Law student, Sarah Thompson, takes gov't to court over climate inaction

A great bit of grassroots activism.

The truth however (and my partner was at court today) is that the government is about doing nothing and Paris is purely about the "new economy" (vs the "old economy). It is about keeping the economy going at all costs (introducing "alternative" energies - oil derivatives - while digging everything out of the ground while the planet burns. 

Everyone is lying about the situation, including the Greens. Perhaps, above all, the Greens.

I remember being "persuaded" by a Green researcher who told me with a straight face that the message needs to be 80% "positive" - otherwise the plebs won't vote for them. In other words, they need to LIE

That was the end of my 20-year membership of the Green Party.

Student takes govt to court on NZ climate targets

Radio NZ,

27 June, 2017

Large-scale population displacement, and food and water shortages, will result if efforts to reduce greenhouse gas emissions are unsuccessful, a lawyer for a Hamilton student has told the High Court.

Law student Sarah Thomson is challenging the government over the way this country's climate targets have been set, in the first case of its kind in New Zealand.

Sarah Thomson, at centre, with supporters outside the High Court in Wellington. Photo: RNZ / Emile Donovan

About three-dozen banner-carrying protestors lined the street outside the High Court to support Ms Thomson's cause. Representatives of climate action groups spoke to the crowd about the importance of the legal action, and the precedent it set in holding governments to account.

Ms Thomson's lawyer, Davey Salmon, told the court this morning the effects of climate change painted a grim picture for the world's geo-stability.

He said the worst effects would occur when tens of millions of people sought to migrate to other countries because they lacked food and water.

Mr Salmon said the case was not about lobbying, but was an orthodox judicial review proceeding in which there were few actual disputes.

He said the Minister for Climate Change Issues had failed to reset New Zealand's targets under the Paris climate agreement as required.

The accord, in December 2015, agreed a long-term goal of keeping the increase in global average temperatures to below 2°C above pre-industrial levels.

"The 2 degrees wasn't a target, it was where things went from frightening to terribly frightening," said Mr Salmon. "Paris said 2 degrees was the line but 1.5 degrees was the better goal."

Mr Salmon said New Zealand's 2050 target for emissions reduction had not been revisited, but the reasons why it should be are largely-self-evident.

He said the plaintiff's case was that the decision made was unreasonable and those making it proceeded from the wrong starting point.

The case is set down for three days.

New Zealand has committed to reducing emissions by 11 percent on 1990 levels by 2030 as part of the Paris agreement. However, New Zealand's most recent greenhouse gas inventory shows emissions in 2015 were 24.1 percent higher than 1990 levels.

Gross greenhouse gas emissions from human activity for 2015 were 80.2 million tonnes of carbon dioxide equivalent, compared with 64.6 million tonnes in 1990.

When this is the reponse of government you know immediately that this case is going precisely NOWHERE

Govt understands need to act on climate, argues Crown

The government recognises the need for every country to act to stabilise greenhouse gases and prevent the consequences of climate change, crown lawyers have told the High Court in Wellington.

COP21 - the New Zealand perspective

This NBR repeats the fiction that this is “a 'high ambition' target to limit global temperature rises to 1.5 degrees Celsius”.

What it does confirm that Groser and the government prefer to put their voice behind Saudi Arabia and others.

The truth is that all of this (whether 1.5C or 2.0C) is meaningless nonsense that hides the fact that with 490ppm greenhouse gases (400 ppm CO2) much higher temperature increases are locked in.

As James Hansen says “the Paris talks are a fraud”

We even got total nonsense from the NZ Green Party

"Yes we did! James Shaw reports from Paris where an historic agreement has been reached at the ‪#‎COP21‬ climate conference! It's a victory for the people and by the people - thank you to everyone who's been part of the push. But this isn't the end. All eyes are now on the National Government to see if it shifts its stance on climate in line with the deal. Our job is to keep the pressure on."

NZ falls into line on 1.5 degree climate change target in Paris talks

NBR,

11 December, 2015

New Zealand will line up with more than 100 other countries behind the so-called 'high ambition' target to limit global temperature rises to 1.5 degrees Celsius as the global climate change talks in Paris head into what may be a final long night of negotiations.

Speaking to BusinessDesk from Paris, Climate Change Minister Tim Groser said the decision had been made on Thursday evening, Paris time, after discussions with Prime Minister John Key in New Zealand, to support a 1.5 degree rather than a 2 degree goal, coinciding with a meeting with Pacific Island delegations to the Paris talks.

New Zealand had been holding out for the previously widely accepted goal of trying to limit global warming to no more than 2 degrees, even though the latest calculations of countries' Intended Nationally Determined Commitments – a key element of the new global pact emerging in Paris – suggests they would only succeed in limiting global temperature increases to 2.7 degrees. New Zealand appears to have buckled following unexpected support for the more ambitious target from US Secretary of State John Kerry in Paris on Wednesday

Australia had already moved ahead of New Zealand in accepting the aspirational 1.5 degree warming limit target, isolating Mr Groser, who enjoys a strong reputation as a negotiator among participating countries at the same time as being pilloried by environmental groups for New Zealand's relatively modest goal to cut greenhouse gas emissions to 2005 levels by 2030.

Mr Groser said it had been his view that limiting global temperature rise to 1.5 degrees was unachievable but he didn't want the potential for an agreement in Paris to founder over an issue of "aspirational language."

"Since it's obviously so important to Pacific Island countries [some of which face possible inundation as sea levels rise], we've said 'OK'," Mr Groser said.

Mr Groser remains confident a final agreement will be stitched together at the Paris talks, the most positive annual global meeting on climate change action since the 2009 summit in Copenhagen, which failed to set a course for carbon emission reductions after the expiry of the first commitment period of the Kyoto Protocol, in 2012.

"The atmosphere is not the nasty, cantankerous, pernicious atmosphere of Copenhagen. While failure is possible, I will be astonished if it fails."

The result would be that the world would move from "a ludicrously partial coverage of emissions to covering 90% of emissions."

At this stage, there were no red flags for New Zealand in the emerging agreement, although neither New Zealand nor the US would accept proposals that would make developed countries legally liable to fully compensate developing countries for natural disasters created by more extreme weather.

"The reality is that, whenever a hurricane goes through the Cook Islands or somewhere else in the Pacific, New Zealand and Australia step up," Mr Groser said.

"But we won't live with language that says we are legally liable to fully remedy loss and damage."

Such provisions would also kill a wider global deal in the US Congress, he said. "My judgment is that hardline countries pushing for compensation and legal liability will back off because, if they don't, there will be no deal."

He expected the final deal to contain provision for mandatory review of progress on climate change action within five years and that the proposed $US100 billion sought in funding from developed nations for developing nations would be found by the 2020 deadline.

Meanwhile, Parliament's local government and environment committee heard yesterday that the Ministry for the Environment provided no advice to the government on whether agricultural emissions should be included in next year's review of the emissions trading scheme.

Asked by Labour's newly appointed environment spokesman, David Parker, whether the ministry had given any advice on the issue, the ministry's chief executive Vicky Robertson said: "No."

"At a practical level, it's too early to bring them in," she said.

Mr Groser said he had received no criticism from government delegations in Paris on New Zealand's stance on agricultural emissions, despite heavy criticism from environmental activists.

"The climate has shifted on agriculture," Groser said. "People realise we are dealing with the issue."

Jane Kelsey on the TPPA text

TPP: Govt has done 'spin job' - Kelsey

The just-published text of the Trans-Pacific Partnership shows New Zealanders will lose out, according to Professor Jane Kelsey who has been a leading critic of the deal.

Radio NZ,

6 November, 2015

The government released the legal text of the Trans-Pacific Partnership on behalf of the deal's 12 member countries last night.

The government has said the trade agreement will boost New Zealand's economy by $2.7 billion a year by 2030 but, until now, the public has been kept in the dark as to what the agreement entailed.

Listen to Jane Kelsey on Morning Report ( 5 min 52 sec )

But Prof Kelsey said the government had been doing a "pretty good spin job" having read the text.

She told Morning Report most of the concerns raised over the last five years remained, in particular in relation to foreign investors and their rights to sue the government.

"There's a real legitimacy crisis about these offshore tribunals because the judges, in inverted commas, are actually practising investment lawyers in many cases, and there are still no effective conflict of interest rules in the text as it's been released."

However Prof Kelsey said there was still a long way to go before anything was finalised.

"There will be also be a lot of pressure on parties like the Labour Party to understand that their five bottom lines haven't in fact been met in this text.

"And that they need to take a strong position in saying that they don't agree with the Trans-Pacific Partnership Agreement now that they've seen the details."

She said it would probably be at least two years before New Zealand signed off and further delays could yet come from the US.

"We have an additional prospect that the US will come back and say it won't bring the agreement into force with New Zealand until New Zealand has changed our laws and policies to the US understanding of what's required."

Lori Wallach of the Washington-based advocacy group Public Citizen told Morning Report the text showed New Zealand had made a lot of sacrifices for little return.

"The balance of really having gotten not much of anything as far as market access and dairy, and having exposed your programmes that make your medicine more affordable or that have superior privacy protections, or better internet freedom rules than we have in the US."

The agreement has 30 chapters and associated annexes and over 6000 pages of text.

Trade Minister Tim Groser released a statement on Thursday evening including a link to the text.

He said he was pleased the public would now finally be able to thoroughly review the full text of the TPP before it was signed by governments.

Work on the legal verification of the text would continue in coming weeks, he said.

"Understanding the legal obligations of the TPP will require careful analysis of all documents, given the inter-relationship between many provisions in the agreement."

The government has also released extra information on the estimated economic benefits of the TPP for New Zealand, Mr Groser said.

It will put out a legal summary of the agreement when that work is completed.

The agreement's 12 member countries are: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the US and Vietnam.

The TPP negotiations

Key talks big at UN, walks backwards in NZ

the Daily Blog,

3 October, 2015

John Key’s big moment at the UN to lecture the world on Syria and Climate Change is all very good, but when you actually look at what he is doing in NZ, it is pitiful.

Key only moved on letting in more Syrian refugees when he was forced to by public opinion backlash. He lied to NZ about re-invading Iraq before the election, and as soon as he won it he was sending in SAS to help target ISIS for US airstrikes under the prettiness of ‘training’ the Iraqi Army. We are siding with a butcher like Assad to help kill a bunch of religious fanatics who are funded by Saudi Arabia, the same Saudi Arabia John Key is so desperate to sign a free trade deal with.

Key is so conflicted on Syria he may as well be a third front of war all on his own.

As for climate change, his policy is slashing research into climate change…

Concern for emissions research after jobs cut

The logic of sacking scientists researching greenhouse gases is being questioned, in light of the government’s insistence the solution to rising emissions will be found through scientific innovation.

…and this at a time when Scientists are witnessing g real time shut down of vital biosphere functions because of climate change…

Scientists worried about cold ‘blob’ in the North Atlantic Ocean

…and why should that worry us?

As the planet super heats because of the CO2 we pump into the atmosphere, more and more heat is trapped. That heat pushes temperatures up, those temperatures melt ice at the polar caps. This melting ice does two things. Firstly it reduces the amount of white space on the planet that simply bounces heat back into space so it ends up quickening the heating process and more importantly it puts more fresh water into the oceans. As heat build, frozen methane trapped on the ocean floor and in Siberia is released in massive amounts, this rapidly melts remaining glaciers desalinating ocean conveyor pumps, particularly in the Labrador and Irminger Seas around southern Greenland which shut down the flow of heat from the tropics north which in turn plunges the Northern hemisphere into a new ice age.

Key talks big at the UN about Syria and Climate Change yet his walk at home is taking giant steps backwards.

Reports are that talks have bogged down AGAIN, this time over pharmaceuticals, but the NZ Herald toes the government line on a deal 96% of the population don't want

Breakthrough on TPP deal

TPP deal could be announced today after Atlanta talks extended a day

NZ Herald,

3 October, 2015

A Trans Pacific Partnership deal could be announced as soon as today if negotiators clear the final hurdles, including the biggest remaining one involving dairy import limits.

Prime Minister John Key left New York yesterday but Trade Minister Tim Groser remains in Atlanta at the talks, which were pushed back a day - a sign the agreement is verging on a breakthrough.

"I'm pretty optimistic it will come together [this weekend] - 80-20," said Alan Wolff, a former US negotiator who now leads the American National Foreign Trade Council, a commercial association.

Trade ministers from 12 countries are negotiating the controversial pact, which would cut trade barriers and set common standards for 40 per cent of the world's economy and be the biggest free-trade deal in a generation.

Talks began in 2010 but strong public opposition to the deal here centre on concerns about its impact, such as making pharmaceuticals more expensive.

Thousands of people demonstrated in August, many angry that detail of the deal has been kept secret.

The last round of talks in Hawaii in July ended with three issues outstanding: vehicles, dairy and patents on pharmaceuticals.

Key acknowledged this week the deal fell short on dairy but said yesterday it was still likely to be "bigger" than the China Free Trade Agreement, worth $20 billion a year.

It is understood that Key's team are ready to launch a charm offensive on the agreement, in response to outspoken TPP critics such as University of Auckland's Professor Jane Kelsey.

Kelsey and seven other applicants, are seeking a declaration that Groser acted unlawfully when he issued a blanket refusal of an Official Information Act request for information relating to TPP negotiations. The hearing is taking place in the High Court in Wellington.

Kelsey is wary of skyrocketing health costs should the TPP go ahead.

"The stark reality is that any such deal would cost New Zealanders' lives," Kelsey said yesterday.

Media reports in the US yesterday said the deal was close and US President Barack Obama had called Australia's Prime Minister Malcolm Turnbull to discuss it.

Once signed, the leaders of the countries involved will have to turn their attentions to selling the deal domestically after the controversy over the secrecy of the talks. It will also have to be ratified by each country's Parliament.

The Labour Party has said it will not support the TPP unless it meets key considerations, including allowing future governments to restrict land sales to foreigners and a meaningful deal for farmers.

If the deal is not done today, there will be one last chance, at Apec in the Philippines next month.

This is what minister, Tim Groser was saying in 2011

No Pharmac in Trans-Pacific Partnership

Trade Minister Tim Groser says the Government drug buying agency Pharmac is not up for negotiation in Asia-Pacific free trade talks.

Groser and the Finance Minister Bill English have just returned from the Apec annual summit in Hawaii where progress towards the Trans-Pacific Partnership (TPP) free trade talks was discussed with world leaders including United States President Barack Obama

Nine countries - the US, Australia, Singapore, Peru, Brunei, Chile, Vietnam, Malaysia and New Zealand - are negotiating the bloc which Japan, Mexico and Canada are now hoping to join.

The US regards Pharmac's monopoly as a barrier to free trade and there have been concerns the trade deal could weaken the agency's ability to buy cheap generic drugs.

However, Groser said today New Zealand had laid down a position which said: "Our public health system is not up for negotiation or part of any trade negotiation".

Now he's up for making any compromise to sign up

Groser: TPP means 'ugly compromises'

NZ Herald,

3 October, 2015

Trade Minister Tim Groser says countries deeply immersed in TPP negotiations understand that dairy has to be resolved to New Zealand's satisfaction before a deal can be done.

"At least people understand that this has got to be done and they can't just ignore our small country because we are small," he told the Weekend Herald.

He also extended a goodwill gesture to Labour, saying he respected the fact it had not taken a position on TPP and that was "perfectly rational".

Mr Groser was speaking from Atlanta where ministers of the 12 countries involved in the Trans-Pacific Partnership have extended their meeting for another 24 hours.

He said he had spoken to Prime Minister John Key in New York several times over the past few hours.

And I've got highly confidential but very clear political guidelines from the Prime Minister about what I should be doing.

He had a team of about 15 with him "working their proverbials off" around the clock and some of the key stakeholders such as the chairman of Fonterra, John Wilson and the chairman of Dairy Companies of New Zealand. He said it was an achievement to get dairy on the list of the final three issues that had to be dealt with because it was not there at the Maui ministerial meeting at the end of July.

"I felt under as intense pressure as I have ever felt in the last 30 years as a New Zealand negotiator because I felt completely and totally isolated," he said. "Now everyone understands that New Zealand is not going to be pushed out of this negotiation and the issues that would push New Zealand out of this negotiation, which is dairy ... this has got be solved in a way that New Zealand can live with."

He said the negotiations were going around the clock and he was just about to try and get a couple of hours' sleep until he was called for another session.

He said it was clear there was a "massive push" to do the deal.

"It's got the smell of a situation we occasionally see which is that on the hardest core issues, there are some ugly compromises out there.

"And when we say ugly, we mean ugly from each perspective - it doesn't mean 'I've got to swallow a dead rat and you're swallowing foie gras.' It means both of us are swallowing dead rats on three or four issues to get this deal across the line."

The outstanding issues are dairy, autos, and IP on pharmaceuticals, especially biologics - medicines made from organisms.

On the issue of Helen Clark's comments about the TPP - she said it was unthinkable New Zealand wouldn't be part of the deal - he said she had added a crucial rider - "provided the deal was good".

And that was the same position the Government had.

"I think it has been extremely helpful in terms of uniting New Zealand that our former Prime Minister has said what she said."

Mr Groser said he did not take Labour or its leadership for granted on TPP.

"They haven't got a position on TPP and I fully respect that and if I were in their shoes, I wouldn't have a position either because I would say 'I don't know what the deal is.' That is a perfectly rational position to take."

But as a point of general principle, what Helen Clark had said was the essential truth: "Provided we can deliver what makes sense from an overall New Zealand Inc perspective, it would be a nightmare for New Zealand to be excluded from it."

If the deal is not done tomorrow, there will be one last chance, at Apec in the Philippines in November.

TPPA already a done deal

Gordon Campbell on New Zealand’s TPP done deal on dairy, and on investor-state disputes

Scoop,

28 September, 2015

For five years, the public has been denied any meaningful information about the content and progress of the TPP – on the bogus excuse that for the government to do so would jeopardise its ability to conduct the negotiations. Yet in other countries, far more information is publicly available than is the case here. As a result, the public is being made vulnerable to political manipulation – as information is drip fed by the government primarily for its own political ends. We are not North Korea, but a five year blackout amounts to a near- totalitarian abuse of information on matters of crucial public interest.

Currently a classic example of this process is under way. For the past week, the government has been actively downplaying the likely deal on dairy access to overseas markets that New Zealand may achieve via the TPP . Prime Minister John Key has warned that the dairy deal outcome will not be ‘gold-plated’ ; and on Friday Trade Minister Tim Groser told RNZ that if a better deal than the one hitherto on offer wasn’t available, it would hardly be worth his time attending the upcoming ministerial talks in Atlanta this week, which are expected to conclude the TPP deal. It was a peculiar remark. Surely if the dairy deal is on the ropes, shouldn’t Groser be rushing to help push it over the line. Surely five years of negotiations deserve no less than 110 per cent effort at the finale. What’s going on here?

The likely explanation is that the dairy deal, has in fact, been done. Over the weekend, evidence has emerged that a new deal for NZ on dairy – and a solution to the previous impasse – has been reached, and is being reported on in North America. What our government has done is to talk down the likely outcome, so that it can maximise the gains of pulling the rabbit successfully out of the hat. Secrecy breeds the opportunities for this kind of pin.

True, there is still a little bit of static online as to whether it is Canada or the US that is unilaterally opening its dairy markets to New Zealand without reciprocal gains elsewhere for its dairy producers. Early last week, there was a roar of noise in TPP channels about alleged US demands that Canada would massively open up its dairy markets to US dairy producers, who would in turn, open up access for New Zealand.

The short strokes on dairy come down to how much of Canada’s domestic market would be opened up to American products to compensate U.S. dairy producers for opening up their market to TPP partners such as New Zealand, an aggressive and competitive dairy exporter.

CBC News has learned Canada is prepared to offer up a significant share of its domestic market (as defined by consumption levels), including not only fluid milk, but also possibly butter, cheese, yogurt or the milk powders and proteins used to make other foods.

The American goal for dairy market access was nine or 10 per cent, a figure that prompts dairy industry folk to use words like “enormous” and “annihilation.” But even if Canadian negotiators successfully push back, an offer of even half that would be huge. It’s far more than the concession made in the 2013 Canada-Europe Comprehensive Economic Trade Agreement, which was roughly two per cent.

Two days ago, these reports were being flatly denied by Canada’s Trade Minister Ed Fast.

Canada is only weeks away from an election in which seats in the dairy-producing provinces will be crucial. If that wasn’t deterrence enough for Canada to cave in on dairy, it is also under similar Japan/US pressure within the TPP for it and Mexico to cave in on the auto parts issue. Moreover, the opposition Liberals (who are leading in the polls) are saying they wont ratify a TPP deal that disadvantages Canada.

Keep in mind that all we’re talking about here is not whether New Zealand has a new deal on dairy – it is only about who is providing it. Overall, I give more credence to the other set of reports that emerged over the weekend indicating that it is the US that is unilaterally imposing an ‘unbalanced” deal on its own dairy producers, by exposing them to New Zealand imports without corresponding access for its dairy markets in Japan or Canada.

The evidence about the New Zealand dairy deal is on the (expensively paywalled) Inside Trade publication. I can’t link you directly to it, but Inside Trade is such an excellent and uniquely authoritative source that any New Zealander or corporate interested in the TPP should certainly avail themselves of the one month free trial offer available on its website. If you do so, the two articles to look for are (a) the article about the memo summarising the current state of TPP negotiations that has been written and circulated by the House Ways and Means Committee Ranking Democrat Sandor Levin, and (b) the separate article about the US deal on dairy with New Zealand, and the furious response by US dairy industry leaders.

Reportedly, Levin will pay a crucial role in the TPP ratification process in Congress.

As such, and in stark contrast to New Zealand politicians, he recognises a duty to inform. Released only last Friday, his memo not only identifies those areas (eg tobacco regulation) where Congress has been blocked from getting adequate information, but he helpfully summarises the current stumbling blocks in the main TPP problem areas such as conservation, labour standards, intellectual property, medicines, capital controls, SOEs, and in the language of the investor-state dispute settlement provisions – which have evidently been seriously affected by the recent Canadian Bilcon case, which has just laid Canada open to a $300 million damages suit by a family of investors. On the US/NZ dairy deal, Inside Trade’s coverage of the Levin memo says this:

Another new revelation made by the document is that the U.S. dairy industry has warned members of Congress that it believes the emerging dairy market access deal will give too many unilateral benefits to New Zealand in the U.S. dairy market, without achieving sufficient access to U.S. export markets like Canada and Japan.

This is repeated in the Inside Trade article devoted to the US/NZ dairy deal. Some key passages:

The U.S. dairy industry this week warned Congress that U.S. trade negotiators are considering an “imbalanced” dairy market access deal in the Trans-Pacific Partnership (TPP) that would unilaterally eliminate U.S. tariffs on key dairy products imported from New Zealand without securing sufficient access for U.S. exports to Canada and Japan, and threatened to oppose the TPP if that is the outcome.

Key dairy exports for New Zealand include milk powder and butter. The U.S. dairy industry has long taken the position that at any further opening of the U.S. market to dairy imports from New Zealand must be balanced by new access for U.S. exports in Canada and Japan.

Apparently, the work on this deal began straight after the last TPP round failure in Maui. During the first week of this month, US dairy industry leaders gave the US Trade Representative Michael Froman “very specific information” on how to bridge the TPP gaps on dairy.

They subsequently held discussions with their industry counterparts in New Zealand, Canada, Japan and Mexico, and provided the resulting information to USTR, but the “promised consultation on specific numbers” was not held, the note said.

“In the absence of any positive developments we are aware of in the dairy discussions since Maui we want you to know that we must oppose a TPP deal that contains an imbalanced dairy agreement,” they said. “At this critical point in the negotiations process we need to communicate this situation fully to our members — your constituents — on whose behalf we have been attempting to work with USTR throughout this process. We appreciate your close cooperation with us on these challenging issues.”

The Levin memo picks up those concerns. Levin noted that Canada has also begun exploring offering new access to its dairy market for TPP countries :

“Nevertheless, the [US] dairy industry remains seriously concerned, as it also remains disappointed with the status of the Japan and Canada negotiations and concerned by increased access to the U.S. market for dairy imports from New Zealand,” Levin wrote.

Whether it is Canada that is conceding unilaterally or the US that is doing so, one thing is clear : New Zealand has won a specific carve-out for greater dairy access, and it knows exactly what it is because our dairy industry leaders have been heavily involved in formulating it. Groser’s coyness to RNZ on Friday about whether or not he will attend the ministerial meeting in Atlanta set for September 30- October 1st this week is – as mentioned – mere politicking. He’s keeping a low profile to avoid further inflaming North American dairy producers, while domestically he is busily encouraging the media to reduce expectations so that he can maximise the impact of the final deal. These are not valid reasons for denying the New Zealand public the information they deserve on matters that affect them seriously.

Investor-State Disputes. The Levin memo contains fascinating detail on the investor/state dispute settlement (ISDS) rules under which disgruntled investors can sue sovereign countries. As mentioned, the Bilcon outcome is shaping the final form these rules will take. You can find a good summary of the Bilcon case (and the concerns about state sovereignty that it raises) in this report in the Toronto Globe and Mail.

Basically, the giovernment iof Canada became liable when it sought an environmental impact review of the effect of a quarry that it had agreed to in principle :

The Bilcon decision has raised a number of concerns about the investor-state dispute settlement provisions that are commonplace in international agreements, ranging from the North American free-trade agreement, to the Canada-China foreign investment agreement, to the proposed Trans-Pacific Partnership currently under negotiations.

A dissenting member of the panel – University of Ottawa law professor Donald McRae – warned that the ruling represents a “significant intrusion” into domestic jurisdiction and will “create a chill” among environmental review panels that will be reluctant to rule against projects that would cause undue harm to the environment or human health.

There is a growing concern in legal circles that the arbitration panels are expanding their mandate – including substituting their decision-making role for domestic courts – and that they cannot be appealed, Toronto trade lawyer Larry Herman said Tuesday. The Bilcon decision “will feed ammunition to those who oppose international arbitration as a form of dispute settlement,” he added.

It’s the second high-profile NAFTA loss for Canada. Last month, Ottawa was ordered to pay Exxon Mobil Corp. and Murphy Oil Ltd. $17.3-million after a NAFTA panel ruled that Newfoundland and Labrador had violated the trade agreement by imposing retroactive research-spending requirements on its offshore oil producers.

As the Levin memo indicates, TPP member countries are now trying to shut the stable door on the ISDS provisions to try and ensure that the Bilcon findings will not be repeated elsewhere. Here’s Inside Trade on the Levin report again :

These [changes] include “clarifications” being added to language on the so-called “minimum standard of treatment” (MST) for investors that would ensure that investors bear the burden of proof in alleging a breach of this standard.

The new language also ensures that “upsetting an investor’s expectations, without any further evidence, is not a violation of the provision,” the memo says. It explains that these changes “appear to address some of the shortcomings” that have been apparent in past investor-state dispute settlement (ISDS) cases, such as one brought by Bilcon over a proposed quarry in Canada. “But other serious shortcomings remain,” it adds. “For example, any action that an ISDS tribunal may consider ‘arbitrary’ could still be found to constitute a breach of the MST obligation.”

One of the key controversial elements of the Bilcon award was that, according to critics, the tribunal’s majority essentially equated a violation of domestic Canadian law with a breach of the MST. In other words, it found that the Canadian authority that rejected Bilcon’s proposed quarry acted arbitrarily by exceeding its mandate under Canadian law. It is not clear whether or how the changes mentioned by Levin would address this issue.

Few members of the New Zealand public are aware of the Bilcon ruling, or of the risks that the ISDS provisions contained in the TPP will pose in future for the national sovereignty of this country. Such has been the information blackout imposed on the TPP process over the past five years, no informed public debate on how far the TPP should be allowed to go in this respect has been possible.

Footnote : Bilcon’s victorious lawyer was the Canadian trade lawyer Barry Appleton. In the late 1990s, I interviewed Appleton for the Listener about the MAI, an ancestor to the TPP that was the first example of how global protest action could be co-ordinated via the Internet to defeat a multinational investment pact. Appleton was later interviewed by Kim Hill on RNZ, where he shredded a local academic apologist for the MAI. Appleton knows both sides of the investment fence. He’s worked for corporates, and for protest groups.

The memorable takeaway quotes from my discussions with him were that politicians have no idea about how international trade tribunals work, how their precedents have been derived, and how these precedents (some of which were formed in the Iran/US compensation cases) are interpreted. As a result, he said at the time, even honest politicians are making commitments that render their countries vulnerable to all kinds of risks and liabilities. Again, this is an argument for open disclosure, so that greater opportunity will exist for unforeseen implications to be discerned, debated and acted upon – before it is to too late. With the TPP ministerial meeting due to conclude in Atlanta on Thursday, it may already be too late.

Since Appleton’s Bilcon victory seems central to how the TPP member countries are shaping the final ISDS rules, it would be useful if someone in RNZ ( hello Wallace) could interview Barry Appleton, afresh.