09/30/2015 05:28 EDT | Updated 09/30/2015 05:59 EDT

Canada's TPP Talks In Odd Situation Due To Election Campaign

OTTAWA — Trade Minister Ed Fast says he won't be consulting with the opposition leaders on negotiations around a major Asia-Pacific trade deal, despite the government's own guidelines around how to operate during an election.

"We have consulted broadly, and the opposition parties, they are privy to information that is available to all Canadians," Fast said in Atlanta, where Canada and 11 other countries are trying to finalize the details of the Trans-Pacific Partnership this week.

"Our role is to solicit the very best instructions and direction from the sectors of our economy that are going to benefit, which is all of them."

How far a government can go in making government policy or decisions during a federal election campaign has suddenly become a major issue with the TPP talks coming to a head.

Even New Zealand's trade minister Tim Groser noted last week that on the TPP, Canada was negotiating "as if there's no election."

NDP Leader Tom Mulcair issued a statement Wednesday suggesting the government can't agree to any pact during an election campaign.

"The Conservative government has no mandate to sign a trade deal three weeks before election day," said Mulcair, who has been travelling in Nunavut.

"They can stay at the talks and ensure Canada's interests are represented, but a government that should be gone in days can't sign a deal that will affect Canadians for years to come."

The so-called "caretaker convention" guides a government's actions in the limbo periods during campaigns, and before new governments are sworn in, to ensure it "exercises restraint."

The government operations don't just shut down during elections, and the Privy Council Office's recently revised guidelines note that there are cases where the party in power has no choice but to make decisions — including multilateral treaty talks.

But the caretaker guidelines also point to bringing the opposition parties into the loop. Australia and New Zealand have similar guidelines.

"In certain cases where a major decision is unavoidable during a campaign (e.g., due to an international obligation or an emergency), consultation with the opposition parties may be appropriate, particularly where a major decision could be controversial or difficult for a new government to reverse," reads the document.

Liberal Leader Justin Trudeau said Wednesday that he has not been contacted about the TPP. He has decried a general lack of transparency around the talks, if not the deal itself.

"It would be unrealistic for us to expect that the whole world will stop and wait with bated breath for the outcome of Canada's election," Trudeau said in Surrey, B.C.

"But what we need to know is that our government is negotiating in a way that is going to enhance Canadian opportunities and growth while protecting our interests."

The difference between agreeing to the terms of a trade deal and having it ratified by Parliament appears to be a distinction the Conservatives are drawing.

"Any trade deal will be tabled in and voted on in the next Parliament," Conservative spokesman Stephen Lecce said in an email.

David Zussman, a former senior bureaucrat and a leading expert on the operations of government, said the first principle for a government in caretaking mode is not to tie the hands of a future government.

"The easiest way to deal with this is to seek the comment or the views of the opposition parties, because it is very possible either one of them will form government, and Mr. Fast has to know what a future government might do," said Zussman, the Jarislowsky Chair in Public Sector Management at the University of Ottawa.

"The complication to me is what happens if they don't support the government's position? Then the government has a dilemma. (Fast) has to do his job negotiating, but he has to be careful not to tie the hands of a future government."

Mel Cappe, a former clerk of the Privy Council, said there's no real obligation for the government to consult the parties, and the Conservatives are completely within their rights to be at the TPP table.

Still, talking to the opposition might be the right thing for the country.

"Is it good for Canada that the opposition parties be briefed? I think the answer to that is yes," said Cappe, a professor at University of Toronto's School of Public Policy and Governance.

"For the leader of the party that may form government to be speaking from ignorance is a bad thing."

But Philippe Lagace, associate professor of international and public affairs at the University of Ottawa, said consulting with the opposition sounds good, but in practice would be unrealistic.

"Does that mean because the opposition don't agree with you, you can't go forward with it?" said Lagace.

"It's unclear why in that case the opposition's policy preference would trump the government's policy preference if they both have the potential of forming government."

Also on HuffPost

In Photos: Canada Election 2015