New TPP leaks show deep divisions, Canadian positions on key chapters

The Trans-Pacific Partnership talks, which continue in Singapore today and tomorrow, are "not progressing according to plan," says the U.S. negotiating chief in one of two new leaked documents published online today by Wikileaks. "The results are mediocre" leading up to Singapore, says the U.S. internal briefing note, and "even leaving aside the more complex issues (Intellectual Property, State-Owned Enterprises and Environment), demonstrates a situation that makes it very difficult to think of a complete closure in December."

But the document also says the U.S. is exerting considerable pressure on the 12 other TPP negotiating countries, including Canada, as ministers gather in Singapore to try to bridge political gaps. And business sources told Inside U.S. Trade (subscription only article) that "TPP countries are clearly seeking to announce some sort of concrete outcome at the end of this meeting, such as the substantial completion of a certain number of chapters or an agreement on the main parts of the deal."

Some interesting exerts from the U.S. briefing note:

INTELLECTUAL PROPERTY: The U.S. and Japan have presented a joint non-paper (not negotiating text) on pharmaceuticals prior to Singapore. Negotiators from Australia, Singapore and Chile said while there were elements in common with their bilateral agreements with the U.S., "the majority of these obligations... were above the agreed standard," and "none of these delegations indicated they were in conditions to go beyond its bilateral..." If you check this against page 4 of the second Wikileaks document released today, you can see what "above the agreed standard means": expanded patentability criteria, supplementary protection for patents, extended protection for new uses (plants, animals, surgical procedures), patent-linkage, extended data protection, rules against parallel importation of patented medication from cheaper source countries, longer patents, etc. (In other words, a lot of rule changes that make patented medication more expensive and less accessible.) However, it looks as if Singapore is willing to work from the U.S. proposals and is leaving a small group of countries, including Canada, which had prepared a counterproposal text on pharmaceuticals. "In that same vein," says the briefing, "Canada has also been receiving high-level pressure to not file a counterproposal." Is the Harper government asking Canadian negotiators (as it did in the EU deal) to once more back down and support the brand name drug lobby over likely protests from Health Canada and Industry Canada? It's hard to tell from these documents exactly what that means, but Canada has gone part way to satisfying U.S. patent demands by extending patent protections in the EU free trade agreement. The U.S. briefing note also shows the U.S. persisting on language in the TPP on "transparency" in how medicines are priced, which most other countries had rejected because it would compromise national drug pricing plans, including in Canada, that help keep medicines affordable for patients and public drug plans.

INVESTMENT: "The most important issue for the majority of members," says the briefing note, "is the proposal by the U.S. to apply ISDS (investor-to-state dispute settlement) to Investment Agreements and Investment Authorizations," which would cover "important concessions including mining, administrative or special operating contracts for hydrocarbon exploration, public works concessions (roads, highways, bridges, infrastructure, etc) and it would override the choice of forum provisions in these contracts." This is the so-called umbrella clause in investment treaties, through which any contractual agreement between a government and investor is covered by the excessive investor "rights" chapter and dispute process, giving P3 (private-public partnership) consortia, mining companies, etc a get-out-of-court card, or the ability to have investment tribunals decide whether a contract has been violated instead of the national courts. "Only the U.S. and Japan support the proposal," says the leaked briefing, "while the rest expressed their objections to the proposal and have tried to explore ideas to refine the concept and make some reservations about the choice of forum in contracts, but the U.S. has shown no signs of flexibility..." Finally, only Vietnam objects to the application of the investment rules and ISDS to pre-establishment, or plans by investors to invest in another TPP country versus protection only for established investment. It should be noted that the European Union pushed back against Canada's desire to cover pre-establishment in the CETA investment chapter, and that Canada has not yet agreed to an umbrella clause in that deal, though the EU continues to insist on it.

OTHER CANADIAN ODDITIES: A few things in the second Wikileaks document (the table of country negotiating positions) stand out as slightly odd. Canada is rejecting sub-national (provincial, territorial) coverage of the Technical Barriers to Trade chapter. This could account for differences in regulation between some provinces, for example Ontario and Quebec rules on edible oils that have come under fire from Alberta and other western provinces. These differences tend to be dealt with under the Agreement on Internal Trade, not international treaties (not to mention they are a matter of provincial jurisdiction protected by that quaint document called the Constitution). Canada is also rejecting sub-national coverage of the chapter on Competition (State-Owned Enterprises) though without details it's hard to know where the differences lie. And Canada is rejecting a plan to list non-conforming sub-national government measures in the investment chapter, though the provincial governments went through that exhausting and fraught process already in the CETA negotiations.

(The problem is that undoubtedly provincial governments will miss something [i.e. they will fail to exclude a policy from the TPP or CETA that they should have protected from investment disputes] and have to live with it forever since it's impossible [very, very difficult] to change these deals once they're ratified. For example, most provinces are excluding gambling services from CETA rules that open up covered sectors to privatization and deregulation. But most provinces did not list sanitation services, making it difficult to expand water services in the future or re-regulate without fear of attracting a trade or investment lawsuit from the EU or European companies. For this reason alone, provincial governments should be required to hold public hearings on CETA and the TPP before they are allowed to endorse either deal. It's in all of our interests in the long-run to make sure the provinces don't mess up.)

On the proposed ENVIRONMENT chapter in the TPP, Canada is rejecting coverage of sub-national governments, insisting that multilateral environmental agreements should not be included/enforceable, and rejecting (along with every other TPP country) a U.S. proposal to let environmental disputes related to any part of the chapter go to the regular dispute settlement process. Canada is similarly rejecting dispute settlement for LABOUR violations, as it continues to do in the CETA negotiations. (Canada prefers the complicated and inaccessible labour and environment dispute provisions in its free trade agreement side deals, which come with fines, not possible trade sanctions, for violations.)

As a final note, let's keep in mind in every instance above, "Canada" means the Harper government, and even that's too generous since it's the Harper's Cabinet and probably a small part of it that is deciding the Canadian TPP position in consultation with negotiators. Trade Minister Ed Fast is in Singapore now with a secret mandate to make god knows how many bargains to get a deal done. It's ridiculous that he has this power when you look at the number of public policy areas that will be touched by the TPP's new rules, which are strong, final and highly enforceable.

Now type in "Canada Trans-Pacific Partnership" into your search engine of choice and see how many Canadian news articles there have been about Canada's role in Singapore. As of 11:20 a.m. Monday morning it was a depressingly short list. The Harper government isn't talking and the media aren't asking. The news about the TPP is being generated by Wikileaks and the hard work of Internet activists like OpenMedia and access to medicine advocates like the HIV/AIDS Legal Network.

For more information about the TPP and actions you can take to make it a public issue:

OpenMedia campaign to "save our digital future" from TPP internet and copyright rules

Write a letter-to-the-editor in your community about the TPP (a very useful OpenMedia action tool that you can tailor to your interests in the TPP)

MSF Campaign: TPP - The Most Harmful Trade Pact Ever for Access to Medicines (w/ petition to Harper goverment)

Joint Statement by AFL-CIO, CLC and UNT on the Trans-Pacific Partnership Free Trade Agreement

The Council of Canadians TPP campaign page