How digital trade rules breach Te Tiriti o Waitangi
Rangatiratanga, and kaitiakitanga of taonga, including whakapapa, require systems of Māori data sovereignty and Māori data governance, and effective protections against abuse, which aren’t in place in Aotearoa (or most places around the world).
The Waitangi Tribunal’s Report in November 2021 on the TPPA (Wai 2522) found the e-commerce (digital trade) rules in the TPPA (aka CPTPP) breached the Crown’s obligations of active protection
of Mātauranga Māori and caused prejudice to Tiriti rights, interests and responsibilities by restricting the adoption of Māori systems of governance and protections in the future.
What the tribunal said about Tiriti rights
at the heart of the e-commerce issue explored in this report is the question of governance and control of Māori data which involves “matters fundamental to Māori identity, such as whakapapa, mana, mauri and mātauranga …
…Perhaps the most fundamental of te Tiriti/the Treaty guarantees to Māori is of the right to cultural continuity.
This is nothing less than the right to continue to organise and live in Aotearoa New Zealand as Māori in accordance with tikanga Māori.(180-2)
at the heart of the e-commerce issue explored in this report is the question of governance and control of Māori data which involves “matters fundamental to Māori identity, such as whakapapa, mana, mauri and mātauranga …
…Perhaps the most fundamental of te Tiriti/the Treaty guarantees to Māori is of the right to cultural continuity.
This is nothing less than the right to continue to organise and live in Aotearoa New Zealand as Māori in accordance with tikanga Māori.(180-2)
Protection of Mātauranga Māori not to be traded off against other goals
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.”
“It is certainly not a matter the Crown can or should decide unilaterally. …
However hard it may be, the question of the appropriate level of protection for
mātauranga Māori in international trade agreements, and the governance of the
digital domain, is first and foremost a matter for dialogue between te Tiriti/the
Treaty partners.”(174)
The TPPA’s protections were inadequate and prejudiced Māori rights
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 conclude that there is a material risk of regulatory chill and risk arising from the precedent and ratchet effect of the CPTPP ecommerce provisions.
The Crown failed to remedy the breach in the UK FTA
The Waitangi Tribunal hearing on e-commerce was in late 2020 when the UK FTA negotiations were already underway so, the Crown was on notice of its potential Tiriti breach.
The Tribunal’s Report came out in November 2021, making it clear that active protection of mātauranga Māori was paramount and not to be traded off against business and exporters’
interests.
But judging by the final text, that is exactly what the Crown decided to do.
What the NZ UK FTA digital trade chapter is about
The digital trade chapter 15 is not about “trade”, it’s mainly about control over data and the digital space.
Everything today is digital, but there are almost no domestic laws that limit tech companies. That might sound ”open” and “free”, and benefit Māori start-ups by having no rules. But Big Tech (Google, Facebook, Netflix, Amazon, UK banks and insurers, etc) run that space.
In the same way as the TPPA, the UK FTA’s “digital trade” rules guarantee UK tech firms can transfer and store NZ and Māori data anywhere in the world, with limited and unclear protections for other rights and concerns, which the Tribunal said do not provide effective protection for Mātauranga Māori
An early review offers little hope
he Crown must know it has breached its Tiriti obligations again. One way to fix this is to make changes to the digital trade chapter. there is a special review of the chapter in 2 years. NZ refers to the Wai 2522 Tribunal report and promises to engage Māori to ensure the review…
takes account of the continued need of New Zealand to support Māori to exercise their rights and interests, and meet its responsibilities under Te Tiriti o Waitangi/the Treaty of Waitangi” (Art 15.22.2(a))
takes account of the continued need of New Zealand to support Māori to exercise their rights and interests, and meet its responsibilities under Te Tiriti o Waitangi/the Treaty of Waitangi” (Art 15.22.2(a))
But only NZ says this – not the UK.
The breach of Te Tiriti is likely to continue
This early review is only of the digital trade chapter’s operation and implementation, it is not a review of the chapter’s rules.
The commitment is only to hold the early review, the UK doesn’t have to agree on anything.
The first review of the rules is for the whole agreement, in 7 years’ time.
Imposing new restrictions or exceptions in such reviews is almost unheard of and would require the UK to agree. This creates a really bad precedent for other agreements that will propose similar rules on data and the digital domain.