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Waitangi Tribunal report contradictory

5 May 2016

Waitangi Tribunal report contradictory

A contradictory report released by the Waitangi Tribunal, following an urgent hearing into the Trans-Pacific Partnership Agreement (TPPA), has upheld virtually all of the claimants concerns about the potential risks to Maori yet concluded that the existing Treaty Exception provides ‘reasonable’ protection.

The claim was lodged in July last year by prominent Māori leaders and activists, including Rikirangi Gage, chair of Te Rūnanga o Te Whanau a Apanui, jurist Moana Jackson, musician Moana Maniapoto, environmental activist Angeline Greensill and health academic Associate-Professor Dr Papaarangi Reid, and supported by many other interested parties, including the New Zealand Māori Council.

The government put the Tribunal under huge pressure by moving forward the date of the select committee report to 4 May, clearing the way to introduce the implementing legislation next week.

“We are very disturbed at the way the Tribunal has downgraded the question of whether the Treaty Exception is effective to saying the appropriate Treaty standard is whether it provides ‘reasonable’ protection, despite the fact that they point throughout the report to aspects of the Exception that ‘trouble’ them” says Moana Jackson.

For example, the Tribunal recognises that the TPPA goes far beyond the Singapore agreement it was designed for back in 2000.

It expresses reservations about the Crown’s claim that nothing in the TPPA prevents it from meeting its Treaty obligations to Māori.

The Tribunal agrees the Exception does not encompass all Crown actions or policies that may be necessary to protect Māori interests and there is uncertainty about the chilling effect given the extensive protections provided to foreign investors.

The Tribunal says investor-state dispute settlement is a question deserving further scrutiny, debate and dialogue.

The Tribunal does not accept Crown’s view that claimants’ concerns are overstated and remain unconvinced that ISDS is a low risk and not substantially new. But they are unable to identify the concrete prejudice.

“Because these risks haven’t yet materialised it seems we can’t prove that we are prejudiced” Moana Jackson further states. “Once they do happen, of course, it will be too late, only then we can raise the issue of a Treaty breach.”

“In the end it seems the Tribunal seems to have accepted that it’s not realistic to get the Crown to go back and renegotiate the Exception.”

Moana Maniapoto, also a lead claimant, describes “the Crown’s attitude throughout this whole process as insulting and contemptuous of the claimants and the Tribunal. Right from the start they used delaying tactics that meant the hearing could not be held before the TPPA was signed. Then they said “it’s too late there’s nothing you can do because we can’t change anything we’ve agreed to”. ‘

“Doubtless the government will claim it has been totally vindicated when it absolutely has not. Almost all our concerns have been upheld. The question now is what the government will do in making sure it doesn’t repeat the problem in the agreements currently under negotiation.”

"The upside is that the TPPA remains a rallying call for New Zealanders from all walks of life. It has brought Māori and Pākehā together. Thousands of people have been involved in marches, workshops, petitions, court cases, hearings; they've made submissions and mobilised because we share the same values and concerns for the future. That transparency and sharing of information is in complete contrast to the Crown’s behaviour” says Moana Maniapoto.


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