Why I supported the TPPA Protest Marchers

It’s 6.30pm on Tuesday 4th February 2016, I have just come home from the Hastings protest rally about the TPPA treaty being signed in Auckland today. In Auckland there were over ten thousand protesters; in Hastings probably about 400-500 but I was impressed by the turnout never the less. I offered the organising lady to speak once the rally had got back to library square but she had her agenda set and it seems time was against this. None the less speakers spoke and songs of protest were sung.

The evening news was on when I got home. Just like all the media so far on TPP, led by the governments own cheerleaders Hosking and Henry in the all important morning slots who go out of their way to denigrate anyone who is trying to point out the risks of TPP, so the evening news, on que, had features where light-weigh reporters went out of their way to discredit the protesters attempting to show that the protesters didn’t know what they were talking about. This is media manipulating public opinion because they themselves have done nothing to investigate what the treaty is about and themselves are completely ignorant, unworthy of their status as journalists to inform and actually are only looking to report trivia because that is where they are themselves, trivial bystanders.

I hear constantly that this is a ‘free trade’ deal and will be great for New Zealand. Indeed our local MP parrots this line and polarises the argument by challenging anyone who voices concerns by saying that they are ‘anti-growth’ or similar irrelevant statements to divert attention from the main issue on this treaty.

IF this was simply a free trade deal no one would be more happy than me because it will enable our exporter businesses to do well and New Zealand usually hits above its weight on the global stage.

But it’s not just a free trade deal. It is a Treaty between nations. It is as powerful a document as the one page Treaty of Waitangi between Maori and the then Queen of England. Actually it is intensely more powerful a document because it is 6,000 pages and 30 chapters of legal description that countries sign up to, approximately 6 chapters of which relate to trade, the balance being legal ‘interpretation’. As we know the Treaty of Waitangi causes a lot of grief between races here in New Zealand 150 years after its signing, it was a one pager, but open to interpretation creating issues for many of European descent today. The TPP Treaty will do so even more. Here is why.

Investor State Dispute Settlement (ISDS) clauses are the integral and operative part of this treaty. They already exist in practice today in existing trade agreements and according to George Kahale111, while the ISDS clauses have been improved they will not immunise New Zealand or any country from claims made under ISDS. ISDS gives foreign investors (corporations mostly, and US corporations predominantly, ones that are particularly litigious) the power to sue the New Zealand government (taxpayers) for introducing legislation that harms their investment and profits.

Indeed Kahale111 who is Chairman of the worlds leading arbitration firm (Curtis, Mallet-Prevost, Colt & Mosle LLP) whose core business is to defend governments being sued by foreign investors under ISDS, points out two critical loopholes that will leave New Zealand wide open. One of these is the ‘most favoured nation clause’ which would allow a foreign corporation to make a claim against New Zealand based on the ISDS provisions in any other trade deal New Zealand has signed no matter who it is signed with. eg China, where New Zealand has a most successful trade relationship.

How does ISDS work?

Bianca Mueller, Associate Member of the Arbitrator’s and Mediator’s Institute of New Zealand (AMINZ) writes:

“ISDS provisions enable foreign investors to challenge laws or policies of governments if they believed that it diminished their future profits. Where an investor alleges that a Party has breached TPPA obligations, say through unfair or unequal treatment or indirect expropriation, then it can refer the matter to an ad-hoc international arbitration tribunal. Given the power of the arbitration tribunals to issue compensation awards that may affect the regulatory autonomy of a country, the independence of the tribunal and of the arbitrators should be of utmost importance.

First, there is no independent judiciary that decides international investment disputes. Arbitration tribunals operate independently of a country’s judicial system.

Second, their decisions are legally binding but cannot be appealed.

Third, three private individuals generally make up an international arbitration tribunal. That means that private individuals are entrusted with the power to review a government’s actions, such as laws. These arbitrators are appointed ad-hoc, sometimes after having worked as lawyers for the investor which raises serious questions around conflict of interests.

Fourth, most arbitration between investors and States are conducted outside the public spotlight even though these disputes usually involve public interest, such as taxpayers’ money, natural resources or environmental issues”.

This is core and so this is why, Mr. Dumb & Stupid Trivia TV3 Reporter, that the protesters chanted “TPPA, taking our rights away!” It is about erosion of democratic rights. We don’t know what things the nation will be required to address in the future, we don’t know how social experience may change the way New Zealand legislation should alter to benefit New Zealanders, they are not known right now.

Meuller continues “The investment provisions in the TPPA essentially future-proof against new and changing regulations. They provide for protections against future policy changes while limiting a government’s ability to legislate in the interest of the public. This may result in undue control over government’s action, thereby undermining the democratic process and the rule of law. ISDS provisions provide powerful multinational companies with an avenue to potentially influence political decision-making…. or even a national crisis”

Some examples ISDS madness spring to mind.

1. After the Fukushima nuclear disaster in Japan Germany’s Angela Merkel decided to phase out nuclear power plants in Germany. In March 2011 Merkel withdrew operating licenses for the oldest eight power plants, 2 of which were owned by Swedish firm Vattenfall. Now Vattenfall is suing the German government for $6 billion, the dispute going on behind closed doors.

2. In the wake of the global financial crisis the Belgian government nationalised a Belgian/Dutch bank called Fortis. A Chinese company called PingAn had an investment in Fortis and is suing the Belgian government for over $2 billion to recoup its losses in Fortis, losses it may have had to fully bear if the Belgian government had let Fortis fail.

3. Trans Canada a Canadian oil company are now suing the US government for $15 billion loss of potential profits caused by the Obama government cancelling the KeystoneXL oil pipeline linking the Canadian bitumen sand oil down to the Gulf region.

4. The classic is Phillip Morris the worlds largest tobacco company suing the Australian government (and Uraguay) over Australia’s plain packaging laws for tobacco.

It’s easy to fantasise over free trade being the winner and the exporters of wine, beef and kiwifruit etc getting a boost as Stephen Jocobi suggested would be the case in Tuesday’s Hawkes Bay Today. Hoping there are ‘checks and balances’ to avoid ISDS issues is simplistically naive. Suggesting TPP upholds New Zealand sovereignty is amazingly stupid. Just as the signatories of the Treat of Waitangi had no idea of how things would change nor does this government now with TPPA.

TPPA is about the big boys coming to town and they have only one motive; uninterrupted profits and bugger the environment while we make the profits. They are predominantly American multi nationals now with the ability to over rule New Zealand laws in tribunals outside New Zealand jurisdiction with members appointed by them. TPPA really is about the US blocking the 12 member countries from forging alliances and trade agreements with the Sino-Russian-Indian block foisting hegemony over the member countries.

Malcolm Eves 04/02/16