What happened to Labour's TPP bottom lines?

In 2015, Labour under Andrew Little said it would not be supporting the TPP unless it adhered to five "non-negotiable bottom lines". 

On Newshub Nation, trade minister David Parker said four and a half of the five non-negotiables had been met. The half that he conceded isn't met is the ability of corporations to sue governments. 

Mr Parker said the effects of investor state dispute settlement (ISDS) clauses have been "narrowed… in a number of ways". The courts are a means through which investors can sue countries for 'discriminatory practices' through an impartial court. He said more than 80 percent of foreign direct investment is carved out and therefore won't be able to use the courts. 

David Parker and Jacinda Ardern.
David Parker and Jacinda Ardern. Photo credit: Getty

Stephen Jacobi and Jane Kelsey have both spent years focusing on the TPP.

Newshub took Labour's five bottom lines to pro-TPP Jacobi and TPP-critic Kelsey:

1.    Pharmac must be protected

Stephen Jacobi: Achieved, in both the CPTPP and the former TPP. This was a major objective of the National government, and it was good to hear Trade Minister David Parker acknowledge this on National Radio this morning.

Jane Kelsey: Vulnerable. The weapons the TPP gave to Big Pharma to interfere in its processes and to get stronger monopoly rights on expensive new medicines have been mostly been suspended but not removed, and they are still vulnerable to ISDS. The US will insist on even stronger rights if it re-engages with the TPPA.

2.    Corporations cannot successfully sue the Government for regulating in the public interest

Jacobi: Achieved. The protections in both CPTPP and the former TPP give the right to the Government to continue to regulate, particularly in areas like the environment and public health.  The Government must take care to treat foreign investors from CPTPP countries like domestic firms (as we have the right to be treated in others' markets).  The side letters the Government has negotiated with five countries (Australia, Brunei, Malaysia, Peru and Vietnam) further restrict the application of ISDS but also have the consequence of removing protections for NZ investors in those markets.

Kelsey: Not achieved. The whole purpose of these agreements is to restrict the right of sovereign governments to regulate in the national interest as they see fit, on matters as diverse as banking, foreign investment and platform operators like Uber and Amazon. The ISDS side letters don't do anything as they are with insignificant players, except Australia, with whom the side letter already existed.

3.    New Zealand maintains the right to restrict sales of farm land and housing to non-resident foreigner buyers

Jacobi: Achieved, provided the overseas investment office (OIO) Amendment Act comes into force prior to the entry into force of CPTPP.

Kelsey: Once the overseas investment office amendment is in force, a New Zealand government won't be able to tighten restrictions on foreign ownership of other resources, such as water rights, fishing quotas or tradeable carbon credits.

4.    The Treaty of Waitangi must be upheld

Jacobi: Achieved - the Government is at liberty to take steps to implement the Treaty.

Kelsey: Not achieved. The Waitangi Tribunal in the TPP claim advised the Crown to consult the claimants and other Maori on a stronger protection. It hasn't and claims the Treaty exception does the job. The rushed consultations with Maori to redefine forestry cutting rights in the Overseas Investment Act suggest otherwise.

5.    Meaningful gains are made for our farmers in tariff reductions and market access

Jacobi: Achieved, particularly with reference to the four markets where we do not already have free trade agreements (Canada, Japan, Mexico and Peru).

Kelsey: Not achieved. Since the US has exited the deal, the market access gains are even less than the disappointing original deal.