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Harper government resists strong labour rights chapter in slow-moving TPP trade talks

| December 12, 2012
Photo: Caelie_Frampton/Flickr

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Canada's first week as a full-fledged member of the Trans-Pacific Partnership has been … well … a little dull. Observers in Auckland, New Zealand, where the 15th round of 11-country trade and investment negotiations will wrap up in a few days, agree "that no marked progress has been made," and that the most difficult discussion on market access for agricultural products (in particular dairy, but also processed food, beef and pork) is "a mess -- without structure," according to TPP skeptic Peter Clark. Not even the usual TPP boosters at our daily newspapers bothered to promote the project this week or last, though the usual business boosters (ex. food processors) did.

Opposition to the TPP, on the other hand, has been loud, visible and angry. Protests outside the Sky City Convention Centre on Saturday (Friday for us) challenged the new level of secrecy during the New Zealand round, which restricted access to negotiators for the first time to an inside club of business lobbyists. They presented (or tried to) an Avaaz petition opposed to the TPP signed by more than 750,000 people, including many Canadians. If you missed your chance to sign that petition, you can still send a message to Canadian and other country negotiators asking them to Open The TPP. (Thank you OpenMedia.ca for this tool.)

In a rebuttal to the protests and opposition movement against the TPP, New Zealand's Prime Minister John Key simply said that "people should ignore them." New Zealand will only sign a "balanced" deal, he said. Sounds familiar, doesn't it? Also familiar is that for Key, as for Prime Minister Stephen Harper in the Canada-EU free trade negotiations (and TPP for that matter), balanced means agreeing to changes to how pharmaceutical products are regulated -- a big U.S. demand in the Trans-Pacific Partnership negotiations -- in exchange for quite limited market access gains for New Zealand's agricultural export sectors.

Labour rights in the TPP

According to Inside U.S. Trade today, while last week's TPP negotiation spent time welcoming Canada and Mexico to the fold, this week deals with "more politically difficult areas, such as labour rights obligations, e-commerce and competition." On December 9, talks on the labour chapter began, with Canada joining Vietnam, Brunei, Malaysia, Australia and New Zealand in opposition to a U.S. proposal to make labour standards enforceable in the agreement.

Canada's labour side agreements tacked onto free trade deals (ex. Panama, Jordan, Columbia) include fines for labour violations, but enforcing those fines requires the good will of both governments. In other words, a worker cannot directly bring a labour dispute against a company or country in the same way that the TPP's investment chapter, like NAFTA, allows an investor to directly invoke her rights to challenge public policies that interfere the right to make a profit.

Furthermore, "article 2 of the Canada-Jordan labour co-operation, the so-called non-derogation clause, only prohibits the violation of [International Labour Organization] standards where it can be demonstrated that this violation was done 'as a means to encourage trade or investment,'" explained Mark Rowlinson, a lawyer with the United Steelworkers, during his testimony to trade committee on the Canada-Jordan free trade deal. Sustained violations of labour rights are immune from challenge unless they can be shown to be the direct result of the free trade deal.

"This is, in our view, a significant limitation on the substantive obligations found in article 1 [of the labour side agreement]."

The Canadian Labour Congress, in its submission to the federal government's hasty e-consultation on whether Canada should join the TPP negotiations, said, "Any agreement on labour issues will be meaningless insofar as workers' rights are undermined by investor-rights provisions, relegated to a side agreement, or defended by sanctions that are non-binding and not enforceable."

The CLC refers to a Model Labour and Dispute Resolution Chapter developed by an international coalition of labour unions, which the U.S. appears to be supporting in the TPP negotiations but with resistance from Canada and the other countries listed above. The main difference with Canada's vision is that in the U.S. approach, labour violations can be enforced through broader trade sanctions as well as fines. Parts of the TPP could be suspended until the labour violation has stopped, for example.

Canada's resistance to this arguably stronger approach to protecting labour standards in trade agreements reminds me of the Harper government's opposition to binding human rights language in the Framework Agreement that will accompany the Canada-EU Comprehensive Economic and Trade Agreement. I wrote about this a few weeks ago on learning that Canada thinks the economic (CETA) and political agreements should be separate, such that a violation of human rights by either party could not result in a temporary suspension of the trade and investment deal as the EU is proposing (and includes in its Colombia/Peru FTA, which passed in the EU parliament today.)

For the current government and free-market ideologues, only economic freedoms are sacrosanct, and state sovereignty is only useful to the extent that it empowers multinational capital. Try to enforce other priorities or rights -- human, labour, Indigenous, ecological -- and the Harper government will accuse you of treading on its sovereignty.

According to Inside U.S. Trade, "Australia and New Zealand, which generally already have high labour standards, oppose enforceability because it could ultimately threaten the entire TPP deal if Vietnam, Malaysia and Brunei were to opt out rather than accept stronger labor standards." But without enforceable standards, the Obama administration will have a difficult time selling the deal to already skeptical (to say the least) labour groups and Members of Congress back home.

The U.S. trade publication suggests Australia and New Zealand will agree in the end but only in return for concessions from the U.S. on market access for agricultural products such as dairy -- their main interest in the TPP, which shows how little there really is for those countries from a successful negotiation. Canada's position could be similar, since we also have little to gain from the TPP, as Peter Clark explained in a report last week and described in his Ipolitics.ca blog, and so the federal government might hold back on labour rights as collateral for its own agricultural interests.

Vested interests and unacceptable secrecy

All this is probably inside baseball for most of us. If the negotiations this week were dull, it is also because it's the same old faces again and again telling us the same nonsense about the importance of this deal to the Canadian economy.

The stakeholders never change -- Canada's export agricultural sectors (notably the beef and pork lobbies with a red line to the Prime Minister's office) have spent probably millions over the past decade to make sure Canadian trade policy works for them, without consideration of the social or economic costs elsewhere. Sectors that do not export, or export very little (ex. dairy, poultry and eggs) spend just as much defending their right to be protected from international competition, and are also guilty of ignoring the other factors at play.

At the end of the day, neither camp is entirely satisfied with the resulting trade agreements (though I'm more favourable to sustainable agriculture, and only the supply managed sectors fit that bill), and the rest of us end up with an even stronger bill of rights for corporations than in the last big trade deal. Our democratic options reduced so that multinational profits can accumulate faster, factory farms and junk food production increases, and the machinery at DFAIT or the United States Trade Representative starts planning an even bigger trade deal and the process continues.

Luckily, the TPP might not get that far, either from stagnation or mass opposition.

"While the substance of the TPP is cause for concern, the more immediate issue is the lack of transparency associated with both the negotiations and Canada's participation in them," wrote Michael Geist, University of Ottawa law professor, in his column this week. "The talks remain shrouded in secrecy, with a draft text that is confidential; public interest groups are largely banned from the venue where the negotiations are being held."

Geist explains that according to documents obtained through the Access to Information Act, the government's e-consultation process for the TPP "was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal."

He continues, "In addition to tens of thousands of form letters and emails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. A review of more than 400 individual submissions did not identify a single instance of support for the agreement. Rather, these submissions typically expressed concern with the prospect of extending the term of copyright or adopting restrictive digital lock rules."

Harper's response was much like New Zealand Prime Minister Key's: ignore anyone that disagrees with you, no matter what their reasons. Geist points out the results of the e-consultation, which ran for six weeks, were never made public.

I predict that 2013 will see opposition to the Harper trade agenda increase. He has backed himself into a corner on the Canada-China Foreign Investment Protection and Promotion Agreement. Investor-state arbitration is not yet is but becoming common parlance (with Australia refusing to include it in the TPP). The Prime Minister and his trade minister, Ed Fast, can't seem to convince Canadians that a European free trade deal is worth it if it means giving U.S.- and EU-based pharmaceutical companies more patent protections. And Canada has barely concluded one round of TPP negotiations and it's creating a bad taste or total indifference.

I could be very wrong but for now I'm hopeful. This is my last post before the new year so enjoy your holidays and get some rest. There's a Canada-EU CETA ministerial meeting coming up and we're bound to need your help.

Photo: Caelie_Frampton/Flickr

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