and Civil Society Forum.
The conditions in the chapter are unenforceable. This explains why the EU was prepared to include the chapter in the FTA.
Mātauranga Māori, Data and Digital Trade
The Crown partly fixed digital trade rules that breach Te Tiriti
The Waitangi Tribunal found that the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) digital trade rules affected governance and control of Māori data. This involves matters fundamental to Māori identity, such as whakapapa, mana, mauri and mātauranga. These matters can’t easily be balanced against other interests, and the Crown can’t decide that on its own.
Exceptions and exclusions don’t meet the active protection standard.
The EU FTA digital rules are basically the same.
There are new exceptions that provide more protection for Māori, but some problems remain.
The digital chapter provides for a review, but no guarantee of change, and only for that chapter.
Mātauranga Māori, Wai 262 and Te Pae Tawhiti
Intellectual property rules put Wai 262 and Te Pae Tawhiti at risk
The Wai 262 claim said Western intellectual property (IP) laws are incompatible with Māori values, rights, responsibilities and legitimise the exploitation and misappropriation of taonga.
NZ needs a domestic regime to protect mātauranga Māori and taonga works, and minimum standards of protection in FTAs. But Te Pae Tawhiti is still far away from developing a Tiriti-based domestic regime.
The FTA guarantees the EU some stronger IP rights. There are no real protections for Tiriti rights from IP rules. There are no protection for the haka Ka Mate or other taonga. There are tariffs cuts for mānuka honey, but no protection for the name, just a potential future possibility.
The EU FTA will make it even harder for Te Pae Tawhiti to deliver.
Māori exporters, wāhine and kaimahi
There are minimal gains for Māori exporters, workers or women.
Gains for Māori exporters will be part of limited gains in sectors where Māori are strong, like kiwifruit, fish, wine and honey.
But these are a drop in the bucket: MFAT puts gains for all exports at NZ$1.4 billion to GDP in 15 years time – but GDP in 2021 was $250 billion.
The farming lobby described the FTA as “crap”.
There will be few new NZ jobs and kaimahi Māori may not get any that are created.
There are promises to cooperate to support wāhine Māori and small business, which could be helpful, but they are all “maybe” and unenforceable.
Te Taiao
The NZ-EU FTA doesn’t address the climate crisis
Many FTA chapters impact on te taiao (natural world) e.g., investment, services, goods, IP and labelling, but with no effective protection for Te Tiriti.
The Sustainable Development chapter recognises Māori knowledge and practices are important to conservation and biodiversity. But it provides no effective protections and there’s no role for Māori in its governance.
What Next?
This FTA will take about a year to be translated and signed.
Has Kāwanatanga met its obligations?
At first, the Waitangi Tribunal said Kāwanatanga had not honoured Rangatiratanga in the process or outcomes of the FTA. Māori rights, interests, duties and responsibilities have not been effectively protected and are further at risk.
But the Tribunal’s 2021 report on digital issues our proposals had more influence on the EU FTA than the UK FTA. Kāwanatanga took some steps to meet its Tiriti obligations on mātauranga Māori, especially for data, but not for other areas like intellectual property.
Kāwanatanga remained in total control of the process and decisions about trade-offs.
Secrecy requirements prevented participation of all affected Māori.
What needs to change for this FTA to be Tiriti compliant?
Parts of this FTA are better than earlier ones, and parts are worse.
Kāwanatanga has taken small steps to improve its process and listen to proposals. But it is still world away from meeting its obligations to negotiate a Tiriti-based trade agreement that maintains the mana of the Rangatira o Ngā Hapu o Aotearoa and Kāwanatanga.
Kāwanatanga needs to honour what our ancestors envisaged in 1835 and 1840: co-governance with independent Māori genuinely at the table with real power. Adopt an agreement that is truly transformative of the status quo.
It needs to lay down and apply a tika and pono foundation for future relations between states that are party to these agreements.