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Adopt stronger regulations and a monitoring agency comprised of indigenous, practitioner and ecological rights holders into the Pacific Plan.

Letter to
Sir Mekere Morauta, Pacific Island Forum
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Honourable Sir Mekere Morauta, thank you for providing an opportunity for the public to critique and make recommendations to the 2013 Pacific Plan Review process.

It is our recommendation that the Pacific Island Forum re-draft the Pacific Plan from a regulatory process up and consider:
1) Pacific Region Ecological Integration;
2) Establish a Pacific-wide consultatory agency that can properly communicate with native rights-holders the benefits and disadvantages of the Pacific Plan;
3) Create a binding regulatory process and an independent regulatory agency that represents native rights and ecological bio-diversity;

1. Pacific Region Ecological Integration:

Ecological Integration among Pacific Small Island States can provide far greater economic security and growth by agreeing upon strict ecological regulations and governance among the various trade sectors. Fisheries, energy, mining, agriculture, tourism and other industries that rely upon public-private investments or investor-state agreements—especially those that impact regional bio-diversity should be considered first in any Pacific Plan, as well as the internationally recognized principles for “Free, Prior and Informed Consent” contained in the UN Declaration on the Rights of Indigenous Peoples.

2. Establish a Pacific-wide consultatory agency that can properly communicate with native rights-holders the benefits and disadvantages of the Pacific Plan:

Authored by the Pacific Island Forum, the Pacific Plan would invariably submit resources to multi-trillion dollar trade co-operations either through bilateral investment treaties (BITs) or through larger trade initiatives like the ACP-EU, the Trans-Pacific Partnership Agreement (TPPA), or ASEAN’s Regional Comprehensive Economic Partnership (RCEP), all multi-trillion dollar trade co-operations. While the Pacific Island Countries Trade Agreement (PICTA) attempts regional integration by fostering investments and liberalized free trade, weak regulatory guidelines offer little or no protection from these larger trade co-operations.

These agreements, drafted as either bilateral or regional agreements are binding with real punishments that can be resolved by monetary payouts or resource compensation. Currently, investor-state agreements have no binding regulatory agency that can intervene in international arbitration courts like the International Center for Settlement of Investment Disputes (ICSID). In the event of an ecological or health disaster due to mining or extraction, for example, there is little recourse for Pacific Island peoples to collect damages. In addition, should regulations be added after the agreement, corporations may have the right to sue for anticipated future loss of profits. There are currently dozens of these cases on the books. However, because these cases are very costly, corporate-driven prosecutorial overreach will likely be a burden for the state and for its taxpayers.

3. Create a binding regulatory process and an independent regulatory agency that represents native rights and ecological bio-diversity:

Since neither the U.S. nor the E.U. have adopted a viable regulatory safety net to protect even their own citizens from widespread deregulatory investments and corruption, the Pacific Plan provides an invitation for unfettered economic exploitation of resources in the Pacific Island region. As an example, last month the Financial Times had an insert ranking US “innovative” law firms. This list included law firms that created new “legal” investment packages that circumvent many of the regulatory changes put forth under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. Even new international accounting rules are way ahead of the regulatory commission. If practitioners and rights holders are ever able to assert their voice, the financial and investment institutions need to provide greater transparency and consultation with the community. It is not too late for the PIF to put forward a program that would provide greater consultation with the proper rights holders.

The failure of the Pacific Plan begins at the root. Any principle of integration growing out of the investment regime—through regional or bilateral investor-state agreements—will provide short-term gain at the expense of debilitating long-term ecological or health loss. This is not hyperbole, but a result of the privatizing investment policy that repeats itself over and again. The strength of an economy that privileges investment risk and debt is a false indicator for the national health of a people, particularly when new national accounting statistics are being revised to include ecological and other “well-being” indicators.

As the larger economies look to privatize resources among Pacific Islands, these resources will likely be accounted for by corporations, thereby enhancing the national economies of the investors rather than the governments of Small Island States. As a further insult to Pacific Island economies, the exploitation of these resources could be privatized via the very same infrastructure and security that was developed in regional agreements like the Pacific Plan. This agreement that was supposed to protect the sovereignty of Pacific Islanders is actually threatening to turn native rights holders into renters of their own traditional resources.

Thank you for your time,

Moana Nui Action Alliance

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