A/HRC/33/42
72.
The Maori of New Zealand are the only indigenous people addressed in the
exception chapter.23 The provision permits “favourable treatment to Maori” and excludes
interpretation of the Treaty of Waitangi from investor-State dispute settlements. However,
the Maori regard the exception to be inadequate.24 Having expressed its concerns in relation
to the potential impacts of investor-State dispute settlements, the Waitangi Tribunal
recommended that the Maori participate in the appointment of arbitrators where their rights
are affected.
73.
Implicit in the Maori Trans-Pacific Partnership exception is the recognition that their
rights, and by extension those of other indigenous peoples, can be negatively affected by
investor protections under the Partnership and its investor-State dispute settlement
mechanism. So too is the fact that those protections afforded to the Maori under the
exception are essentially denied to all other affected indigenous peoples owing to the
absence of exceptions for them.
74.
One of the issues that indigenous peoples have highlighted in relation to the
Partnership is its impact on their control over their traditional knowledge, as the rights of
corporations that hold intellectual property rights are strengthened in the relevant chapter of
the Partnership, while traditional knowledge rights that fall outside of the intellectual
property regime are afforded no protection. Experience to date demonstrates that, in the
absence of adequate safeguards, traditional knowledge can be commercialized. Similar
concerns exist in relation to genetic resources and biodiversity.
75.
An exception, allowing parties to take measures in relation to traditional knowledge
in accordance with their international obligations, is included in the exception chapter, but
in practice it can be ignored or interpreted to have little relevance by arbitrators.
Requirements under international human rights law and international environmental law in
relation to equitable benefit sharing and a general requirement for free, prior and informed
consent of indigenous peoples were not included in the Trans-Pacific Partnership, with
consent only referenced where national law already requires it.
76.
The effects of the Trans-Pacific Partnership, whereby investor rights are entrenched
and indigenous rights are constrained, could have a particularly profound impact on
indigenous peoples in the many resource-rich Partnership countries, given the huge number
of extractive industry, forestry, palm oil and energy companies based in Australia, Canada,
Malaysia, New Zealand and the United States. These resources are often in areas of
ongoing dispute and conflict between indigenous peoples and foreign investors.
VII. Conclusions and recommendations
A.
Conclusions
77.
Foreign investment can contribute to economic growth and development.
However, there is a long-standing debate as to the conditions necessary for developing
countries to benefit from such investment, and the extent to which international
investment agreements facilitate those conditions.25
23
24
25
Ibid., article 29.6.
See Waitangi Tribunal (note 21 above).
See K. Mohamadieh and M. Montes, “Throwing Away Industrial Development Tools: Investment
Protection Treaties and Performance Requirements”, in Investment Treaties: Views and Experiences
from Developing Countries (South Centre, Geneva, 2015).
17
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