The CPTPP trade deal’s e-commerce provisions do not adequately protect mātauranga Māori, and potentially erode government control over how foreign entities deal with Māori data, the Waitangi Tribunal has ruled
The electronic commerce provisions of the CPTPP deal have been found to breach the Treaty of Waitangi, with the Crown failing to actively protect Māori interests through its trade negotiations.
However, the Waitangi Tribunal has opted against asking the Government to freeze any current e-commerce negotiations, saying there has been a significant policy shift in the five years since its inquiry first began.
In 2016, the tribunal began an inquiry into what was then known as the Trans-Pacific Partnership Agreement, or TPPA, after Māori claimants argued several provisions of the 12-nation pact constituted a breach of Te Tiriti.
An urgent report released by the tribunal that same year found the deal’s Treaty of Waitangi exception clause gave “a reasonable degree of protection to Māori interests” and did not constitute a breach, while a separate inquiry into the TPPA’s plant variety rights regime released last year also cleared the Crown of any Tiriti breaches.
However, in the final stage of its inquiry, the tribunal has concluded that “the risks to Māori interests arising from the e-commerce provisions are significant, and that reliance on the exceptions and exclusions to mitigate that risk falls short of the Crown’s duty of active protection”.
“As a result, the Tribunal finds that the Crown has failed to meet te Tiriti/the Treaty standard of active protection and that this failure constitutes a breach of te Tiriti/the Treaty principles of partnership and active protection.”
While the Crown had settled the e-commerce mandate for the TPPA (carried over into the CPTPP) on the basis of consistency with New Zealand’s existing domestic policies and prior international agreements, “this largely reactive or passive position is insufficient because governance of the digital domain has important implications for the integrity of the taonga that is mātauranga Māori [Māori knowledge]”.
“Because mātauranga Māori is at the heart of Māori identity it is not an interest or consideration readily amenable to some form of balancing exercise when set against other trade objectives, or the interests of other citizens and sectors.”
“They [e-commerce provisions] potentially place Māori interests at risk by eroding government control over how foreign entities obtain and operate with Māori data in Aotearoa New Zealand; and they could function to protect Māori interests by protecting Māori control of data when it is traded overseas by Māori – something that will undeniably happen more and more as the digital economy grows in Aotearoa New Zealand.”
The matter of whether data generated by or about Māori could be considered a taonga was complex, but Māori data had the potential to be both a component of mātauranga Māori and a taonga.
“Māori are also engaged in the digital domain as users and developers of digital products However, Māori perspectives that have been presented to us about the protection of mātauranga captured or expressed in a digital format are different from Western conceptions of intellectual property and privacy, particularly in terms of how protection is achieved in law, including international law.”
While it was not for the Crown alone to resolve issues of data sovereignty, neither could Māori address such matters by themselves, with the appropriate levels of protection “first and foremost a matter for dialogue” between te Tiriti partners.
The tribunal expressed specific concerns about the rules preventing data localisation, local presence requirements, and requiring access to the source code of software owned by overseas providers.
“They potentially place Māori interests at risk by eroding government control over how foreign entities obtain and operate with Māori data in Aotearoa New Zealand; and they could function to protect Māori interests by protecting Māori control of data when it is traded overseas by Māori – something that will undeniably happen more and more as the digital economy grows in Aotearoa New Zealand.”
The policy space retained by the CPTPP’s exceptions and exclusions was not as extensive as the Crown argued, while there was “a material risk of regulatory chill and risk” from the precedent effect of its e-commerce provisions.
“We acknowledge it is not our role to decide the merits of entering into international agreements generally, and also that the CPTPP may provide some benefits for Aotearoa New Zealand.
“However, we do not believe there is sufficient evidence to place any significant weight upon the Crown’s argument that there is economic benefit for Māori arising from the e-commerce rules,” the tribunal said.
While the claimants had asked for a number of concessions from the Crown, including a suspension of further e-commerce negotiations until a proper partnership regime had been developed, the tribunal had decided it would not be appropriate to make any recommendations.
In the five years since the inquiry began, there had been a “significant shift in the Crown’s position” following other Waitangi Tribunal claims and the work of the Trade for All Advisory Board, with the board recommending a comprehensive review of New Zealand’s policy settings around digital trade.
The recently announced agreement in principle between the United Kingdom and New Zealand on a trade deal, which included a commitment to develop a chapter on indigenous trade showed what was possible without freezing international negotiations altogether, the tribunal said.
“We’ve had enough talk and promises. We want to see a real difference in how these agreements are negotiated and how our rights are protected, including a seat at the negotiating table so we no longer have to rely on the understanding and goodwill of the Crown – something this report shows was lacking.”
“The Tribunal acknowledges that there will be challenges ahead. However, they see these matters as best left for negotiation and dialogue between te Tiriti/the Treaty partners in good faith and within the fora and processes now in place.”
Tribunal claimant Moana Maniapoto said she and others had been vindicated, “with high expectations that Māori will at last be able to protect our Tiriti rights in international trade agreements”.
Maniapoto said the Government needed to provide Māori with access to the texts of trade deals with the UK, European Union and other partners so they could properly protect their rights and interests.
The tribunal seemed to think the Crown was making more progress on Treaty-compliant policies than Māori were seeing on the ground, with domestic processes moving very slowly compared to the fast-paced nature of free trade agreements.
While the Crown had said it was committed to change, there was little evidence of substantive progress to date.
“We’ve had enough talk and promises. We want to see a real difference in how these agreements are negotiated and how our rights are protected, including a seat at the negotiating table so we no longer have to rely on the understanding and goodwill of the Crown – something this report shows was lacking,” Maniapoto said.