Te Taiao

Te taiao, the whenua and the wai, taonga species and mātauranga, are all at risk from exploitation and the existential climate crisis. The multinationals responsible are some of the most profitable in the world.

Māori have consistently resisted attacks on te taiao, our natural world, whether onshore and seabed mining, dredging of sands, polluted waterways, water extraction, destruction of taonga species, destructive forestry practices, privatisation of fisheries, or toxic waste. As Cyclone Gabrielle showed, yet again, Māori communities bear the brunt of the climate catastrophe that others have caused.

It is our responsibility as kaitiaki to protect them through the exercise of our rangatiratanga. But the rules in free trade agreements have never been about protecting te taiao or reinforcing our role as kaitiaki over our land and taonga. They are mainly designed for (and often by) large corporations, especially foreign multinationals, to protect and entrench their power and profits. 

“Trade” and “investment” agreements restrict government policy and regulations that get in their way. Different rules may prohibit or undermine requirements for Tiriti impact assessments, bans on fracking, that eco-tourism operators must be approved by local hapu, or that logs are processed locally by locally owned businesses. Foreign owners can keep their data outside Aotearoa, making it hard to show they know they are breaching water quality or emissions rules.  

Recent agreements (negotiated in secret) also guarantee foreign corporations the rights to lobby against new laws in the name of “transparency”; guaranteed rights that iwi and hapū don’t have.

Some even empower investors to sue the government directly over government actions (eg. phasing out fossil fuels, cancelling water bottling rights or not renewing prospecting licences) and even planning decisions they say will affect the value of their investment or profits. These Investor-State Dispute Settlement (ISDS) cases are heard by pro-investor, offshore tribunals that can award hundreds of millions of dollars compensation for lost future profits. The investors have no corresponding obligations.

Many disputes have arisen out of Indigenous resistance to investors. A growing number of investors are using ISDS to challenge climate action measures. In April 2023, an Australian mining magnate claimed $300 billion against the Western Australian government through the back door of Australia’s free trade agreement (FTA) with Singapore, where he had re-registered his company. He had already lost in the Australian courts.

Māori were part of a successful campaign back in 1998 to stop a Multilateral Agreement on Investment (MAI) that had the same corporate rights rules and ISDS. The campaign to stop the Trans-Pacific Partnership Agreement (TPPA) also targeted ISDS. When the Labour/NZ First government agreed to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP, or the TPPA minus the USA) they also said they would not agree to ISDS in future agreements (despite defending it in the Waitangi Tribunal in the Wai 2522 TPPA claim). They have delivered on that in the UK and EU FTAs, but existing agreements (including the CPTPP) still have it, so the risk remains.

The FTAs have exceptions that are said to protect the right to regulate the environment. But they are hard to establish and full of limitations, and leave decisions on matters of fundamental importance to Māori to a panel of offshore trade lawyers. In most cases where governments have relied on these exceptions, they failed.

The latest agreements being negotiated have lots of rhetoric about sustainability and addressing climate change, but they only look to market mechanisms to address them, which again are designed to benefit the corporations. They don’t change the rules that contribute to destruction of the eco-system and the climate crisis. The government is developing a new Trade and Environment policy that follows that same model. They have been told that is not a Tiriti-compliant approach and sprinkling a few Māori words through their chapters just makes it worse.