Thursday, May 19, 2022

Call for transparency over Māori data

THE dairy industry wants the Government to come clean over its plans to demand special protections for Māori data in trade agreements.

Dairy Companies Association chair Malcolm Bailey says the industry simply needs more information on trade negotiations which may include special protections for Māori data.

THE dairy industry wants the Government to come clean over its plans to demand special protections for Māori data in trade agreements.

The industry says it is in the dark about the Government’s new negotiating strategy and is worried if the demands go too far they could undermine New Zealand’s claims to greater access to trading partners’ dairy markets.

Dairy Companies Association chair Malcolm Bailey says talks for a trade deal with the European Union are already slow-going.

“We are conscious that if we are making a new demand of the Europeans in these negotiations we need to have a good understanding of what it is we are actually asking for and the value of that,” Bailey said.

“At this point this is not clear to us and it would be good to get some clarity so that other players can make a judgement as to what the bottom line should be around this.

“We simply need more information.”

Insiders say the Government had been jolted into action following criticisms from the Waitangi Tribunal last year of a trade agreement negotiated by the previous National-led Government.

The body’s report last November criticised the e-commerce provisions of the Comprehensive and Progressive TransPacific Partnership (CPTPP) for breaching the principals of the Treaty of Waitangi by failing to ensure adequate protection of Māori data, especially data deemed matauranga Māori, or relating to traditional Māori knowledge.

It stopped short of recommending a freeze on new negotiations called for by the WAI 2522 group of claimants who kicked off the tribunal’s investigation into the CPTPP’s predecessor agreement, the TransPacific Partnership, in 2016.

Instead the tribunal said the Government should continue to negotiate e-commerce provisions in trade agreements in close consultation with Māori to ensure their interests were protected.

As with most findings by the tribunal, the Government is not legally bound to enact them but sources say Labour ministers felt they could not be ignored this time.

In the meantime, NZ negotiators are awaiting instructions from ministers on how to proceed in talks with the EU.

In the recent UK free trade deal the e-commerce chapter largely resembled its CPTPP equivalent, but NZ was able to insert a clause at the last minute for both sides to propose changes within two years.

EU sources have indicated such a compromise is unlikely to be acceptable in their talks because of the uncertainty it would create for European services firms wanting to collect data and operate here.

“The Waitangi Tribunal decisions have put the cat amongst the pigeons,” another insider said.

“NZ does not have a negotiating position with the EU.

“Basically they seem to have given a right of veto to iwi groups on this matter and MFAT (Ministry of Foreign Affairs and Trade) has got to somehow negotiate a position that everyone can agree to.

“It is not going to be easy.”

That difficulty was underlined in the recent Parliamentary Select Committee submission on the UK FTA by one of the two main Māori groups created by MFAT last year to advise its trade negotiators.

Nga Toki, representing the original WAI 2522 claimants and advised by anti-trade legal academic Jane Kelsey, said the UK agreement largely repeated the e-commerce breaches of the treaty identified by the Waitangi Tribunal in CPTPP.

Te Taumata, representing Māori exporters, backs the UK FTA.

Sources say the dilemma for the Government is that it risks swimming against the tide of modern trade agreements including recent moves by the United States to start trade talks with Pacific Rim countries and which are bound to include rules encouraging cross-border data flows as a key plank.

Trade Minister Damien O’Connor said he is aware of the arguments.

“This new area of digital trade and data protection is an evolving one … the EU is a market of 450 million people, with huge opportunities,” O’Connor said.

“While agricultural market access is crucial, it is not the only part of a new and emerging world of trade opportunities.”

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