OIA — Memorandum of Cooperation on Horticulture with India — relationship to FTA negotiations and Chapter 14A
Joshua Riley made this Official Information request to Ministry of Foreign Affairs and Trade
Currently waiting for a response from Ministry of Foreign Affairs and Trade, they must respond promptly and normally no later than (details and exceptions).
From: Joshua Riley
Under the Official Information Act 1982, I request:
Important: no transfer
I am sending a related but separate request to MPI. I request that MFAT does not transfer any part of this request to MPI or any other agency under section 14. I am seeking MFAT's own records independently. Disclosures from each agency will be assessed separately.
Request 1 — MFAT's role in the MoC
All correspondence, briefings, meeting notes, and records of discussion within MFAT, or between MFAT and MPI, relating to the development and signing of the Memorandum of Cooperation on Horticulture between MPI and India's Ministry of Agriculture and Farmers' Welfare, signed on 12 March 2025. This includes any MFAT input into the MoC's drafting, any MFAT assessment of the MoC's implications for forthcoming FTA negotiations, and any MFAT advice to Ministers on the MoC.
Request 2 — How the MoC informed the FTA negotiating mandate
I am particularly interested in MFAT's records of how the MoC's commitments informed or constrained the FTA negotiating mandate for Chapter 14A. Specifically:
(a) All records of how the MoC's cooperation framework (Action Plans, Centres of Excellence, variety exchange) was incorporated into the FTA's Chapter 14A provisions;
(b) Any analysis of whether the MoC's commitment to exchange varieties "without any cost" (Paragraph 3(d)) pre-determined the FTA's approach to horticulture cooperation, including whether MFAT negotiators considered the MoC a baseline that could not be walked back;
(c) Any records of India referencing the MoC during FTA negotiations as evidence of New Zealand's prior commitment to horticulture cooperation;
(d) Any discussion of the timing of the MoC's signing (12 March 2025) relative to the formal launch of FTA negotiations (16 March 2025), including whether the timing was coordinated and whether MFAT assessed the impact on New Zealand's negotiating leverage;
(e) Any analysis of how the MoC's Paragraph 3(d) ("without any cost") interacted with the FTA's market access suspension mechanism (Annex 2B(9)) — specifically, whether MFAT assessed the risk that India could use Annex 2B(9) to enforce cultivar transfer commitments originating in the MoC.
Request 3 — Industry consultation prior to the FTA horticulture chapter
All records of consultation with Zespri International Limited, the Kiwifruit Breeding Centre, Plant & Food Research / BSI, New Zealand Apples and Pears Incorporated, and Prevar Limited regarding the FTA's Chapter 14A horticulture provisions, including:
(a) Whether these stakeholders were informed that the MoC's cooperation framework would be hardened into binding treaty obligations;
(b) Any industry submissions, concerns, or objections regarding the "without any cost" provision, the Action Plans, the Centres of Excellence, or the market access suspension mechanism;
(c) Any assessment by MFAT of the impact of Chapter 14A on PVR holders and Crown-owned germplasm.
Request 4 — "Without any cost" and IP protection interaction
All MFAT analysis and legal advice on:
(a) The interaction between the MoC's "without any cost" provision (Paragraph 3(d)) and India's Protection of Plant Varieties and Farmers' Rights Act 2001, specifically Section 39(1)(iv) which allows farmers to save, exchange, and sell seeds of protected varieties;
(b) The interaction between the MoC's IP clause (Paragraph 8: "in so far as it does not conflict with the laws of the respective Parties") and India's domestic PVR framework;
(c) Any assessment of whether the combined effect of "without any cost" and India's PPV&FR Act means that varieties transferred under the MoC or FTA Action Plans would be freely propagable and sellable by Indian farmers without restriction;
(d) Any assessment of this risk relative to New Zealand's existing IP losses (Pacific Rose in Chile, SunGold in China, Envy in China).
Request 5 — Annex 2B(9) enforcement of MoC-derived commitments
All MFAT analysis of how India's market access suspension power under Annex 2B(9) interacts with the cooperation commitments that originated in the MoC, including:
(a) Whether MFAT assessed the risk that India could invoke Annex 2B(9) to demand more extensive cultivar or germplasm transfer than currently contemplated under the Kiwifruit Action Plan;
(b) Whether MFAT assessed what would happen to cultivars and expertise already transferred if India subsequently suspended market access or the FTA terminated;
(c) Any analysis of the asymmetry between conditional market access (suspendable by India) and permanent IP/cultivar transfer (irreversible by New Zealand).
Request 6 — McClay media release figures
All MFAT records relating to the "$600 million in mutual benefits over the next decade" and "up to $1 billion in reciprocal horticultural benefits" cited in the Minister's Beehive media release of 17 March 2025, including whether MFAT provided or endorsed these figures and whether any modelling or analysis supports them.
Public interest
The MoC was signed four days before FTA negotiations formally launched. Its horticulture cooperation framework — including the commitment to exchange varieties "without any cost" — was subsequently hardened into binding treaty obligations in Chapter 14A of the India FTA, with enforcement through market access suspension (Annex 2B(9)). MFAT negotiated Chapter 14A. MFAT commissioned the Motu Economic Impact Assessment, which does not model the horticulture cooperation provisions or their competitive displacement effects. The public interest in understanding whether the MoC pre-determined the FTA's horticulture commitments, whether affected industry stakeholders consented to the escalation from non-binding MoC to binding treaty, and whether the IP risks were assessed, is compelling.
Parliament is currently considering the India Free Trade Agreement Legislation Amendment Bill. Select committee submissions closed 19 July 2026 and oral hearings are scheduled for 27 and 30 July. Timely release of this information is essential to informed parliamentary scrutiny.
I am content to receive documents in electronic form. If any part of this request is considered too broad, I welcome consultation under section 18B to refine scope. I note that the MoC's confidentiality clause (Paragraph 6) applies to information exchanged between the Parties under the MoC — it does not override New Zealand's domestic obligations under the Official Information Act 1982.
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From: ESD
Ministry of Foreign Affairs and Trade
[UNCLASSIFIED]
UNCLASSIFIED
Kia ora Joshua,
Thank you for your OIA request received on 22/07/2026 for:
Request 1 — MFAT's role in the MoC
All correspondence, briefings, meeting notes, and records of discussion
within MFAT, or between MFAT and MPI, relating to the development and
signing of the Memorandum of Cooperation on Horticulture between MPI and
India's Ministry of Agriculture and Farmers' Welfare, signed on 12 March
2025. This includes any MFAT input into the MoC's drafting, any MFAT
assessment of the MoC's implications for forthcoming FTA negotiations, and
any MFAT advice to Ministers on the MoC.
Request 2 — How the MoC informed the FTA negotiating mandate
I am particularly interested in MFAT's records of how the MoC's
commitments informed or constrained the FTA negotiating mandate for
Chapter 14A. Specifically:
(a) All records of how the MoC's cooperation framework (Action Plans,
Centres of Excellence, variety exchange) was incorporated into the FTA's
Chapter 14A provisions;
(b) Any analysis of whether the MoC's commitment to exchange varieties
"without any cost" (Paragraph 3(d)) pre-determined the FTA's approach to
horticulture cooperation, including whether MFAT negotiators considered
the MoC a baseline that could not be walked back;
(c) Any records of India referencing the MoC during FTA negotiations as
evidence of New Zealand's prior commitment to horticulture cooperation;
(d) Any discussion of the timing of the MoC's signing (12 March 2025)
relative to the formal launch of FTA negotiations (16 March 2025),
including whether the timing was coordinated and whether MFAT assessed the
impact on New Zealand's negotiating leverage;
(e) Any analysis of how the MoC's Paragraph 3(d) ("without any cost")
interacted with the FTA's market access suspension mechanism (Annex 2B(9))
— specifically, whether MFAT assessed the risk that India could use Annex
2B(9) to enforce cultivar transfer commitments originating in the MoC.
Request 3 — Industry consultation prior to the FTA horticulture chapter
All records of consultation with Zespri International Limited, the
Kiwifruit Breeding Centre, Plant & Food Research / BSI, New Zealand Apples
and Pears Incorporated, and Prevar Limited regarding the FTA's Chapter 14A
horticulture provisions, including:
(a) Whether these stakeholders were informed that the MoC's cooperation
framework would be hardened into binding treaty obligations;
(b) Any industry submissions, concerns, or objections regarding the
"without any cost" provision, the Action Plans, the Centres of Excellence,
or the market access suspension mechanism;
(c) Any assessment by MFAT of the impact of Chapter 14A on PVR holders and
Crown-owned germplasm.
Request 4 — "Without any cost" and IP protection interaction
All MFAT analysis and legal advice on:
(a) The interaction between the MoC's "without any cost" provision
(Paragraph 3(d)) and India's Protection of Plant Varieties and Farmers'
Rights Act 2001, specifically Section 39(1)(iv) which allows farmers to
save, exchange, and sell seeds of protected varieties;
(b) The interaction between the MoC's IP clause (Paragraph 8: "in so far
as it does not conflict with the laws of the respective Parties") and
India's domestic PVR framework;
(c) Any assessment of whether the combined effect of "without any cost"
and India's PPV&FR Act means that varieties transferred under the MoC or
FTA Action Plans would be freely propagable and sellable by Indian farmers
without restriction;
(d) Any assessment of this risk relative to New Zealand's existing IP
losses (Pacific Rose in Chile, SunGold in China, Envy in China).
Request 5 — Annex 2B(9) enforcement of MoC-derived commitments
All MFAT analysis of how India's market access suspension power under
Annex 2B(9) interacts with the cooperation commitments that originated in
the MoC, including:
(a) Whether MFAT assessed the risk that India could invoke Annex 2B(9) to
demand more extensive cultivar or germplasm transfer than currently
contemplated under the Kiwifruit Action Plan;
(b) Whether MFAT assessed what would happen to cultivars and expertise
already transferred if India subsequently suspended market access or the
FTA terminated;
(c) Any analysis of the asymmetry between conditional market access
(suspendable by India) and permanent IP/cultivar transfer (irreversible by
New Zealand).
Request 6 — McClay media release figures
All MFAT records relating to the "$600 million in mutual benefits over the
next decade" and "up to $1 billion in reciprocal horticultural benefits"
cited in the Minister's Beehive media release of 17 March 2025, including
whether MFAT provided or endorsed these figures and whether any modelling
or analysis supports them.
This email confirms receipt of your request and advises that we will
respond to it as soon as reasonably practicable, and in terms of the
timeframes and requirements of the OIA.
Please note that our response letter to you (with your personal details
redacted), and any enclosed documents, may be published on the Ministry’s
website.
Ngâ mihi
Executive Services Division
New Zealand Ministry of Foreign Affairs & Trade | Manatû Aorere
The information contained in this email message is intended only for the
addressee and is not necessarily the official view or communication of the
Ministry. It may be legally privileged. If you are not the intended
recipient you must not use, disclose, copy or distribute this message or
the information in it as this may be unlawful. If you have received this
message in error, please email or telephone the sender immediately ..
UNCLASSIFIED
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