Elizabeth May: Speech on CETA

Elizabeth May: Mr. Speaker, I am very pleased to have the opportunity to address Bill C-30, the act to implement the comprehensive economic and trade agreement between the European Union and Canada.

It is my intention to focus on the investor-state provisions within CETA. I want the record to show that the Green Party shares the concerns of many that this will drive up pharmaceutical drug prices for Canadians. We really do need pharmacare and we do not need to give pharmaceutical companies more advantages than they now have in terms of patent protection. We do need to protect the rights of municipal governments to put out local bids for tender, and not take away their ability to have local procurement. There are impacts on various economic sectors in Canada, including the dairy industry, that need to be better examined.


I want to focus on why this agreement remains so controversial that it is not yet a done deal in Europe. I think Canadians have been somewhat bamboozled on this point.

Certainly, the Conservatives have made the case that all the Liberals had to do was open up a gift package and it was all ready to go. That is clearly not the case. Why is the comprehensive economic and trade agreement in the EU so very controversial to this day? It is because this is the first time, the first proposed agreement, in which the European Union will be accepting an investor-state clause. That is why it remains controversial. That is why it is still to be ruled on by the European Court of Justice. The provision within CETA that many European parliamentarians think is not legal is the investor-state provision. That is why the European Court of Justice will be ruling on it. If it rules that it is beyond the scope of the jurisdiction of the European Union to take away the rights of states and give foreign corporations superior rights, that will blow a hole through CETA.

The same thing will be true when this trade agreement goes to the whole European Parliament for a vote sometime between December and February. If it clears the European Parliament, it then goes to the various parliaments. There are 38 national and regional governments that will still have to vote on this, which is a process that could take two to five years.

Therefore, my first point is this. Why the rush to put through Bill C-30? Why are we not having proper consultations across Canada, and proper and lengthy efforts to hear witnesses, as the government of the day has done under the TPP? This is being rushed despite the deal not yet even existing on the European side. Certainly, the European commissioners have accepted it, but it is not a done deal, and that is because the next trade agreement Europe is looking at having is with the United States. If members can imagine the European governments at the local and national level having a problem with the idea that Canadian corporations can come and sue them in these phony courts, they can be sure they would be even more worried about that happening with U.S. corporations.

Therefore, the first reason, and the number one reason, this agreement is controversial in Europe is the investor-state provisions. I want to back up and explain what these are.

In debate today we heard them conflated with dispute resolutions systems. Everyone understands that when we have a trade deal, the two or three countries involved, in this case a large trading block like the EU, may end up having disputes on trade issues. We have had enough softwood lumber disputes between Canada and the U.S. to explain dispute resolution on the commercial aspects of trade quite well. This is not that. This is not a process to resolve disputes over trade.

What are investor-state provisions doing in a trade deal? That is a good question. They should not be there at all. They are provisions that initially came into the trade world, I would say, by stealth. In all of the national debate, in all of the concerns that Canadians expressed, no one talked about chapter 11 of NAFTA. It was basically hidden away. I have to say that I have spoken to the negotiators of NAFTA. Even they did not know how this provision would be used. Chapter 11 of NAFTA, they thought, merely said that if a foreign government expropriated the assets of a corporation, like a scenario in Cuba where Fidel Castro has the Government of Cuba nationalize all U.S. assets, it would then owe that corporation money for the expropriation of assets. Everyone understood that. It is common law internationally. What chapter 11 did was put in some language that appeared benign but turned out to be a disaster for domestic democratic governance. It put in the words “tantamount to…expropriation”.

Therefore, chapter 11 of NAFTA waltzed through without any controversy, and then very clever lawyers got hold of it. This has created a cadre, a term I will use later as well, of global ambulance chasers, lawyers who went out to find corporations.

The lawyers said that when our government passed the rule that we cannot use that toxic gasoline additive, they thought the corporation had a case against the government under this investor-state dispute. Therefore, Canada, under chapter 11 of NAFTA, was sued for getting rid of a gasoline additive. Under chapter 11, there was the Ethyl Corporation case, where we were sued for banning the export of PCB-contaminated waste. AbitibiBowater sued. However, Bilcon is the worst and most recent case. This is a U.S. corporation that opted not to go to Canadian courts to seek a domestic remedy, but went to the secret Chapter 11 tribunal to get a judgment against Canada to overturn a very strong, solid, defensible, reasonable assessment.

There are no trade aspects to any of these cases by the way. These are not trade disputes. These cases are saying that, as a foreign corporation, a domestic decision by democratic governance has cost it money and its expectation of profits, and so it is bringing a case.

Chapter 11 of NAFTA gave rise to a proliferation of bilateral investment treaties. Generally speaking, the larger economic power is doing business in a small developing country, like a Canadian mining company operating overseas, and the international collective of investment treaties has created real hardships on smaller developing countries. The pattern is clear, and it was put forward and documented by a European think tank. It put together a review called Profiting from Injustice. There is a pattern: the bigger economic power is going to win.

The arbitration process, in other words, is neither fair nor neutral. The global ambulance chasers are a small cadre of international lawyers who get paid $1,000 an hour to be an adjudicator or to be a lawyer for a foreign corporation that is suing a domestic government. The larger economic power is going to win. Therefore, if Canada is being sued by the U.S., we lose.

The worst of all of these agreements has to be the Canada-China investment treaty, which Harper brought in and pushed through with a cabinet vote. It was never debated in the House and never voted on in the House, but it will bind Canadian governments until the year 2045, and it is all completely in secret.

We can now look at chapter 11 secret tribunals and the Canada-China secret tribunals. If our yardstick is those regressive anti-democratic trade deals, and we compare them to the European Union’s efforts here with Canada to create an investment court, they are doing everything they can to try to take an inherently anti-democratic system of corporate rule over governments and dress it up to look more democratic, but they have not done the job. It is still an anti-democratic notion at its essence that foreign corporations have the right to sue governments for decisions that have been made with no trade motivation whatsoever but to protect health, safety, and environment within a country.

Why should we agree to these at all?

Earlier in the debate today, I said that CETA creates an investment court. It has adjudicators who are semi-permanent. In other words, they are not being paid for one case and the next day they can go out and be an advocate within the CETA process. The hon. member with whom I was discussing this made that point. I was not able to come back and explain that they can be both a judge in the investment court in the EU and a global ambulance-chasing lawyer on a NAFTA case, or on a Canada-China investment treaty case. They can actually be in the pocket of someone who has hired them, because there are corrupt lawyers who work for companies like Bilcon. These lawyers can be in the pocket of a company like that and then sit as an adjudicator at the investment court between the EU and Canada without having to disclose that they have already been working and are already a lawyer for the very corporation that they would rule over in the case at the investment court in the EU.

These provisions are toxic. As Steven Schreibman, a leading Canadian trade lawyer, said, investor-state agreements are “fundamentally corrosive of democracy”. They have nothing to do with trade.

If Canada wants to get this deal approved in Europe, and if the Liberals want the support of the Green Party in this place, they have to take the investor-state provisions out.