In comedy they say "timing is everything". There isn't a whole lot that is funny about the Trans Pacific Partnership agreement, but holding the signing in Auckland in the week leading up to Waitangi Day does show an incredible sense of timing.

Waitangi Day of course celebrates the signing of a treaty that permitted the Crown to share in the exercise of public power in Aotearoa and guaranteed a range of Maori rights.

The TPP places limits on both the Government's regulatory ability and the recognition of Maori rights.

Actually, now that I think about it, maybe there is some comedy to be found in all of this - that is, if you like your comedy very, very black.


In recent weeks, I've been involved in the public discussion around the TPP and its effects on Maori rights. I co-authored a paper on this topic. Our view is that the TPP represents a significant impediment to the recognition of rights under the Treaty of Waitangi.

While lobbyists and the Government have dismissed these concerns by pointing to the Treaty of Waitangi exception clause that is included in the TPP, there are technical reasons why I think the TPP does impose an additional barrier to developing Treaty-consistent law and policy, notwithstanding the exception clause.

But even if you don't feel you need the technical detail about Maori rights and the TPP, this is an instance where the way Treaty rights have been dealt with is illustrative of broader issues that ought to be of direct concern to all New Zealanders.

The principles of the Treaty, supported by the UN Declaration on the Rights of Indigenous Peoples, direct that where Maori interests are at stake, Maori ought to be consulted about how their rights will be affected and protected.

In part, this is just good practice for making fully informed decisions. This has not happened in the case of the TPP.

In fact, the whole of the TPP has been negotiated without meaningful discussion with the New Zealand public. The Government's approach has been to tell us not to worry about it because they'll decide what is important.

2 Feb, 2016 11:30am
3 minutes to read

In the case of Maori rights, the outcome is the Treaty of Waitangi exception clause. The text of the Treaty exception is virtually the same as that used in free trade agreements for years and trade lobbyists argue that because there have been no challenges from foreign parties related to these exception clauses, things must be working perfectly.

But the concerns around Treaty rights are not that the TPP expressly prohibits the Government from fulfilling its Treaty obligations, but rather that it creates incentives for the Government to avoid taking any action which might potentially be open to challenge.

Given that many areas of New Zealand law and policy have been found to be inconsistent with Treaty principles, one might have thought the Government would be virtually continuously needing to call on these Treaty exceptions as it strives to correct this.

And yet that doesn't seem to have been the case. I am not aware that the New Zealand Government has ever invoked a Treaty exception clause.

That is the key weakness of an exception clause like the one in the TPP. It relies on the New Zealand Government being willing to act outside of the general rules of the agreement in order to protect Treaty rights.

Governments tend to be reluctant to do this because they do not want other parties to make use of exceptions that may be applicable to them.

Despite the existence of the Treaty exception, the TPP is therefore likely to have a chilling effect on the Government's will to comply with its Treaty obligations.

This is of real concern because the TPP covers areas of law and policy such as intellectual property rights, environmental regulation and others in which Maori have long-standing concerns about the recognition of Treaty rights.

Neither the process nor the substance of the TPP text is satisfactory. Hosting the signing just two days before Waitangi Day only serves to underline what a tasteless joke this is.

Dr Carwyn Jones (Ngati Kahungunu and Te Aitanga-a-Mahaki) is a senior lecturer at Victoria University's faculty of law.
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