Different deal — same stink “consultation”

by Moana Maniapoto
Sun 17 Jul 2016
6 min read
3

All quiet on the TPPA front. Is that good or bad news? Well, it’s a bit of both, actually.

The bad news is there’s a whole new acronym in town: RCEP.

(And it’s going to suck at rallies. We’ll need Scribe to find rhymes for that baby.)

RCEP stands for the Regional Comprehensive Economic Partnership. It’s a bit like the TPPA — except China is the big cheese, not the US.

For New Zealand, the RCEP is a backstop to the TPPA. Because the good news is that politicians and voters in the US aren’t exactly rating the TPPA. Musicians like Tom Morello (Rage Against the Machine) are fanning that unease with a Rock Against TPP tour. They’re planning concerts, protests, “teach-ins and trainings” to hammer the message home.

It looks like our government is hedging its bets inside the battle of the superpowers. In the new Cold War between the US and China, the biggest currency is influence — and the weapons of choice are the mega-treaties.

Once again, it’s all a secret. Unless you’re a corporate, in which case you may have been inside the tent since 2012, presumably giving specialist advice to the negotiating team. If there’s one thing we’ve learned out of this whole thing, it’s that Crown negotiators don’t mind talking to corporates. Not so good at talking to Māori, though.

That was the guts of my affidavit in the Waitangi Tribunal claim on the TPPA.

It seems ages ago, but it really was only March when I walked into the Waitangi Tribunal chambers, feeling like a fish out of water. Presiding over a room chock-a-block full of lawyers and judges, was a panel of five. Their job was to wade through a tonne of information dumped in their lap at the last minute. So I sat rather nervously beside two of my co-claimants, Moana Jackson and Angeline Greensill, as the last witness for the Crown concluded his evidence.

My nervousness morphed from incredulity into anger.

Martin Harvey is the Manager of Trade Negotiations for the Ministry of Foreign Affairs and Trade (MFAT). He seemed like a nice enough man. But for someone with a pretty flash job, his idea of consultation was an education. First, he admitted the Crown really didn’t know which Māori they should be talking to. Then he referred to the government website New Zealand Treaties Online as a key tool in their consultation. Even though, as David Cochrane, a Tribunal member, pointed out, the website had been kaput for two years.

Mr Harvey went on to say that the Crown doesn’t accept that there’s been secrecy on its part. “These have never been secret agreements but I think there is perhaps a lack of understanding about the need for confidential negotiations".

He reckoned it wasn’t just up to the Crown to do the hard work of informing Māori. Māori had to ask for information. I guess he missed the many and well-documented times that we did just that. Even going to court, as Ngāti Kahungunu and others did, to seek a judicial review of the Minister’s blanket refusal to release information under the Official Information Act. 

So, when I took to the stand, I may have used words like “atrocious,” “contemptuous” and “a joke” to describe the Crown’s behaviour towards Māori.

Before the hearing wrapped up, the Crown reminded us that the TPPA would go to a parliamentary select committee — and this was where the public could make submissions. (Cue a round of eye-rolling from those who understood that no changes could be made to the giant treaty.)

The Tribunal panel had barely packed up and gone away to deliberate, when the Crown moved the select committee process forward. This meant that the select committee’s draft report was written while some of the 6500 submitters were still to be heard. The government could then point to a longer period for submissions, while ensuring that the legislation could be introduced and passed this year — to avoid the TPPA running into election year.

Dr Rhys Jones from Ngāti Kahungunu, who made a submission calling for a comprehensive, independent health impact assessment, said it felt like the TPPA was “a fait accompli”. He noted that, while committee members were attentive and asked good questions, there was an overriding sense of “going through the motions.”

Marama Meikle described how National Party members looked at their phones more than at the people making submissions. She praised MPs Fletcher Tabuteau and Dr Kennedy Graham, who were both critical of the process and the Crown’s timeframe.

Speaking of tight timeframes, the government gave the Waitangi Tribunal three weeks to get its report together. Because it was an urgent hearing, the Tribunal decided to only determine whether the process after the signing was a breach. And it only looked at some of the concerns raised.

Nevertheless, in its final ruling, the Tribunal said the government should talk with Māori about putting in place stronger protections than the Treaty of Waitangi exception clause, given this was first trotted out in 2001.

The Tribunal also agreed that the “extensive” protection and rights given to foreign investors under the TPPA was an issue.

“The rights foreign investors have to bring claims against the New Zealand Government in our view raise a serious question about the extent to which those claims, or the threat or apprehension of them, may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwise Treaty-consistent measures.

“This issue and the appropriate text for a Treaty exception clause for future free trade agreements are matters about which there should, in our view, be further dialogue between Māori and the Crown.”

So where to from here?

The Tribunal’s ruling noted that “consultation has a strained meaning when the party with the most relevant information has resolved (perhaps for good reason) not to share it.”

It referred to the 2011 Wai 262 report, which made strong comment about the international treaty-making process. “It is for Māori to say what their interests are, and to articulate how they might best be protected – in this case, in the making, amendment, or execution of international agreements, after the Crown has alerted them to pending developments and their implications.”

The Tribunal backed a plan by our legal team outlining a new process for going forward. After all, the Crown admitted they didn’t have a plan. The Crown has yet to respond to our proposal.

Meanwhile, the RCEP and other treaties are on the table. And Māori still aren’t at the table.

Todd McClay, the Minister for Trade, confirmed he wasn’t going to release the RCEP text. He admitted the Crown would trot out the same old Treaty exception, as he recited the same old line — that it’s just “so hard to find out which Māori to talk to.”

He did promise to explore new ways to improve the dialogue between all sides in the future. “But I would state again and ask you to consider, this is the start of a conversation. It's not a consultation and it's the start of engagement.”

Unravel that one if you will. So where are we, at the end of the day?

We know their “consultation process” is rubbish. The Tribunal knows it. And the Crown knows that we know it. But they push on. And so must we — to expose the farce, to put it on record, and make a noise until they change. And remember that we’re not alone.

Recently, Geoffrey Palmer, a former prime minister, offered some interesting reflections on the Brexit vote in the UK. He describes the public response to treaties that are taking more and more control away from national governments.

“The political elites have foisted a new system on ordinary people and the ordinary people do not like it. So when the people have an opportunity to decide, they reject it. Their fear about jobs and their sense of insecurity about immigration are entirely understandable.

“There exists in many countries an underlying alienation of a significant portion of the population concerning the exercise of power by what they see as economic and political elites that the voters cannot influence. ... I hope it doesn’t happen in New Zealand. But growing economic inequality may lead it that way. Some sense of democratic renewal is needed to avoid alienation. There is a sickness in western democracies.”

Jane Kelsey, professor of law at Auckland University, isn’t as optimistic as Geoffrey. She believes it’s already happening. But there’s still hope. “We need a paradigm change, a surrender of the privileges accumulated by political and economic elites, and abandonment of undemocratic practices including exercise of the executive prerogative that enable state-corporate intimacy.”

In other words, some rethinking on our parts to break that unholy deadlock — and big dreaming to replace what we’ve got, with something innovative, exciting and hopeful. It’s a big ask but we have no choice.

 

© e-tangata, 2016

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