Editorial: Maori anger over TPP hard to grasp

For the first time since John Key became Prime Minister he is not at Waitangi this morning. Photo / Michael Craig

Agreement specifically protects iwi from non-discrimination provisions of trade pact.

For the first time since John Key became Prime Minister he is not at Waitangi this morning. The reason is that some Maori are so angry at the Trans-Pacific Partnership agreement, they do not want to hear him explain it at the local marae. If that is a contortion of logic, it is not the first this week on the implications of the TPP for Maori.

Their objection has been the hardest to fathom of any argument against it for the agreement contains a specific clause giving the New Zealand Government an exemption under the Treaty of Waitangi from the "non-discrimination" principle that underpins all the rules of free trade.

Non-discrimination means signatory states will not favour their domestic producers over competitors from other nations in the agreement. The exemption clause says: "Nothing in this agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in fulfilment of its obligations under the Treaty of Waitangi."

In the Herald this week a former trade negotiator, Charles Finny, pointed out just about all of the 12 nations are home to indigenous minorities. Yet none except Maori is mentioned in the text and no other government has secured, or probably sought, agreement from the others to a right to discriminate in this way.

Furthermore, an exemption in these terms has been standard in News Zealand's free trade agreements for the past 15 years and has not stopped its governments reaching Treaty settlements with iwi that give them favoured status. The TPP, Mr Finny pointed out, goes further than previous trade agreements, expressly exempting the Government's interpretation of its Treaty obligations from investors' rights to seek damages under its dispute settlement provisions.

Why, then, are some Maori so worried about it? A Maori scholar who co-authored an influential discussion paper on this subject, law lecturer Carwyn Jones, offered an explanation in our pages on Wednesday. But it was difficult to understand.

Legions of New Zealanders have been led to believe the country's very sovereignty is at risk.

"The concerns around Treaty rights are not that the TPP expressly forbids the Government from fulfilling its obligations," he wrote, "but rather that it creates incentives to avoid taking any action that might be open to challenge." How can that be when it exempts such action from any challenge?

Dr Jones went on to say: "Given that many areas of New Zealand law and policy have been found to be inconsistent with Treaty principles, one might have thought the Government would be virtually continuously needing to call on these Treaty exceptions as it strives to correct this. And yet that doesn't seem to have been the case."

The fact that New Zealand has never had to invoke its Treaty exemption may be arguably an indictment of its governments but it is hard to see that it discredits the exemption in trade agreements. It is possible the exemption has persuaded foreign investors not to challenge favourable treatment of iwi interests at times. Who would know?

It is difficult not to agree with Mr Finny that Maori are being poorly advised on this issue. They are not alone, legions of New Zealanders have been led to believe the country's very sovereignty is at risk. Sovereign nations make international treaties all the time, and the only real sanction they face is the loss of trust on which all trade ultimately depends.