Jane Kelsey: Secrecy on signing aims to thwart protest

US President Barack Obama. Photo / AP

On February 4, the Government intends to defy popular opinion and host the signing of the secretly negotiated Trans-Pacific Partnership agreement in Auckland. We had to hear that from other governments.

Bookings at the height of holiday season would have been made months ago, yet our Government initially said no decision had been made and this week admitted it will be signed in Auckland but won't say when or where.

One obvious reason for the secrecy is to thwart potential protests, a further example of the TPP trumping democratic rights. Never before has a New Zealand Government tried to sell such an unpopular international treaty.

Nobel laureate Joseph Stiglitz lamented in the Guardian last week how the US had "concluded secret negotiations on what may turn out to be the worst trade agreement in decades", and suggested that "in 2016, we should hope for the TPP's defeat and the beginning of a new era of trade agreements that don't reward the powerful and punish the weak".

Stiglitz's wish for the TPP 's defeat might not happen in New Zealand, given the Government's determination, but it could well happen in the US.

His article was presumably penned before the latest incendiary lobbed at the TPP by its beneficiaries.

As part of a new strategy to provide symbolic leadership over climate change, President Obama refused permission for Canadian energy giant TransCanada Corporation's proposed Keystone XL pipeline to transport oil extracted from tar sands from Canada to the US.

TransCanada is now claiming US$15 billion compensation for lost investment and future profits under the investment chapter of the North American Free Trade Agreement (Nafta).

This latest investor-state case comes on top of Nafta challenges by US corporates against a Canadian court's decision to refuse a medicine patent, Quebec's moratorium on fracking, and an environmental panel's rejection of a quarry permit in response to community concerns, among others.

The Keystone dispute will put another nail in the coffin of an already intensely unpopular deal among US Democrats during an election year.

Further alienating the Democrat base is not the end of Obama's problems.

Republicans whose support he needs to get the deal through Congress are demanding changes. Renegotiating the actual text would be very difficult so they are pushing for side-letters that have a similar effect, and ensuring other countries' "implementation" plans satisfy the US, either by changes before the Congress votes or as a condition of bringing the TPP into force.

The major US corporate lobbies reinforced that message this week.

In giving conditional support for the agreement they stressed the political imperative to secure changes if the TPP is to pass a Congress over which they wield significant influence.

They have three main targets. First, the tobacco-specific exception that allows governments to block investor-state disputes such as the one Philip Morris brought against Australia's plain packaging law and lost on a technicality.

Plain packaging is currently stalled in New Zealand.

Second, ensuring the marketing monopoly for new generation biologics medicines is effectively eight years - longer than New Zealand's and which the Government claims it won't have to change.

The third relates to requirements for holding financial data within the country.

Current assessments are that Congress won't vote on the implementing law before the election, and maybe not even in the lame duck period between administrations.

That means a new President with a new set of demands.

All of which begs the question of why New Zealand or other governments are prepared to sign a deal they admit is already far below their original bottom lines.

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

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