Lawyer says clause in trade deal far from watertight as Crown claims.

Maori lawyer Annette Sykes has told the Waitangi Tribunal a clause to protect the Treaty of Waitangi under the Trans-Pacific Partnership does not offer the protection it appears to.

Ms Sykes was one of several lawyers giving submissions to the tribunal's hearing on the trade deal on behalf of Maori claimants yesterday.


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One of the main concerns was a clause in the TPP allowing the Government to give preferential treatment to Maori over foreign investors under its Treaty obligations.

Ms Sykes said the Crown had argued it was a "watertight protection" of Maori interests but she believed it needed to be revised to provide the comprehensive protection the Crown claimed it had.

"We do not accept that the Treaty exemption is the protection the Crown claims it to be," she said.

The claimants' case also included evidence from Dr Papaarangi Reid, who said any extra costs and possible delays in getting access to new medicines would disproportionately affect Maori.

Claimants in the Waitangi Tribunal hearing into the TPPA. Photo / Mark Mitchell
Claimants in the Waitangi Tribunal hearing into the TPPA. Photo / Mark Mitchell

She was also concerned the TPP would affect the Government's ability to legislate for public health reasons.

Although anti-tobacco rules were exempted from a legal challenge by other countries or investors in the TPP, there was nothing to protect other public health measures a Government might want to take, such as on obesity.

The claimants have also criticised the secrecy of negotiations, saying the Government did not have "unbridled" rights to act on behalf of Maori without involving them.

The current roadshow hui were dismissed as information hui rather than genuine efforts to get Maori involved.


The claimants' expert witness, Jane Kelsey, said there were loopholes for challenges to the Treaty exemption by foreign investors and it was unclear whether it covered protection from action by foreign corporates or just state to state disputes. Ms Kelsey said although there were investor-state dispute (ISD) provisions in some other trade deals, few countries were as litigious as the United States and they were more likely to be used under the TPP.

Bryce Lyall, speaking for Ngapuhi claimants, said the iwi was concerned the Crown's ability to provide redress would be compromised.

The claimants saw the Crown's role as the sole arbiter on this as a weakness.

The tribunal will hear from Ministry of Foreign Affairs and Trade chief negotiator David Walker tomorrow.


If the TPP has already been signed can it make any difference?

The tribunal's rulings are not binding on the Government. The question before it is what Maori input might now be possible to ensure the trade agreement complies with the Treaty of Waitangi before the deal is ratified.

Who are the claimants?

A number of Maori, including Moana Maniapoto, Papaarangi Reid, Moana Jackson, Rikirangi Gage, Angeline Greensill and Hone Harawira. Iwi include Ngapuhi, Ngati Hine and Ngati Kahu.

Why is it so late?

The claimants lodged a request for an urgent hearing last June before the TPP was agreed on. But in August the tribunal said TPP talks were at the end stage and there was not enough time to hold the urgent hearing.