Logan & Albert Conservation Association

The ISDS campaign

Last Updated on Sunday, 06 December 2015 20:54

The ISDS campaign

After climate change, ISDS is the greatest threat we face as environmentalists in this country.

ISDS in the Trans Pacific Partnership and other free trade deals: ‘Environmental ‘end of days’?

The recent Climate Rallies were great demonstrations of community commitment and engagement, with up to 10000 people in Brisbane, 60000 in Melbourne and Sydney. But that kind of democratic action will come to mean little under the Trans Pacific Partnership (TPP) with Investor-State Dispute Settlement (ISDS) inclusions. 

In the future, peaceful environment rallies and court challenges against huge coal mines or gas hubs will simply be by-passed and over-ridden in offshore arbitration tribunals, away from our legal system, by multinationals using the ISDS weapon in free trade deals like the TPP. We will have no say through our customary democratic or legal processes. Even State Governments and local council regulations can be subject to ISDS attack under the TPP.

While mumbling that he has negotiated protections for the environment, what  Federal Trade Minister, Andrew Robb is really ecstatic about is that he has managed to deliver, embedded in the TPP, the perfect neoliberal solution to curtailing what he and his conservative colleagues have been calling ‘green tape’ and ‘lawfare’.  

And the TPP with its ISDS clauses, is certainly not going to offer the environment any ‘protection’. New York arbitration lawyer George Kahale, chairman of the world’s leading legal arbitration firm – Curtis, Mallet-Prevost, Colt & Mosle LLP said about ISDS in the TPP: 

‘If the trade minister (Andrew Robb) is saying, “We’re not at risk for regulating environmental matters”, then the trade minister is wrong

Other commentators agree: 

‘Do we really want to create an Australia where we have to pay a foreign corporation not to dig up or destroy our coastline or native forests?’ (Tom Warne-Smith - Policy & Law Reform lawyer at the Environment Defenders Office, Victoria)

‘This is a watershed moment for the Liberals and the mining industry in their continuing assault against environmental protections in Australia. ISDS will provide a massive chilling effect against improvements in environmental law at a local, state and federal level’ (Tasmanian Greens Senator Peter Whish-Wilson).

Rather than a shield to defend companies against unfair behaviour by national governments, ISDS, in free trade agreements like the TPP, is designed to be a powerful corporate weapon to delay, weaken and kill environmental and other public interest regulation standing in the way of their profit-making.

 However, there remains a vital window of opportunity for us to press for the removal of ISDS provisions in the TPP: while the TPP agreement has now been accepted by Australia and the 11 other nations involved, it has not yet been ratified through parliament. This is expected to occur in the first quarter of 2016. Labor and the Greens do not support ISDS in free trade agreements, but Labor may support the passing of TPP legislation including ISDS if there is not enough public outcry. So the Senate again becomes crucial.

Alternative ways to ‘protect’ their investments are available to multinationals looking to ‘protect’ their investments.

Further background information on ISDS and its effect in free trade agreements will follow.  In the meantime, take a look at this video:  http://aftinet.org.au/cms/node/566

Barry Fitzpatrick (LACA ISDS spokesperson)

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Post Script - Past and recent environmental battles that we may not have won if they were fought under the TPP with ISDS:

Where multinational corporations are involved - stopping the fracking applications like the one over Watarrka (Kings Canyon) National Park NT

James Price Point Gas Hub

Reef dredging and dumping at sea

Marine parks including the Great Barrier Reef Marine Park

No mining in Antarctica

Cessation of mineral sands mining on the east coast of Australia including Cape York Peninsula’s magnificent Shelburne Bay

Southern Ocean Whale Sanctuary

Paper pulp industry expansion (Paper Australia Pty Ltd is an Australian registered company owned by Nippon Paper Industries Co. Ltd, which is incorporated in Japan – a TPP signatory)

The Kakadu Charter that helped stop uranium mining madness 15 years ago

Establishment of CSG exclusion zones

Water trigger in the EPBC Act

Some of the environmental battles that we will probably lose in the future under the TPP with ISDS:

Shenhua’s Liverpool Plains coal mine (using ISDS in the China Australia Free Trade Agreement – CHAFTA)

Adani’s Carmichael mine

Super trawlers


Further Stradbroke Island sand mining (Consolidated Rutile taken over by US company)

Coal expansion

Uranium mining in Qld

Expansion of Cape York mining and other inappropriate development

Restriction of national park declarations on Cape York Peninsula

Protection of the Cooper Creek drainage basin

Murray-Darling basin water protections

Great Artesian Basin and other underground water protections

Great Australian Bight oil drilling

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