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