Jane Kelsey: Expert paper on TPPA & Treaty of Waitangi: government fails to meet obligations to Maori

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Source: Professor Jane Kelsey.

The third in a series of expert peer reviewed papers on the implications of the Trans-Pacific Partnership Agreement for Aotearoa New Zealand was posted on the tpplegal website today.[1]

The paper was co-authored by Carwyn Jones, a senior lecturer in law from Victoria University, and Andrew Erueti, Associate Professor Claire Charters and Professor Jane Kelsey from the University of Auckland law faculty. The peer reviewer was lawyer Moana Jackson from Ngati Porou and Ngati Kahungunu.

‘Maori have long-standing concerns about law and policy relating to issues such as traditional knowledge, biodiversity and environmental management’, says Carwyn Jones, who wrote that section of the paper. ‘The TPPA will hamper the ability of future governments to develop Treaty of Waitangi-consistent law and policy in these areas.’

 ‘It is extremely disappointing that the Government would enter into such an agreement without securing effective protection for Maori, which the “Treaty of Waitangi Exception” fails to do.’

‘All New Zealanders ought to be concerned that the TPPA is moving us further and further away from effective recognition of rights guaranteed under the Treaty of Waitangi, putting another obstacle in the way of reconciliation and the resolution of grievances.’

According to University of Auckland law lecturer, Andrew Erueti, recent international human rights developments emphasize the critical importance of states engaging with indigenous communities on any issue that might impact on those communities and resources.

‘The UN Declaration on the Rights of indigenous peoples requires that there be meaningful engagement and where it might be significantly impacted by any proposal, their free, prior and informed agreement.’

‘At the very least, in relation to the TPPA, the government needed to fully engage with Maori and ensure that their views were incorporated into any decision making. That has not happened’, he said.

‘The government appears to believe all it needs to do is insert an inadequate Treaty of Waitangi Exception and that absolves it of having to meet its Treaty obligations. The Crown’s approach is a breach of the Treaty in itself’, according to Professor Jane Kelsey, who is the expert witness for the claimants in the Waitangi Tribunal claim due to be heard under urgency in mid-March, and wrote the legal analysis of the exception for the paper.

The series of expert peer-reviewed papers is supported by a grant from the Law Foundation. Previous papers have examined the Implications for Regulatory Sovereignty (Jane Kelsey) and Investment (Amokura Kawharu), with papers on the Economics of the TPPA and the Environment to be released shortly.

[1] https://tpplegal.files.wordpress.com/2015/12/ep3-tiriti-paper.pdf

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Selwyn Manning, BCS (Hons.) MCS (Hons.) is an investigative political journalist with 23 years media experience. He specializes in reportage and analysis of socioeconomics, politics, foreign affairs, and security/intelligence issues.
Selwyn has extensive experience as a commentator and has provided live political analysis to a wide range of television and radio organizations broadcasting in New Zealand, Australia and globally including the BBC (Five Live, London) and BBC (World Service). He is currently a correspondent to Australia’s FiveAA radio, and is a regular live-on-air panelist on Radio New Zealand’s The Panel with broadcaster Jim Mora.

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