Waitangi Tribunal opts for pragmatic outcome
Waitangi Tribunal upholds claimants concerns on TPPA, but opts for pragmatic outcome
‘The substance of the Waitangi Tribunal’s report on the Trans-Pacific Partnership Agreement (TPPA), vindicates the claimants’ concerns, especially about foreign investors’ special rights under the Agreement. But in the end pragmatism held sway with the Tribunal’s conclusion that the Treaty of Waitangi Exception provides Maori with “reasonable protection”,’ according to Professor Jane Kelsey, who was the expert appointed by the claimants.
‘Reading the report, it is clear that the Tribunal accepted the evidence of its appointed expert, Associate Professor Amokura Kawharu, and myself that there are real risks in the TPPA that did not exist in previous agreements, in particular with the rights of foreign investors to bring investment disputes. It was also ‘troubled’ by ambiguities and uncertainties in the Treaty Exception’, she said. ‘But it could not reach any conclusions about how these would pan out in the future’.
‘The clue to their pragmatism comes at the end of the report where the Tribunal acknowledges the practical problem of reopening a negotiation. The Crown made that inevitable when it refused to engage in the Tribunal process until the negotiations had been concluded, foreclosing any constructive review of the Treaty Exception to address those ‘troubling’ issues.’
Key aspects of the claim dealing with intellectual property and access to affordable medicines were considered outside the narrow terms the Tribunal set when decided to proceed with the claim under urgency.
‘I advised the Tribunal that these matters are not protected by the Treaty Exception, and is not clear if, when or how they will be addressed’, Professor Kelsey said.
Another outstanding concern is how the Crown will resolve the conflict between the Wai-262 report on traditional knowledge and the requirement in the TPPA that it implements in domestic law the UPOV 1991 convention that gives patent rights over plant varieties. The Tribunal appears to retain a watching brief over that issue.
Professor Kelsey advised the government, and especially the Prime Minister, to read the report clearly to understand this is not a victory for them.
‘I believe the government is about to enter into talks with the iwi chairs about revising the Treaty Exception. However, it needs to follow the Tribunal’s advice and cast the net more broadly in response to the Tribunal’s concerns about the failures to engage with Maori, and take advantage of the expert analyses that have exposed the flaws in the Treaty Exception and the risks in these new generation agreements.’