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    Canadian Government Establishes Two-Tier Approach for Trade Talks: Insiders and Everyone Else

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    Wednesday May 08, 2013
    As the future of the proposed Canada - European Union Trade Agreement becomes increasingly uncertain - the EU has been unwilling to compromise on the remaining contentious issues leaving the Canadian government with a deal that offers limited benefits and significant costs - the Trans-Pacific Partnership Agreement (TPP) is likely to emerge as the government's new top trade priority.

    The TPP has rapidly become of the world's most significant trade negotiations, with participants that include the United States, Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and Canada. There is a veil of secrecy associated with the TPP, however, as participants are required to sign a confidentiality agreement as a condition of entry into the talks.  Despite those efforts, there have been occasional leaks of draft text that indicate the deal could require major changes to Canadian rules on investment, intellectual property, cultural protection, procurement, and agriculture.

    My weekly technology law column (Toronto Star version, homepage version) notes the Canadian government has adopted several measures to guard against leaks by departmental officials. According to documents obtained under the Access to Information Act, a November 2012 email to government officials noted that their access to TPP texts was conditioned on "Secret" level clearance, an acknowledgement that all texts are watermarked and can be traced back to the source, and confirmation that no sharing within government is permitted without prior approval.


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    Canadian Government Establishes Two-Tier Approach for Trade Talks: Insiders and Everyone Else

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    Tuesday May 07, 2013
    Appeared in the Toronto Star on May 4, 2013 as Canada's Two-Tier Approach to Trade Talks

    As the future of the proposed Canada - European Union Trade Agreement becomes increasingly uncertain - the EU has been unwilling to compromise on the remaining contentious issues leaving the Canadian government with a deal that offers limited benefits and significant costs - the Trans-Pacific Partnership Agreement (TPP) is likely to emerge as the government's new top trade priority.

    The TPP has rapidly become of the world's most significant trade negotiations, with participants that include the United States, Australia, Mexico, Malaysia, New Zealand, Vietnam, Japan, and Canada. There is a veil of secrecy associated with the TPP, however, as participants are required to sign a confidentiality agreement as a condition of entry into the talks.  Despite those efforts, there have been occasional leaks of draft text that indicate the deal could require major changes to Canadian rules on investment, intellectual property, cultural protection, procurement, and agriculture.

    The Canadian government has adopted several measures to guard against leaks by departmental officials. According to documents obtained under the Access to Information Act, a November 2012 email to government officials noted that their access to TPP texts was conditioned on "Secret" level clearance, an acknowledgement that all texts are watermarked and can be traced back to the source, and confirmation that no sharing within government is permitted without prior approval.

    While the government tries to stop potential leaks, the newly obtained government documents reveal that the Department of Foreign Affairs and International Trade has established a secret insider group with some companies and industry associations granted access to consultations as well as opportunities to learn more about the agreement and Canada's negotiating position.

    Those documents indicate that the first secret industry consultation occurred weeks before Canada was formally included in the TPP negotiations in a November 2012 consultation with telecommunications providers. All participants were required to sign non-disclosure agreements.

    Soon after, the circle of insiders expanded with the formation of a TPP Consultation Group created as part of the trade talks in New Zealand in December 2012. Representatives from groups and companies such as Bombardier, the Canadian Manufactures and Exporters, Canadian Agri-Food Trade Alliance, and the Canadian Steel Producers Association all signed a confidentiality and non-disclosure agreement that granted access to "certain sensitive information of the Department concerning or related to the TPP negotiations." 

    This is not the first time DFAIT has tried to establish a secret insiders group that is granted preferential access to proposed treaty information not otherwise available to the public. During the Anti-Counterfeiting Trade Agreement negotiations, the department planned for a similar insider group - called a Trade Advisory Group - that initially included representatives from the music, movie, software, and pharmaceutical industries.  The plan was scuttled only after the department's intention became public.

    While the need for business insight as part of trade talks is understandable, the two-tier approach raises serious concerns about the lack of transparency associated with Canada's global trade strategy. As the Canada - EU Trade Agreement has begun to founder, Canadian officials have become increasingly tight-lipped about the specific concerns associated with the agreement.  By contrast, European officials regularly update both elected officials and the general public. In fact, Europe has become the primary source for information about where Canada stands in the negotiations.

    The creation of a secret TPP insider group suggests that the government is shying away from public consultation and scrutiny of an agreement that could have a transformative effect on dozens of sectors. With TPP negotiations set resume in Lima, Peru in less than two weeks, Canada should be increasing efforts to gain public confidence in the talks by adopting a more transparent approach.
       
    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
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    DFAIT Establishes Secret Insider Trans Pacific Partnership Consulting Group

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    Friday November 30, 2012
    Canada begins formal participation in the Trans Pacific Partnership negotiations next week in Auckland, New Zealand. The TPP remains shrouded in secrecy (Peter Clark has published a detailed must-read guide that provides a complete assessment of the talks to date based on leaks and media reports), but it appears that some individuals and organizations may have privileged access to the text or other negotiation information. The Department of Foreign Affairs is creating a secret insider "Consulting Group" that will be granted access to secret and confidential information regarding the negotiations. A source this week provided a copy of the non-disclosure agreement that DFAIT is requiring members of the consulting group to sign, a copy of which is posted below.

    The creation of an insider group is reminiscent of the Anti-Counterfeiting Trade Negotiations, where DFAIT spent months trying to pull together an ACTA insider group, only to drop the plan after the publication of the initial composition of the group (I obtained the information via an Access to Information request).

    A TPP insider group raises a host of concerns including questions about who has privileged access, whether civil society groups will also have access and be invited to join, and the extent of behind-the-scenes consultations with industry groups. While DFAIT may seek to justify the creation of an insider group based on the need for expert advice, the lack of transparency with the TPP is now exacerbated by a two-tier approach to TPP information with a select, secret group gaining insider access to information. DFAIT should immediately disclose who has been invited to join the insider group, why it is has established a two-tier approach, and how it intends to ensure that all Canadians have access to the latest TPP developments. 

    The NDA is posted below: that will be granted access to secret and confidential information regarding the negotiations. A source this week provided a copy of the non-disclosure agreement that DFAIT is requiring members of the consulting group to sign, a copy of which is posted below.

     


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    DFAIT Launches Consultation on Encryption Controls

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    Wednesday March 10, 2010
    The Department of Foreign Affairs has launched a public consultation on encryption controls. Comments are due by April 30, 2010.
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