16 Mar 2005

The New Zealand Government has entered into a Closer Economic Partnership Agreement with Thailand ("The Agreement"). Click to view previous postings: Negotiating the Agreement and Link to Details of Agreement

The terms of the Agreement contains a clause, which not only gives the New Zealand Government the right to recognize the unique contribution Maori offer to the New Zealand economy but it also provides the Government with the ability to act freely in accordance with its Treaty of Waitangi obligations. At Article 15.8 of the Agreement the clause states:

Art 15.8: New Zealand will not be prevented from adopting measures it deems necessary to accord more favorable treatment to Maori, including in fulfillment of its obligations to Maori under the Treaty of Waitangi. If Thailand invokes dispute settlement under Chapter 7 to investigate any action taken by New Zealand under this Article, an arbitral tribunal will not be able to interpret Treaty of Waitangi.

The clause is not open to abuse as it specifically prevents the Government from using this measure as a means of arbitrary or unjustified discrimination against Thailand. This allows the NZ government to continue to implement policies related to Maori without being constrained by the Agreement. The inclusion of this clause is consistent with other Treaty of Waitangi clauses the Government has included in other such agreements including New Zealand's General Agreement on Trade in Services with the World Trade Organisation in the 1990's and the clause contained in the earlier Closer Economic Partnership with Singapore.

Currently the inclusion of such a clause is under criticism by the fact that it purports to confer special treatment on Maori.

Maori had raised a number of points during the consultation process on the Agreement, which raised issues with the economic partnership with Thailand as proposed by the Government.

The decision to take any measure under this clause is entirely up to the Government. Therefore the practical implementation of this clause still needs to take form. The clause itself does not confer special treatment on Maori but it does allow the Government to act in such a manner. It provides the Government with plenty of opportunity will not be at risk of creating new grievances to act in accordance with the Treaty of Waitangi.

As it currently sits, the clause still ignores the impact on Maori as it does not address the specific issues, including:

• The removal or reduction of the textile, clothing and footwear tariffs (TCF Tariffs) will affect Maori workers. The vast majority of workers in those factories are women, especially Maori women. Their families often depend solely on their income, and they have few chances of finding new jobs in their communities. Removal of TCF tariffs can only widen the socio-economic gaps faced by those communities, indirect conflict with the Government's commitment to close them. There is a risk of redundancies, which could be linked to these tariff reductions;
• The $50 million threshold (or the proposed $100 million threshold under the proposals contained in the Overseas Investment Bill) will prevent Treaty of Waitangi considerations being introduced into any national tests for investment up to that level;
• That Maori will have no political say in the negotiation or enforcement of the process under the Agreement