In 2015, nine groups took a claim to the Waitangi Tribunal against the Crown’s engagement process for the TPPA. Has the NZ-UK FTA process and outcome been any better for Māori? (Photo: Jane Kelsey)

New Zealand’s free trade agreement with the United Kingdom, signed at the end of February this year, has been hailed as groundbreaking for Māori. And, yes, there were some “Māori-specific wins”, writes Moana Maniapoto, but did they outweigh the risks and lack of protections for Māori? She takes a look at the small print.

 

Break out the Bolly, darling. The free trade agreement between the United Kingdom and New Zealand has been signed. It’s described as “a game changer” and “ground-breaking” for Māori by the prime minister and others, so let’s take a minute to celebrate the Māori-specific wins in this agreement before we drill down a bit more on those.

First, this agreement between New Zealand and the UK acknowledges that “Te Tiriti is a foundational document of constitutional importance.” Good start. 

Second, the agreement includes a Māori Economic Trade and Co-operation chapter. That’s a first — and let’s face it, it’s always nice to get a mention. 

Third, the environment chapter mentions “kaitiakitanga” and “mauri”. Let’s go!

Fourth, New Zealand and the UK “acknowledge” the significance of Ka Mate to Ngāti Toa Rangatira. (Heck, that’s more than that last bunch of protesters in Wellington did.) 

Fifth, there’s more export opportunities for Māori.

Then there was the process itself. There was a bit of softening. The way it works with these big free-trade agreements is that Crown negotiators do the work on behalf of “all New Zealanders” but we all only get to see what’s in it once the agreement is signed. 

Remember the TPPA? Back in 2015, nine claimant groups complained to the Waitangi Tribunal that the obligation of the Crown is more than telling us not to worry, that they have our backs. I was part of the Wai 2522 group. Two of the issues in that claim were around “engagement” and “secrecy”. How on earth could the Crown make informed decisions without us?

Claimants and the Crown went into mediation in October last year. It was hard, but we did reach a landmark agreed outcome to set up a new entity, Ngā Toki Whakarururanga, that would interface with the Ministry of Foreign Affairs and Trade (MFAT) to apply a Tiriti-based approach to trade policy and trade negotiations at every step of the way — and ensure genuine influence on the outcome. Something that’s been missing to date. 

It’s early days yet, but an exciting work in progress. 

MFAT invited Ngā Toki to be part of a Māori reference group formed for the UK FTA late in 2021. Negotiations had been informally in play since 2017. The reference group included entities with a strong trade focus, such as Iwi Chairs, FOMA and Te Taumata. 

In a piece for Newsroom, Chris Karamea Insley, the chair of Te Taumata, said: “It felt like for the first time ever, Māori were actually part of the discussion . . . we were actually directly involved, got access to all sorts of information, were able to comment on every single piece of text in a way that had never happened before.” 

That wasn’t quite our experience as claimants. 

New Zealand’s negotiations with the UK were bound by confidentiality. Lots of sensitivities. We did get to see some stuff that the UK allowed MFAT to show us, but, of course, “commenting” on something doesn’t necessarily translate into action or tangible results, and by then most of it was already agreed. 

The proof of the pudding is always in the small print. Yes, the text “notes” that the UK was an original signatory to te Tiriti/the Treaty but that it passed on all its obligations to New Zealand. And it “acknowledges” that te Tiriti/the Treaty is a “foundational document of constitutional importance to New Zealand.” But, nothing in the agreement gives effect to those obligations. 

The Māori Trade chapter is all about co-operation. New Zealand and the UK “may facilitate” three co-operation activities: collaborating to enhance Māori-owned enterprises’ ability to benefit from opportunities in the FTA; developing links between the UK and Māori-owned enterprises (which may include commercial roadshows); and continuing to support science, research and innovation links. 

“May” is not “shall,” and “facilitate” is not “conduct”. Words matter. 

And New Zealand, in the spirit of te Tiriti, “may” invite Māori to be a part of these co-operation activities. The word “may” does pop up quite a lot. 

A bigger red flag is there is no obligation on the part of New Zealand or the UK to do or fund anything specific. Any co-operation is subject to agreement and availability of resources. At the end of the day, the UK doesn’t have to do anything anyway, because the chapter isn’t enforceable. 

Hang on, I forgot to mention that the chapter does have another wee clawback. It explicitly protects the UK intellectual property (IP) laws from any hint of challenge, saying that nothing in the chapter — like reference to genetic resources or traditional knowledge — gives rise to any obligations relating to IP.

In December 2021, the UK’s IP office, using some pretty dodgy culturally inappropriate legal tests, denied Māori a trademark on mānuka honey. Despite the fact that “mānuka” is a Māori word, not an Australian word, the UK office backed Australia’s claim that it also produces “mānuka honey”. The UK FTA will cement in those legal tests.

So where does that leave Ka Mate, Ka Mate? 

A side letter records New Zealand’s (but not the UK’s) recognition of the historical importance of “Haka Ka Mate”. But in terms of action, New Zealand and the UK only agree to jointly “endeavour” to identify “appropriate” means to “advance” recognition and protection of the haka. Read between the lines. No promise of any meaningful and effective solution to its misuse. 

And the environment chapter? 

It recognises the importance of engaging with Māori but does nothing to empower Māori or to positively protect taonga consistent with te Tiriti. Its sections on climate change, agriculture, fisheries and forestry are really business as usual. 

Other chapters pose real risks to te taiao, for example, intellectual property (all the Wai 262 issues) or services and investment (water, mining, land). There are no real protections for misappropriation of Māori names, images or mātauranga under this agreement. It’s all window dressing. Situation normal.

Digital rights are a biggie. 

The Waitangi Tribunal report on the TPPA found that the main digital trade rules in the TPPA (which are the same as those in the UK FTA) “breached the Crown’s obligations of active protection and caused prejudice to Māori Tiriti rights.”

Digital is a new and dynamic space. There are almost no laws that limit tech companies. New policy and laws to protect our rights are just starting to be discussed. The FTA rules could prevent them happening. 

No limits on tech companies might sound good to Māori startups looking for a foot in the door. But the reality is that it’s the big boys who run that space: Facebook, Netflix, Amazon, health insurers, and so on. They can pretty much do what they like. 

For example, they can sell your data to advertisers who can then use it to target Māori with products relating to fast food or smoking, stuff they might not target Pākehā with. Health insurers could decide who they will insure for what, based on algorithms they develop about the greater health risks among Māori. 

But the risks go much deeper. 

At the heart of the digital trade issue explored in that Waitangi Tribunal report is the question of governance and control of Māori data. The Tribunal said that involves “matters fundamental to Māori identity, such as whakapapa, mana, mauri and mātauranga”. The Crown must actively protect Māori rights, interests and responsibilities, and has failed to do so.

The Tribunal says protection should not be traded off against other goals “because mātauranga Māori is at the heart of Māori identity.” It says “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.” 

But it did. 

According to the NZ-UK FTA, UK tech firms can mine, hold, transfer and store New Zealand data anywhere they want. They can also beam services into New Zealand without being here and without being easily subject to New Zealand law. That activity is subject to some protections, but the Tribunal said they are inadequate.

“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,” the Tribunal wrote in its report.

And as for those commercial gains?

Te Taumata celebrated a win of “$13 million of additional GDP for the Māori economy.” Independent economist John Ballingall, of Sense Partners, who was commissioned by Te Taumata to provide an analysis of the agreement, describes it as an “impressive achievement by the New Zealand government on behalf of Māori.” 

Now I don’t want to be a party-pooper but $13 million is only around eight houses in Auckland on a good day. Is it really that impressive given what’s at risk? 

So, as the celebrations wind down in London and Wellington, let’s take stock. 

Māori are up against a big machine that’s had its way for far too long, and that is itself committed to getting as many wins as possible as it goes up against even bigger machines. 

In the great balancing act of international negotiations, Tiriti obligations have historically been collateral damage. And Māori, who have for so long been invisible, have been expected to see any incremental gain as a step forward. 

In Ngā Toki, we aim to disrupt that process in a positive, imaginative and Tiriti-compliant way. 

And in Nanaia Mahuta, we have a foreign affairs minister who understands and values the role Ngā Toki has been playing on behalf of “TPPA claimants . . . concerned at the protection of Treaty of Waitangi interests in things like mātauranga Māori when it comes up against international agreements on intellectual property enforcement.”

There are signs that the Crown is open to doing things differently. Some Crown officials are trying hard to work alongside Māori. They see that relationship as a win-win. 

Even better, Māori are organising ourselves, thinking outside the box. That’s been our role as Ngā Toki: to imagine a new way of doing things. Not easy. But you have to think positive and get creative. 

Imagine if the Crown shared power — with Māori having, as of right, an independent seat or three at the negotiating table. 

Given the number of Treaty negotiators who have spent years doing deals within a heavily pre-determining and Crown-prescribed process, there’s no shortage of talent. 

We could have proactive and meaningful influence at all stages of trade policy instead of popping up at the end as outsiders to offer comment on a deal that’s almost done and dusted.

Imagine if Māori collectively agreed on bottom line positions for digital rights, environment, intellectual property and so on, and then stuck to them. That would be proactive instead of reactive. 

Imagine if we kept building on the notion of recognising te Tiriti in any trade agreement, but set the bar ourselves to give it real teeth? 

Imagine if the Crown got its act together to ensure our domestic laws were reworked to embed these positions for consistency? 

Imagine if a Tiriti audit tool was put into place to check that any proposed domestic and foreign policy is Tiriti-compliant every step of the way, from go to whoa?

Wouldn’t that be a proactive way to ensure that trade policy and agreements geniunely reflect the Tiriti relationship to redress and not worsen the challenges confronting Māori? 

And here’s the kicker. 

Wouldn’t having Māori on the negotiating team add huge value to Team Aotearoa New Zealand, especially with countries actively seeking trade relationships between Indigenous Peoples? Wouldn’t it also be consistent with Matike Mai, He Puapua and help elevate the Crown’s understanding of He Whakaputanga me Te Tiriti o Waitangi through a meaningful and genuine sharing of power? 

Wouldn’t that be something?

Moana Maniapoto is one of the convenors of Ngā Toki Whakarururanga. She is a singer-songwriter, writer, broadcaster and documentary maker, and the host of the award-winning current affairs programme Te Ao with Moana, which screens on Māori TV.

© E-Tangata, 2022

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