TPPA End Game

Government In A Rush To Deny Democracy

- Greg Rzesniowiecki

A few big questions might be in order to help frame our consideration of any TPPA outcome. These are at the top of my list of concerns.

1. How to ensure the interests of Aotearoa/NZ are fairly met in trade and investment agreements?

2. If the benefits are in trade liberalisation, why are we being asked to pay more for intellectual property? Liberalisation is supposed to reduce prices or so we are told.

3. If the benefits are in trade liberalisation, why are we accepting restrictions on Internet use and on our public interest State-owned Organisations especially Pharmac? What have these to do with trade?

4. Why are corporate rights made mandatory, with strong enforcement mechanisms, whilst human rights, environmental protections and general public interests are afforded no similarly enforceable legal protections?

5. Why is our ability to exercise sovereignty in our legislative programmes being undermined and constrained? Why is this Government constraining future Government action?

6. What of the big issue of climate change? Does the TPPA help or hinder a positive outcome?

7. The proposed tobacco control carve-out to protect TPPA partner governments' ability to regulate in accordance with the World Health Organisation (WHO) Framework Convention on Tobacco Control is not complete protection. Why is this minimum standard of protection not afforded to any COP 21, United Nations Framework Convention on Climate Change (UNFCCC) agreement? Why was this not included in a “gold standard” agreement for the 21st Century? Is it fool's gold?

8. Why is the secrecy necessary? The corporate interests are often in the loop and have the ear of the negotiators, often writing the text.

9. Is it time to reconsider the process by which New Zealand negotiates, publicly consults and ratifies international treaties? We are a democracy or so we are told. Democracy relies on an informed citizenry, and the TPPA involves a complex of new rules.

Firstly, I'll recap on my activities since the last TPPA local government campaign report in Watchdog 139 (August 2015, Apologies for no report in Watchdog 140, December 2015).

Wanganui, New Plymouth, Hamilton

July 2015 saw me engaging with local TPP Action groups with a view to gaining access to Council Forums across the North Island. Along with Denise Lockett I engaged with Wanganui District Council to see if they would be interested in reviewing their earlier decision which removed the 12 descriptive points from the TPPA policy solution. As they were still mopping up from their flooding event, where the Wanganui River lifted itself many metres out of its banks there wasn't too much traction.

From Wanganui I headed north to New Plymouth to a public meeting organised by Niki Shrewry and Stuart Bramhall and our TPP Action team there. We were seeking support for a lobby on the New Plymouth District Council. The meeting endorsed this, which generated a letter to the Council seeking access to present to Council on the TPPA. This approach was subsequently rebuffed by the Mayor at a later date. From New Plymouth the next stop was Hamilton for public meetings on July 15th and at Raglan on the 16th. These meetings endorsed approaches to the Hamilton City Council, and Raglan Community Board of the Waikato District Council. We also decided to make application to the Waikato Regional Council. With the decision to lobby these Waikato Councils the local TPP Action commenced regular meetings to coordinate our activities. We kicked that off with an address to our friends at the Hamilton Residents and Ratepayers meeting on July 25th.

That same afternoon we made a presentation to the monthly hui of tangata whenua of the Kihikihi hapu of the Maniapoto tribe. They had been considering the TPPA, along with many questions about their sovereignty. They had not made a claim under the Treaty of Waitangi settlement process, preferring to assert their rights to property leased by Crown decision and inhabited by others. In regard to the TPPA I addressed their hui and dealt with questions as well as I could. They then shared their initiative which was to write to each of the TPPA partner nations demanding that they cease negotiations with the NZ Crown as it had not gained Maniapoto consent to be negotiating on their behalf.1 As a Tiriti partner Maniapoto ought to have been extensively consulted about the content of the TPPA negotiations. As I understand it, this is the content of the Maaori claim before the Waitangi Tribunal.2

Wellington, Wairarapa

Leaving Kihikihi I headed to the Wellington and an enormous meeting of social workers and Government bureaucrats entitled A More Inclusive New Zealand Forum.3 I'd booked myself a space at this talk fest a month earlier, as a result of my adding myself to the Victoria University Institute of Governance and Policy Studies email list. That email bulletin has alerted me to a few events and developments I would otherwise have missed. I don't know who was paying the wages bill. There were about 200 people present. We were addressed on a variety of community concerns and then workshopped to highlight the salient points which were refined with lots of Post It notes and permanent markers. The distilled content was to be addressed to the heads of departments in an effort to gain focus on the key areas of need in our society. I'm still to learn of the outcome of that exercise.

Next stop was Wairarapa. Sometimes fate plays a surprising hand, little did I know that our earlier efforts in the Wairarapa were paying dividends with the South Wairarapa District Council's (SWDC) July 15th Committee meeting adopting our TPPA policy solution with similar amendments as proposed by the Tauranga City Council, that is to clauses 5, 7 and most concerning clause 12 removing the requirement that Government has regular public consultations and releases of the negotiating texts. Nevertheless we now had our 12th Council, which pushed us to a point where Councils representing 60% of the New Zealand population had adopted the TPPA policy solution. Our good friends at Action Station devoted a page of their Website to our local government TPPA policy solution and its reach. 4 The SWDC Maaori Standing Committee also addressed the TPPA policy solution on July 27th, adopting it complete with the elevation of the clause protecting the Tiriti o Waitangi to be the first of the 12 descriptive points.

It's Our Future in consultation with the regional TPP Action groups had made a decision to hold protests and rallies on August 15th. Preparations had been ongoing through July. Our local government lobby campaign was now focused on lobbying the Waikato Councils to adopt the TPPA policy solution. I committed to support the efforts toward a successful Hamilton TPPA rally. Previous Hamilton rallies had been held in the central city at the town square known as Garden Place. Hamilton TPP Action crew decided to relocate the August march and rally to the suburb of Te Rapa adjacent to the large shopping complex called The Base. The city heart had gone into decline and wasn't any longer a strong people magnet as urban sprawl and the large Taninui iwi retail development attracted thousands on weekends. The TPP Action team decided that if the people won't come to Garden Place for the rally, then take the rally to where the people were in Te Rapa, gathering at Maui St opposite the Cock and Bull hotel complex and marching past the Te Rapa Base shopping complex to the vacant field at the Te Rapa Road & Wairere Drive corner. More on this below.

Following the work in the Wairarapa, I returned to Wellington to assist with their rally preparations. I undertook a large TPPA postering campaign, pasting rally notices over several nights, through the Hutt and Johnsonville, Porirua. On the evening of August 5th I postered out through Paraparaumu and Waikanae, after Jane Kelsey's talk to the Fabian Society at Victoria University which launched her most recent book “The FIRE Economy”.5 (Jeremy Agar’s review of “The FIRE Economy” is in Watchdog 140, December 2015, Ed.).

August 2015 Nationwide Actions

The August nationwide actions were billed as a week of action with Wellington and Christchurch TPP Action hosting several opportunities to highlight the TPPA trap. Emily Boonen from Paekakariki undertook to curate a photo exhibition of TPPA protest pictures at the 17 Tory Street Wellington gallery space. I attended opening night on August 6th, Hiroshima Day. Bill Rosenberg's relating of the history of trade and investment treaties and the contexts they flow from and inhabit was a timely reminder of the reasons we are engaged in the struggle for human scale and centric outcomes in political economy, ones that honour our human nature and the environment we all share.

Both Palmerston North and Whanganui TPP Action have developed a strong affinity and working relationship with their Wellington compatriots. They committed to attending the August 15th Wellington protest and support Wellington Actions including the August 12th TPPA protest at Parliament at midday to place pressure on Parliamentarians when they are at work. It also gave Wellington workers an opportunity to rally and express their opinion “TPP walk away”. Whanganui held a rally on August 8th, and Palmerston North activists produced a “TPP Rally And Concert” the same day. I was heading north to Hamilton, so made a beeline to the join the Palmerston North event. There were many fine contributions; however I'll concentrate on two: Firstly, Romuald Rudzki from Export NZ who provided the audience with his ten reasons why the TPPA is no good. Romuald's explanation provides solid fuel to the fire that the TPPA is not about trade liberalisation; rather it is about powerful interests stampeding the international political economy with their preferred version of the rules of commerce. In the classical form of democracy this is a governance issue for those who represent the people in the many nations' legislative assemblies.

And secondly, Barry Coates, an Auckland activist, gave a solid explanation of TPP and its pitfalls. I was pleased as it provided an opportunity to meet Barry, which has led to a stronger collaboration in our respective efforts to engage New Zealand in the TPPA issue and particularly local government. It was from that conversation that the initiative to get the Auckland Council's Local Boards to adopt a measure calling on the City Council to back up its December 2012 TPPA policy with stronger action, given that another 11 Councils had engaged with and largely adopted the Auckland position on the TPPA.

Returning to Hamilton I immediately commenced pasting posters (public notices) around town to alert folks to the Te Rapa Hamilton TPPA walk away Rally. Our three targeted Councils had meetings on August 11th - Waikato Regional Council's Policy Committee, Hamilton City Council's full council meeting and the Waikato District Council's Raglan Community Board meeting. We made approaches to all three, and were effectively rebuffed; however I made the 45 km trek to Raglan and spoke briefly to their public participation space in their agenda. The Board were coolly engaged; we subsequently wrote again and appeared formally before their next meeting on September 8th.

John Lawson of Raglan TPP Action is also a radio announcer on the local Raglan radio station with a regular Tuesday night spot. That night he had lined up an interview with local National MP Barbara Kruiger, who happens to be a dairy farmer. John invited me to participate in his interview. Engaging with politicians on the TPPA is easy work as they, as much as the public, did not know what was being negotiated, and were reliant on Tim Groser and John Key to feed them lines to offer the public. As the TPPA was entering its end game it was increasingly obvious that New Zealand was not to receive any tangible benefits for its largest agricultural exporter, the dairy industry. Equally obvious was the fact that the Government had conceded that it would agree to the investor State dispute settlement (ISDS) provisions, opening our nation to arbitration suits from the TPPA nations with whom we had no previous trade and investment treaty, namely the USA, Japan, Mexico and Canada.

There were also many reports plus the ongoing leaks of key portions of the TPPA text which signalled that New Zealanders would be paying more or getting less for their dollar when purchasing goods and services containing intellectual property or subject to copyright. Barbara Kruiger, however, repeated the Government mantra that the TPPA will be good for NZ. However, in relation to the specifics she said it was under negotiation and we'd have to wait until an Agreement is reached. The Friday before the rally had me in a car with Ferne Hohneck and Pene Torea, heading to Tauranga for a public meeting on the TPPA. That night was very wet coming over the Kaimai Ranges. We needed to slow down considerably. Tauranga TPP Action's Brian Oxley was the MC with speakers including Clayton Mitchell NZ First MP. I addressed the gathering of about 40 people on the TPPA local government lobby and TPPA policy solution.

Back in Hamilton for Saturday's TPPA Stand Up Rally at Te Rapa. The TPP Action crew had shifted the rally from their usual location in town at Garden Place with the thought that most Hamiltonians were out at The Base Shopping Centre, rather than inhabiting town. The decision proved to be extremely prescient. The gathering point in Maui St from about 12:45 p.m. quickly filled and by 1:15 was overflowing with a colourful crowd with many placards and banners. We were overwhelmed as those assembled numbered several thousand. Previous Hamilton TPPA rallies might have had several hundred at their largest. The march was massively long. I was amongst a few whose role was coordinating the traffic marshalling effort, and had the opportunity to move from the back of the march to the front on several occasions in our procession down Te Rapa Road. I had plenty of exercise that day. The crowd was so big that we were hopelessly underpowered for amplification for the speakers, relying on a few megaphones. Speakers included the Green Party MP Jan Logie, Te Pora, a powerful wahine and tangata whenua representative from Raglan who led our chanting, Mischele Rhodes, of the Hamilton Residents and Ratepayers Association and member of the local Hamilton TPP Action group, and myself briefly. I acted as MC and we allowed a few from the crowd to speak in an open mike session at the conclusion of the main contributors.

That memory of that rally will stay with me for a long time. The lesson I gathered from it and my time in the Waikato is the enormous potential activation that the Waikato and Hamilton presents. It wasn't lost on me that the TPPA end game was hung up on several issues - intellectual property, copyrights including for pharmaceuticals and trade liberalisation for NZ's agricultural sector, particularly dairy produce access into the North American and Japanese markets. It seemed that arriving to lobby Waikato councils provided an opportunity to lift the profile of the TPPA and our concerns. The global surplus of dairy, which has created the slump in the dairy price, was impacting on dairy farmers’ lives in a big way. The talk through Taranaki and the Waikato was that up to 40 dairy farmers had found the situation too stressful to bear and taken the terminal step of ending their lives rather than face their losses with their creditors.

In the meantime Landcorp was in the process of converting about 43,000 hectares of ex forestry land to dairy 6. Around August they were about 17,000 hectares into that project. This was highlighted for me visually as I drove on several occasions through the previous well-forested regions around Tokoroa. I was much surprised when I saw the extent of the cleared forestry lands in various stages on the way to being transformed to pasture, and I recalled that I came to be concerned at the TPPA from the perspective of its implications for climate change mitigation. Here is a good point to highlight my sense that the two issues are intrinsically linked. Climate change is about the consequences of our industrial emissions, associated with large scale clearing of forests, and the TPPA is about the rules that underlie economic activity. It is a fact that the economy is a subset of the environment in which it is located.

Lobbying Waikato Councils About TPPA

During the middle part of 2015 we undertook a concerted effort lobbying selected Waikato councils. We had a large team in the Waikato area centred in Hamilton and Raglan, and we built on the earlier public meetings in July where we had generated added interest in the TPPA’s implications. The strategy and specifics of the tactics were to make different approaches to each of: Hamilton City Council (HCC), direct to the full Council; Waikato District Council (WDC) via the Raglan Community Board (RCB); and the Waikato Regional Council (WRC) to their Policy Committee. We looked at the councils' meeting schedules and wrote to them offering to make presentations to WRC on July 30th, HCC's Policy Committee on August 11th, and the RCB on that same day also. These were all rebuffed; however I drove to Raglan and spoke at their Board's public forum and offered them the TPPA policy solution to consider. I gained agreement that we would have the opportunity to make a full presentation to the following Board meeting on September 8th where they endorsed TPPA policy solution and further recommended it to the Waikato District Council. 7 The Council where we gained the most traction was the WRC. The accepted our application and we spoke to their August 11th Policy Committee meeting.

We eventually got before the HCC for a workshop presentation on September 10th. We brought six presenters to the Council on issues affecting youth, environment, intellectual property, tangata whenua, and with papers provided in relation to health and ISDS, and a general survey of the TPPA's implications. HCC informally determined to do due diligence. All of these efforts and the traction we gained with the Councils were washed away with the October 5th Atlanta agreement (to pass the TPPA). The Hamilton City Council closed their ongoing consideration. Following representations from Hamilton TPP Action, the Waikato Regional Council had a resolution from their August 11th Policy and Strategy Committee:

“That Council write to Minister Tim Groser inviting him or an appropriate representative to present to Council at the earliest opportunity on the implications of the TPPA for New Zealand. At that same forum, Council will also invite the TPPA Action Group to present their view on the TPPA implications, and that the TPPA Policy Solution be appended to the report” .8 However, what did they do with it? They didn't write to the Minister in relation to this proposition until December 14th and then only after a number of prompts by myself, including to the WRC Chair, Paula Southgate. We might have a nominal democracy; however it requires constant vigilance and pressure to get it to respond as common sense would suggest it ought to. In January 2016 we received an invitation to participate in a WRC meeting on March 31st where the lead Ministry of Foreign Affairs and Trade negotiator, David Walker, would present to the Council. We accepted that invitation.

Auckland Local Boards Pick Up Baton For Democracy

A number of Auckland City Council Local Boards addressed the TPPA at their meetings during September and into October, with resolutions carried by the following boards: Waitemata, September 8th, 9 & 10; Great Barrier Island, September 9th, 11; Kaipātiki, September 9th,12; Devonport-Takapuna September 15th, 13; Waiheke, September, 24th,14; Puketapapa, September 24th, 15; Māngere-Otahuhu, October 21st, 16. There was some variation in the motions carried by the boards however the common formula is as follows:

“a) That the Waitematā Local Board notes that:

“(i) While the proposed Trans Pacific Partnership Agreement (TPPA) will hopefully generate economic benefits to New Zealand through increased trading opportunities for exporters, there are also significant potential risks to our sovereignty, environment and way of life;

“(ii) The TPPA negotiations have been conducted over the last eight years without any public disclosure of the contents let alone consultation or adequate debate about its principles or provisions;

“(iii) The only publicly available information about the detail of the proposed treaty has come about through partial leaks and overseas sources;

“(iv) Much of this Agreement goes well beyond its ostensible purpose of free trade and consists of provisions to protect the interests of multi-national corporations, including investor-state rules that would allow multi-national companies to sue our Government for damages in secret tribunals if laws or regulations or policies of either local or central Government affected their ability to trade or make a profit within New Zealand;

“(v) A resolution was passed by Auckland Council on 20th December 2012; note particularly clause (xii) which calls for TPPA negotiations to be conducted with ‘real public consultation including regular public releases of the text of the Agreement and ratification being conditional on a full social, environmental and economic assessment including public submissions’;

“(vi) The Government has apparently ignored the Council resolution and similar resolutions from other Councils and numerous other public interest organisations and refuses to release any meaningful information about the contents of the treaty.

“b) That the Waitematā Local Board requests Auckland Council to:

(“i) Seek clarification from the Minister of Trade on how their recommendations are being addressed in current negotiations; and

“(ii) Make available to Local Boards and Auckland Citizens the Government's response as well as an analysis of the adequacy of undertakings to address Council’s concerns.

“c) That this resolution and background information be circulated to the Mayor and Governing Body, and all other Local Boards”.

Which culminated in the Auckland City Council Regional Strategy and Policy Committee considering the matter at their October 8th meeting with a notice of motion with a number of elements to it. This meeting followed shortly after the October 5th Atlanta agreement between the 12 TPPA partners. The original proposals that built on the positions coming out of the Local Boards were ultimately watered down to two clauses which were narrowly carried:

“That the Regional Strategy and Policy Committee:

g) requests the Government to publicly release the agreed text and consult widely with local government and citizens before ratifying the Trans-Pacific Partnership Agreement..

“h) requests the Government to clarify how the recommendations in Auckland Council resolution RDO/2012/266 (communicated to the Minister of Trade in the letter of June 5th  2013 from the Chair of the Regional Development and Operations Committee) were addressed during the concluded negotiations and will be addressed in the ratification process”.

Deal Is Announced

There were other initiatives to address Christchurch City, Dunedin City and the Otago Regional Councils in the period before the October 5th Atlanta TPPA agreement. The Atlanta TPPA Ministers’ Meeting occurred amongst a backdrop of expectancy balanced with a lot of scepticism. Will they or won't they reach a conclusion? Will NZ get a good dairy access outcome? What will the intellectual property and copyright chapters look like? What exactly are biologic medicines? What is happening to the patent periods and what is data exclusivity, and why does it matter how long; five years, eight years, 12 years? What does all that mean for health outcomes in NZ and elsewhere?

There were a number of delays and extensions until early on the morning of October 5th when the world was informed that the TPPA ministers had reached a deal.17 We had a TPPA agreement. So what was in it? We had to wait another month for official translations and so that the various nations’ legal teams could scrutinise the details and get the text to an agreed legally clear state. I dwelt in Wellington for another week or so following the Greater Wellington Regional Council presentation, to attend, as a speaker, the conference 'Democracy, Ethics And The Public Good' to address the TPPA issue. 18

That was a brilliant event with many fine contributions addressing the failings in the institutions that uphold and support our democratic processes. A lot of the focus was on news media, and its role in transmitting knowledge to the people. A highlight was Scoop's Alistair Thompson launching their Pledge Me fundraiser to sustain Scoop as an independent media outlet with an innovative funding scheme based on organisational and individual subscriptions. The Local Government Leaders’ Declaration on Climate Change came as a surprise. 19 I read of it in the news. Seventeen Mayors from major New Zealand cities proposed strong action from central Government on mitigation of reducing greenhouse gases, and adaptation to ensure that New Zealand is in a state of preparedness to meet the expected changes in a climate changed world.

Toward the end of September, after engaging with the Waikato Councils, I travelled back to Wellington to have another attempt to get the Greater Wellington Regional Council (GWRC) to adopt our TPP policy solution. We knew the Atlanta TPPA Ministers’ Meeting was scheduled for October 5th and that the timing was critical. The Council afforded TPP Action a space in their public forum but however made no decision on the day. It did have the effect of spurring a lot of activity and, as a result, Councillor Paul Bruce, in consultation with his colleagues and ourselves, prepared a notice of motion which went to the following November 4th meeting. The notice of motion built on the earlier efforts by the Auckland Council Local Boards and the notice of motion to Auckland City Council advanced in the names of Councillors Wayne Walker and John Watson.

November 14th Nationwide Rallies

I returned to Hamilton for the November 14th TPPA rally. Whilst not as large as the August rally, which was out of the box, it was a respectable turnout. Attendance was down across all centres, in the aftermath of the October 5th Atlanta agreement and the November 5th release of the provisional text in advance of the legal scrubbing process. That day marked the commencement of the 90 day notice period to the US Congress issued by President Obama under the terms of their Trade Promotion Authority (Fast Track Bill) July 2015. That would see the US able to sign the TPPA from February 3rd, 2016. PM John Key offered to host the signing in New Zealand, setting the scene for the dramatic events in Auckland on February 4th (see Mary Ellen O’Connor’s detailed report, elsewhere in this issue, on the February protests in Auckland and at Waitangi. Ed.).

The November TPPA rallies endorsed the following set of demands developed from the work with councils and summarising the way forward from TPP Action's perspective:

TPPA It Ain't Over Rallies. What We Want!

Aotearoa NZ Peoples' TPPA Demands

The Government has no democratic mandate to sign away our democratic powers in the TPPA. Before it takes any steps towards signing the Agreement, the Government shall:

1 Undertake independent human rights, health, environmental and climate change impact assessments of the potential effects of the TPPA on the people and land of New Zealand, and make this information publicly available.

2 Support Local Government New Zealand to undertake an independent assessment of the impacts on local government of the TPPA, and consult fully with local government.

3 Fully engage with its Treaty of Waitangi partners to hear and address their concerns about the TPPA and refer the text and any proposed legislation to the Waitangi Tribunal to conduct a full risk assessment of impacts on tangata whenua; iwi and hapū.

4 Withdraw its consent to the secrecy pact among the twelve TPPA countries and release all background documentation relating to the negotiations.

5 Initiate a full public and Parliamentary debate on the TPPA, including Select Committee hearings with public consultation, and put the TPPA to a public referendum, before formal signing.

We will continue to mobilise New Zealand citizens in opposition to the TPPA until our demands have been met.

At the time of writing, none of the measures has been implemented by the Government. 20

November 18th Correspondence To All Councils.

Greater Wellington further considered the TPPA agreement at its November 4th full Council meeting, via a notice of motion advanced by Cr. Paul Bruce 21 TPP Action representatives and engaged academics made presentations in the public participation component of the meeting. GWRC's meeting devoted a considerable period to the TPPA and after several amendments, arrived at the following decision:

“That the Council:

“1 Notes the content of the report.

“2 Reviews the Trans Pacific Partnership Agreement text against the TPPA Policy Solution adopted by councils representing a majority (60%) of the NZ population.

“3 Asks that central Government initiates a full public and Parliamentary debate before proceeding with formal consideration of the TPPA, including formal signing.

“4 Asks that central Government carry out independent human rights, health and environmental impact assessments of the potential effects of the TPPA on the people and the land of New Zealand, as urged by the United Nations independent expert Alfred de Zayas, and make this information publicly available."

“5 Asks that central Government consults with local government prior to any further action taken that might compromise the ability of local government to make decisions in the interests of our region, the people and their environment.

“6 Instructs the Council Chair to write to the President of Local Government NZ (LGNZ), requesting that a local government evaluation, based on an independent analysis of the implications of the TPPA for local government, and for the social, cultural, economic, environmental and health and wellbeing of communities, be undertaken as a basis of LGNZ input into Parliamentary consideration, and that the evaluation report should be made publicly available and widely publicised”. 22

The Paul Bruce notice of motion report concerns itself with regional council responsibilities, concentrating on the environment. The broader territorial authority concerns are also anticipated in the above GWRC decision. The question posed - how do local governments as an institution arrive at a comprehensive and accurate view of the impact and implications of the TPPA? GWRC has determined that the best route is through the agency of the peak body Local Government New Zealand (LGNZ).

TPP Action strongly recommends: That Councils adopt the GWRC decision, as your own Council's position on behalf of your community, and make a similar recommendation to LGNZ. Grass roots TPP Action, and It's Our Future, are very supportive of the GWRC decision, including for the reasons outlined in the Cr. Paul Bruce notice of motion. Our November 14th TPPA rallies 23 endorsed a five point Statement of Demands in respect to the TPPA process, which includes support for the GWRC position – “that  LGNZ be empowered to review the TPPA text implications for local government and its communities” 24 (see above).

A series of peer reviewed academic papers are being prepared on the specific implications for New Zealand, including a paper on the implications for local government (released February 2016). 25 This paper should provide a springboard for local government to undertake due diligence, in respect to TPPA's significant alteration to our domestic arrangements. Increasingly our constitutional and legislative framework is called into question, what is the nature of our regime? Democracy or autocracy.26

Climate Change And TPPA – And The Link Is?

The issue of climate change was high on the political world's agenda with the Paris COP21 Conference from late November through to December 11th. Delegations from all nations, NGOs and a host of activists planned to descend upon Paris to ensure their interests in a cooler planet would be honoured. The shocking multiple bombing and gunfire-fight in Paris on 18 November drew the world's attention to yet another incident of carnage. 27

The coincidence between the Paris bombing and the COP21 conference is not lost on me. Synthetic terrorism is a concept that is prominent in my mind from a deep study of the physics and politics that surround the events of 11 September 2001. 9/11 provided the pretext for the Global War on Terror. The context is that the Paris bombing attack would not have occurred without the genocidal Western wars on the Near East (in the language of international affairs or Middle East in common parlance). The mess created in the war zones and destabilisations in Afghanistan, Iraq, Pakistan, Syria, Turkey, Libya, Yemen, Sudan, Ukraine and more as a result of Western policy has resulted in the death and injury of millions. It has caused untold property damage and has made homeless the bulk of the estimated 60 million refugees worldwide. Of these many hundreds of thousands have crossed into Europe.

Whether there was a project facilitated by Western covert intelligence or whether the Paris bombings were entirely undertaken by ISIS or Daesh, the fact remains that ISIS would not exist without the post 9/11 Global War waged on the pretext of wiping out terrorism. The outcome apart from the carnage and heightened security in the French State was the banning of public demonstrations. The effect of this was to stop the mass protest in Paris planned to coincide with the commencement of the Paris COP21 conference. Mass rallies called People's Climate Marches occurred in many cities across the world including New Zealand.

Waikato Climate Action

Whilst in Hamilton, I lent my energy to the establishment of an activist group, Waikato Climate Action who describe themselves as: “We are representatives from community organisations coordinating climate action in the Waikato. We are a diverse group passionate for the future wellbeing of people and planet. As a group we are not politically aligned - our goals are to raise awareness about, and engagement in the issue of climate change in the community, and to put pressure on the government to set realistic emission reduction targets. We are not a discussion group; we are a group committed to making things happen, and to engaging citizens in the democratic process”.

The work bringing together a November rally in Hamilton was a huge and colourful success.28 Amongst those speaking were Hamilton Mayor, Julie Hardaker and Waikato Regional Council Chair, Paula Southgate, and Sarah Thompson, a Waikato University Law student who initiated a judicial review against the Minister for Climate Change for not doing his job.29 There were many others representing unions, church groups, and the Pacific communities. It was quite a carnival atmosphere and everyone I spoke to was well pleased to see the Hamilton/Waikato contribution to the New Zealand and Global People's Climate March events focused on gaining a result from the Paris conference.

The Paris COP21 Conference and its outcome is an enormous subject. The fact that all the nations reached an agreement, irrespective of its value, is notable. This follows on from the global unity achieved in September 2015 with the Sustainable Development Goals.30 The problem that has been highlighted repeatedly - highlighted by the “nice to have” soft law of UN conventions and covenants protecting human and political rights, human health, the environment and barring the poor treatment of one state by another. This soft law confronts the hard law in which trade and investment treaties provide for transnational corporations (TNCs) and their property and investments, as is afforded in the North America Free Trade Agreement (NAFTA), TPPA, Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA). In effect we have only the moral or ethical ground remaining to stand on, in the face of investors’ ruthless assertion that their right to extract a profit is the supreme law. 31

The United Nations Framework Convention on Climate Change (UNFCCC) reached in December 2015 is soft law, its only requirement is that states report on their progress toward implementing their Nationally Determined Contributions to the global effort to reduce greenhouse gas emissions.32 This has been a point of contention which has been repeatedly raised in our presentations with local government and any authorities we have occasion to address. It is borne out in the Government's lack of resolve to implement the Smokefree 2025 agreement between the National government and the Maori Party for confidence and support on Supply. That agreement provided for two specific and important initiatives, the Constitutional Conversation 2011 - 2013 and the Smokefree 2025 legislative package which included plain packaging of tobacco products to assist the reduction of young people taking up tobacco smoking.

In The Eye Of The Storm: Pacific Climate Change

Leaping forward I was recently privileged to attend an important and timely conference on climate change hosted by Victoria University of Wellington (VUW). “In The Eye Of The Storm: Pacific Climate Change Conference” brought together 200 people from Pacific nations. It ran from February 15-172016. 33 Indigenous rights, tangata whenua, Pasifika, community, business, activist, Government, public servants and academics combined to consider how to use the Paris COP 21 outcome, the UNFCCC treaty to promote positive action both to mitigate and adapt to this great problem. The recurring theme was: ”We're not drowning - we are fighting!” 34

I was invited to the conference for the panel discussion “Neo-liberalism, TPPA And Climate Change In The Pacific - A Renewables Of Motueka And TPP Action Perspective”. As is my practice, I wrote a referenced evidence paper and spoke to it - the central thesis being that the TPPA's constraints, especially Chapter 9 Investment, and the threat of ISDS arbitration, will make Government's job of regulating to reduce carbon emissions, either through a price mechanism or non-market measures, difficult or impossible. The reluctance to confront corporate interest, where it is opposed to public interest, has been evidenced by the Government’s delay of our Smokefree 2025 legislation. I offered a paper and there is a video of my presentation to that panel session. 35 I spoke to the paper rather than read it to the audience. 36 A final statement from the conference intends to sum up the aspirations of the many participants from the Pacific and Oceania regions.

Governor-General Petition

This initiative came out of the TPP Free Wellington group. I first heard of it in late October or November 2015. I was still working in the Waikato with TPP Action group and the Waikato Climate Action people as we finalised arrangements for our Waikato People's Climate March held on November 29th. Pete Young was placed in email contact with me and shared the suggested content and wording of the petition. I returned to Wellington as soon as commitments were concluded in Hamilton. I drove south attending the Maniapoto Hui in Kihikihi on December 5th. Leaving the next day I arrived in Wellington on the Monday morning, having stopping over at Roschana Webby's place in Palmerston North on the Sunday night. Roschana is a great friend and often provides a stopover hostel for a tired TPP Roadie (i.e. me) as he traverses the whenua.  I went straight into the TPP Free Wellington planning meeting held at the Postal Union's office in Trades Hall, Vivian St, Wellington. After a fair bit of discussion we agreed to launch the petition to the Governor-General, Sir Jerry Mateparae.37 The agreed wording of the petition was:

“To the Governor-General:

“Petition concerning the Trans-Pacific Partnership Agreement (TPPA).

“We, the UNDERSIGNED citizens and residents of Aotearoa New Zealand,

PETITION Your Excellency:

“ COMMAND the Government to put the question of proceeding with, or withdrawal from TPPA to a BINDING REFERENDUM; and

“2. to PROHIBIT the Government from signing any final agreement, or taking any binding treaty action UNLESS the People vote in favour; and

“ REFUSE Assent to any enabling legislation UNLESS the People vote in favour”.

The petition's reverse carried our fundamental reasoning for undertaking this approach to the constitution:

“Information about this Petition:

·The Governor-General is the appointed Guardian of our representative democracy.

·The Government has no democratic mandate for TPPA.

·The Government kept the text secret from voters at the last election.

·Without information, we have not mandated our elected representatives.

·Because ‘trade agreements involve concessions over the sovereign rights of countries’ (Tim Groser, Trade Minister, NZ Herald, 7/7/12), the enormous and unprecedented scale of the TPPA requires a democratic mandate.

·Once in force, withdrawal might be impossible in practice, so the deal could not be undone”.

We launched the petition on February 11th, in Parliament grounds, at the foot of the statue of Seddon. We - Amanda Vickers, Pete Young and I - signed the first petition sheet at that point and took a few photos of the event. We shared the petition around the social media pages and encouraged everyone to collect lots of signatures. We wrote to the Governor-General (22/12/15), seeking an appointment in early January for an initial hand over of the petition, saying that we would continue collecting signatures on it, with a view to grow support for the initiative.

The idea of petitioning the Governor-General to intervene in the political affairs of the nation was not universally accepted by all of the people associated in the campaign to stop the TPP. A lot of people who maintain a republican desire were opposed for fear of building up the relevance of the monarchy. Whilst that notion is comprehensible, especially in the light of the 1975 sacking of Australian Prime Minister Gough Whitlam by Governor-General Sir John Kerr, on this occasion we were asking the GG to do the opposite - we wanted the fundamental nature of our constitution to be upheld.

We are of the view that the New Zealand constitution is founded on human rights and democracy.38 In the TPPA we are subject to an arbitrary imposition by the Executive Council, which at no point invites the public to participate in providing formal consent. Even the Parliamentary process is an add on as, if the treaty did not require legislative amendment to align the New Zealand arrangements to the treaty, Parliament would not be consulted. The Governor-General's official Secretary, Gregory Baughen, replied to our request stating: “I am not in a position to advise the Governor-General to meet you. I dare say you will not be surprised at the reason. Since the Governor-General's office is apolitical, situations in which he would be expected to discuss some matter of politics are to be avoided. This applies all the more so in the present case, when the subject of conversation would presumably be your opposition to one of the policies of the Government of the day”.

As the petitioners had confined their request to an audience concerning the constitutional issue, they then wrote a second letter (24/12/15) to His Excellency to alert him that his Secretary appears to be blocking public access to him. The Governor-General stated in his inauguration speech in 2011 that his Oaths of Allegiance to the Queen and to the People of New Zealand 39 “reflect my commitment to our country and the People...that I will serve faithfully and impartially. The values and undertakings in these oaths are very important to me”. Sir Jerry further stated at that time: “My view reflects the sentiment of the proverb ‘He aha te mea nui o te ao - What is the most important thing in the world? The answer is: he tangata, he tangata, he tangata - it is people, it is people, it is people!’”  40 Ongoing discussions back and forth settled the matter that Gregory Baughen would receive the petition on the Governor-General's behalf. So, when?

Action Plans - Just Do It.

The Prime Minister announced that there would be a signing ceremony in New Zealand on February 4th, without being specific about the location. Speculation grew about the location with the intelligent money on Auckland. The Sky Tower Casino was identified as the venue. Plans were afoot to provide a welcome reception for the visiting trade ministers from the 11 Pacific nations. TPP Free Wellington met regularly including through the Christmas/New Year period, always attempting to build awareness and mobilise people to participate in meetings and actions. We hosted a series of public meetings in the Wellington region, Newtown, Johnsonville, Lower Hutt, Otaki, Porirua, Wainuiomata and Upper Hutt in late January. Speakers at these included Grant Brookes from the NZ Nurses Organisation, Ariana Paretutangi Tamati, Amanda Vickers, Pete Young and myself.

We also facilitated the It's Our Future public meeting, with Professor Jane Kelsey and US Public Citizen Global Trade Watch champion Lori Wallach, on January 27th at St Andrews on the Terrace which was attended by about 500 people. That meeting was one in a series commencing the night before at Auckland Town Hall, and in Christchurch and Dunedin on following nights. All of these were about building awareness and interest after the Christmas shutdown. In that sense they were very successful with huge crowds at all meetings.

One of the initiatives that we felt was time to pursue is TPPA Free Zones. Remembering it was Auckland City Council that initially adopted the TPPA policy solution, the Waiheke Local Board of the Auckland Council, led by board member Shirin Brown, successfully moved via a notice of motion to declare the Waiheke Island and the Hauraki Gulf region a TPPA Free Zone at their January 28th meeting. The full resolution outlined the process that both Waiheke and Auckland Council had been through to arrive at the point that Waiheke felt impelled to take action by making a statement that said no to the TPPA. 41

TPP Free Wellington's Monday afternoons’ planning meeting were continuing to produce ideas and actions for people to participate; local as well as Wellington regional actions as a part of nationwide actions in response to the signing. The nationwide list of events organised in the week leading to the signing was impressive. Wellington focused on the theme “rally for democracy and sovereignty” and determined on two main events. The first on January 30th was a rally at the Governor-General's gates to hand over our initial collection of signatures on the petition. We had gained agreement and coordinated with Mr. Gregory Baughen to hand over and proposed to arrive at the gates in sufficient time for a ceremony to mark the occasion. Tangata whenua from Porirua and Wainuiomata provided extra impulse suggesting a pre-rally gathering at Waitangi Park and a march to the GG's gates along Kent Terrace. Added to this was the Real Choice suggestion of the “Great New Zealand Sale” to be held in Parliament grounds. The day was packed with activity.

January 30th witnessed TPP Action events in Dunedin, Christchurch, Wanganui, Tauranga and many more places, and Auckland on the Sunday. The GG petition handover was probably the significant and media highlight, on that Saturday, gaining lots of attention. 42 We had collected 4300 signatures, and the ceremony was an extremely dignified and moving affair. The attention of the world shifted north to Auckland for the signing ceremony at the Sky Tower Casino (see Mary Ellen O’Connor’s detailed account of the Auckland and Waitangi protests, elsewhere in this issue. Ed.). It was a mighty display of people power, and gladdened TPPA activists in the remainder of New Zealand as well as the world. Protests have been occurring in many TPPA countries: Chile, Malaysia, USA, Peru and Japan.

In Wellington we organised the second rally for democracy and sovereignty at the Cenotaph just outside the Parliament precinct on Lambton Quay. That was a great event with around 800 gathered listening to a range of speakers and well managed by the TPP Free Wellington team. Antony Maddock was MC and kept the event ticking along nicely and with great introductions for the eight speakers. There were representatives from four parties - Green, Labour, Maori and TPP Free Wellington's Amanda Vickers, on behalf of New Zealand First. The crowd contributed with their enthusiasm, money in our TPPA Free buckets and signing the GG petition.

It's Our Future Christchurch invaded a committee meeting of the City Council and held an event in the Council chamber seeking and gaining a commitment that the Council would consider declaring itself a TPPA Free Zone. The Council has committed to holding a workshop on the TPP in the near future to consider the issue. Dunedin held a large rally in their Octagon and declared it a TPPA Free Zone for the life of their rally. Palmerston North, Gisborne, Napier and many more held events to mark the occasion and to support the effort in the streets of Auckland. Estimates for the numbers in Queen Street range from 15,000 - 35,000. Whatever the number was, every report was that it was a great event to be part of. Those who attended were representing the many who couldn't and, given it was a weekday, it was a massive demonstration of raw opposition to the TPPA agenda.

TPPA Is Signed. Is That The End? Who Is Giving Up?

So the TPPA is now signed. We fight on, to stop its ratification. The Government tabled the TPPA National Interest Analysis (NIA) on February 9th, the first day of Parliament for 2016. The Foreign Affairs, Defence and Trade (FADT) Select Committee consideration of the NIA and the TPPA text is the next part of the process toward the ratification of the treaty as outlined in the Parliamentary Standing Orders 395. 43 The FADT Committee using the formula allowed in the rules allowed for public input and evidence March 11th. At the time of writing we had asked for an extension to allow more people an opportunity to make their view known to the Committee 44 (the request for extension was refused by the FADT. Ed.). Also on February 9th we re-launched the Governor-General petition with a reframed point two, given that NZ and the partner nations had signed the TPPA on February 4th. The new petition states:

We, the UNDERSIGNED citizens and residents of Aotearoa New Zealand, PETITION Your Excellency:

1. to COMMAND the Government to put the question of proceeding with, or withdrawal from the TPPA to a BINDING REFERENDUM; and

2. to PROHIBIT the Government from taking any binding treaty action UNLESS the People vote in favour; and

3. to REFUSE Assent to any enabling legislation UNLESS the People vote in favour.

We maintain our stand for a binding referendum, and in the event that Parliament passes the necessary enabling legislation we are asking the Governor-General to refuse to assent to the legislation. We ask His Excellency to uphold the Aotearoa New Zealand sovereign ability to govern in the public interest and to protect the democracy. We continue to collect signatures for a final showdown! Is the nation a democracy founding on human rights, or is it something else?

TPPA Free Zone: Upper Hutt Provides Inspiration & Controversy

TPP Free Wellington activists from Upper Hutt had made an approach to the Upper Hutt City Council (UHCC) in late December 2015 to place the TPPA issue on the Council agenda, which was successful. The Council agreed to provide a forum early in 2016 to allow the conversation to continue. On February 10th the TPPA was on the agenda of the UHCC Policy Committee. Wendy Blanche, Tracey Ultra, Mary Beth Taylor, Antony Maddock and myself presented in the public forum, urging the Council to consider the eight point recommendation we tabled, which included in point 7 the declaration of Upper Hutt as a TPPA Free Zone. The recommendation in full:

“That the Council:

1. Notes the content of the report.

2. Reviews the TPPA text against the TPPA Policy Solution adopted by councils representing a majority (60%) of the NZ population.

3. Asks that central Government initiates a full public and Parliamentary debate before proceeding with formal consideration of the TPPA, including any further binding treaty action.

4. Asks that central Government carry out independent human rights, health and environmental impact assessments of the potential effects of the TPPA on the people and the land of New Zealand, as urged by the United Nations independent expert Alfred de Zayas, and make this information publicly available.

5. Asks that central Government consults with local government prior to any further action taken that might compromise the ability of local government to make decisions in the interests of our region, the people and their environment.

6. Instructs the Mayor to write to the President of Local Government NZ requesting that a local government evaluation, based on an independent analysis of the implications of the TPPA for local government, and for the social, cultural, economic, environmental and health and wellbeing of communities, be undertaken as a basis of LGNZ input into Parliamentary consideration, and that the evaluation report should be made publicly available and widely publicised.

7. Declares that until such time as there is robust debate and convincing protection of local government decision-making for the benefit of residents, citizens and ratepayers, and an analysis of how these issues will be addressed at local government level, Upper Hutt City Council is a TPPA free zone where the constraints imposed by the TPPA, and the changes to national and local legislation to make our area comply with TPPA requirements are not supported by the Upper Hutt City Council.

8. Directs that this resolution and background information be circulated to all other councils and local and community boards around New Zealand and that it is sent immediately to the New Zealand Minister of Trade and Prime Minister”.

Council determined to refer the recommendation to the coming full Council meeting on February 24th. There was a lot of discussion with the It's Our Future people in respect to our tactics in the immediate period. We wanted more engagement with the TPPA issue from local government around the nation. We developed a further paper to send to all regional councils and territorial authorities to coincide with the release of the Law Commission sponsored expert paper series. “Expert Paper 6: Implications Of TPPA For Local Government”. 45 This was distributed on February 21st and the next couple of days. The package that all councillors and their councils received included;

1. Covering letter - All Local Government - Ratification and Implications - Recommendation - TPPA Free Zone.

2. TPP Action report - Local Government And TPPA, February 2016.

3. “In The Eye Of The Storm - Pacific Climate Change Conference: A Renewables Of Motueka And TPP Action Perspective”, 16/2/16.

4. Expert paper 6 “Implications Of TPPA For Local Government”.

The recommendation that was contained in this package was identical to the Upper Hutt recommendation with the addition of the words “and guarantee they will be protected”, in clause four, so it reads: “4. Asks that central Government carry out independent human rights, health and environmental impact assessments of the potential effects of the TPPA on the people and the land of New Zealand, and guarantee they will be protected, as urged by the United Nations independent expert Alfred de Zayas, and make this information publicly available."

It is critical that we comprehend the fundamentals of the law. The nature of our constitution and democracy is based on human rights and freedom.46 Alfred de Zayas, UN Independent Investigator on the promotion of a democratic and equitable international order stated on the eve of the TPPA signing: “Trade is not an end in itself, but must be seen in the context of the international human rights regime, which imposes binding legal obligations on States. Trade agreements are not ‘stand-alone’ legal regimes, but must conform with fundamental principles of international law, including transparency and accountability. They must not delay, circumvent, undermine or make impossible the fulfilment of human rights treaty obligations.

"I am concerned that notwithstanding enormous opposition by civil society worldwide, twelve countries are about to sign an agreement, which is the product of secret negotiations without multi-stakeholder democratic consultation. The TPPA is fundamentally flawed and should not be signed or ratified unless provision is made to guarantee the regulatory space of States. Parliaments have a crucial role in ensuring that ex ante and ex post human rights, health and environmental impact assessments are conducted, and that a procedure for withdrawal from the TPP without ‘survival clauses’ is built into the Agreement”. 47 A UN expert tells us that our NZ Executive is usurping the democracy in an unconstitutional manner. How much evidence is needed to gain a declaration that the TPPA is unlawful? More importantly how do we get the Executive, and Parliament, to acknowledge and act within the constraints of the democratic and constitutional norms we assert are the law? It appears that we are required to be both correct and powerful. Being correct is insufficient in itself.

TPPA At Upper Hutt City Council February 24th

The UHCC met on February 24th with the TPPA on the agenda in the Policy Committee report. About 20 members of the community were present to witness and support the Council arriving at a decision to declare Upper Hutt a TPPA Free Zone. TPP Action had made extensive representation to the Council in the lead up to this moment; nevertheless, we restated our encouragement with presentations in the public forum. Antony Maddock, Mary Beth Taylor, Eve and myself spoke. The Council moved through the business quickly till it got to the Policy Committee report, where it adopted all but the TPPA matter, leaving it for formal consideration. Councillor Angela McLeod moved and Cr Hellen Swales seconded the resolution. There was an extensive discussion with several councillors contributing. An attempt to consider the motion in its eight parts was denied by the Mayor in his capacity as Chair of the meeting. This was to prove crucial to the outcome, as Councillor John Gwilliam had indicated support for the substantive motion, however he was uneasy about the TPPA Free Zone declaration.

Councillor Steve Taylor was the only Councillor to speak formally against the motion, however, notable in his contribution was his acknowledgement of the quality of the material brought to the Council by the proponents of the resolution in their public forum presentations both on that day and in the past. Eventually the motion was put and carried on the voices. A division was called for which was resolved on a show of hands. The vote was seven in favour and four against the resolution. Upper Hutt had formally declared their unease with the TPPA, their concern about the lack of democracy and taken a similar position as Waiheke Local Board had done in declaring their territory a TPPA Free Zone! Needless to say the community representatives were ecstatic with the result. Following the decision we retired from the Council Chamber to allow the Council to deal with the remainder of its business.

The War For The Minds Of The Public – UHCC Slammed!

We set to producing a media release explaining the decision and the reasons why the Council took the step that it did. 48 The Dominion Post ran the story with quotes from Todd McClay, the new Trade Negotiations Minister. “He said the TPPA would not change the ability of Government, including at local level, to fulfil its core functions. ‘I am surprised that the Council has not tried to be better informed’" 49. I imagine it would pointless to remind the Government that councils which have adopted the TPPA policy solution all wrote to the Government asking them to please explain.

It didn't stop there: Todd McClay and the Prime Minister issued a media release from the Beehive, which in part said: “Not being in the TPPA would put the New Zealand economy and our businesses at a competitive disadvantage compared to other countries. The TPPA, like any free trade agreement, will go through New Zealand’s Parliamentary processes and is expected to come into force within two years”. 50 The Upper Hutt Mayor, Wayne Guppy, and Councillor Steve Taylor both have made public statements about their disquiet at the decision. Cr Taylor stating in his letter to the Dompost and local Upper Hutt News:

“After working so hard to boost economic development and encourage investment into our city, it beggars belief that we would adopt such an extremist declaration of political activism. Councillors may as well have declared that we want Upper Hutt to become an economic wasteland. I both spoke and voted against the nonsense of declaring Upper Hutt a 'TPPA Free Zone'. I made it clear we had no mandate from the city to be passing such a controversial political declaration, and have done no wider consultation with ratepayers on the issue - unlike the amalgamation issue where extensive community consultation was done. I respect the protesters’ democratic right to speak, and speak very well they did, but we as elected representatives also have a responsibility to be good stewards to our city, and I believe we failed to do that on Wednesday”.

The Hutt Valley Chamber of Commerce was particularly upset, their President, Mark Futter, making a statement in which he states: “Essentially, Upper Hutt City Councillors have implied that they are prepared to allow the City to be hijacked by a small group of highly active, vocal and motivated protesters who have a clear political agenda, without giving concern to the views of the wider city nor the implications to all its ratepayers and business community. Futter said: “that engagement in this kind of political activism will be to the detriment of the economic development of Upper Hutt City. Obviously Council has a number of elected officials that have no interest in being re-elected by their community later this year. Decisions like this will potentially add fuel to the debate of governance and leadership capability at a local level vs some form of streamlined amalgamation". 51

Local National List MP Chris Bishop echoed the concerns of the business lobby: “The simple reality is that the TPPA does not change the fundamental ability of Government at all levels in New Zealand to fulfil their core functions. Arguments like ‘the TPPA is an attack on the sovereignty of Upper Hutt’, as was reportedly said by one Councillor, demonstrate the basic lack of facts behind the resolution. Rather than engaging in political grandstanding, the Council should engage with experts on the Agreement and raise any concerns they have. They should attend the TPPA Roadshow meeting in Wellington on March 18th.” 52

The media statement of Labour's spokesperson on Local Government, Meka Whaitiri, says, in full: “Government must reassure local authorities over TPPA. Upper Hutt City Council’s controversial move to establish a ‘TPPA Free Zone’ policy reflects the concern many local authorities have over the deal and the Government must now provide assurances to our representatives. I am hearing the real concern out there about the implications of the TPPA at local government level. While not going to the lengths of Upper Hutt City Council, 12 other local authorities have adopted a TPPA resolution calling on the Government to safeguard their decision-making abilities.

“This shows the tensions placed on local authorities by the TPPA. A recent peer-reviewed expert paper supported by the NZ Law Foundation confirms the potential for TPPA countries to legally challenge local government decisions that damage their commercial interests. It’s important that the Government provides assurances to our elected local bodies that their ability to meet community expectations around responsible local governance will be protected. If a local authority finds itself forced into mounting a legal defence, will the Government make provisions to support this? This is a discussion we need to be having now and it’s up to Local Government Minister Sam Lotu-Iiga to provide assurances”. 53

Newstalk ZB honed in on the Upper Hutt decision on talkback, interviewing Councillor Hellen Swales who voted for the decision and Mark Futter from the Hutt Chamber of Commerce. Tim Fookes the interviewer failed as a balanced radio host. 54 Antony Maddock rang in during the talk back session providing some balance to the many who said that Upper Hutt's Council ought to stick to local matters. We used some of that exchange in a second media release on February 26th to counter the negative spin.

TPPA Free Zones – Everywhere

Next step in the local government campaign is to encourage more councils and their community and local boards to similarly consider the TPPA, address the concerns, and determine that they want to protect the public interest and democracy as our TPPA policy solution sets out. The decision to declare a territory a TPPA Free Zone is based on the “precautionary principle’'. The following is from Wikipedia: “The precautionary principle or precautionary approach to risk management states that if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is not harmful, the burden of proof that it is not harmful falls on those taking an action.

“The principle is used by policy makers to justify discretionary decisions in situations where there is the possibility of harm from making a certain decision (e.g. taking a particular course of action) when extensive scientific knowledge on the matter is lacking. The principle implies that there is a social responsibility to protect the public from exposure to harm, when scientific investigation has found a plausible risk. These protections can be relaxed only if further scientific findings emerge that provide sound evidence that no harm will result.

“In some legal systems, as in the law of the European Union, the application of the precautionary principle has been made a statutory requirement in some areas of law. Regarding international conduct, the first endorsement of the principle was in 1982 when the World Charter for Nature was adopted by the United Nations General Assembly, while its first international implementation was in 1987 through the Montreal Protocol. Soon after, the principle integrated with many other legally binding international treaties such as the Rio Declaration and Kyoto Protocol”. 55

Law is a variable principle in the hands of human agents; politicians, lawyers, judges, ordinary human beings. There are many forms of law; criminal law, military law, environmental law, commercial law, human rights law, statutory law, bylaw and even canon law if one extends one's survey to religions. There are hierarchies of law. Which is higher, universal law, God's law or human law? The thing that makes law a weighty matter is its enforceability. What laws can be prosecuted to an enforceable conclusion and which laws are merely statements of principle without the benefit of a mechanism to coerce compliance. This is the difference between hard law (enforceable) and soft law (nice to have).

This difference is critical to our comprehension of why the hard law of ISDS provisions in trade and investment treaties are supreme in their application as compared to the soft law of environmental or human rights law which is often unable to be enforced as we might believe it should be. This relationship is an inversion of international law as codified in the United Nations Charter and the Universal Declaration on Human Rights and the other covenants, conventions and declarations agreed as the fundamental basis of law between the nations of the world. The right to property is an extension of our human rights; however, we have corrupted the hierarchy where the private property rights of investors inhibit the rights of the community and State to enjoy an environmental or public health good.

These conflicting values are at the heart of the debate over the hard commercial law of investment chapters and property rights in multilateral and bilateral investment treaties versus the soft human rights law contained in the WHO, FCTC or the UNFCCC. We need to ensure the correct hierarchy of law prevails in any investment treaty. This is why we must stop the TPPA from being ratified. We work within an international movement for democracy, human and ecological rights, for freedom and for peace.

Select Committee Consideration Of The TPPA

The Foreign Affairs Defence and Trade (FADT) Select Committee is due to report to the House by May 31st .Following that report and, if it is endorsed, the FADT Committee will consider the enabling legislation. This will provide a further opportunity for people to engage with the Parliamentary process, albeit in relation to the legislation rather than the merits or otherwise of the TPPA. I imagine the timing of the enabling legislation process will be July 2016. If the Government is ultimately successful in gaining passage of its legislation to enable the TPPA to be ratified, that is it passes its third reading; the remaining process for formal Assent is the signature of our Governor-General. Our current Head of State, Sir Jerry Mateparae, was sworn in on August 31st, 2011 for a five year term. 56 Since this was written, the Prime Minister has announced that the new Governor-General will be Dame Patsy Reddy, starting from September 2016, for a five year term. Ed.

So, Sir Jerry's term as GG might be concluded and the TPPA enabling legislation might be placed before his replacement for signature and final Assent. If we cannot achieve our object of stopping the TPPA through gaining the support of a majority of Parliament to vote against it, then the Governor-General, whether Sir Jerry or his replacement, provides a last line of defence in support of the NZ constitution and democracy. Sir Robin Cooke was the President of our Court of Appeal and a member of our highest Court, then the Privy Council, and he later became a life peer of the House of Lords. And he’s regarded as the greatest judge New Zealand’s ever had. Here's what he has to say on the law:

“...the modern common law should be seen to have a free and democratic society as its basic tenet and, for that reason, to be built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts ... if a change, by legislation or otherwise, were seen to undermine either of them to a significant extent, it would be the responsibility of judges to say so and, if their judgements to that effect were disregarded, to resign or to acknowledge frankly that they are prepared to depart from their judicial oath and to serve a State not entitled to be called a free democracy”. (“Fundamentals”, New Zealand Law Journal, May 1988).The imposition of TPP by the NZ Executive in effect disallows our nation to be called a free democracy.

Appeal To Sustain “TPP Roadie”

Donations to this initiative to help protect our interests against the TPPA can be made to the following Kiwibank account: Public Advocacy Donations Account, 389017-0439360-00, reference “TPP roadie”

Greg Rzesniowiecki aka Greg Fullmoon resides at large, originally from the Motueka Valley. He has assumed varied roles in the past, both here, and across the ditch in his native Melbourne and Australia. He has come to call Aotearoa/New Zealand home. He can be contacted at



2 Waitangi Tribunal Claim on behalf of a number of parties seeking to access the content of the TPP:

3 A More Inclusive NZ Forum: Opening address, A More Inclusive New Zealand Forum, by Secretary to the Treasury, Gabriel Makhlouf, 27/7/15:

4 Action Station TPP policy solution Webpage:

5 Jane Kelsey “The FIRE Economy” (FIRE = Finance, Insurance and Real Estate): one review here: and very good article from Interest with incisive comments:

6 Interest on Landcorp's central North Island conversions 18/8/15: and this from Gareth Morgan in an opinion piece in the NBR,21/8/15:

7 Raglan Community Board minutes 8/915

8 Minutes of the WRC Full council meeting 27/8/15 which contain the August 11th Policy and Strategy Committee decision in relation to the TPPA:


10 Vernon Tava's blog which covers the TPPA resolution carried by the Waitemata Board:







17 There are any number of reports of the agreement reached at Atlanta. The Minister's statement here:

18 Information, Ethics and the Public Good Conference:

19 Local Government Leaders’ Declaration on Climate Change, 20/10/15: The initial 17 leaders expanded to 29 by December 2015, with LGNZ President Lawrence Yule saying New Zealand has much at stake and much to gain by adopting strong leadership on climate change and ambitious emission reduction targets at the United Nations Climate Change Conference in Paris. “Climate change and sea level rise are increasingly important factors in policy making for local government. Developing and implementing ambitious action plans to reduce greenhouse gas emissions and support resilience within our local communities is a key goal for local government,” says Mr Yule:

20 This essay was written 1/3/16.  The immediate effort of TPP Action was then focused on the Foreign Affairs Defence and Trade (FADT) Select Committee consideration of the National Interest Analysis.

21 Paul Bruce Notice of Motion, link to PDF. The report canvases amongst others, the September 17th 2015 Report of the United Nations Independent Expert, Alfred de Zayas where he urged the UN system and governments across the world, to radically reform the international investment regime by putting an end to free trade and investment agreements that conflict with human rights treaty obligations:

22 GWRC decision from: Minute extract from meeting held on November 4th 2015, Notice of motion – Cr Paul Bruce Report 15.542.

23 It's Our Future media release on TPP rallies 14/11/15:

24 TPPA rallies in most large population centres considered and endorsed the following Five Demands in relation to review, formal signing and ratification of the TPPA:

25 It's Our Future report, Key Issues Emerging From Analysis of the TPPA Text – Not In Our Interests!

26 Otago University Law Student Oliver Hailes blog post: “Constitutional Reflections On The TPPA”. Oliver is supervised by Otago University Law Lecturer Andrew Geddis.

27 What was Paris bombing and carnage about?

28 Hamilton rally, Stuff online report:

29 Sarah Thompson, Stuff online report:

30 UN Sustainable Development Goals adopted 25/9/15: The goals and targets will stimulate action over the next 15 years in areas of critical importance for humanity and the planet. Key areas; People, Planet, Peace, Prosperity and Partnership.

31 The morality and ethics of international relations otherwise known as geopolitics. President Tong of Kiribati in his opening address at In The Eye Of The Storm: Climate Change In The Pacific Conference held at Victoria University, 20-22 February 2016, provided the analogy that the climate change effects were the equivalent of the colonial slave trade project:

32 UN Climate Change page with summary points of the key elements of the COP21 UNFCCC agreement: From the page: “What happens if a country doesn’t live up to its commitments? Would there be any enforcement? Countries have every reason to comply with the terms of the Agreement. It is in their interest to implement the Agreement, not only in terms of achieving the benefits of taking climate action, but also to show global solidarity. There is no benefit to flouting the Agreement. Any short-term time gain will be short-lived. It will undoubtedly be overshadowed by negative reactions, by other countries, financial markets, and most important, by their citizens”.From the answer it is evident there is no hard lawful manner of enforcing nations to meet their Nationally Determined Contributions. Most nations have fudged their commitments under the Kyoto accords. What may change that pattern of behaviour?


34 Fiji first nation to ratify UNFCCC: Three days later it was in the eye of its biggest storm ever:

35 The writer, panel 16, In The Eye Of The Storm: Climate Change In The Pacific Conference, cheers to Kevin Hester for the video:

36 Paper revision #1 available here:<br>


38 Amanda Vickers, one of the petition organisers and contact on the reverse of the petition, explains the logic fundamentals of the law and the basis of the NZ constitution in this video:

39 Wikipedia, Oath of Allegiance text:

40 From Governor-General's Website:

41 Waiheke media reports: Waiheke Local Board minutes 28/1/16:

42 Media reports GG petition handover: Video of handover compliments Mick McCrohon:

43 Parliamentary Standing Orders 395, National Interest Analysis:

44 It's Our Future and Action Station TPPA platform for evidence to the FADT Select Committee:

45 “Expert Paper 6: Implications Of TPPA For Local Government” by Tony Holman, Richard Northey, Prof. Jane Kelsey, University of Auckland, as part of the expert series available here:

46 Sir Robin Cooke and Sir Ted Thomas.


48 Scoop, TPP Action media release:










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