Since the TPPA, and the Waitangi Tribunal claim that followed those negotiations, the government has been taking its first steps towards becoming a genuine Tiriti partner in this space. That’s seen some Māori entities, like Ngā Toki Whakarururanga, being asked by MFAT trade negotiators to provide input on trade agreements, including on the FTA with the European Union that was signed last month.
Here, Moana Maniapoto, a co-convenor of Ngā Toki Whakarururanga — which the government promised would have “meaningful influence” over trade policy and negotiations through a Tiriti lens — reports on how that worked for the EU Free Trade Agreement, and why the agreement still fails the Tiriti test.
Two seemingly unrelated things happened last month. One of them involved Rangi McLean, who’s the chairman of the Manurewa Marae.
Rangi, who wears a full-face tā moko, discovered that an artist in Germany had helped himself to his image. He’d turned a photo of Rangi’s face into artwork and was flogging it online for 1,100 euro.
“My wairua has been trampled,”Rangi told Te Ao News.
He’s not alone there.
Oriini took to Facebook. “Someone is selling my moko. I’m not against artists, journos and whomever else using my image to promote our ao Māori and Māoritanga but selling MY moko for profit and for YOUR self-gain is damn disrespectful to say the very least.”
It was also a flashback to 20 years ago when I was threatened with a lawsuit for performing under my own name in Germany. A company had trademarked “Moana” for everything from fantasy toys and toilet paper, including anything made of paper or cardboard.
That meant pulling the big posters of my band, Moana and the Tribe, announcing our tour and our CDs within a certain time or I could be whacked with a 100,000 euro law suit.
My “crime” was that I was infringing on the legal right of a company to control the use of the name Moana in that territory.
Then we discovered that foreign companies, from Lego to Ford Motors, were pinching Māori imagery for their own profits. When I asked them why, they said they were “inspired”, found our imagery “fascinating”, and just wanted to “promote our culture.” Not that anyone here had been asked for their permission.
Rangi’s situation shows that nothing has changed in the last two decades — and won’t be changing anytime soon.
That’s because of the other thing that happened last month: the Crown signed Aotearoa New Zealand up to a free trade agreement (FTA) with the European Union.
What’s that got to do with Rangi and me? Quite a lot.
These big agreements aren’t just about trading physical things. They cover intellectual property (IP) too.
IP is based on a western mindset and system of individual ownership for whoever gets to register a thing first. The chapter in the EU FTA on intellectual property rights says Aotearoa New Zealand and the EU countries must have strong IP laws in place that work for corporations and protect their commercial rights. Unfortunately, these laws work against Indigenous peoples seeking to protect their taonga from exploitation and misuse.
Even though our trade negotiators know that Māori have special rights under Te Tiriti o Waitangi — that we exercise tino rangatiratanga over our own mātauranga, taonga and whakapapa — they couldn’t convince the EU to protect our Tiriti rights from those rules in the FTA .
It’s bad enough when these FTAs dictate what our laws have to say. But when it also guarantees that those intellectual property rights apply in EU countries, there’s no way to challenge their law. That’s unless expensive lawyers can find some loophole.
In other words, this new EU FTA locks the door on Māori being able to get new IP laws to stop the misuse of our taonga in Aotearoa and the EU.
On that point alone, the FTA doesn’t pass the Tiriti test.
How about the negotiating process itself? It was definitely an improvement on what used to be.
A key development is that the trade negotiators at the Ministry of Foreign Affairs and Trade (MFAT) have begun asking some Māori entities for input.
That’s a major outcome of the five-year Waitangi Tribunal inquiry on the Trans-Pacific Partnership Agreement (TPPA) where the government agreed that Māori would have real influence over such negotiations, consistent with the rangatiratanga-kawanatanga relationship in Te Tiriti o Waitangi.
Ngā Toki Whakarururanga, which I co-convene with Pita Tipene from Ngāti Hine, is an entity that came out of a mediation between the claimants and the trade unit of MFAT. It’s still in its establishment phase.
Our kaupapa is Tiriti-based. And the mediation agreement promises us “meaningful influence” over trade policy and these kind of negotiations, alongside MFAT, at every step of the way.
It’s challenging but potentially gamechanging. Both the foreign affairs minister Nanaia Mahuta and the lead trade negotiator are genuinely committed to developing a Tiriti-based relationship, although there are still differences about what that means.
There are practical problems, too. There are so many agreements already signed or under negotiation, so our ability to have any genuine influence is very limited. And even if the Crown puts our proposals forward, the other government has to agree.
Another frustration is that it’s still only the Crown at the actual negotiating table — and the Crown still decides what goes on the negotiating table and what is an acceptable compromise when push comes to shove.
As usual, the negotiations on the EU FTA were conducted in secret. Any Māori who knew what was in the text couldn’t tell anyone else what was in it, until the negotiations were concluded. So the government had free rein to talk up the wins. None of us were allowed to contradict their public statements based on the little we knew. It wasn’t quite the rangatiratanga-kawatananga Tiriti relationship we envisaged.
As for what’s in it for Māori?
The Crown was quite excited about a Māori Trade and Economic Cooperation chapter that it says will boost Māori businesses, including wāhine Māori and small businesses. It’s been called a “historic win” and a “major milestone”.
Given they had to get the EU (made of up 27 countries) to agree to it, and it came about very late in the game, it’s easy to see why it’s been counted as a win. But, if you drill down into into the text, which is what the Ngā Toki Whakarururanga technical team have done, you can understand why the EU agreed to it.
It turns out the EU FTA chapter is much the same as the one in the UK FTA — minus any mention of the haka Ka Mate. It’s all about “cooperation” to benefit Māori in trade. But neither the EU nor New Zealand has committed to cooperate on anything specific, let alone to fund any cooperation activities. Māori have no seat at the decision-making table to decide what might actually be done. To top it off, the chapter is unenforceable.
There’s lots of smoke and mirrors going on here. On one hand, the Māori trade cooperation chapter acknowledges that mānuka is a taonga to Māori. That’s good. But that doesn’t apply to the IP chapter. So an EU member state, like Germany, could issue a trademark on mānuka honey if the applicant satisfies Germany’s own domestic IP laws.
The devil is always in the detail.
You may be asking why Māori entities like Te Taumata (a Māori trade entity) and the National Māori Authority are cheering on the FTA as the best thing since sliced rēwena? It’s probably because New Zealand exporters in wine, fruit, honey and fish — which include many Māori-owned businesses — might be able to sell a bit more in the EU.
But the volumes are still just a drop in the bucket and there’s no guarantee what gains there will be specifically for Māori. Even the head of Federated Farmers, who usually cheerleads these agreements, described the outcome as “crap”.
Is it? Well, not totally. Let’s give credit where it’s due. There were a couple of victories which we fought hard for and which MFAT largely took on board.
You know when you log in and share on Facebook, or Twitter, or Tiktok? All your data is hoovered up by the mega Big Tech companies who use it to strengthen their grip on the internet. That’s how you end up with all those ads targeted just at you.
Well, the Waitangi Tribunal said letting Big Tech take and use your data anywhere in the world puts mātauranga Māori (Māori knowledge) at risk. The Tribunal said those (and some other) rules could be enforced against the government if it took steps to enable and protect Māori data sovereignty. Those legal risks could have a chilling effect on the Crown’s willingness to honour its Tiriti obligations.
The Crown sidestepped our concerns about this during their negotiations over the UK FTA. But it took on board much of what we proposed in the EU deal and has included some protections for Māori in the digital space. It’s far from perfect, but it’s an advance.
They also made sure that foreign investors — like forestry, mining, or water companies — can’t directly take legal action to enforce promises in the agreement that the government won’t do anything that might undermine their profits. That’s a standing commitment from this government and a big win for all New Zealanders. However, the downside is the EU itself can still enforce those promises.
Take French company Veolia, for example. It runs Papakura’s water and wastewater systems. If the council or government adopted strict and expensive new environmental requirements as part of their commitment to Te Tiriti, Veolia could potentially get the EU to threaten an expensive legal dispute under this FTA to protect its profits.
What next? They’ve released the text and there will be a process in parliament, but it’s basically a rubber stamp. There’s a much longer process still to go in the EU which may yet decide that too much has been given away to New Zealand.
As for MFAT, they’re already working on negotiations for the next free trade deals. Consistent with our mediation agreement they’ve asked us to continue working alongside them, providing detailed analysis through a Tiriti lens.
To be honest, it’s a tough call. Like many other Māori trying to build a meaningful relationship with the Crown, we constantly ask ourselves if it’s worth it. It’s like a rocky marriage, with both parties frustrated with each other at times and trying to hold it together for the sake of the wider whānau. But we are listening to each other for the first time in way too many years.
There’s a saying by Moana Jackson, who was part of our team before his death, which keeps haunting us.
“Incrementalism is stasis.”
So, yes the government has been taking its first steps towards becoming a genuine Tiriti partner in this space. At the same time, we are accountable to a Tiriti-based kaupapa that means real transformation — and, with the Crown still holding all the cards, we’re still a long way from achieving that.
Moana Maniapoto is the co-convenor 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.
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