Jane Kelsey: Trade deal a minefield

Concluding a deal seems more important than its content, writes Jane Kelsey. Photo / Dean Purcell

Opinion

On Wednesday (US time) trade ministers begin a last-ditch attempt to conclude the Trans Pacific Partnership (TPP) in Atlanta, Georgia after failing to clinch the deal in Maui in late July. By either the 1st or 2nd October we will know if the TPP moves to the next phase or is relegated to the deep freeze.

For US President Barack Obama, Japan's Prime Minister Shinzo Abe, his Canadian counterpart Stephen Harper - and John Key and Tim Groser - the deal is now a matter of legacy politics.

Concluding a TPP seems more important than its content. If they can pull it off, they will have 30 days to spin their achievements before US domestic law requires the text to be made public and people can start trawling through thousands of pages to assess the real costs and benefits to each country. The Fast Track law requires President Obama to give Congress 90 days notice before he signs. That means the text would be public for 60 days before it was formally signed. But our government has made it clear in two legal proceedings that no substantive changes can be made once the deal has been agreed.

At least, that's the rule for everyone except the US. Even though the Congress has agreed to a yes or no vote for the TPP under the Fast Track law, a "final" deal would inevitably fall hostage to election-year politics. Moreover, the US can withhold certification of New Zealand's compliance until they believe they've extracted everything from us they can.

Many rumours are swirling around the preparatory meeting of chief negotiators in Atlanta. The shroud of secrecy makes it impossible to sort the various "truths" from deliberate disinformation.

We might still see a repeat of Maui, where talks broke down over three issues: market access for automobiles and dairy, and Big Pharma's monopoly rights over biologic medicines.

Until this week, the noise has been all about autos. Whether the ministerial meeting went ahead and its prospects for success hinged on settling complaints from Mexico and Canada over a deal the US and Japan struck on autos. As of writing, that has not been resolved.

The comparative silence on dairy since Maui has given way to a plethora of conflicting stories over the past week. Some say Canada has folded, offering the US major concessions that could impact on tens of thousands of jobs; that is vehemently denied by the Canadian government, which faces a federal election in three weeks and wants to play down the costs. Rumours the US is going to unilaterally eliminate tariffs for New Zealand milk powder exports, without compensatory access for the US to Canada and Japan, has drawn threats from the US industry to scupper the deal.

On biologics, Obama has been phoning other TPP leaders, pressing them to accept US demands for an eight year data and marketing monopoly for the new generation medicines, which would add hundreds of millions to Pharmac's budget. Australia has been holding firm on their (and our) five years of data protection.

By contrast, our government has offered only platitudes, suggesting trade-offs between dairy and biologics are on the cards.

Last week the Prime Minister downgraded expectations to securing "the best we can do". Minister Groser said he wouldn't go to Atlanta unless dairy offers were improved. But Groser comes from a family of thespians. It's possible he was setting the stage for a final scene where he plans to claim victory from the jaws of seemingly inevitable defeat.

The minister knows he would have a month to tout the benefits to New Zealand before we could begin a robust analysis of any purported export gains and the impacts for affordable medicines and internet freedom, foreign investors' rights to sue, and above all te Tiriti, democracy and sovereignty. That prospect is deeply worrying for many.

• Jane Kelsey is a law professor at Auckland University.