Any delay in signing a free trade agreement with the United Kingdom would give Australian mānuka exporters the jump on New Zealand producers.
The Government is considering greater protection for Māori data in trade agreements. But will farmers end up paying the price if trading partners become less willing to open up their own markets in response? Nigel Stirling reports.
For five years the Waitangi Tribunal has been investigating the Comprehensive and Progressive TransPacific Partnership (CPTPP) to assess its consistency with the principles of the Treaty of Waitangi.
Its final report, released late last year, found the e-commerce chapter of the deal the Government had agreed with 11 other countries in 2018 had breached those principles.
Not enough had been done to ensure the protection of Māori data, especially data deemed mātauranga Māori, or relating to traditional Māori knowledge.
The tribunal stopped short of recommending a freeze on negotiations called for by the original 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.
The publication of the tribunal’s report in November came at an awkward time for the Government.
In October, Prime Minister Jacinda Ardern announced the broad terms of a trade agreement removing tariffs on all of NZ’s major agricultural exports to the United Kingdom.
One Wellington insider said the Government had been reluctant to jeopardise a major win for exporters by foisting new demands on the Brits in the closing stages of the talks.
“Do you reopen agreed text to try and mitigate some of the things that the tribunal has said, and if you reopen text then you have to accept the risk that your counterpart will also reopen text elsewhere, and the agreement starts to unravel,” the insider said.
At the same time the Government was reluctant to ignore the findings of the tribunal completely.
The picture was further complicated a week before Christmas with news Australia had finalised their own trade deal with the UK.
The insider said government ministers had made it clear they were not prepared to risk New Zealand exporters falling behind Australian rivals on the path to tariff elimination by making new demands in the UK talks.
However, that was not before consideration had been given to overhauling the agreement’s e-commerce chapter to address the concerns raised during the tribunal hearings, one source said.
“There were a lot of discussions among ministers. It was not a simple decision,” the source said.
In the end, the Government kicked the can down the road.
It is understood the e-commerce chapter of the final agreement, to be signed in London by Trade Minister Damien O’Connor in the next few weeks, largely resembles its CPTPP equivalent but with the addition of an early review clause allowing either side to propose changes in the future.
“It will be for Treaty partners whether they think that is sufficient,” one insider said.
The Government’s approach has the backing of Te Taumata, one of two Māori bodies established to advise it on trade negotiations.
Te Taumata chair Chris Insley, a former chief executive of Te Arawa Fisheries, said the economic gains from free trade with the UK were too important for the talks to be dragged out any longer by making new demands now.
“In the long-term you need to advance those claims … but at the same time be mindful in these negotiations that the Māori people that own these assets, the ones that are looking for the jobs to be created on the farms, do not do anything to undermine the gains for them,” Insley said.
“Australia has got their deal done … if NZ takes another year or two then Australian producers of mānuka honey will get access to the fifth-largest economy in the world and NZ remains shut out and then at some point in the future Australian producers have got the march on NZ producers.
“That is why we are telling ministers to get on with it.”
But while the threat of being overtaken by the Australians appeared to have been dealt with, the Government still did not have a permanent solution for the Māori data conundrum, one insider said.
The issue would have to be tackled eventually with the Brits and again when negotiations resume with the European Union later this year.
“To be blunt, our trading partners are not that interested in helping us on this because they only see downside,” one insider said.
“If you have a data localisation requirement to protect Māori data that is a complication for British financial services firms and it is a cost that you are imposing on them doing business here.
“There is always the risk they will say ‘okay we can do those things, but you need to pay’ …whether that be market access or something else.”
One lawyer spoken to said the threshold for data deemed to be mataurangi Māori, and deserving special protection in trade agreements, was not clearly defined, potentially capturing vast amounts of data related to the Māori population, such as health data.
Data should be able to flow freely
New Zealand would be swimming against the tide of international trade agreements if it placed restrictions on where foreign companies operating here could store locally-generated data.
Trade ministers from the G7 group of the West’s largest economies reiterated this in a statement on digital trade principals last October.
It stated that data should be “able to flow freely across borders with trust” and opposed “digital protectionism and digital authoritarianism.”
One former trade negotiator said countries NZ liked to compare itself to were removing impediments to data flow between countries.
“That is one of the issues with China wanting to join CPTPP … you have people saying there is no way China can meet these commitments because of the Great Fire Wall and you can’t get data out,” the insider said.
Yet that is what the Government is contemplating as it mulls the Waitangi Tribunal’s report.
The November report noted the Government was reviewing its digital trade policy.
It had established two Māori groups, Te Taumata and Ngā Toki Whakaruranga, to advise it.
Among Ngā Toki’s advisors is Auckland University law professor Jane Kelsey, a long-time critic of NZ’s trade agreements.
Some exporters fear the Government risks allowing its trade agenda to be hijacked by ideologically-driven activists more interested in derailing trade agreements with abstract legal arguments than protecting the interests of Māori.
“There’s a risk that we start to snooker ourselves in trade around concerns from Māori,” one said.
“If we are not doing the right things as promised then we have got to deal with it, but I am not sure of the substance versus the rhetoric in a lot of this.”
But one source close to Ngā Toki said that view showed no sympathy for the Māori view of data as whakapapa and a taonga to be protected and controlled by Māori.
Continuing to sign trade agreements which allowed Māori data to be stored in offshore databases controlled by digital giants like Google or Amazon undermined those objectives which were considered by Māori to be fundamental to their rights to sovereignty and self-determination that the Crown agreed in the Treaty of Waitangi would be protected.
“There is a real shift that is happening and that poses political challenges for a variety of portfolios and certainly challenges for trade negotiators,” the source said.
