Government try and ram through TPPA without NZers noticing

By
Prof Jane Kelsey
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37
5

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Talk about dirty politics and desperation! Last week National announced it was fast tracking the report from the Foreign Affairs Trade and Defence Committee on the Trans-Pacific Partnership Agreement (TPPA) from the end of May to 4 May. While the select committee process itself is a farce as it can’t change the deal, there are more sinister motivations behind the new deadline.

Why the rush? There is zero chance of any vote in the US before the presidential election in November and only a marginal chance it might happen in the lame duck period between administrations.  Then who knows what might happen under a new president and Congress. Why would any sane government go changing its laws and processes before it knows what will happen at the US end?

There are two possible motivations for National’s haste. The first is to show the US Congress that New Zealand is deeply committed to the deal as part of a momentum building exercise across the TPPA countries. If so, they under-estimate the essential parochialism of US politics and the resistance to the TPPA within the existing Congress (a separate question from who wins the presidential race). The crucial gatekeepers who decide whether the implementing legislation gets to the floor of Congress want the deal changed before they open the door.

The most pressing and controversial demand is to guarantee the monopoly for the new generation biologics medicines (like Keytruda) will be 8 years, beyond the 5-plus an uncertain period that Australia and NZ say was agreed. The other main targets are the right of countries to block investor disputes over tobacco measures, the right of Wall St to hold financial data offshore, and some issues around autos and dairy.

It is the promise to tie down the biologics monopoly that holds the key. That would require NZ to do more than we do now, and mean even more expensive new generation medicines that would blow out Pharmac’s budget and bust the Pharmac model (again, Keytruda is the exemplar).

The solution won’t involve amending the TPPA text itself, as that would open a Pandora’s box. Instead, individual countries are being pressured to sign side letters or reach similar arrangements that align the interpretation of the text to the US position. The US is already playing divide and rule, with Mexico suggesting it will play ball. When the TPPA Ministers meet on the margins of the APEC trade ministers’ meeting in Peru in mid-May we can expect Obama to marginalise the hold-outs, including NZ, as jeopardising the prospect of getting the deal through Congress under his watch.

Of course Key has assured us his government will not bend to pressure. But unless something is done to stop that happening – and this can only be through urgent political and public pressure – we won’t know until after the fact. These changes would not only be agreed in secret; they would be done by administrative action, not by legislation, but. Add another dead rat for the putrid pile.

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So what is really behind the decision to fast track the select committee’s report? For those of us involved in the Waitangi Tribunal claim on the TPPA lodged last July, the answer is very simple. The urgent Tribunal process concluded with the final submissions on Wednesday. The Tribunal then thought it had six weeks to write a report – already a daunting task given the thousands of pages of documents and the complexity of the issues.

Now they have fewer than three weeks. The Crown is arguing ‘comity’ – that the Waitangi Tribunal must respect the jurisdiction of the Parliament as law maker. In lay terms, the Tribunal can’t engage with claims that the government’s processes and the content of the TPPA have breached its Treaty of Waitangi obligations once legislation has been introduced to the House. To borrow a term commonly used to describe the effect of the TPPA on government decisions, National intends to ‘chill’ the Tribunal process: in the truncated time available the Tribunal will be unable or unwilling to write a detailed report that is critical of the government that may not stand up to scrutiny. The threat of judicial review is already hovering in the background of the proceedings.

There is one positive in all this – the government’s desperate act shows it really is concerned about the backlash from Maori, including the iwi chairs who were left outside the tent on the TPPA as well. But it also manifests an escalating contempt for both the Waitangi Tribunal and the democratic process, which had already been reduced to a sham with the TPPA.
Political and public pressure can push the deadline back again. In particular, this is the time for the hitherto silent Maori MPs across Parliament, especially the Maori Party, to finally take a collective stand on the TPPA. If they don’t do it now, they will have abdicated their responsibilities to the Treaty and to democracy.

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37 COMMENTS

  1. What s shambolic Agreement this is, I can’t see it benefiting anybody apart from Multi-nationals and a whole bunch of parasitic lawyers?

    • The thing is, if Crazy insideous Key rams through legislation, even in the likelihood that the TPPA doesn’t pass in the US, remembering that it will only take 1 country out of the big 6, (that NZ doesn’t belong to), to make the TPPA null and void, foreign corporations/governments will STILL be able to exploit NZ and its resources !!!

  2. What s shambolic Agreement this is, I can’t see it benefiting anybody apart from Multi-nationals and a whole bunch of parasitic lawyers?

    • The National government is like a festering wound on the nation’s back.

      The anaesthetic of rampant consumption has reduced the pain in the short term and is allowing the fester to develop into gangrene.

      • Lets either cauterize or cut out the festering wound, the choice is ours to make, but lets make it quick before even those rights get eroded. and if you think National wouldnt do that, think again, Christchurch and prisoners have already been stripped of that democratic right.

  4. The fact that the select committee’s timetable has been shortened suggests that National feels threatened by circumstance. IMO the difference between democracy and popular opinion is what threatens the the corporate paradigm, since corporations have no ethical basis upon which they can apply the rule of law and take the democratic position.

    The term “rule of law” is sometimes misapplied by politicians to imply that they make the rules and that the people are obliged to obey. In its original sense the rule of law is mostly about natural relationships between cause and effect as evidenced by reason and tradition, i.e. it applies to monarchs, governments, and corporations as much as to ordinary people.

    The point is that National’s majority doesn’t provide a mandate when it pursues a path which is adverse to the public good. There remedy here is to go back to basics and question the common assumptions about the legitimacy of the legislative process, for example by asking how the Cabinet Manual can refer to the people as being sovereign when the the state refers the the monarch as sovereign and the term sovereignty is used as if it meant supremacy or independence.

      • In my imaginary world of progressive advancement -Elizabeth Warren would be Bernie Sanders running mate for President/Vice President.

        • I agree as both are compassionate and not like the average criminal and greedy politicians who have been bought and dictated to.

          John Keys lack of ethics and true colours keep showing over and over as he now is trying to ram through parliament the insidious and horrific tppa. He is being told what to do by his puppet masters and he swims with sharks. He is a great and loyal lap dog and, count on it, they will be exposed this year and brought to justice one way or another.

        • Absolutely agree! With that ticket, the bakers around the world would have to sharpen their game – along with MNCs generally. The spin-off would be huge globally!

          We can but dream…

  6. and NZlanders probably couldn’t give 2 flying fucks about the eroding of Maori Treaty rights even if this deal will impact everybody but totally support your article pov

    • Stopping it involves acting on a shared set of ideas about the cause of the of the problem, i.e. ideas which describe the relationship between corporate power, political power and the common good. For these actions to be effective the ideas should be coherent and grounded in reality.

      The history of corporate power goes back to the Knights Templar, the City of London and the Inns of Court, and has developed into the Crown operating a financial hub independently of the English monarchy.

      Currently in NZ the expression of political power is to a large degree controlled by the Crown and is framed in the language of citizenship, i.e. where the role of the state is essential for security.

      Without a shared ideological foundation, the public expression of political power made independently from the Crown is vulnerable to irreconcilable differences, so it’s reasonable to look to the unwritten constitution of New Zealand for insight. First steps towards a remedy would then involve the recognition of constitutional values as well as knowledge of the Crown’s modus operandi.

    • For starters, exert pressure on and force National’s coalition partner, the Maori party to formally step away from Key’s govt. “sitting at the table’ is a cop out from not doing what is a just and honourable thing to do. The Maori party need to walk the talk, if not, they deserve nothing less than to be kicked out in 2017, along with National, Seymour and Dunne.

        • It is you that has to understand that The TPP is U.S Foriegn policy. TPP will be the bench mark for trade deals so if we don’t sign up we will end up signing a Frankenstein version later. The only ones that can a stop to it permanantly is the Americans.

          Actually you should google the great game to to get a better understanding of what you are talking about. This isn’t the first time America has tried on there Martin Gail betting system of Foriegn policy. Sharpen up champ

  8. Wonderful work Jane we are so grateful for all your tireless work,

    Yes what’s the hurry you ask?

    Those National crooks all know they jumped the gun and now times up for them as the Global crash of 2026 is almost here ?

    This event will wash their plans away and these crooks will have their plans overtaken.

    Their slimy plans to enslave us all by signing under urgency to this toxic TPPA democracy killer will become the bad of thorns around their shifty necks

    Time for Madam Guillotine to attend their treasonous heads.

    http://www.investopedia.com/articles/investing/071515/6-factors-point-global-recession-2016.asp

  9. What would force instant change is if the Maori party walked the talk and walked away from the National government, just like Maori did to Labour over the Foreshore and Seabed Act.

    Why are the Maori party still propping up National after almost 8 years anyway? The Foreshore and Seabed Act is still basically the same!! “Sitting at the table” has only increased their personal wealth, it certainly hasn’t helped the average person as Maori have sunk even deeper into poverty and even Te Reo declined under their watch.

  11. “The crucial gatekeepers who decide whether the implementing legislation gets to the floor of Congress want the deal changed before they open the door.”
    The fact that Big Business “donated” $1.7 million to 65 Nay voting Congress/Senate members to get Fast Track past the post keeps being ignored by the Key government.
    The US is already playing divide and rule, with Mexico suggesting it will play ball, AND WHY WOULDN’T THEY. THEY HAVE MOST OF THE JOBS NAFTA CREATED, AND “STOLE” FROM THE US.
    15 chapters of dense legalese written solely by “Rich, McGreedy, Oligarchovic and McCheats” law firm and friends for their corporate bosses.

  12. “Key has assured us his government will not bend to pressure” unless it’s a giveaway like refugees, or a tame Tax Haven non-inspection.
    Bend to common sense and superior argument?
    Never.

  13. All around the world there are huge gatherings of citizens demanding change. Over the weekend tens of thousands protested in London, France and New York. People have had enough, they are calling for change. They are calling for change from the elite gaining more and more, people want to see things done in a different way. That is why so many support Bernie and Corben. We must demand change, we must stop this dreadful TPPA being passed, we must make it clear that we have had enough and New Zealand will join other countries saying No.

  14. The sooner the government can rush this through, the sooner they can begin to align our domestic laws in favour of their TPPA. Once that happeens its a done deal for us regardless of wether any one else signs or not. ideology triumphs over common sense.

  15. OPPOSITION SHOULD STAGE A CUE AND IMPEACH THIS TYRANT AS HE KEY HAS ALREADY LIED IN 2008 WHEN HE WAS QUESTIONED BY MICHAEL CULLEN IF HE HAD A SECRET ACCOUNT WITH TRANZRAIL SHARES AND HE SAID NO. – THEN HE WAS FOUND OUT AS A LIAR AS TO THE EXTENT OF THE PHYSICAL TRANZRAIL SHARS HE ACTUALLY HAD THEN AND NOW HE HAS BEEN CAUGHT WITH LYING AGAIN SO IMPEACH THE FRAUD CROOK!!!

    Questions And Answers – Wednesday, 2 July 2008
    Thursday, 3 July 2008, 11:52 am
    Press Release: Office of the Clerk

    Questions And Answers – Wednesday, 2 July 2008

    1. Rail and Ferry Purchase—Profitability

    1. JOHN KEY (Leader of the Opposition) to the Prime Minister: Does she stand by her statement, in relation to the Government’s purchase of rail and ferry assets, that “we are not going into this to make money”?

    Rt Hon HELEN CLARK (Prime Minister) : Yes.

    John Key: What is the Government’s best estimate of its ongoing financial return from the purchase of rail and ferry assets?

    Rt Hon HELEN CLARK: I do not have that figure available. The member should put it down on notice.

    Tim Barnett: Which lines did Toll threaten to close if it did not get what it wanted in the rail access agreement?

    Rt Hon HELEN CLARK: I understand that the services that would have been closed under Toll’s plan B, in response to that situation, included the Overlander passenger service, the central North Island section of the main trunk line from Te Kūiti to Palmerston North, the Northland line, the Taranaki line, the Hawke’s Bay line, the Napier to Gisborne line, the Wairarapa line north of Masterton, Picton to Christchurch freight and passenger services, the Greymouth to Hokitika line, the Invercargill to Bluff line, and the Invercargill to Wairio line. I take it from the reaction of National members that they would love to see all of those lines closed. Labour would not.

    John Key: What was the value of the premium that the Crown paid, as indicated by Dr Cullen yesterday, for the purchase of KiwiRail from Toll Holdings?

    Rt Hon HELEN CLARK: I do not have a figure for a value on the premium.

    Rt Hon Winston Peters: Has the Prime Minister received any reports, namely, for example, from Booz Allen and Hamilton, that say that New Zealand Rail was making $36 million in 1993 and was down to make $100 million in 1994; and does she therefore not believe that taxpayers are entitled to some compensation for the 1993 sale of New Zealand Rail by the then National Government to its corrupt mates in Fay Richwhite and a foreign-owned company, Wisconsin Central Transportation?

    Rt Hon HELEN CLARK: The member, like the Labour Party, opposed that sale. But there was one person who fully backed that sale and that was Mr Key, a director of Bankers Trust, which got the contract to advise the New Zealand Government on that sale. That sale was worth $400 million to the New Zealand Government—the National Government—in 1993. In that same year—the 1993 financial year—Bankers Trust, of which Mr Key was a director, pocketed $39 million in profit. Members should ask themselves the question, who benefited from the sale of Tranz Rail? Mr Key and his friends.

    John Key: What is the expected cost of the rolling stock the Crown will need to purchase if it wants to run the assets at the level that it is proposing to the New Zealand public, over the next 5 years?

    Rt Hon HELEN CLARK: The Minister of Finance advised the House yesterday that to keep the rolling stock in its steady state—for example, no improvement—would require an investment of around $80 million a year. He further advises that to actually invest in an improved service—modern container wagons and customer-specific wagons—he estimates will cost around another $300 million over 5 years. That is a very good investment in a sustainable transport system.

    Hon Jim Anderton: Has the Prime Minister received any reports that those in this House who are critical of the purchase of KiwiRail would, if they were in a position to do so, sell KiwiRail if they had that opportunity?

    Rt Hon HELEN CLARK: I am sure National would like nothing better than to sell KiwiRail. Indeed, the National Party has opposed KiwiSaver. It has opposed Kiwibank. Now it opposes KiwiRail. What is it about kiwis and the public interest that the National Party hates?

    Rt Hon Winston Peters: Does the Prime Minister have any reports that in October 1992 Fay Richwhite got itself made the financial adviser to New Zealand Rail, and that on 26 April the next year it jumped across the table and said: “Hello, Government; we’re the buyer.”; and can she confirm that Mr Key’s company at the time facilitated that arrangement, which did not go to the market and did not go to tender but was just made with that Government’s corrupt mates in Fay Richwhite?

    Rt Hon HELEN CLARK: My understanding of the facts is the same as the right honourable member’s—that Fay Richwhite did, indeed, jump across the transaction. We know that Mr Key was a director of Bankers Trust, which advised on that sale. We know, furthermore, that in 2002 Mr Key’s family trust bought 30,000 shares in Tranz Rail—

    Hon Members: What?

    Rt Hon HELEN CLARK: —30,000 shares in Tranz Rail. We know, furthermore, that as associate transport spokesperson for the National Party in 2003, Mr Key commented on whether the Government should be buying back the track. We can find no record of Mr Key disclosing his financial interest as a shareholder.

  16. Not sure how many will read this, but here is a question. Is the indecent haste to ratify the TPP in any way linked to the indecent rush to sell off water rights for bottling to overseas interests? I know that the deal with Oravida is not TPP related but might there be another agenda at play here?

  17. Great observation Steve .

    BEFORE TPP:
    To do a deal with district councils and an overseas water bottling corporations (with a water royalty charge ) before TPP is part of those contractual obligations and it has to be lived with .EG 5c per lt.

    AFTER TPP:

    However if TPP is operational and then the district council enforces a water royalty it becomes a breach of contract and the loss can be sued for under ISDS provisions in Chpt 9.Article( 9.6.2/9.7.1) for indirect expropriation of a private property right. Overseas water bottlers have contractual water rights for usual 30 years and the royalty would impact upon profits and the value of the asset.

    While the council may have the sovereignty under a revised RMA to be able to legally levy a water royalty , so too the corporation has the right to seek compensation under TPP.

    Peter Beaven of the Hasting District Council said recently a 1c per lt royalty on the 4 billion lts (pumped by overseas owned Miracle water co ) would net the council around $40,000,000.PA.
    Can’t see Miracle water being too happy about that one. ISDS claim for loss of future profit (for 30yrs /$40m per year loss ,)well over 1 billion .

    Your’e on to it Steve , this is big ,and councils had better get up to speed fast before Oriveda and the other 74 bottling plants end up getting priority on our water, on a drought prone NZ east coast for absolutely free for the next 30 years.

    Water is going to be big.

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