TPPA Select Committee Redux, 2018 edition

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Hello members of the Committee. I thank you for taking the time to listen to me this vital matter.

I'm a business owner, technologist, entrepreneur, writer, volunteer, advocate, and have a strong commitment to improving the community and nation that welcomed me and allowed me to make it my home 24 years ago.

I presented to another Select Committee on the TPPA almost exactly 2 years ago,  under a different government, but none of the points I raised have been satisfactory addressed in the meantime.

Here're a few observations and questions:

The opposite of an FTA

The TPPA is a six thousand page document. The CPTPPA is, for all intents and purposes, the same agreement, rebranded to make it harder to say. In the following, I'll use the terms TPPA and CPTPPA interchangably - and TPPA is easier to say and type.

Featuring a mere 22 changes to the original agreement, the CPTPPA represents perhaps a 1/1000th change - that's 0.1% - of the original TPPA. It's the same agreement for all intents and purposes. That agreement has been promoted by both the National and Labour Governments as a "Free Trade Agreement" and most NZers have accepted that explanation at face value. Which is unfortunate, because characterising it as an FTA couldn't be further from the truth.

Rather than removing trade restrictions, the agreement adds 6000 pages with whole new layers of restrictions on trade. It describes restrictions on what nations can do when it affects the interests of multinational corporations.  The TPPA was not written by government appointed trade experts, it was written by US-based lawyers - lobbyists paid to write it by US multinational corporations who in turn told the US government to propose it as the way forward for the TPPA. Remember too: what the words of the agreement actually say is largely irrelevant - a dense thicket of legalese is the natural habitat of the litigation lawyer.

My first question for you is this: given its corporate employed authors, whose interests do you expect the TPPA to favour? The only likely beneficiaries of the TPPA in NZ will be shareholders of a few corporations, not the other 99%.

The TPPA is only in the interest of the people of NZ if you believe in "Trickle Down Economics" and believing in that is on a par with being a flat-earther. I include some references: one, two, three.

Conflicted Interests and Independent Analysis rejected

The Ministry for Trade and Enterprise performed an analysis of the CPTPPA following the final negotiations, and found it would be beneficial to NZ, but only marginally. They were put into a tricky position, because I believe that their Minister, David Parker, announced NZ's intention to sign the agreement prior to the analysis being released and probably prior to it being completed. That put the Ministry into a tough position. If their analysis found that the agreement would be bad for NZ, they were under substantial pressure to re-frame it somehow to insure that it looked good for NZ instead, because - as someone who's worked with a Minister before I know this - the last thing you want to do in government is embarrass your Minister.

The MFAT analysis played up the benefits, but I note that very little has been said about the costs to NZ of being part of the agreement. What sacrifices do we have to make to achieve these marginal benefits MFAT has identified? How do we put a price on lost sovereignty and self determination? Seems pretty apparent the agreement is a framework for handing effective control of the participating nation's law making processes to overseas corporations.

I'm deeply concerned that the Government has rejected calls from many outside of government to undertake at least one (and ideally several) independent analyses of the agreement's implications for NZ. Why has the Government been so reluctant to do that? Is it possible that such an analysis, if undertaken by independent parties without a vested interest in backing their Minister, they would contradict MFAT's analysis? I strongly suspect so.

Do you believe that MFAT's analysis of the agreement was really impartial given that it was released after the Minister had publicly committed NZ to sign it? Why does the Minister want us to join the agreement so badly, I wonder?

Mistaken assurances about ISDS

We received assurances from the Prime Minister, based on advice from our chief CPTPPA negotiator, who is also the primary analyst of MFAT's report, that New Zealand is safe from Investor State Dispute Settlement claims under the agreement. I think he's quite mistaken in making that assurance.

He cites "side letters" with Australia effectively declaring a moratorium on ISDS claims. But the real threat from ISDS does not come from other nations. It comes from multinational corporations - the same ones who have consistently made a mockery of our tax system, and whose lobbyists wrote the TPPA -  who can be from whatever nation best suits their objectives.

If that's to sue NZ to bankruptcy they could do so. But, of course they can simply use the threat of a nation-crippling suit (quite a few of these corporations are, themselves, larger economies than NZ) in the secret extra-jurisdictional court where the prosecution, defense, and judge are all corporate lawyers as specified by the ISDS to get you, the NZ government, to change your plans to something they find agreeable to their interests. Of course, all of this would be undemocratically opaque to the people of NZ. 


I suspect many of you in this committee feel like we're all wasting our time - the Government has already publicly stated its commitment to ratifying the agreement, so this process is not going to change anything. Nevertheless, to stand up for my principles and to do my best for my adopted home, I've got to try because Ministers Parker, and McClay and Groser before him, are deeply misguided in their support for the agreement.

Do you want to see New Zealand adopt an unprecedentedly huge set of trade restrictions being misrepresented as an FTA, which may not have any benefit for any of us, and certainly not for 99% of NZers? Do we want to accept MFAT's word for it? Why have requests for an independent analysis been rejected? Also, do we want an unlimited liability - namely the threat of lawsuits by multinational corporations that could easily bankrupt our nation - hanging over our heads, and those of our future generations, effectively limiting any future government's ability to legislate in our interest? It'll only get worse when the US inevitably rejoins.

You have to ask yourselves: whose waka* is this?

It's our waka.

Don't you think it's best if we're the ones holding the paddles, telling it where to go? 


* if you're not familiar with the term "waka", it's a traditional Māori ocean-going canoe, and in NZ I've developed the understanding that it's a metaphor for our home and a tool of empowerment.


Excellent submission Dave. I suspect the people receiving it spent a lot less time analysing the impact of the TPPA than the lawyers spent writing it.

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