Jane Kelsey: New expert paper on TPPA shows serious impacts for local government
23 February, 2016
Source: Professor Jane Kelsey
An expert, peer reviewed, paper on the implications of the Trans-Pacific Partnership Agreement (TPPA) for local government was released today.
The paper was co-authored by former city councillor and chair of Watercare Services, Tony Holman QSO, former Member of Parliament and Auckland city councillor Richard Northey ONZM, and Professor Jane Kelsey from the University of Auckland, and was peer reviewed by Dean Knight, senior lecturer in law at Victoria University of Wellington and an expert in local government law.
The 36-page paper covers: the exposure of local government, international experiences of local government, special protections for TPPA investors, Investor-State Dispute Settlement (ISDS), public private partnerships (PPPs), privatised water, services and investment liberalisation, Council Controlled Organisation (CCO) contracts, public procurement, tangata whenua and te Tiriti o Waitangi, economic development, sustainability, decision making processes and exceptions.
‘Many people have probably not considered how the TPPA might affect local government’, said co-author Tony Holman. ‘Unfortunately the impact may be considerable and the bigger the local authority, the greater the effects will be’.
‘A reality check shows that every local authority will have to comply with complex rules and restrictions across many chapters, in the same way that central government has to. Overseas experience shows they also face potential interventions from overseas corporates, including through costly investor-state disputes, for doing what their constituents expect of them.’
For Richard Northey, ‘what matters for those of us with years of experience in local government is the reduction in autonomous and locally appropriate decision making by local government. This is particularly restrictive on those Councils and communities that want to take an appropriate locally active role, to the extent they can, in community social and economic development and reform’.
‘There are already real legal restrictions on this, with a real risk of greater restrictions if the TPPA were in force. This could result from a series of projected reviews, especially to the application of government procurement and state-owned enterprises chapters to local councils’.
The paper shows the municipal activities that have the greatest potential to be affected are: policy making and planning decisions; bylaws and regulations governing permitted activities; technical standards, such as property development, construction, advertising, zoning and environmental quality; activities relating to finance; public procurement contracts, including public private partnerships (PPPs); utilities; and resource management rules and decisions.
There are also implications for regional economic development. The paper notes that the ‘TPPA erodes the flexibility that local authorities need to promote economic development in their communities, and is not a sound basis for a progressive and sustainable 21st century economy that addresses climate change, social inequalities, environmental degradation ad other challenges.’
This is the sixth in a series of expert peer-reviewed posted on TPPlegal.wordpress.com and supported by a grant from the New Zealand Law Foundation.
Meanwhile the corporate NZ Herald’s propaganda piece tells us the the Investor State Dispute Settlement (the ability of corporations to sue nation states) is is actually “as chilly as a typical summer's afternoon in Auckland”.
Opponents of the Trans Pacific Partnership have been conducting a brisk trade in criticising the Investor State Dispute Settlement mechanisms in the recently concluded 12-nation deal. The term refers to the critical aspect of the agreement that allows parties to take a case against governments they believe aren't playing ball.
What isn't so clear is how familiar these critics really are with this aspect of the fine print when they hyperbolically dismiss it as the deal's most "chilling" feature, which could also yet result in loss of national sovereignty, supposedly secret hearings and other unspecified hardships for New Zealand.
Investor State Dispute Settlement (ISDS) is actually as chilly as a typical summer's afternoon in Auckland. The warmth is partly in its transparency, but also in the fact that what we're talking about is a form of arbitration and something New Zealand is not only good at but has already shown itself to be practical, efficient and in the country's interests.
A dispute settlement provision represents nothing new. In one form or another it has been around internationally since the mid-1960s. New Zealand is already party to a half-dozen trade or investment treaties containing such arbitral provisions......