Labour promised at Waitangi that it will be accountable to Maori. That promise faces a major test next week, as the Crown responds in the Waitangi Tribunal’s inquiry on the Trans-Pacific Partnership Agreement (TPPA), according to University of Auckland law professor Jane Kelsey, who was the claimants’ expert adviser in the urgency phase of the inquiry.
In a kitchen video posted on facebook last week the Prime Minister assured New Zealanders that the government ‘has an exemption that says it is always able to legislate and act to protect its obligations under the Treaty of Waitangi and that can’t be challenged by other nations’.
‘Her advisers know that’s not true’, said Professor Kelsey. ‘The Waitangi Tribunal clearly thinks there are still real concerns to be addressed.’
In a memorandum dated 30 January 2018 Justice Doogan, who presides over the Wai 2522 inquiry, set out four questions which the Crown must answer by 14thFebruary:
(a) when will the text of the revised TPPA (the “Comprehensive and Progressive Agreement on Trans-Pacific Partnership”) be available;
(b) what will be the effect of that text on the Crown’s ongoing engagement with Maori on the review of the Plant Varieties regime, and adoption of the UPOV 1991 convention on plant varieties (as required by the TPPA);
(c) what is the legal effect of a new agreement, and what issues remain live for inquiry; and
(d) ‘when would be the appropriate time for the Tribunal to commence inquiry into the remaining substantive claims that have been filed with respect of the TPPA?’
Professor Kelsey pointed to ‘a serious risk that this Treaty-friendly government will repeat National’s dismissive approach to the Tribunal’.
On (a) Trade Minister David Parker has said the text will remain secret, presumably even from the Waitangi Tribunal, until after new agreement has been signed.
On (b), the new government made no attempt to suspend or remove the obligation to adopt the UPOV 1991 convention or find a Treaty-compliant equivalent. That has to be enacted within 3 years of the TPPA-11 coming into force; yet MBIE officials say the review of the current Act will take up to 5 years.
On (c), other aspects of the claim, including significant impacts on water, health, and intellectual property are outstanding.
On (d), National deliberately truncated the time available to the Tribunal to present its first, urgent report. The current government plans to sign the TPPA-11 on 8 March and introduce the implementing legislation mid-year, which would terminate the Tribunal’s legal authority to complete the full inquiry before it has effectively resumed.
Professor Kelsey warned that ‘pushing ahead with the TPPA while the Tribunal is still assessing its Treaty implications would be a very bad start to a promising restoration of Labour-Maori relations’.