The Trans-Pacific Partnership: New Zealand, Indigenous Intellectual Property, and the Treaty of Waitangi

Rimmer, Matthew (2016) The Trans-Pacific Partnership: New Zealand, Indigenous Intellectual Property, and the Treaty of Waitangi. Edward Elgar Blog.

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Abstract

There have long been significant concerns about how international trade agreements affect Indigenous rights, particularly in respect of Indigenous Intellectual Property. As highlighted in our recent handbook on Indigenous Intellectual Property, there has been an ongoing conversation about the relationship between Indigenous communities, intellectual property, and trade. Such discussions have traditionally taken place in multilateral fora like the World Trade Organization, the World Intellectual Property Organization, the United Nations Environment Programme, international climate talks, and the United Nations Permanent Forum on Indigenous Peoples. Of late, the debate has also arisen in the context of bilateral trade agreements such as the Australia-United States Free Trade Agreement 1994, and mega-regional trade agreements like the Trans-Pacific Partnership 2015. Matthew Rimmer goes on to discuss.

Writing in 2008, Professor Megan Davis, director of the Indigenous Law Centre at the University of New South Wales, and the current Chair of the United Nations Permanent Forum on Indigenous Peoples, expressed concerns about how the Australia-United States Free Trade Agreement would impact upon Indigenous communities in Australia. She commented that ‘[Free Trade Agreements] have the potential to encroach upon laws, regulations and policy making with respect to culture, education, health, environment and heritage and this would have a disproportionately negative impact upon Indigenous communities.’

There has been much general controversy over the Trans-Pacific Partnership 2015 — a regional trade agreement spanning the Pacific Rim. In the context of Indigenous rights, there has been trepidation about how the trade deal will affect Indigenous communities. There have been concerns that the Trans-Pacific Partnership 2015 has been secretly negotiated without the participation or consent of Indigenous communities. Moreover, there have been complaints that the Trans-Pacific Partnership 2015 falls far short of the standards set by the United Nations Declaration for the Rights of Indigenous Peoples 2007. In New Zealand, Māori communities brought an action against the Trans-Pacific Partnership 2015 under the Treaty of Waitangi 1840. Musician and film-maker Moana Maniapoto commented upon the action:

Māori have been struggling to protect our culture in the face of an IP system that has never been a good fit for our people and culture. The experience of having my name trademarked by a company in Germany brought it home in a very personal way how much our language, culture and music is being appropriated left, right and center by companies. The WAI262 Claim reiterated that. There’s been no movement by the government to undo existing agreements or legislation that fail to protect our culture. Yet the government wants to haul us all into a hefty — and very secret — international agreement that will disempower Māori even more? I am very concerned about this — especially given the track record of the key player, the US.

The claimants have been concerned that the Crown’s actions in relation to the Trans-Pacific Partnership Act 2015 may negatively affect Māori health, education, culture and will impinge on Māori rights to self-government as guaranteed by the principles of the Treaty of Waitangi 1840 and the United Nations Declaration on the Rights of Indigenous Peoples 2007.

On the 5th May 2016, the Waitangi Tribunal handed down its report on the Trans-Pacific Partnership Agreement 2015. The Waitangi Tribunal addressed a number of important issues — including the exception clause relating to the Treaty of Waitangi 1840; Investor-State Dispute Settlement; and Indigenous Intellectual Property.

Impact and interest:

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ID Code: 96838
Item Type: Other
Refereed: No
Additional URLs:
Keywords: Intellectual Property, Indigenous Knowledge, Investor-State Dispute Settlement, Trans-Pacific Partnership, Treaty of Waitangi
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Intellectual Property Law (180115)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > International Trade Law (180117)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > MAORI LAW (180200) > Te Tiriti O Waitangi (The Treaty of Waitangi) (180203)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Deposited On: 12 Jul 2016 23:28
Last Modified: 12 Jul 2016 23:28

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