The Great Brown Hope: the Treaty exception in the TPP

The Treaty of Waitangi exception that is being touted by the Government and parroted by corporate Māori as a victory for which we can bow and scrape in thanks, is not all they would have you believe. Indeed, it is even worse on Twitter, where Tories are demanding acts of worship for including ‘Treaty of Waitangi’ and ‘Maori’ in the TPP. However, I will admit it does sound like an impressive achievement given the absence of other indigneous people from the TPP.

So what is actually in this Treaty exception? Here is the text from Article 29.6 of Chapter 29 of the TPP:

1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.
2.The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 28 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party’s rights under this Agreement.

The key to the government’s smoke and mirrors here is that you will be so overwhelmed that us little old Māori people got mentioned in this big important international agreement. The truth behind the curtain is not so clear cut.

Firstly, it is indeed a sign of how serious our government takes the Treaty relationship that this article is in the TPP. That is laudable and consistent with the work of governments since 1975 to find a path forward that acknowledges Māori as a partner in building our nation. This acknowledgement is also in every other Free Trade Agreement that we have signed.

The inclusion of Te Tiriti and explicit mention of Māori means that tāngata whenua have a voice in the interpretation and implementation of the TPP both here and at an international level, something that other indigenous peoples can only consider with wide-eyed wonder. This is an achievement, and I have no doubt Tim Groser and his officials worked very hard to get it included. At the outset, I can imagine many negotiators must have been bewildered at the suggestion.

But this article is not a watertight exception in any sense. Paragraph One of the article starts with a long caveat:

“Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment”

It then affirms the right of the government to interpret and fulfill it’s obligations under te Tiriti. This caveat can essentially be summed up as “yes, New Zealand, you can continue making Treaty policy; until it restricts a corporation or another state’s trade.” This is nonsensical.

For example, if Coca Cola was bottling water from a spring in Aotearoa New Zealand, and an iwi was found to have a special relationship with that spring and wished to co-manage the water from said spring, the legislation could be considered a “restriction on trade,” particularly if the iwi had previously expressed dissatisfaction with the amount of water being removed from the spring. Co-management and co-governance of natural resources and environmental standards and restrictions have been central to Treaty settlements, and are exactly the kind of resource that corporations want to use without restriction. Think water, mining, drilling, fishing: all resources currently being exploited by corporations who helped write the TPP.

Paragraph Two is an oxymoron. The first sentence says that Te Tiriti will not be subject to the disputes resolution process of the TPP. The third sentence says that Te Tiriti will be subject to the disputes resolution process if a party to the agreement has a dispute. So Te Tiriti will not be subject to the TPP disputes resolution process; until someone has a dispute. What could possibly go wrong?

The Treaty exception is unworkable in an instance of a serious dispute. It will protect absolutely none of our gains as tāngata whenua because it is written in the way that was necessary to get all the nation states and 605 corporations to sign off on the wording. I hope the Federation of Māori Authorities and the Iwi Chairs can all swim, because Māori have been gifted a paper waka to traverse a surging capitalist river.

[Header image saved from]