Jane Kelsey

is a professor of law at Auckland University.

This week trade ministers from the 12 Trans-Pacific Partnership countries meet for the first time since signing the deal in Auckland in February, on the sidelines of an Apec meeting in Peru. Implementing the TPP tops the agenda.

The US holds the whip hand because the agreement can't come into force without its approval and that will be given on a country-by-country basis.


But US domestic politics is also the TPP's Achilles heel.

Congress won't approve it without changes: a guarantee of at least eight years' protection for super-expensive biologics medicines (like Keytruda) before cheaper "biosimilars" can enter the market; restoring the tobacco industry's right to sue governments over tobacco control measures; the right of the finance sector to store their data outside the country; plus some genuine trade issues involving cars and dairy.

Rather than rewriting the final text, dissatisfied US politicians and industry lobbies are demanding side-letters as a precondition for their support, backed by threats of future enforcement.

The US has covertly sent officials around the other countries' capitals to check on their implementation. New Zealand's proposed new intellectual property laws have already been attacked publicly by US officials and the pharmaceutical industry.

We can only imagine the pressure behind closed doors, because the Government won't tell us what's happening.

The Singaporeans recently objected that fixing complaints about the final outcome, especially on biologics, was a US problem and Singapore was not about to rush its legislative process.

There is no reason to do so. Gatekeepers in the US Congress say they won't consider the deal until the next President takes office. Donald Trump opposes the TPP, Hillary Clinton wants changes.

Why then did our Government cut the time for the select committee to report on the TPP by three weeks?


More than 6000 submissions had been received. Many were from ordinary Kiwis wanting a say, despite knowing the committee was powerless to change anything.

Organisations like the NZ Medical Association, Universities NZ and InternetNZ made substantive and well-researched submissions. The Maori Party's submission went furthest, reiterating many of the concerns raised in the Waitangi Tribunal claim and proposing innovative responses.

They deserved respect. But the report was being written while submissions were still being heard.

The Government majority's contribution was a pathetic nine-page summary of the deeply flawed National Interest Analysis that the Ministry of Foreign Affairs and Trade prepared to sell the deal.

Labour's three-page minority report said it would oppose the TPP's ratification in its current form, but only because residential property sales to foreign buyers can't be banned and the economic analysis was flawed.

The parliamentary wing's unwillingness to rethink anything it supported in the past, including investor-state dispute settlement provisions, won't go down well with many in the party.

The Greens and New Zealand First engaged the substantive issues, especially dispute settlement provisions. The Greens suggested ways to bring some modicum of democracy into the secretive, executive-controlled treaty-making process.

There are two likely reasons for the rush. First, it allowed the implementing legislation to be introduced and put to the vote, so it can pass this year. The shortened timeframe also put the Waitangi Tribunal under impossible pressure to prepare its report.

The tribunal shared many of the claimants' concerns, especially over foreign investors' rights and the potential chilling effect of investment disputes on future decisions, and did not address others because of the urgency.

The TPP continues to suffer a profound democratic deficit. New trade minister Todd McClay promised to do better. He can start by opening up the secretive negotiations for another mega-deal, the Regional Comprehensive Economic Partnership (RCEP) with China, India, Korea, Japan, Asean and Australia, which New Zealand will host in Auckland next month.

So far we have zero information. Showing the same contempt for democracy with RCEP will deepen the crisis of legitimacy in the treaty-making system.

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