It has now been revealed the government never made it publicly known that Foreign Affairs repeatedly advised the widely unpopular purse seining agreement with the European Union contained “fatal flaws” and couldn’t be changed to be more favourable to the Cook Islands.
This information is disclosed in an email by Foreign Affairs secretary Tepaeru Herrmann to Finance minister Mark Brown, financial secretary Garth Henderson, Marine Resources head Ben Ponia, Crown counsel Zoe Genet and Foreign Affairs staff Josh Mitchell and Jim Armistead.
Senior government officials including prime minister Henry Puna and Brown have continuously denied that the Sustainable Fisheries Partnership Agreement is a done deal because, although endorsed by cabinet, it hasn’t been signed by the PM.
Herrmann’s email paints a very different picture. Before Ponia initialled the SFPA in Brussels last year, Foreign Affairs and the Finance ministry told government about the many flaws in the EU deal. The advice from the two agencies was ignored and was never included in the agreement. So when Ponia initialled the SFPA, it signalled agreement to the text of a deal that didn’t include changes recommended by key ministries here and one which the government had already rejected over three years ago.
It has come to light that following an “exhaustive study of the original agreement” concerns with what it contained and “other political imperatives of the day” were such that the very first SFPA was rejected by government in 2012. More recently, it is that same agreement (to which has since been added “extra provisions which give cause for additional concerns,” making it even more flawed than it was in 2012), that the PM, Ponia and Brown have been promoting and which cabinet has endorsed.
Herrmanns’ email also disclosed that critical information which detailed a “distorted value of the agreement and the returns to government from it,” was omitted from the recent SFPA submission that cabinet endorsed.
That final submission would have been prepared by Ponia and Ministry of Marine Resources staff and presented by Puna as minister of Marine Resources. Questions are being asked as to whether there was an attempt to conceal from other cabinet ministers the many flaws in the agreement.
“There are a number of concerns with the agreement as it stands which are not limited to the financial aspects, but are more fundamental in nature,” advises Herrmann’s email.
The concerns reflect those published over several months by CI News.
They include the absence of an identified authority to monitor fund payments, the ability to exceed the 7000 metric tonne catch, the undermining of the country’s sovereignty, the ability for the EU to undertake exploratory fishing, the questionable value of the agreement to the country, the agreed tacit approval for the agreement to extend beyond eight years and the absence of a vessel day scheme which is established under the Marine Resources purse seining regulations.
Herrmann refers to Article 4 of the SFPA which “…encroaches significantly on our sovereign right to manage our own fisheries free from any ‘assistance’ from an outside party. This kind of text is objectionable and Pacific Island countries have collectively resisted long and hard against such text appearing in any kind of access arrangement or Treaty Convention language in this region. We strongly recommend this be removed.”
To date, this strongly-worded advice has been ignored.
Contrary to promises made by the PM’s office about public consultations and seeking the views of stakeholders on the SFPA with the view these would help develop the agreement, before the document went to cabinet for approval, this has never been done.
Herrmann’s email reveals it was known in February that reopening agreement text for any changes would be very difficult – “which confirms the view the EU consider the initialled pages of text as being agreed.
“It also appears contrary to the comments made in the media (by government officials) that ‘nothing had been agreed’. There are significant concerns about how the public may receive this information.”
Despite being given valuable advice by government agencies that the purse seining agreement is seriously defective and being aware that the agreement couldn’t be changed, the PM-led trip north to “consult” went ahead at a cost of about $50,000.
Herrmann pointed out that given the promised public consultative process appears to be closed, “the trip up north therefore appears to be presenting stakeholders with a ‘fait accompli’.”
She reiterated that it was surprising to see so much of the problematic content had remained in the agreement, particularly since the same text hadn’t been acceptable to government in 2012.
Solicitor General David James who spent “a few minutes” because of another meeting on Herrmann’s emailed concerns, also raised his uncertainty in an email.
Briefly he refers to the establishment in the agreement of a Joint Committee and how its composition is not detailed, and the absence of a dispute mechanism. He suggests more consideration be paid to the UN Convention of the Law of the Sea.
“The commercial element is all-important but there is not precise commerciality pragmatics applied to payment disputes arising from any one of a hundred different possible issues that can arise.”
The disclosure of the emails brings to the fore the profound concerns held by government agencies while at the same time, the PM, Finance minister and some senior officials have been touting the SFPA as a good deal for the country.