Jane Kelsey: TPPA end game can only come from dirty compromises

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Tim Groser says the TPPA is worth $5 billion to NZ. Photo / Ben Fraser
Tim Groser says the TPPA is worth $5 billion to NZ. Photo / Ben Fraser

Next week, Trade Minister Tim Groser plans to sit down in Singapore with his counterparts from the US and 10 other countries and begin the horse-trading over the secret text of the Trans-Pacific Partnership Agreement (TPPA). Serious horse-trading.

But if this deal really is the end game, as they claim, an outcome can only be the product of quick, dirty and dangerous compromises, principally by countries other than the US. It will also see trade ministers making decisions that properly belong to current and future ministers of health, environment and local government, among others. And, of course, they will do so in secret.

Last month any deal seemed near impossible. The 12 countries were poles apart on the most controversial issues, such as medicines, internet freedom, agriculture markets, preventing financial crises, foreign investors' rights to sue governments, data privacy, and more.

More than half the 29 chapters had serious issues that were unresolved.

Three were in dire straits. The intellectual property text from August, which WikiLeaks posted on the web, showed a sustained kick back against Hollywood and Big Pharma's demands.

The "transparency" annex on healthcare, which would give leverage over drug buying schemes like Pharmac, had been parked. A third chapter, where the US wants onerous disciplines on state-owned entities, was an even bigger mess. The environment chapter had hundreds of brackets. The Australian Government was still refusing to allow foreign investors to enforce their special rights against the Government in dubious offshore tribunals. Chile was insisting on capital controls.

The politics of the deal were also in meltdown. Three-quarters of US President Barack Obama's own Democrats in the House of Representatives rebelled against giving him Fast Track authority that would neuter their ability to pick apart the final deal.

Without Fast Track, the US cannot guarantee to deliver on any trade-offs made. Michele Bachelet, who looks certain to be Chile's new President, called for a review of the agreement's scope and implications, and made it a priority to "block the questionable aspects" it could contain. Malaysia's Prime Minister insisted there would be no deal this year.

At home, Labour's conference resolved to withhold support for the TPPA until full details are made available and it is proven to be in New Zealand's national interest. The Greens remained staunchly opposed. Winston Peters attacked the secrecy of the text in the House. Even Phil Goff accused the Government of mismanaging its sale of the deal.

In a two-month campaign nearly 15,000 people signed an online petition, and 11,000 sent letters to the Prime Minister and Groser, demanding release of the draft text. Independent voices raised other concerns.

Former diplomat Terence O'Brien warned against New Zealand becoming hostage to a dysfunctional US political system and alienating China. Lincoln University's Professor of Agribusiness Keith Woodford said the efficiency of US dairy mega-farms meant greater market access would not help the New Zealand industry.

What now makes a deal seem possible? Negotiators work to ministers' mandates. The TPP ministers gave them a roadmap that leads to next week's meeting. They are dutifully following instructions. Last week, the chief negotiators and officials working on 12 unresolved chapters met in Salt Lake City, Utah.

The pressure was palpable. Some issues were resolved. But there is a very long list of trade-offs that are being put before the ministers for decisions when they meet from December 7 to 10. That includes almost all the controversial matters that have pushed the negotiations past previous deadlines. Yet the talk in Salt Lake City was to treat this as the end game.

The ministers know they have to give the US what it needs to steer a deal through Congress and convince it to provide Fast Track. They are expected to start with the old-fashioned trade issues: access to markets for goods, textiles and agriculture. However minuscule the deals, and whatever their scope, phase-in periods and conditions, they will be massaged for the headlines.

Already, assurances there will be a common schedule for market access in agriculture seem designed to disguise the reality that the US and Japan will treat sensitive products differently for various TPPA countries.

With a sense of their market access options, ministers will decide on explicit "landing zones" for the outstanding issues in each chapter. The poor negotiators and lawyers who have failed to reach agreement over the past three years will then be told to convert those decisions into legal text.

A deal cannot be a foregone conclusion. It seems incredible that any trade minister would be so reckless as to put their cards on the table, let alone agree to trade-offs, when the US cannot guarantee to deliver, and has a history on demanding further concessions even with Fast Track. If the politicians do get past these seemingly impossible obstacles, they will leave a trail of concessions and controversy in their wake, doubtless spun with claims of massive gains and minimal or no costs.

Judging by the uncritical reporting of fanciful claims by Groser, Key and others that the TPPA is worth $5 billion to New Zealand, their spin will find friendly ears. Who can authoritatively gainsay such claims when no one outside government and privileged corporate interests has access to the text? That leads back to the now widely supported demand: release the text before any decisions are made.


Jane Kelsey is a law professor at Auckland University.

- NZ Herald

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