TPP and the Treaty of Waitangi exception

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An important aspect of any Free Trade Agreement (FTA) is the exceptions chapter.

This chapter sets out a number of exceptions that allow countries to adopt or retain, in certain circumstances, policies measures that are inconsistent with the obligations under an FTA. The inclusion of exceptions in FTAs is important to ensure that governments maintain the ability to regulate to protect, for example, public morals, security, health, and the environment. This approach recognises that, in some cases, governments have valid policy reasons for implementing measures of this nature.

Like many countries, New Zealand’s approach in its FTAs is to include the exceptions agreed in the WTO General Agreement on Tariffs and Trade (GATT, specifically articles XX and XXI). These exceptions allow countries to justify policies that could otherwise be inconsistent with obligations in an FTA, including where such measures are necessary to protect human, animal and plant life and health, public morals, or where measures relate to the conservation of exhaustible natural resources.

For New Zealand, the Treaty of Waitangi exception in our FTAs is a critical addition to the GATT exceptions. As the founding document of New Zealand, the Treaty provides a framework for the on-going relationship between the Government of New Zealand and Maori. Given its importance, the Treaty exception has been included in all of New Zealand’s FTAs, including multi-party processes like the ASEAN-Australia-New Zealand FTA and the WTO General Agreement on Trade in Services. The exception is designed to ensure that successive governments retain flexibility to implement domestic policies that favour Maori without being obliged to offer equivalent treatment to overseas entities.

The Treaty of Waitangi exception is qualified by a requirement that any measures that provide more favourable treatment to Maori must not be used by New Zealand as a means of arbitrary or unjustified discrimination against persons from the other Parties, or as a disguised restriction on international trade. This is the same qualification that applies to the GATT Article XX exceptions. It provides an important reassurance to our trading partners that New Zealand will only seek to invoke this exception for legitimate purposes related to M?ori and the Treaty of Waitangi.

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