The free trade agreement will eventually eliminate all tariffs on New Zealand exports to the UK, with 97 per cent of those tariffs being eliminated on the day the agreement comes into force. Video / Supplied
OPINION
The Government has signed New Zealand on to yet another free trade agreement, this time with the United Kingdom. This one, we are told, is different.
The buzzwords are "inclusive trade". Chapters on trade and Māori, gender, small business, labour, environment, and development show the Government has really listenedto mounting criticism of the anti-democratic, pro-corporate, and inequitable nature of such deals.
Yes, the final text is not perfect. But it is what was politically achievable in a bilateral negotiation with a more powerful country and sets a new benchmark for New Zealand's trade policy.
Hmm. Is this FTA truly ground-breaking? Or is "inclusive trade" just rhetoric that appears to introduce some balance for social priorities and broaden the benefits of such agreements, while the binding and enforceable chapters that constitute the core of the agreement continue to advance the commercial interests of big business and market-driven ideologies?
As always with free trade agreements, the devil is in the detail.
The "inclusive trade" agenda was the Labour Government's response to a backlash against secretly negotiated agreements that went far beyond traditional "trade" to restrict how governments could regulate in a wide range of purportedly "trade-related" areas. That peaked around the deeply unpopular Trans-Pacific Partnership (TPP).
To quell the critics and restore some social license to New Zealand's trade strategy, the Government announced a Trade for All strategy which it slowly rolled out over several years. A Trade for All Advisory Board, comprising moderate representatives from the unions, environmentalists, and Māori, as well as corporate interests, released a mild report in December 2019.
Even then, the Government baulked at some of the reforms it proposed. It was perfectly comfortable with soft recommendations to include provisions that promote trade-related interests of women, environment, sustainability, climate change, and development. But it parked some more unpalatable recommendations that it couldn't accommodate within existing settings. Those centred, especially, on independent reviews of trade policy every three years or more specific inquiries, for example, on whether digital policies and regulation even belong in free trade agreements.
There was no appetite for independent broader-based assessments of agreements once they are negotiated to replace the National Interest Analyses (NIA) prepared by the ministry that negotiated them. The proposal to revisit the Treaty of Waitangi Exception, which was devised back in 2000 and almost everyone but the Crown seems to accept is inadequate, was equally unpalatable.
The FTA with the United Kingdom is the first bilateral agreement concluded since that report. It was negotiated in secret. The text was only released after it was signed last week. The NIA is another cheerleading exercise. The select committee has given 10 days to make submissions on the 1700 page document.
The standard enforceable chapters on goods, foreign investment, intellectual property, financial services, government procurement, state-owned enterprises, and the crucial new area of digital trade, are business as usual. The intellectual property chapter even reinstates the longer copyright term from the TPP that was suspended in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.
The comforting rhetoric of "inclusiveness" is relegated to unenforceable chapters on gender, Māori, development, small businesses, animal welfare that promote "cooperation activities" like research, exchanges, and roadshows.
Jane Kelsey. Photo / Supplied
The inclusion of Māori concepts, references to Te Tiriti o Waitangi, and a stand-alone Māori Trade and Economic Co-operation chapter are symbolically significant. This comes after a five-year Waitangi Tribunal Inquiry into the TPP, which was itself the culmination of decades of Māori challenges to trade agreements that breach fundamental Tiriti rights.
Yes, the UK FTA makes reference to Te Tiriti o Waitangi/The Treaty of Waitangi, as any international agreement between New Zealand and the United Kingdom should. But the UK merely "notes" it was an original signatory to the Tiriti/Treaty, then washes its hands of any ongoing obligations to protect Māori rights.
The unenforceable Māori Trade chapter is "ground-breaking" in name only. It identifies three possible low-level activities for co-operation, with a footnote that the chapter does not oblige the parties legally or financially to do any of them. The UK explicitly rejects any inference that reference to genetic resources or traditional knowledge recognises them as intellectual property or affects its intellectual property law.
The Digital Trade chapter retains the TPP's rules on offshoring of data that the Waitangi Tribunal found last December had breached Crown obligations to actively protect mātauranga Māori, a matter considered fundamental to Māori identity and not to be traded off against other interests.
In sum, the UK FTA perpetuates the four-decade practice of unbalanced neoliberal trade deals behind a thin and unconvincing veneer of "Trade for All".
• Jane Kelsey is a professor of law at the University of Auckland.
