GUEST BLOG: Edward Miller – Triggering the doomsday device: how the current CPTPP process violates Confidence and Supply, and what the Greens should do about it

On 8 March the Labour-led Government – along with ten other Asia-Pacific nations – signed the zombified CPTPP in Chile. Despite ardent criticism from NZ First and some comprehensive flip flopping from Labour, the final deal is not much different to the one that sparked some of NZ’s largest demonstrations since the Springbok Tour.

The Greens now remain the only party opposed to the CPTPP. That opposition has been predominantly comprised of a series of rousing speeches in the House from MP Golriz Ghahraman. With only 8 seats in the House, the Greens have been left explaining to their voters that there’s not much else they can do to change course.

 

The doomsday device

However that’s not entirely true. As Green Party member Elliot Crossan points out, the Labour-Greens Confidence and Supply agreement – or rather the threat to withdraw from that Agreement – does represent a source of real power, should they choose to use it.

The argument was poorly understood by even the most strident of TPPA critics. Most said that regardless of how much we hated the CPTPP, after 9 years of National we were going to have to swallow this one and move on, rather than break C&S and return to them the reins of power.

Which of course I agree with, however it’s hard to imagine such a situation unfolding that would return National to power if the Greens were to actually seriously threaten to withdraw. Such a scenario would rely on Labour (and NZ First) wanting to implement CPTPP more than they want to stay in Government and implement the rest of their agenda. I find this highly unlikely. The more likely outcome would, of course, be a return to the negotiating table.

I call this strategy the doomsday device, and it can be triggered at any moment prior to ratification of the CPTPP. Ratification is the point at which a state commits to be bound by the agreement, and with CPTPP, once half the participating countries have ratified (i.e. five others) then it will enter into force (MFAT suggests this could happen within 18 months of signing).

The Select Committee is currently taking public submissions (recently extended until 18 April), then there is implementing legislation that will have to be passed before it is ratified.

Raising the threat level

Mention of implementing legislation brings us back to the issue of C&S agreement. The first point of the Policy Programme outlines a push towards net zero emissions by 2050 and the establishment of an independent Climate Commission. Critically, 1(b) requires that “[a]ll new legislation will have a climate impact assessment analysis.”

There are no dates outlined in the Agreement so one must assume it is binding immediately. The new Government has already passed plenty of legislation without undertaking a climate impact assessment. However the CPTPP poses significant risks CPTPP to effective climate action in a way that those other laws don’t, and should be approached with much greater caution.

As with the TPPA, the CPTPP doesn’t even mention climate change (the US refused to allow those words in the text). However this is more than simply benign neglect; its oft-derided ISDS provisions, for example, give foreign investors – i.e. oil companies – the opportunity to sue our Government where its actions threaten their profitability.

Take for example the Government’s recent decision to extend New Zealand Oil & Gas’ existing deep water exploration permit off the coast of Oamaru. A spokesperson for the Minister for Energy and Resources Dr. Megan Woods noted that “under current policy settings … a different decision could have resulted in a judicial review”, however the Crown Minerals Act is subject to an upcoming review.

NZ Oil & Gas is no mom-and-pop local business; it’s owned by a Singaporean subsidiary of the Ofer Global Group, an international network of companies owned by a Monaco-based Israeli billionaire. If the review to our legal framework around drilling permits affects their potential profitability, then they may well be within their rights lodging proceedings in a shady private tribunal whose awards (sometimes stretching into the billions) supersede our own national courts.

Defending these cases isn’t cheap. It cost Australia US$60 million to defend a similar lawsuit on tobacco plain-packaging, and our Ministry of Finance has already told us there’s nothing left in the bank right now. Therefore the threat alone of these lawsuits creates a “chilling effect” on government’s willingness to pass the reforms we’ll need to reach that net zero economy.

 

Reaching détente

The point I’m trying to make here is that in their rush to push through CPTPP, Labour have already raised the threat level sufficiently to give Greens the mandate for triggering the doomsday device. What motivations do the Greens have to honour the C&S agreement if Labour won’t give the CPTPP’s implementing legislation the climate impact assessment analysis they were promised?

It’s time for the Greens to play hard ball and threaten to withdraw from the C&S agreement until its core demands around climate-proofing the economy are given more than just lip-service.

Now that the Agreement is signed the pressure is off from the Government’s side – all the previous talk of needing to be inside the tent can be swept aside and ratification put on hold while we actually consider what this will mean for our future.

Now is a critical time for the Greens, however. It’s reaching crunch-time in the female co-leader race (8 April), and both Davidson and Genter have been vocal in their opposition against the TPPA in the past. They should be held to account on this matter.

Many Party members are disappointed at the decision to hand over parliamentary questions to National. They ought to take this opportunity to push the two potential co-leaders to consider the doomsday device as a real, tangible option to bring Labour in line with their commitments.

The point of a doomsday device is that its threat alone should be sufficient to influence behaviour. The entire anti-TPPA movement – which cuts across political lines – is relying on the Greens to wield this threat in a responsible manner. It may also help them mop up those NZ First voters who feel betrayed by the party’s sudden u-turn.

 

Edward Miller is a trade unionist and anti-TPPA campaigner now based in Kuala Lumpur.