Jane Kelsey: Excess of spin on revised TPP cause for concern

Opinion

• Jane Kelsey is a professor of law at the University of Auckland.

When political spin goes into overdrive the way it did on the "renegotiated" Trans-Pacific Partnership agreement you know the parties are worried about the fallout that telling the truth might bring.

They will remember the 3 News Reid Research Poll in November 2015: 87 per cent of NZ First voters, 84 per cent of Greens, 73 per cent of Labour and 23 per cent of National voters opposed the TPP.

The rebranded Comprehensive and Progressive Agreement on Trans-Pacific Partnership would suspend, not remove, just 22 of 1000-plus provisions of the TPP, pending re-entry by the US. Musing on that prospect last week, President Trump made it clear renegotiation of a "terrible" deal would aim to give the US much more.

The only new "progressive" part of the revised TPP-11 seems to be a rhetorical reference to women and indigenous peoples that Canada got inserted into the preamble.

Winston Peters takes first prize for spin. He told Radio New Zealand, "We were never going to support the sellout of our sovereignty, an investor disputes procedure that wasn't fair, all those things have changed now, so we can support it."

Peters knows that's rubbish. Investor-state dispute settlement (ISDS) is unchanged from the original text; it's only some peripheral enforcement options that have been suspended.

Trade Minister David Parker comes a close second, claiming the five "non-negotiable bottom lines" Labour set out during the election campaign have now been satisfied. Labour Party policy set much more stringent conditions to make the TPP acceptable.

Its first condition required meaningful market gains for exporters. Those gains were disappointing in the original deal and have reduced with the exit of the US. The Government has ignored numerous calls to produce a robust economic assessment of the net impacts, including for employment and distribution. The lack of such analysis was one of the reasons Labour gave for opposing the ratification of the original TPP.

A lot of nonsense has been talked about the second bottom line: preserving the right to regulate. The entire agreement is designed to restrict the right of sovereign governments to regulate in the national interest on matters as diverse as banking, government procurement and platform operators like Uber and Amazon. Even Tim Groser and I could agree on that.

In support, Parker points to a side letter with Australia that promises not to apply ISDS between the two countries. But that was in the original TPP, as in previous agreements. Parker hints at side-letters with several other countries, but won't say who.

Unless Labour has got all TPP parties on board, its commitment to oppose ISDS in all new trade deals is worthless. Foreign investors from the other TPP countries could still claim their rights have been breached and bring an investment dispute if, for example, the Government revoked licences to bottle free water for export or imposed user charges, tightened licensing conditions for internet service providers, or significantly strengthened environmental regulation on mining.

Third, Labour is rushing through an Overseas Investment Act amendment to allow restrictions on foreign purchases of residential property before the TPP comes into force. But Labour is prepared to sign away the right to tighten restrictions on foreign ownership of other resources, such as water rights, fishing quotas or tradeable carbon credits.

The fourth bottom line, "protecting the Pharmac model", is conveniently vague. The weapons the TPP gave to Big Pharma have been suspended, not removed.

Protecting the Treaty of Waitangi, the fifth principle, ignores the Waitangi Tribunal's advice that the Crown should consult with the claimants and other Maori on a stronger protection. The Government is currently holding rushed consultations with Maori over plans to bring forestry cutting rights under the definition of "sensitive land" in the Overseas Investment Act to allow it to restrict foreign ownership without breaching the TPP. The Treaty of Waitangi exception was clearly judged inadequate to protect such action.

These are obvious flaws in the Government's spin. We can't provide a more definitive critique of their claims because the text remains secret. Ironically, even National, which defended the secrecy when in government, is now demanding its release. Japan says that won't happen until after the TPP-11 is signed. The obvious inference is that the substance doesn't match the political spin. That will make some Labour and NZ First voters pretty angry.