We were promised a transformed deal. We were told over and over again by the coalition that the risks—the grave risk, to our democracy, our human rights, our workers’ rights, our environmental protection, and our Treaty of Waitangi—have now vanished. It turns out that was mostly spin and it is profoundly disappointing to know that the coalition used fairly minor changes to justify its total reversal of position on this deal so soon after the election.
It turns out that was spin and even on the most grave risks to our democracy, the investor-State dispute settlement (ISDS) clauses—the clauses that say that multi-national corporations, foreign investors can sue our Government for law change—those clauses remain the same. ISDS remains. Now we are a small nation. We need trade and the Green Party is for trade—trade that benefits New Zealand and helps us to address the global problems facing our planet today. We are not for a deal that marries us to a failed global economic model that Kiwis voted against this election. So our democracy is under threat—our ability to adopt transformative change that helps us to face threats like climate change, record inequality, and to honour our founding constitutional document.
There’s good reason we do not give Kiwi businesses the right to sue the Government for law change, because the Government should look out for the interests of everybody. Health policy, education policy, environmental policy should be all about providing schools, better hospitals, protecting the natural environment, not the profits of a few elite. But that is exactly what we’re about to give away to foreign businesses. They can hold these privileges over our Government—this one and future Governments—in a system that sits above our law, above our courts, above our democracy.
It’s important when it comes to the ISDS clauses to note that we’re not actually talking about contracts breaches. Supporters of this deal keep saying that foreign corporates, investors now have to sue for contract breaches in our courts. Well, that was never the key concern. The key concern was the investment chapter, which creates robust privileges, minimum standards of treatment for foreign investors that ordinary Kiwis do not have. It’s the investment chapter that they can use to sue us using the ISDS clauses. We don’t have to have entered into a contract with them at all. It’s enough that in March 2018 we are entering this agreement. From then on, they can use these privileges that we are about to give away to them to unduly influence our elected officials—a right that ordinary Kiwis don’t have.
The only real change to the ISDS regime in this agreement is the side deals or the side letters. One of them is with Australia and the supporters of this deal point out that that’s 80 percent of our trade. It’s a big trading partner. It is a big trading partner, Australia, but we all know that corporates can base themselves anywhere. So once we enter this deal corporates, even Australian-based businesses, can registered a base in any one of the signing nations and use that base to sue us using the ISDS clauses. It’s no protection at all. As Greens, what’s particularly chilling to us is that we know elsewhere in the world where ISDS clauses have been accessed to sue Governments, corporates have used them to stop environmental protection. When Indonesia tried to stop particularly damaging types of mining happening in its native forests, it had to exclude foreign investors because it couldn’t afford the compensation. It had entered into a similar agreement with the UK and Australia, and just the mere threat of access to ISDS clauses was enough. The Indonesian environmental Minister had to admit, “If we shut them down, they will need compensation and Indonesia can’t afford it.” That is chilling.
At this moment in global history can we really afford to give primacy to the profits of multi-national corporations over the threat of climate change? Is that what Kiwis voted for this election? Most of us voted for transformative, progressive change—a change in approach even on trade. In fact, this agreement is blatantly not all that much about trade at all. Most of the thousands of pages are about giving special privileges to multi-nationals to be free from Government regulation. Most Kiwis would be horrified to find that its e-commerce chapter, effectively, prevents public oversight of this century’s data-driven economy. It allows these foreign investors to base their data elsewhere, bypassing our Privacy Act. It guarantees that New Zealand will abstain from regulating future unknown technologies. Who does that benefit and what does it have to do with trade?
So instead of the progressive promise of its new name, we have before us the text of an archaic kind of agreement, which is just the kind that formed the backbone of the corrupt new and liberal regime that caused the devastation of the latest global financial crisis. The environmental and labour protections that are constantly invoked to show the progressive nature of this deal are, essentially, lip service. Actually, climate change isn’t even mentioned at all and our obligations pursuant to the Paris Agreement aren’t considerations here. In fact, any mentions of labour or environmental protections are not all that enforceable in law. They’re outlined with very little specificity. They say things like—the environmental chapter says, “Transition to a low-emission economy requires collective action.” Great—it does. What does that mean in law?
Parties also agree to cooperate on matters of joint interest, including things like developing low-emission technologies. Again, these are soft, unenforceable acknowledgments in law. Compare that to the incredibly detailed, biting and binding language of the investment chapter. Actually, we know that similarly worded protections have failed to stand up against corporates elsewhere in the world. In 48 percent of cases where these types of protections and similar deals have been invoked by Government, only four have been successful.
So instead of installing a transition to an innovative and sustainable economy that New Zealanders voted for, this deal will actually make it far harder and far more expensive for us to implement things like the zero-carbon Act. That is exactly why the narrative of consensus around this kind of deal is all but illusory now. Mass protests across the world—I was at the one in Auckland when the previous deal was put up. The city shut down. The EU will no longer enter this kind of agreement. Its human rights regime and climate change obligations sit above this kind of trade deal. New Zealand should be placing ourselves among the nations that are changing trade, that want to find ways to make trade fair. Our hope and intention is that the Trans-Pacific Partnership (TPP) is the last of this kind of deal. I want to work towards introducing change that will require us to make trade fair, to make negotiations like this democratically processed, transparent. These trade agreements should be contingent on our human rights, our Treaty of Waitangi obligations, our need for environmental protection, and our obligations to tangata whenua, with no more investor-State dispute settlement clauses.
We need to make trade fair and fit to serve our needs in the 21st century, with all the lessons of the failed neo-liberal regime. Instead, on 8 March, we will not be entering a fair or free trade agreement at all. We will be ceding sovereignty to foreign investors.