A DECADE OF INDIGENOUS COOPERATION BETWEEN AOTEAROA AND TAIWAN BUT WHERE TO NEXT?

Te Whānau-ā-Apanui at the NZ-Taiwan Geothermal Seminar in New Taipei CIty, Taiwan in June 2019 during the NZ Commerce and Industry Office Matariki celebration week.

Māori and the Indigenous Peoples of Taiwan share genealogical and linguistic ties that take us back more than 6000 years.[1] Our cultural legacies and continued connections are a source of much pride and honour amongst the diverse Indigenous Peoples whose traditional territories fall within each countries national borders.[2]

On 10 July 2023, Aotearoa New Zealand and Taiwan celebrated 10 years since signing the Agreement between New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu on Economic Cooperation (ANZTEC). This auspicious date also coincides with the week of Matariki (commonly known as Pleiades) the rising of which is a traditional marker for many hapū and iwi to welcome in the New Year - Te Mātahi o te Tau.[3] The arrival of Matariki is a sign for people to gather, to honour the dead, celebrate the present, and plan for the future.[4]

At the time it was signed, ANZTEC created a new precedent for the inclusion of Indigenous Peoples in the trade space by introducing a first of its kind Indigenous cooperation chapter within the context of a trade and economic arrangement.

Chapter 19 on Indigenous Cooperation continues to inspire Indigenous Peoples globally to seek similar or stronger inclusions in their trade and economic arrangements. To date there are more than 36 trade and economic instruments that include references to Indigenous Peoples.[5] However, Chapter 19 is limited in what it can achieve as it is not subject to the dispute mechanism within the agreement and is therefore unenforceable. While not necessarily a complete failing, it means that there is no mechanism to ensure that the parties can be held to account to resource the cooperation activities the chapter envisioned. To date, activities under the cooperation agreement have been limited due to inadequate commitments to funding which are on a case-by-case basis.

However, in December 2021, the signing of the Indigenous Peoples Economic and Trade Cooperation Arrangement (IPETCA) represented the activation of a new minimum standard for the inclusion of Indigenous Peoples within the international trade and economic space. It is a first of its kind open plurilateral arrangement seeking to create a framework for diverse economies and Indigenous Peoples to work together to increase trade and economic cooperation. The current economies and founding signatories to that arrangement include Aotearoa New Zealand, Taiwan, Australia, and Canada.

The relationship between Māori and Taiwan’s Indigenous Peoples continues to evolve and strengthen. With the advent of the first Indigenous chapter of its kind, its unsurprising then that our two countries continue to find common ground on advancing Indigenous issues.

Initially, IPETCA was conceived as an activity within the Inclusive Trade Action Group (ITAG) that originated in the margins of the Comprehensive and Progressive Trans Pacific Partnership Agreement (CPTPP) negotiations and was established through the Joint Declaration on Fostering Progressive and Inclusive Trade between Canada, Chile, New Zealand and later Mexico.[6] However, IPETCA was subsequently negotiated in the margins of the Asia Pacific Economic Cooperation (APEC) forum in 2021 and signed later that year.

With the current review of the ITAG underway and a membership that is not confined to the CPTPP parties – with the inclusion now of Costa Rica and Ecuador, there is an opportunity to bring IPETCA within the ITAG work programme to grow its membership. If that were the case, it would enable Taiwan to engage on Indigenous issues with other ITAG members, despite not being a party to the CPTPP.

Our potential as enduring allies and dual leaders on Indigenous issues in trade and economic cooperation presents a unique opportunity for both our countries to activate the next precedent for Indigenous inclusion in FTAs.

One way to do this, is to incorporate IPETCA across the relevant chapters of the ANZTEC to strengthen both economies commitments to Indigenous Peoples as part of the 2024 General Review of the Agreement. Doing so would honour the commitments made to the respective Indigenous Peoples within each of our countries, and the promises made as part of the reconciliation and redress processes of both our governments.

In 2016, during her national apology, President Tsai Ing-Wen urged “all of our Indigenous friends here and watching on TV and online...to stand witness...not to endorse, but to oversee [to] keep pressure on the government and right its course where necessary, so that it will realize its commitments and right historical wrongs”.[7] This followed her acknowledgement that “Four hundred years ago, there were already people living in Taiwan. These first inhabitants lived their lives and had their own languages, cultures, customs, and domains. But then, without their consent, another group of people arrived on these shores, and in the course of history, took everything from the first inhabitants who, on the land they have known most intimately, became displaced, foreign, non-mainstream, and marginalized”.[8]

Advocating for the upgrade of the ANZTEC during the next review in 2024 is one way of supporting Taiwan to keep on track with the promise made to Taiwan’s Indigenous Peoples. It also ensures that the New Zealand government can continue to fulfil its obligations to Māori under Te Tiriti o Waitangi / Treaty of Waitangi, by making further progress to advance Māori aspirations in the trade space.

In addition to incorporating IPETCA across relevant parts of the Agreement, or as the superseding text to the existing Chapter 19, both countries could also agree to (a) a more comprehensive general exception for Indigenous Peoples and (b) the establishment of a partnership council that applies to the whole agreement as part of its institutional provisions.

Given both our countries are home to the traditional territories of Indigenous Peoples, the introduction of an effective protection mechanism would highlight the joint commitments our governments have to ensure they can each fulfil their obligations to protect the rights of Indigenous Peoples.

The Indigenous Peoples Exception that Aotearoa New Zealand tabled at the World Trade Organisation (WTO) concerning the Joint Statement Initiative on E-Commerce, would provide the most comprehensive and effective protection. This exception is not too dissimilar from the Indigenous Peoples Rights exception set out in the Agreement between the American Institute in Taiwan and the Taipei Economic and Cultural Representative Office in the United States regarding trade between the United States of America and Taiwan. Article 7.5 of that agreement provides:

Rights of Indigenous Peoples

Provided that these measures are not used as a means of arbitrary or unjustified discrimination against persons of the territory represented by the other Party or as a disguised restriction on trade in goods, services, and investment, this Agreement does not preclude a Party, either on its own or through its Designated Representative, from adopting or maintaining a measure the authorities of the territory represented by the Party deem necessary to fulfil its obligations to Indigenous Peoples.

While the United States may have insisted on the chapeau language in its negotiations with Taiwan, the JSI text tabled by New Zealand excludes it. The chapeau language remains problematic generally because it means a party can challenge a measure taken by a government in fulfilment of its obligations to Indigenous Peoples under a treaty or other legal or constitutional instrument,. It does this by claiming the measure represents an arbitrary or unjustified discrimination against an individual or a disguised restriction on trade thereby limiting the domestic policy flexibility of governments.

However, since New Zealand and Taiwan have shared goals and each country has adopted exceptions that omit references to “more favourable treatment” - presumably cognisant of its limiting scope as a defence in a dispute - there is an opportunity to jointly remove the chapeau language to support both countries in the retention of their policy flexibilities in respect of Indigenous Peoples. Therefore, a revised version that brings the two exceptions together could be drafted as follows:

Rights of Indigenous Peoples

1. Nothing in this Agreement shall preclude a Party either on its own or through its Designated Representative, from adopting or maintaining measures the authorities of the territory represented by the Party deems necessary to protect or promote responsibilities, rights, interests, and duties of Indigenous Peoples in its territory, including in fulfilment of its obligations under its legal, constitutional or Treaty arrangements with those Indigenous Peoples.

2. The Parties agree that the interpretation of a Party’s legal, constitutional or Treaty arrangements with Indigenous Peoples in its territory, including as to the nature of its rights and obligations under it, shall not be subject to the dispute settlement provisions in this agreement.

Under Chapter 22, the parties have established a Joint Commission to consider any matters relating to the implementation, review, and any amendment to the Agreement or its Annexes as well as to supervise the work of all committees and working groups and other activities conducted under the Agreement.

To give effect to the aspiration of a mutually beneficial partnership of both economies with Indigenous Peoples within their territories, this Chapter should include a commitment that includes designated Indigenous Representation within the Joint Commission that reflects the model set out in the IPETCA. This would ensure that Indigenous Peoples are not further harmed or marginalized in their own lands and are rightfully restored their place at the decision-making table.

In leveraging the spirit of Matariki to reflect on the past, celebrate the present and achievements to date and plan for the future, it is recommended that officials from both Aotearoa New Zealand and Taiwan:

1. Table a discussion for an upgrade to Chapter 19, ANZTEC at their next Chapter 19 coordination meeting with Taiwan’s Council for Indigenous Peoples

2. Proactively engage with Indigenous Peoples to identify how to include IPETCA within the ANZTEC in a manner that is consistent with their needs and aspirations

3. Seek a formal mandate to propose an upgrade to the ANZTEC as part of the 2024 General Review as discussed in this article including the Rights of Indigenous Peoples exception and the Institutional Provisions.

FOOTNOTES

[1]      See: https://adventuremagazine.co.nz/maori-and-taiwan-cousins-with-an-ancient-history/

[2]      See: https://www.asianz.org.nz/maori-success-in-asia/we-are-family-the-austronesian-language-family

[3]      Dr Rangi Mataamua, Living by the Starshttps://livingbythestars.co.nz/pages/matariki-faqs

[4]      Te Wananga o Aotearoa, Matariki Handbook, https://cdn.shopify.com/s/files/1/0056/8980/2867/files/matariki-handbook.pdf?v=1651968546

[5]      Sergio Puig, At the Margins of Globalization (Cambridge University Press, 2021)

[6]      https://www.mfat.govt.nz/en/trade/nz-trade-policy/inclusive-trade-action-group/

[7]      https://english.president.gov.tw/NEWS/4950

[8]      Ibid.