My name is Jacqueline Wilson. I'm a lawyer with the Canadian Environmental Law Association. We are an Ontario legal aid clinic specializing in environmental law and policy, and we have a long history of analysis of the environmental implications of trade agreements.
I'm going to focus my presentation today on two issues to do with the environment chapter of the TPP. The first issue is the weak and unenforceable language throughout the chapter, and the second issue is the dispute mechanisms, both the state-to-state dispute mechanisms and the citizen dispute provisions.
I go into more detail about these two issues and other issues, including the limited coverage of the chapter, in a paper called, “Bait-and-Switch: The Trans-Pacific Partnership’s Promised Environmental Protections Do Not Deliver”, which is available on the Canadian Environmental Law Association's website and the Canadian Centre for Policy Alternatives' website.
Our conclusion after analyzing the environment chapter is that it does not safeguard the environment or promote effective environmental protections. It's not going to counteract the negative environmental implications of other provisions of the TPP, including the investor-state dispute settlement provisions. The vague and discretionary language in the environment chapter is exemplified by the general commitments section, which allows each party to determine its own levels of domestic environmental protection and its own environmental priorities. The overall principle reflected throughout the chapter is that state sovereignty is unviable if you're talking about setting levels of environmental protection.
That approach is to be compared with the fact that strong environmental measures taken by a TPP party, which might interfere with trade or investment, are exposed to challenge under the investment chapter.
Article 20.15 of the environment chapter is also of particular concern. It deals with the transition to a low emissions and resilient economy. In a fairly shocking act of climate change denial, the words “climate change” aren't used in this section, or at all in the TPP. Instead the TPP recognizes that each party's actions to transition to a low emissions economy should reflect domestic circumstances and capabilities. That's at odds with the government's commitment to take climate change action seriously, and its commitments in Paris.
The other specific article I want to bring to your attention in the environment chapter is article 20.10, which deals with corporate social responsibility. It raises significant equity issues because of the radical difference between the strong, enforceable rights for investors in the ISDS scheme, and the essentially meaningless requirements of this section, which asks each TPP party to encourage enterprises to voluntarily adopt principles of corporate social responsibility, and that's it.
In terms of the dispute resolution mechanisms, the primary weakness of the state-to-state dispute mechanism is that it depends on the political will of the parties to enforce the chapter. That's an approach we've seen before in trade agreements, and it hasn't worked.
The system includes three levels of confidential consultations, so the public won't know that those consultations are taking place. If the dispute settlement provisions are used—which hasn't been the case in the past, and there is no real reason to think things will change with this agreement—then public participation is not assured. The arbitration panel must consider requests to participate only for non-governmental entities or persons in one of the disputing parties, and it's only written submissions. The documentary disclosure provisions are quite limited, so the TPP parties are asked to make best efforts to release written submissions and oral submissions as soon as possible. There is no specific timeline.
Article 28.13(d)(ii) contemplates that some documents won't be released until right before the final report is issued.