The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage


The Trouble With the TPP, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage

Price of Entry, one of the early Trouble with the TPP series posts, discussed some of the conditions of entry for Canada into the TPP negotiations. These included the absence of “veto authority”, which meant that Canada could not hold up any chapter if it was the only country opposing a provision. This ultimately had a significant impact on the intellectual property chapter, where Canada had little choice but to cave on several issues.

Conditions of entry were not the only disadvantage faced by the Canadian negotiators. According to an internal email I recently obtained under the Access to Information Act, Canadian officials were aware that they were at a disadvantage relative to the U.S. in the late stages of the negotiations. The email dated July 9, 2015, was sent to Kirsten Hillman, Canada’s lead TPP negotiator, and Christine Hogan, the International Trade Deputy Minister. It notes that the U.S. had cleared access to the full negotiating text for a wide range of advisors, including business groups and public advocates, but infers that Canada had not done the same. It continues:

I hope the political side lets you do something similar or at least hold technical briefings, or the US will effectively drive the narrative and put you at a disadvantage.

While the source of the email is redacted, the person apparently had access to the highest levels of the Canadian government. It states that the person had spoken with the Prime Minister’s Office, including Ray Novak (Prime Minister Harper’s Chief of Staff), Howard Anglin (Deputy Chief of Staff), Meredith Lilly (Policy Advisor), and Bill Hawkins (Principal Secretary) on the issue.

In other words, the lead Canadian TPP negotiator, department deputy minister, and the Prime Minister’s Office were being advised that Canada was at a disadvantage in the negotiations given the lack of coordination and transparency between government negotiators and interested stakeholders. Technical briefings were held after each round, but that was clearly a far different level of access when compared to the U.S. providing the full text in advance to its interested parties.

As this series unpacks the myriad of concerns with the TPP, the impact of lack of coordination and disclosure on key provisions becomes readily apparent. Moreover, these concerns is consistent with the criticisms expressed by Jim Balsillie, who has lamented that none of the emerging Canadian technology companies were consulted by the government during the negotiations. The Trouble with the TPP is that Canada continued to negotiate without consultation when leaders knew they were at a disadvantage, ultimately leading to a text that has sparked concern from a growing number of business leaders from the technology (Balsillie, Shopify’s Lutke) and manufacturing sectors (Ford Canada CEO Craig).

(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program)

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