History of the Maori of Aotearoa

The MAI and the Treaty of Waitangi

By Makere Harawira,
1 November 1997

A paper presented at the Public Forum on the Multilateral Agreement on Investment, Wellington, 1 November 1997

Preamble:

The Multilateral Agreement on Investment (M.A.I.) is the latest in a series of international economic and trade agreements which have been designed to open up countries so that they are more accessible for overseas interests. Since the 1980s there has been a series of agreements aimed at gradually removing any remaining trade barriers and protections. The idea used to promote these practices is that by being attractive to overseas investors, benefits will accrue to local economies. This is blatantly untrue as the recent disasters in the Asian economies has illustrated. Those countries who have been most badly affected have been the ones who are the most locked into the 'global economy'.

For Maori, the potential impact of economic agreements designed to remove the few remaining trade protections and barriers to market liberalisation on us as the Treaty partner and indeed on every New Zealander, is considerable. When such agreements enable the sale of or trade in almost all such resources, assets and enterprises as remain in New Zealand ownership and when they provide privileges to foreign investors without requiring any return of profits to this country, or even the employment of New Zealanders in these businesses, Maori as well as other New Zealanders should be objecting in the strongest possible terms.

There are some significant and alarming differences between the MAI and other international economic agreements which are highly dangerous to the economic well-being of this country. The GATT agreement, which preceded the M.A.I, has aspects that have the potential to undermine Maori endeavours in a number of ways. The M.A.I increases the dangers to Maori even further.

The goal of the M.A.I is to remove all hindrances to overseas investment in, or ownership of resources and enterprises in Aotearoa. It is designed to benefit overseas investors by making the conditions for their investment at least as favourable as they are for New Zealanders. This is known as National Treatment. What is actually does is give overseas investors huge advantages in many ways.

1. Apart from the reservations that each country submits and which are only temporary and must ultimately be removed, there are essentially no requirements or conditions whatsoever placed on them as investors.

2. The MAI is weighted so heavily in favour of overseas investors that it is enforceable in a domestic court of law. Countries who a foreign investor considers are not complying with the agreement by for instance, refusing to import products that have been produced outside of environmental requirements, can be taken to either a domestic or international court and ordered to either comply with the agreement or pay billions of dollars in compensation.

3. Trade sanctions against any overseas country of investor who is a signatory to the MAI are now illegal. This means that a country or corporation who is in breach of other agreements such as environmental agreements, human rights conventions or the yet-to-be-finalised Declaration of the Rights of Indigenous Peoples, cannot be discriminated against by refusing to trade.

4. Under the M.A.I national governments will have no authority to negotiate, to apply sanctions or to make policies or laws that may be a disadvantage to an overseas corporation or government that might wish to trade with Aotearoa, across social or environmental issues.

5. Once the MAI is signed, Maori will have lost the ability to negotiate any issues based on self-determination or to strive for tino rangatiratanga at any level. Because the government will no longer have any ability to make policies or laws or renegotiate structures that are not in the best interests of transnational corporations, the ability for Maori to negotiate at the level of national law will also have gone.

6. The signing of the MAI will mean that there will be no further claims under the Treaty of Waitangi accepted for negotiation. The government's agenda for having all claims under the Treaty of Waitangi completed before the year 2010 is so that it can comply with the global requirements of the economic agenda of corporations whose goal is to achieve unfettered access to the resources and businesses of all countries by the same year.

Constitutional Issues for Maori

Originally consultation with Maori was not deemed necessary beyond a perfunctory notification to Te Puni Kokiri who were in the first instance given one day to reply. It was not considered necessary for Maori to be more widely consulted either regarding the wording of a reservation to provide (temporary) protection or whether the government of Aotearoa should participate in the M.A.I. at all. Until now the Multilateral Agreement on Investment has been negotiated in the absence of any analysis of the potential impact on Maori and despite commonly heard rhetoric about the principles of Treaty partnership. Consultation on a wider basis is now being planned as the result of considerable outcry from some quarters. Nevertheless as it currently stands, consultation with Maori is intended to revolve only around the wording of the reservation to protect Maori commercial interests. There is so far no suggestion of consulting with Maori regarding whether or not Aotearoa should participate in the MAI at all.

Treaty Partners?

From a Maori viewpoint, the participation of government in international agreements without full consultation with, and consent of, their Treaty partner is untenable and surely unconstitutional. The position of Maori as the Treaty partner in Aotearoa is shown to be somewhat farcical. The reality is that the Crown can do whatever it likes regardless of Maori opinion. When Maori are consulted, current methods are demonstrably inadequate. Under the present system consultation with Maori functions to co-opt the agreement of key people such as Maori elites without counting the impact on ordinary Maori. It conveys the illusion of a form of partnership that in real terms is non-existent. And certainly in the context of international agreements, effective Maori participation as an equal partner in political and economic decision-making is non-existence.

Given the extent to which such agreements have the potential to impact, the lack of consultation with either Maori as Treaty partner, or the public at large signifies a change of direction for 'democratic leadership' which must be of concern to both Maori and non-Maori.

Related Policy Developments

During the last 5 years the Crown has moved more and more towards a minimalist form of government justified by plausible sounding rhetoric. The concept of governance being promoted is that by removing extraneous issues and responsibilities from the government's agenda, the government can then 'get on with its job which is governing, not running television stations or airports, for instance' to quote a recent statement from the prime Minister.

The effect of this is that economics becomes completely separated away from human and social issues. Decisions are then made on what is believed will bring economic gain without counting the cost in human terms. The consequences are reflected in current government policies for the privatisation of a range of provisions including health and education, the sale of state owned enterprises such as TVNZ and recent attempts by the government to remove itself from its own obligations under the human rights act. All of these policy directions are underpinned by the same agenda - that of making Aotearoa even more attractive to foreign investment by opening up these areas to private enterprise. The potential to further increase the negative positioning of Maori across all social, health and educational indices is particularly strong.

Maori Cultural and Intellectual Property Rights

Another critical issue for Maori that intersects with the M.A.I. is that of Maori cultural and intellectual property rights. The recent hearing in Tai Tokerau in which the Crown refused to guarantee confidentiality of evidence should gravely concern Maori. It gives credence to the suspicion that the Crown has a vested interest in not protecting Maori cultural and intellectual from plunder, patent and profiteering by overseas interests. The cultural knowledge of indigenous peoples is of considerable interest to pharmaceutical companies who are able to develop and market native medicinal plants. Maori intellectual knowledge, or Matauranga Maori, is also being commodified as in, for example, the certification of kaumatua as well as curricula by the NZ Qualifications Authority. Vast stores of Maori intellectual and cultural knowledge are held within the archives of TVNZ. With the sale of this state-owned enterprise, property rights over this valuable resource of Maori intellectual and cultural property will be vested in the new owner/s.

The Treaty Reservation: protection for which Maori interests?

The rhetoric about protection for Maori as the Treaty partner contains some significant misrepresentations. Included in these misrepresentations is a reported comment by Jim Bolger to the effect that 'New Zealand has really reserved a blank slate for being able to say that we want to reserve the right to do anything we can in this area (the Treaty of Waitangi) without interference in this Treaty.' Donald Johnstone of the OECD was also reported as saying from Paris that the proposed Multilateral Investment Agreement will 'benefit Maori and other indigenous peoples because it will enshrine protections for their resources and rights while at the same time putting world investment on a more even footing.'

This statement is not only untrue but could be interpreted as a blatant attempt to gain the consensus of indigenous peoples to an agreement which will further marginalise them, by misleading them with intent. In fact, Maori rights and resources are not protected by the current reservation beyond the area of current and future Maori commercial and industrial enterprise.

At the time of writing the wording of the reservation designed to protect Maori interests in respect of the National Treatment Reservation reads:

"Current and future measures according more favourable treatment to the Treaty Partner in relation to the acquisition, establishment or operation of any commercial or industrial undertaking."

Benefits to Maori from the M.A.I?

In a letter dated 31 October the Ministry of Foreign Affairs and Trade (MFAT) points out that no obligations, constraints or disadvantages will be imposed on private Maori enterprise and that any benefits from foreign direct investment freely entered into will continue to accrue. It could therefore be argued that the M.A.I increases the possibilities for Maori to invest in foreign enterprise themselves.

Certainly it is true that Maori business enterprises such as corporate trust boards could profit from overseas investments such as the recent acquisitions in Hawaii by a southern iwi. The M.A.I may also make it easier for Maori to enter into joint ventures with overseas countries or investors in order to develop their resources. The danger is that as these businesses expand it will become more difficult for Maori to retain control over these operations. Perhaps more importantly, the degree to which ordinary Maori may benefit from such transactions is questionable in the current corporate environment which prioritises capital gain over distribution of benefits and profits over accommodation for beneficiaries. It is hard to see what possible benefits for Maori as a whole might accrue from such endeavours.

Good Intentions

According to MFAT it is inconceivable that the Treaty Partner reservation, which they maintain is the cornerstone of New Zealand's list of reservations, would ever be removed without the fullest consultation with Maori. While there is no doubting the sincerity of the statement, would that it were true. In today's climate only the most myopic or naive could continue to believe that what is promised today will still hold true tomorrow. As I write, the Prime Minister has just been ousted from office by a take-over bid within his own party and will withdraw at the end of the month. The same Prime Minister pointed out less than a month ago that the clauses of the Coalition Agreement which is the foundation document for New Zealand's first MMP government, can be renegotiated or even scrapped altogether at any time. There can be no doubt whatsoever that any future government subjected to sufficient persuasive pressure by overseas interests could and would remove or reduce the Treaty clause if it was deemed to be in the best economic interests. The question would be, in whose economic interests?

The Treaty of Waitangi: a sentimental memory?

In the current climate, economic decision-making has assumed complete precedence over all human affairs. Economic integration and the removal of remaining barriers to free trade are synonymous with the loss of nation-states' sovereignty over a frightening range of issues. Under the terms of agreements such as the M.A.I. national governments no longer have the ability to withstand pressure from transnational and multinational corporations. In fact, 51% of the world's wealthiest entities are transnational corporations.

Given these facts, it is not at all inconceivable that a future government would face pressure to remove Treaty reservations. Maori rights guaranteed under the Treaty of Waitangi have the potential to be a considerable barrier to foreign ownership and investment. Given that there have already been significant attempts to reinterpret and define the Treaty, it is highly conceivable that future governments may be pressured into removing such last remnants of authority vested in the Treaty of Waitangi.

Unless international agreements such as the M.A.I are stopped, the Treaty of Waitangi which has for 150 years been revered by Maori as a taonga handed down by our ancestors, may cease to be anything but the object of sentimental memories.