Secrecy and mistrust still surround the trade deal negotiations in Hawaii where the New Zealand team has been hoping for … well, who knows? It’s too secret for us to be told until it’s all signed up on our behalf. That’s if it’s ever going to be all signed up. Meanwhile, Moana Maniapoto is keeping us up with the play.

Mahalo, as they say in Hawaii. Let’s be grateful that those TPPA negotiators have reached for the brake pedal – and opted for a cup of tea and a lie down.

At a press conference yesterday in Hawaii, representatives from the 12 TPPA nations admitted they hadn’t nailed the deal. But they would carry on talking to try settling their differences.

Stalled but not defeated, is the assessment of Jane Kelsey, the Auckland University law professor who has kept an especially close eye on developments.

It was the big kahunas – Canada, USA, Japan and Mexico – who couldn’t come to an agreement on two deal breakers. One was auto (vehicle manufacturing). And dairy was the other.

Minister of Trade, Tim Groser

Our trade minister, Tim Groser, didn’t down tools because of his concerns about the Treaty of Waitangi. Or intellectual property. Or Pharmac. Or workers’ rights. Or because he’s worried that the right of future New Zealand governments to make policy may well be constrained. Or because they could be hauled off to an overseas disputes tribunal by corporations seeking compensation for loss of projected profits.

One of the reasons he dug his toes in is because even the tiny gain we have been fighting for isn’t looking much chop.

Tim says he won’t back a deal that doesn’t significantly open dairy markets, but he’s confident negotiations will eventually find the “sweet spot” on dairy. The Dairy Companies Association of New Zealand commended him for standing firm. Andrew Hoggard, the Federated Farmers dairy industry chairman, described the deal as looking “disastrous” for New Zealand – which is fascinating, given that the farmers are New Zealand’s justification for flogging off nearly everything else we have in the cupboard.

People from all walks of life, not just Māori, are up in arms about much more than just a stink deal for dairy. Two muso mates of mine dropped in to watch the rugby the other night. They opened up a conversation about the lack of transparency, loss of democratic rights and sovereignty. You have to wonder at the arrogance of a government, mid-cycle to the 2017 elections, calculating that we, the voters, will forget.

Certainly, for now, the TPPA acronym is on everyone’s lips.

There are open letters flying everywhere – to Heads of State (NZ Māori Council), to both the PM and Tim Groser. (One is from the Labour Party, another from Action Station). The letter that’s had the most publicity was an epistle from Hone Harawira to President Obama, the man whose fast-track consent from the US Congress sent everyone into a tailspin. Even Mediaworks is riding the wave of popular opinion with polls on flagship radio and TV programmes showing overwhelming opposition to signing.

As we wait for the Waitangi Tribunal to decide whether to move to a full hearing on the Crown’s actions regarding the TPPA, there is an urgent application to the High Court for judicial review. Jane Kelsey is joining with Consumer NZ, Ngāti Kahungunu, the Association of Salaried Medical Specialists, Oxfam, Greenpeace and others to challenge Tim Groser’s blanket refusal to release any of the categories of information sought by her under an Official Information Act request on January 25. We saw the blanket ban in action when our lawyers tried to source documents before our Tribunal claim was filed.

No wonder the Minister is getting a bit hoha.

“This is a moving game and we need adults to do this, not breathless children to run off at the mouth when the deal is not actually finished,” he said, rather breathlessly himself.

In my view, that’s the sound of a man who’s spent most of his life working on the deal of the century and is way too close to it.

The thing is ordinary people are now getting some sense of what our country stands to lose. The PM helpfully admitted this week that, well, yes, medicine costs are likely to rise. So the big question is what is in it for New Zealand?

While the PM and his Minister of Trade have trumpeted the economic gains for our agricultural sector, the US Department of Agriculture crunched the numbers into a different reality. They said that, if all trade barriers were flattened to zero across all 11 countries – which will never happen – the best case scenario was that New Zealand could expect a rise in GDP of 0.01% by 2025.

I was never much good at maths, but that doesn’t sound too flash to me.

Just over a week ago, the Waitangi Tribunal held a judicial conference to consider the question of urgency. They began the hearing by asking claimant counsel why our claim was filed so late in the day. Our lawyers said the claims were not filed late. It was the Crown who hasn’t left enough time in the process to engage with claimants.

We say the Crown has breached their obligation under the Treaty of Waitangi to proactively engage with Tangata Whenua. Information retrieved under the Official Information Act revealed that the Crown ticked off an encounter at a hui where one unnamed woman spoke at the end of scheduled presentations. No formal or informal records of this can be found. The Crown also said they consulted with Ngāti Kahungunu, much to the surprise of that iwi who had written to the Crown and asked to be kept in the loop. They never heard back.

The Tribunal asked to see the text of the TPPA, especially the special Treaty of Waitangi exception clause that the Crown says protects Māori rights under the TPPA. The Crown refused, on account of the TPPA being secret and all.

The Tribunal said they would keep any documents confidential. The Crown refused on the basis that it was all too complex.

I’d be thinking the Crown is shooting itself in the foot here. You can’t assert, on one hand, that consultation has occurred, and then, on the other hand, refuse to divulge anything on the grounds of secrecy.

So the Tribunal gave it another shot.

They issued a formal direction that the Crown and claimant counsel work together to appoint an independent expert with experience in international trade and investment law as well as a sound knowledge of Treaty of Waitangi issues. The suggested person was a well-respected QC who would advise the Crown on whether the Treaty of Waitangi exception clause is adequate. (The Crown says they always include it in free trade agreements but won’t confirm that the others have accepted it into the TPPA.)

Our lawyers worked up a proposal and sent it to the Crown lawyers. But it was a no from them.

Their reasoning? They told our lawyers that “seeking to engage with the other parties on the Treaty of Waitangi clause at this late stage could result in parties seeking to revisit other issues of significance to New Zealand, which New Zealand had considered were concluded.” And they further advised that “there is no guarantee that changes (even minor) would be acceptable to the other parties at present.”

Yet they’ve been peddling the idea to New Zealanders that once it’s signed, we can start the debate – and have our say.

The media, thanks to Jane Kelsey, finally started to unpick that mythology this week – thanks partly to the blundering of Mike Hosking, a host of the ironically named Seven Sharp. He showed that it’s not especially clever to skip your homework when discussing the secrecy around the TPPA with a woman who’s a world authority on it.

“That’s how all trade deals work,” he declared. Jane pointed out that, apart from the wee fact the TPPA goes way beyond an ordinary trade agreement, she’s counted at least five major agreements that weren’t secret.

Here’s something else that Mike didn’t bother to find out. The fact is that we don’t get to debate and fine-tune the TPPA after it’s signed. That suggestion is a red herring. It only needs the Cabinet to ratify it, not Parliament. A vote is only needed to change domestic law to realign with any new needs of the TPPA. And, if we decided we wanted to change a clause in the TPPA, New Zealand would have to negotiate with 11 other countries. Once the deal is done, it can’t be reopened.

That’s led to an interesting question/observation from Doug Kidd, a former National Party Minister and now a Waitangi Tribunal member: “So poor old tino rangatiratanga goes down the gurgler again?”

The Tribunal has enough evidence to make a decision on whether to grant urgency and move to a full hearing, and will make their decision as soon as is possible. Looks like we’ve got a window to be heard now.

And we’ve got an admission that there’s a lot at stake. The Minister of Trade has declared that New Zealand won’t be pushed out of the agreement, particularly after he had downgraded his demands and made some “very large compromises.”

The reality is the Waitangi Tribunal can only make recommendations to the Crown. We know this. But at least we are putting on record the serious breach by the government as well as their disregard for the people who they are meant to serve.

And, in a sense, we’re also putting on record that, while most of us aren’t interested in reading the actual text ourselves, we do want clever, well-informed people who we trust – people who are independent of the negotiators – to be fully engaged in the process on our behalf.