Trade Minister Damien O'Connor with British Trade Secretary Anne-Marie Trevelyan at the signing of the NZ_UK Free Trade Agreement in London yesterday.

Trade Minister Damien O’Connor is now on his way to Brussels to try and move a free trade agreement with the European Union along.

But he will be up against it with a significant obstacle, not in Brussels, but Wellington.

The Government has yet to complete its answer to a Waitangi Tribunal recommendation that it avoid locking itself into any fixed negotiating position on digital matters and e-commerce until it has developed a policy to safeguard Maori data.

The next round of negotiations on the Free Trade Agreement starts in a fortnight.

Meantime O’Connor is expected to meet Valdis Dombrovskis, the European Commission’s Trade Commissioner, and Janusz Wojciechowski, the EU Commissioner for Agriculture.

He will also meet with Members of the European Parliament.

Of course, how much interest EU Commissioners and Parliament might have in free trade agreements just at present is questionable.

O’Connor deflected a question on the Waitangi Tribunal recommendation at his pre-trip briefing for media.

Instead, he referred to the UK Free Trade Agreement, which has a Chapter on Maori Trade and Economic Co-operation which he said offered “very, very” significant benefits.

“In our discussions and consultation with Iwi across New Zealand, they have seen the huge potential in this,” he said.


“It’s an acknowledgment of the historical connections, but it opens the door for future development through that chapter.

“Plus, of course, all the benefits that trade will offer to Maori across New Zealand.”

The Maori Chapter, however, does not deal specifically with the question raised by the Tribunal.

It does acknowledge the Treaty and in the process, underlines that the New Zealand Government has replaced the British Government as “the Crown”.

“The Parties recognise the unique relationship that exists between Māori and the United Kingdom, noting that representatives of the British Crown and Māori were the original signatories to Te Tiriti o Waitangi/The Treaty of Waitangi whilst acknowledging that the New Zealand Crown has now succeeded the British Crown and assumed all rights and obligations under that Treaty,” it says.

“The Parties acknowledge that Te Tiriti o Waitangi/The Treaty of Waitangi is a foundational document of constitutional importance to New Zealand.

“The Parties recognise the importance of cooperation under this Chapter being implemented, in the case of New Zealand, in a manner consistent with Te Tiriti o Waitangi/The Treaty of Waitangi and where appropriate informed by Te Ao Māori, Mātauranga Māori, and Tikanga Māori.”

But while the Treaty applies to New Zealand, there are lesser obligations imposed on the British Government.

Particularly it says nothing in the agreement “gives rise to obligations that relate to intellectual property.”

(There is an exception for protection of the haka, Ka Mate)

But the Waitangi Tribunal was specifically concerned about intellectual property.

“We conclude there that Māori data may be a component of mātauranga Māori, or may in combination with related data be, or have the potential to be, a taonga,” it said.

The Tribunal defined “matauranga Maori” as encompassing “both what is known and how it is known.

“Mātauranga Māori encompasses the Māori way of perceiving and understanding the world and the values and systems of thought that underpin those perceptions.

“While we cannot say that all data is a taonga, we recognise that from a te ao Māori perspective, the way the digital domain is governed and regulated has important implications for the integrity of the Māori knowledge system, which is a taonga.”

The report said that at the heart of the e-commerce issue (which was the subject of its Inquiry) was the question of governance and control of Māori data.

“The terms ‘Māori Data Governance’ and ‘Māori Data Sovereignty’ refer to the idea that Māori data should be subject to Māori governance,” it said.

The Data Chapter of the Free Trade Agreement does not specifically address this though it does include a number of references to Maori in connection with “digital inclusion”.

In July last year, the Deputy Secretary of the Ministry of Foreign Affairs and Trade responsible for trade and economic issues, Vangelis Vitalis, told the Tribunal that MFAT had been regularly consulting with the 10-person Te Taumata board, which is a grouping of Maori business people and elders who consult with Government on a range of issues.

It is chaired by Chris Insley (Te Whānau-ā-Apanui, Ngāti Porou), who said yesterday that the UK Free Trade Agreement “broke new ground in acknowledging and recognising Māori interests across the agreement, recognition of the Treaty of Waitangi, and the inclusion of a dedicated chapter on Māori Interests.

Nevertheless, the Tribunal said that there was a need for “a comprehensive review of Aotearoa New Zealand’s policy settings, and we also accept the need to avoid locking Aotearoa New Zealand into fixed negotiating positions pending completion of that review.”

Thus the UK Agreement, which had been negotiated in principle before the Tribunal reported, is a first step along the road. But the second step, with the EU, maybe more challenging.

Officials at the Ministerial briefing were optimistic that a deal with the EU could be done, but they conceded there were some “very challenging issues”.

Those are not just the Maori issues but also the question of agricultural access to Europe, which has not been resolved yet.