Annette Sykes – Waitangi Tribunal claim and the TPPA

The panel on a Tiriti-compliant strategy for Aotearoa at the October 2018 hui on What an Alternative and Progressive Trade Strategy for New Zealand Should Look Like reminded us of the uniqueness of our challenges and opportunities. Annette Sykes reflects on the Waitangi Tribunal claim on the TPPA from the claimants perspective:

Ngāti Pikiao, Ngāti Makino, Partner in Annette Sykes & Co

Jane Kelsey: At the end of Stage 1 of the Tribunal, because we’ve still got Stage 2 to go, what were your takeaways about the key issues when we got to the end of that phase?

Annette: [He mihi]. To follow from Amokura Kawharu, I came away from the Waitangi Tribunal with the recognition that while the Treaty clauses may have been seen as reasonable when they were inserted at the time of the Singapore free trade agreement in 2000, they are not effective in terms of protection.

I came away with the recognition perhaps by the Tribunal that the Crown’s assumption that they can develop these agreements and to assert a sovereignty over the authority that Maori possess is not right in 21st century Aotearoa, just as it was not right during the NZ wars.

The third thing I came away with is that Maori are ahead of other citizens on matters like whakapapa protection, on the desire that is expressed in commercial terms as trade marking or patenting, but which is actually protecting our taonga; and on the injustice in giving foreign investors or corporate entities or multinationals an elevated status over ordinary citizens and Maori as a general community, which is quite wrong. The tribunal recognised that, but didn’t have the time to grapple with how we might fix that up. That is where we go to in the Stage 2 inquiry.

The disappointing thing about it is that this challenge to TPPA is the latest stage in a 30 year challenge that I have been a part of, which is Wai 262 Ko Aotearoa Tenei on traditional knowledge. Notwithstanding a 10 year process back then which was led by great leaders of ours who have now passed on, there is an inability of the bureaucracy of this nation to deal with issues that have been right before them for 30 years. It’s a deliberate decision on their part to ignore it. But while they are ignoring it, Margaret Mutu and Ani Mikaere identified what Maori are doing – we are ignoring them and we are developing, reframing and recapturing our own systems of authority and protection that are going to guide the nation.

I look at the forestry stuff that was being discussed this morning. Even Te Arawa FOMA are not into this nonsense of just planting trees and exporting them anymore. That’s not an option for protection of our lands. It might be a short term capital gain, but it has no benefit to the sustainability of our environment, which is an integral obligation of us who live on these lands. That had to be recognised in the NZ First slush fund. They had to look at ways to develop those lands that protect environmental obligations which are paramount over their commercial objective. So that’s what’s happening in that environment.

I listened to Margaret Kawharu about all these billions of dollars we are meant to have and I actually resonated more with Tanya Pouwhare that these billions of dollars are not trickling down to the Maori that I mix with. I am in court every day with the average $16,000 a year person, most of whom are ending up in jail. One Maori person a day from the Rotorua district court goes to jail. So at the same time as we’ve had these billions of dollars injected into the central North Island through the CNI investment and settlement, there has been no change, but a 3 fold increase in the social deprivation indicators. It doesn’t make sense to me. Foreign investment hasn’t worked for us and repossession of those commercial opportunities isn’t working for the average Maori.

So that disjuncture, which I do say is part of the systemic problems of free trade, has to be confronted and Maori are confronting it. We’ve already started, as Margaret said, in developing our own relationships but they are with indigenous people too. So the word foreign is a bit foreign – I don’t see indigenous investors as necessarily foreign to the values that I uphold. The language of ‘foreign’ and ‘nation’ and whose nation and who are the citizens, the language around that need to be challenged as well.

That’s what I came out of the Tribunal with. I don’t think the Tribunal is ready for stage 2. I think the Labour-NZ First -Green coalition has helped them a little bit with the ‘no ISDS’ position, as that was a trouble for them. But I am still sceptical. I have yet to see anything that has that written in it. And given my last 30 years experience with the Crown I won’t believe it until I see it.

One of the key outstanding issues since Wai 262 is there is no effective Maori engagement process with either MFAT, MBIE or any other nominated Crown entity. That has been a huge issue. So now it seems they have by-passed us – they tended to have consultation amongst themselves. Their idea of consultation was MFAT talking to representatives of Te Puni Kokiri. Maori they might be, but they are both the Crown. Now they have decided the Waitangi Tribunal has said we have to develop better engagement with Maori communities. They have invisibilised us and it seems from what Wayne said they have gone to our indigenous cousins in Canada directly. I find that quite insulting. First, that Canadian indigenous peoples have even thought they could represent a Maori position on this to the government. But more fundamentally that the government has bypassed any direct process of building an engagement model, of directly involving the keepers of Maori taonga in that engagement, and are now going to say that NAFTA’s got a new clause, we’ve talked to the indigenous communities in Canada of how that clause got in, and we are going to have Trudeau’s model brought here. That’s the kind of cultural arrogance and ignorance that we rally against. And if it’s going to be perpetuated under the current government it will no doubt be the fundamental challenge in the next phase of this Tribunal.

Iwi leaders have been asking for our people to construct democratically elected representatives to deal with these agreements and we should be supporting that. We need national and regional hui where we nominate our own people and they set up the processes for engagement. My problem with iwi leaders is they don’t do the democratic part at the moment. They self-appoint. So we need to build those participatory processes among the communities ourselves. That’s not for the government to do, that’s for us to do. But the government has got to recognise they can’t bypass Maori, certainly not in the 21st century, for all the reasons that you’ve heard today. We are still not frightened to protest, we are certainly not frightened to challenge. It’s big hitters – the NZMC, iwi leaders forum and the activists – who will lead the charge. So things like the social injustice we talked about today, we will be the first ones to lead the charge and our battles will be in the streets, the courtrooms, and we will make change. I am very clear on that.

Question: The NZ super fund is worth $40 billion, but only $5 billion is invested in NZ. When challenging Crown entities, is that in your sights and can we assist with that?

Annette: It has been the subject of discussions in Waitangi Tribunal hearings I’ve been in. They’ve challenged the kinds of investments the Fund has made that aren’t ethical in terms of Treaty obligations – not so much the quantum. I agree we should be looking more to utilise that fund within this country and the relationships it can build, the social entrepreneurship we need, as well as the rangatiratanga reclamation processes that we need. One of my concerns, like with planting pine trees, I can’t see how that’s going to be good for us in the long term. I’d like to see more investment in native forest reclamation, a cleanup fund for our rivers, that kind of social investment. In the current water case, all those things are being talked about. And it’s in that context that I’ve heard the super fund talked about. But no specific challenge to the fund itself.

Question: I respect the majority of the korero has been around tangata whenua. As a trade union organiser I am out each day trying to improve people’s lives against the corporate hegemony. I’m interested to get a response around your focus on he tangata: how do the people benefit from your approach. I think that’s a great conversation to have.

Annette – You heard the example of Miraka this morning. They have some environmental standards, but they also have some employment standards, like maintaining employment of beneficiaries, and the living wage is already written into those agreements. Some of the trusts that are investing in Miraka have broad statements of corporate intent that are things like, a dairy farm is required to do something to counteract the footprint for climate change, such as transforming over time from dairy to growing flowers. And for workers, making sure in the process of transformation that there are appropriate relationships in place so workers don’t lose their jobs. I come from Kawerau and Murupara. The last transformation was a sell off and made those places ghost towns.  People are talking of how to bring them back.

Another example, I’m presently in the Waitangi Tribunal fighting for Maori nurses, because in the whanau ora space the public private partnerships do not guarantee a living wage for the nurses. We see disparities between those who work for the DHBs and whanau ora, sometimes as much as $10 an hour for workers. That’s got to stop. So in this space of Maori development, we are very conscious about workers, because we bear the brunt of what the free trade experiment – I think they called them structural adjustment programmes this morning  – have done to that. The other thing is that we are still the greater proportion of unemployed in rural areas. We actually need to have the unemployed, because our marae would die if we didn’t have people working there. They are the backbone of our culture.