Christine Cheyne: TPP light on environment safeguards

The TPP lacks binding rules such as on the banning of commercial whaling. Photo / Getty Images

What will be the likely impact of the Trans-Pacific Partnership agreement on our "100% Pure" brand, central to tourism and a significant driver of economic growth? International tourism tallied $11.8 billion (just under 20 per cent) of New Zealand's total exports in the year ended March 2015, exceeded only by export receipts from dairy products (just over 20 per cent).

The TPP's chapter on the relationship between trade and the environment starts well and is full of promise. There is recognition of the importance of "mutually supportive trade and environmental policies and practices to improve environmental protection in the furtherance of sustainable development".

Unfortunately, there is no consensus on what "sustainable development" means. True, it is underpinned by the idea that our current social, economic and environmental well-being needs to be in balance, and not compromised for future generations. But there is no unambiguous legal definition of the term, much less any legal mechanism for resolving conflicting social, economic and environmental priorities.

An international environmental law specialist at the University of Auckland, Professor Klaus Bosselmann, says: "Sustainable development resists definition and avoids the hard questions, which is precisely why it has become so popular among governments."

The TPP recognises, in principle, the connection between conservation and trade. It requires parties to "adopt, maintain, and implement" the Convention on International Trade in Endangered Species of Wild Fauna and Flora. However, rather than prohibiting the illegal take of, and illegal trade in, wild flora and fauna, it simply talks about the importance of combating these activities. It's a light-handed approach, with non-committal words "endeavour to" and "as appropriate". There is discretion for members to "exercise administrative, investigatory and enforcement discretion" in dealing with suspected violations of the endangered species convention.

While recognising the importance of indigenous environmental knowledge and environmental management practices, the TPP also refers to the importance of facilitating access to genetic resources. But it is not clear how it aligns with the 1993 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, which recognises the rights of indigenous peoples to give consent to companies, governments and other public and private institutions wishing to undertake experiments or commercialisation of any biogenetic resources.

In its call for a "transition to a low emissions and resilient economy", what exactly does the TPP have in mind? New Zealand and other parties have signed up to the legally binding provisions of the 2015 Paris Agreement, mandatory under international law. New Zealand must now contribute to the global goal to keep the increase in global temperature well below 2C by 2100 and to pursue efforts to limit it to 1.5C.

There is also a target to achieve global peaking of greenhouse gas emissions as soon as possible, and to reach greenhouse gas emissions neutrality between 2050 and 2100. New Zealand must submit, maintain and review every five years its nationally determined contributions. With each review there must be progress.

While TPP recognises the need for collective action, it is not well-aligned with the Paris Agreement and gives countries considerable discretion to take action that reflects their particular situation.

And while the TPP addresses marine capture fisheries, strangely, it excludes aquaculture. It notes the importance of the marine fisheries sector to the economic development of countries, including their conservation and sustainable management. But, again, there is discretion and a lack of binding rules (such as banning of commercial whaling and shark fin trade).

Overall, the TPP's chapter on the environment is weak. Many provisions are framed as "best endeavour efforts" which can be easily neglected. Strong and binding rules are needed to restore, protect and enhance marine, aquatic and terrestrial biodiversity. It is likely that the TPP's rules will be too feeble to have an impact and it remains unclear how they will be enforced.

Among its more highly publicised and contentious elements are the investor-state dispute settlement provisions, which allow international companies to sue governments for making decisions that threaten their profits. Recently, Canada and Germany's governments have been sued for placing restrictions on coal burning, and temporarily banning hydraulic fracturing. These are more than just ominous signs that the TPP may end up undermining government efforts to protect the environment.

Promoting sustainable development requires some hard choices to ensure the economic growth goal of the TPP does not compromise the environment. The agreement provides little reassurance in this respect.

Christine Cheyne is an associate professor of the resource and environmental planning programme at Massey University.

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