The Trans-Pacific Partnership: New Zealand, Indigenous Intellectual Property, and the Treaty of Waitangi by Matthew Rimmer

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There have long been significant concerns about how international trade agreements affect Indigenous rights, particularly in respect of Indigenous Intellectual Property. As highlighted in our recent handbook on Indigenous Intellectual Property, there has been an ongoing conversation about the relationship between Indigenous communities, intellectual property, and trade. Such discussions have traditionally taken place in multilateral fora like the World Trade Organization, the World Intellectual Property Organization, the United Nations Environment Programme, international climate talks, and the United Nations Permanent Forum on Indigenous Peoples. Of late, the debate has also arisen in the context of bilateral trade agreements such as the Australia-United States Free Trade Agreement 1994, and mega-regional trade agreements like the Trans-Pacific Partnership 2015. Matthew Rimmer goes on to discuss.

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Writing in 2008, Professor Megan Davis, director of the Indigenous Law Centre at the University of New South Wales, and the current Chair of the United Nations Permanent Forum on Indigenous Peoples, expressed concerns about how the Australia-United States Free Trade Agreement would impact upon Indigenous communities in Australia. She commented that ‘[Free Trade Agreements] have the potential to encroach upon laws, regulations and policy making with respect to culture, education, health, environment and heritage and this would have a disproportionately negative impact upon Indigenous communities.’

 There has been much general controversy over the Trans-Pacific Partnership 2015 – a regional trade agreement spanning the Pacific Rim. In the context of Indigenous rights, there has been trepidation about how the trade deal will affect Indigenous communities. There have been concerns that the Trans-Pacific Partnership 2015 has been secretly negotiated without the participation or consent of Indigenous communities. Moreover, there have been complaints that the Trans-Pacific Partnership 2015 falls far short of the standards set by the United Nations Declaration for the Rights of Indigenous Peoples 2007.

In New Zealand, Māori communities brought an action against the Trans-Pacific Partnership 2015 under the Treaty of Waitangi 1840. Musician and film-maker Moana Maniapoto commented upon the action:

Māori have been struggling to protect our culture in the face of an IP system that has never been a good fit for our people and culture. The experience of having my name trademarked by a company in Germany brought it home in a very personal way how much our language, culture and music is being appropriated left, right and center by companies.  The WAI262 Claim reiterated that. There’s been no movement by the government to undo existing agreements or legislation that fail to protect our culture. Yet the government wants to haul us all into a hefty – and very secret – international agreement that will disempower Māori even more? I am very concerned about this – especially given the track record of the key player, the US.

The claimants have been concerned that the Crown’s actions in relation to the Trans-Pacific Partnership Act 2015 may negatively affect Māori health, education, culture and will impinge on Māori rights to self-government as guaranteed by the principles of the Treaty of Waitangi 1840 and the United Nations Declaration on the Rights of Indigenous Peoples 2007.

On the 5th May 2016, the Waitangi Tribunal handed down its report on the Trans-Pacific Partnership Agreement 2015. The Waitangi Tribunal addressed a number of important issues – including the exception clause relating to the Treaty of Waitangi 1840; Investor-State Dispute Settlement; and Indigenous Intellectual Property.

  1. The Treaty of Waitangi General Exceptions Clause

The first primary issue for Waitangi Tribunal inquiry was whether or not the Treaty of Waitangi 1840 exception clause is an effective protection of Māori interests. In the General Exceptions Chapter, Article 29.6 of the Trans-Pacific Partnership 2015 deals with the Treaty of Waitangi 1840:

  1. Provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods, trade in services and investment, nothing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favourable treatment to Maori in respect of matters covered by this Agreement, including in fulfilment of its obligations under the Treaty of Waitangi.
  2. The Parties agree that the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 28 (Dispute Settlement) shall otherwise apply to this Article. A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 1 is inconsistent with a Party’s rights under this Agreement.

The Waitangi Tribunal found: ‘We conclude that the exception clause will be likely to operate in the TPPA substantially as intended and therefore can be said to offer a reasonable degree of protection to Māori interests’. The Waitangi Tribunal added: ‘We have come to this view even though the clause as drafted only applies to measures that the Crown deems necessary to accord more favourable treatment to Māori.’

By contrast, I have my doubts as to whether this general exceptions clause will be effective in the Trans-Pacific Partnership 2015. Moreover, it is notable that Indigenous communities in other Pacific Rim countries outside New Zealand involved in the Trans-Pacific Partnership do not have any particular special protection in trade disputes.

  1. Investor-State Dispute Settlement

Second, the Waitangi Tribunal did express reservations and caveats about the inclusion of an Investor-State Dispute Settlement regime in the Trans-Pacific Partnership 2015. The Waitangi Tribunal observed: ‘From the evidence before us, it seems the most likely source of risk to Māori under the TPPA will be investor–state claims in respect of domestic measures which place Māori at a relative advantage in comparison to a foreign investor’. The Waitangi Tribunal commented: ‘In these instances we think the exception clause should operate to provide a reasonable degree of protection.’ Despite this finding, the Waitangi Tribunal still harboured concerns, noting: ‘The protections and rights given to foreign investors under the TPPA are extensive’. The Waitangi Tribunal commented: ‘The rights foreign investors have to bring claims against the New Zealand Government in our view raise a serious question about the extent to which those claims, or the threat or apprehension of them, may have a chilling effect on the Crown’s willingness or ability to meet its Treaty obligations or to adopt otherwise Treaty-consistent measures’. The Waitangi Tribunal observed: ‘This issue and the appropriate text for a Treaty exception clause for future free trade agreements are matters about which there should, in our view, be further dialogue between Māori and the Crown.’

In my own opinion, the Waitangi Tribunal still gravely underestimates the risks posed to Indigenous communities by Investor-State Dispute Settlement. Professor Gus van Harten from Osgoode Hall Law School at York University has highlighted the lack of consent by Indigenous communities for Investor-State Dispute Settlement clauses in his latest book, Sold Down the Yangtze. Likewise, Professor Jane Kelsey from the University of Auckland has demonstrated that pro-corporate investor clauses are toxic for Indigenous rights in respect of land, water, the environment, and Traditional Knowledge.

  1. Indigenous Intellectual Property

Third, the Waitangi Tribunal considered the question of the treatment of Indigenous Intellectual Property under the Trans-Pacific Partnership 2015. In the Waitangi Tribunal, New Zealand has provided for strong recognition of Indigenous Intellectual Property in the ‘Wai 262’ decision. In our research handbook on Indigenous Intellectual Property, Fleur Adcock and Sarah Rosanowski explore various dimensions of the landmark ruling in the ‘Wai 262’ decision. In its report on the Trans-Pacific Partnership 2015, the Waitangi Tribunal reiterated its support for the findings in the ‘Wai 262’ decision: ‘Māori interests are entitled to a reasonable degree of protection when those interests are affected by international instruments entered into by the New Zealand Government.’

Article 18.16 of the Trans-Pacific Partnership 2015 provides for co-operation in respect of Traditional Knowledge:

  1. The Parties recognise the relevance of intellectual property systems and traditional knowledge associated with genetic resources to each other, when that traditional knowledge is related to those intellectual property systems.
  2. The Parties shall endeavour to cooperate through their respective agencies responsible for intellectual property, or other relevant institutions, to enhance the understanding of issues connected with traditional knowledge associated with genetic resources, and genetic resources.
  3. The Parties shall endeavour to pursue quality patent examination, which may include:

(a) that in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account;

(b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources;

(c) if applicable and appropriate, the use of databases or digital libraries containing traditional knowledge associated with genetic resources; and

(d) cooperation in the training of patent examiners in the examination of patent applications related to traditional knowledge associated with genetic resources.

Such language, though, is weak. It seems left open to individual nations to determine at their own discretion whether or not they take action to provide Indigenous Intellectual Property.

The Annex to Article 18.7.2 in the Intellectual Property Chapter of the Trans-Pacific Partnership 2015 provides some specific commentary on New Zealand:

  1. Notwithstanding the obligations in Article 18.7.2 (International Agreements), and subject to paragraphs 2, 3 and 4 of this Annex, New Zealand shall:

(a) accede to the UPOV 1991 within three years of the date of entry into force of this Agreement for New Zealand; or

(b) adopt a sui generis plant variety rights system that gives effect to the UPOV 1991 within three years of the date of entry into force of this Agreement for New Zealand.

  1. Nothing in paragraph 1 shall preclude the adoption by New Zealand of measures it deems necessary to protect indigenous plant species in fulfilment of its obligations under the Treaty of Waitangi, provided that such measures are not used as a means of arbitrary or unjustified discrimination against a person of another Party.
  2. The consistency of any measures referred to in paragraph 2 with the obligations in paragraph 1 shall not be subject to the dispute settlement provisions of this Agreement.
  3. The interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it, shall not be subject to the dispute settlement provisions of this Agreement. Chapter 28 (Dispute Settlement) shall otherwise apply to this Annex. A panel established under Article 28.7 (Establishment of a Panel) may be requested to determine only whether any measure referred to in paragraph 2 is inconsistent with a Party’s rights under this Agreement.

The Waitangi Tribunal noted that ‘the Crown is still developing its process for engagement’ in ‘respect of changes to be made to the plant variety rights regime and whether or not New Zealand should accede to UPOV 91’. Doogan J commented: ‘On that issue, we adjourn our inquiry with a view to assessing what (if any) further steps may be necessary once further information is available.’

Overall, in my view, the regime for Indigenous Intellectual Property in the Trans-Pacific Partnership 2015 falls far short of the standards established in Article 31 of the United Nations Declaration for the Rights of Indigenous Peoples 2007. Article 31 (1) of the United Nations Declaration for the Rights of Indigenous Peoples 2007 provides:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Article 31 (2) provides: ‘In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.’ This would seem to be a much higher standard than that provided for by the Trans-Pacific Partnership 2015.

Conclusion

In process and substance, the Trans-Pacific Partnership 2015 has shown little respect or recognition for the rights and interests of Indigenous communities in the Pacific Rim. It had been hoped that the challenge by Māori  claimants against the Trans-Pacific Partnership 2015 would raise such larger questions about Indigenous sovereignty, self-determination, and rights. Unfortunately, the report of the Waitangi Tribunal on the Trans-Pacific Partnership 2015 seems to be rather blasé about the relationship between trade agreements and Indigenous rights. The Waitangi Tribunal seems to be of the view that the specific exceptions clause for the Treaty of Waitangi 1840 will be sufficient to protect Indigenous interests in the Trans-Pacific Partnership 2015. The New Zealand Prime Minister John Key says Maori communities should embrace the Trans-Pacific Partnership 2015 (even though they were not properly consulted). Likewise, the New Zealand Trade Minister has welcomed the Waitangi Tribunal report.

For their part, the Māori  Council were disappointed by the Waitangi Tribunal ruling. Council Chair Sir Edward Durie commented:

The New Zealand Māori Council welcomes the Waitangi Tribunal Trans-Pacific Partnership Report. The report provides helpful advice on how to move matters forward in protecting Māori interests in international trade agreements. The Council considers that Māori were entitled to a positive finding that a clause which purports to protect Māori interests does not in fact provide such protection, and the report is disappointing in that respect. In particular the clause provides for affirmative policies to bring Māori achievement into line with national standards but it fails to protect Māori property interests. It will be disappointing in that respect for those iwi with significant water and geothermal interests. However, given that the TPP proposal has passed beyond the negotiation stage, the Tribunal has helpfully proposed that Māori and the Crown should now engage in perfecting the clause for the future, and in developing the New Zealand approach to the application of the clause in the event of a dispute where the clause may be invoked.

In my view, though, there remain outstanding issues of concern as to how the Trans-Pacific Partnership 2015 will affect Indigenous rights. The General Exceptions clause seems quite limited – both in terms of its scope, and its focus upon New Zealand. Investor-State Dispute Settlement regime poses a serious and real danger to Indigenous sovereignty, self-determination, and decision-making. The Intellectual Property Chapter of the Trans-Pacific Partnership 2015 falls far short of both the ‘Wai 262’ decision and the United Nations Declaration for the Rights of Indigenous Peoples 2007. In future, Indigenous communities should not be excluded or marginalised in trade agreements, as they have been in the Trans-Pacific Partnership 2015. Indigenous people should have a much greater say in the negotiation of trade agreements, investor clauses, and intellectual property rights.

 

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Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). The first chapter of Indigenous Intellectual Property: A Handbook of Contemporary Research is available on ElgarOnline.

 

 

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