The good news is that this global action – turning off their lights, holding vigils, and marking the importance of climate action – is now a recognized part of our international culture.  The bad news is that every year the need to raise awareness and act to stop rising temperatures and extreme weather events brought on by rising GHG levels is greater than ever.

There simply is no adequate response to the crisis that is developing before our eyes.  In fact, with the new rush to extract oil, shale gas, and minerals, thus increasing carbon emissions, is pushing us closer to disaster – and possibly irreversible climate catastrophe.

Scientists and climate experts have warned that 350 parts-per-million (ppms) of CO2 in our atmosphere is the safe upper limit.  We are now at 392 ppms – a level of carbon 30 per cent above any level over the last million years (based on Antarctic ice core data) – and this is rising about 2 ppms a year.

Green Party Leader Elizabeth May, MP Saanich will be celebrating Earth Hour in her riding at a candlelight potluck.  For those interested in more information or attending, you can learn more and sign up now.

“I have been taking part in Earth Hour from its inception,” said May, “This year, after watching the destruction of our crucial environmental legislation and more, I’m urging as many Canadians as possible to show their support for this event.  It helps to raise consciousness and reduce emissions, recognizing its primary value is symbolic.  Join Greens from around the world in celebrating Earth Hour.”

In Ottawa, there will be a Green Party event on Parliament Hill starting at 8pm.   Learn more about Earth Hour events on their website.

The post Elizabeth May Marks Earth Hour Saturday appeared first on Elizabeth May.

After facing the threat of international arbitration from foreign companies, India has ordered in January 2013 a freeze of all bilateral investment protection agreements negotiations until a governmental review is carried out and completed. Although news of India’s decision has not been mentioned in the Canadian media, the decision is clearly relevant.

“In November 2012, Prime Minister Harper told me in the House of Commons that the Indian Prime Minister was committed to signing a foreign investment promotion and protection agreement with Canada. I think Canada should take good note of India’s freeze on all investment protection agreements,” said Green Leader Elizabeth May, Member of Parliament for Saanich-Gulf Islands.

“The investor/state dispute system contained in investment agreements allows foreign companies to sue Canada outside of Canadian courts. Special arbitrators would take the decisions; their decision cannot be subject to judicial review. And the arbitrations are to be secret. Even the fact they are happening is to be secret,” said May.

“India is joining nations such as Australia and South Africa in saying ‘no’ to investor/state provisions. It’s time for Canada to also turn the page on this out-of-date and undemocratic international trade model,” said May.

The post “Canada Should Take Good Note of India’s Freeze on All Investment Protection Agreements” appeared first on Elizabeth May.

January 29, 2013

To whom it may concern,

The following comments are submitted as part of the Environmental Assessment of the Trans-Pacific Partnership (TPP) Free Trade Agreement Negotiations that Canada has officially joined and which Ministers Moore and Fast announced on October 9th, 2012.

While the secrecy surrounding these ongoing negotiations renders it difficult to know precisely what the full extent of the environmental impacts could be, given the demonstrable negative environmental effects that similar kinds of agreements have had and continue to have in Canada and internationally, there are a number of things we can conclude.

Despite Australia’s urging against the inclusion of such measures in the TPP, and despite the Gillard Government’s published Trade Policy Statement stating that it will no longer agree to such measures, we can be very certain that the final iteration of the Trans-Pacific Partnership Free Trade Agreement will include investor-state provisions.

While not directly related to trade, there exists ample evidence that the inclusion of investor-state provisions in treaties, such as the TPP or Chapter 11 of the North American Free Trade Agreement (NAFTA), fundamentally erode a government’s ability to enact laws, regulations and policies that protect its environment or the health of its citizens. In particular, insufficient attention has been paid to an analysis of the arbitrations under Chapter 11 of NAFTA.

The first of these suits was in 1997, when Ethyl Corporation of Richmond, Virginia, challenged a Canadian statute that had been democratically enacted to protect Canadians from MMT. MMT (Methylcyclopentadienyl manganese tricarbonyl) is a neuro-toxic gasoline additive that posed both health and environmental problems. It was compromising the catalytic converters on Canadian cars, alarming car makers about the potential for voiding their warranties, while also increasing air pollution. As well, its impact in the atmosphere raised concerns it could have neuro-toxic effects on particularly vulnerable populations – children, pregnant women and the elderly. The same company had manufactured, and I believe still does for sale in the developing world, leaded gasoline. The public health experience with leaded gas demonstrated conclusively that if one wanted to increase absorption to the brain of a toxic heavy metal, adding it to gasoline was an effective delivery method. Ethyl Corporation’s creative use of the “tantamount to expropriation” language of Chapter 11 was a surprise to the trade and investment community. What they now so sanguinely defend as a “typical FIPA provision,” was not the intent of the NAFTA negotiators. I have spoken to a number of them who believed that the Chapter 11 language was only to codify what was clear in international law: that is a nation-state nationalized and expropriated the assets of a foreign corporation, compensation was owed.

As the Ethyl Corporation challenge became known, there was an effort through the Organization for Economic Cooperation and Development to being in an international version of Chapter 11 under the name “Multilateral Agreement on Investment.” The OECD chose to consult with global civil society and, as Executive Director of Sierra Club of Canada, I attended a session with OECD negotiators in the Paris headquarters of the OECD. The session was under “Chatham House Rules,” meaning I can relate what happened, but not attribute quotes. It was clear from that session that the negotiators within the OECD working on the MAI were shocked that a US-based corporation could use Chapter 11 “tantamount to expropriation” language to claim damages from Canada for the decision to remove a toxic product from trade. The collapse of the MAI negotiations was proximately related to concern of the French government

for protection of its culture, as well as a massive international citizen mobilization, but the Ethyl MMT complaint was a warning of the way the language had morphed into something with the potential to undermine democratic decision-making. Barry Appleton, Canadian lawyer for Ethyl Corp, said at the time, “It wouldn’t matter if you were adding liquid plutonium to children’s breakfast cereal. If you ban it and a US corporation loses its expectation of profit, you will owe money under Chapter 11.” (This quote is a paraphrase of his comment.)

Following the decision of former Prime Minister Jean Chretien to push the MMT matter to a settlement prior to the arbitrators’ ruling, a second Chapter 11 case was brought by S.D. Myers of Ohio, complaining of the impact of the ban on export of PCB contaminated waste from Canada. S.D. Myers had hazardous waste incinerators in the US. It had none in Canada, so the term “investor” was a stretch. This matter went to arbitration and Canada lost.

The S.D. Myers ruling is notable for several reasons:

1. It was a law of general application, i.e. PCB exports were banned. There was no way in which the move was discriminatory towards the United States in general, nor to S.D.Myers in particular.
2. It was a move taken consistent with Canada’s obligations under the Basel Convention on Hazardous and Toxic Materials. Further, the Basel Convention is specifically referenced in NAFTA as a pre-existing multi-lateral obligation of Canada, exempt from NAFTA requirements.
3. At all material times when Canada banned the export of PCB contaminated waste, it would have violated US law to import the PCB waste to the United States.

The S.D. Myers case should be a clear warning to anyone looking at the Canada-China Investment Treaty that international arbitration can come to bizarre conclusions. Chapter 11 of NAFTA has had a higher proportion of environmental law challenges than in other areas of public policy. Mexico lost to Metalclad, a US-based hazardous waste disposal company that wished to locate a large toxic facility in San Luis Potosi. The state level government rejected the application and the federal government of Mexico was successfully sued.

It must be stressed that the nature of the full environmental impacts of Chapter 11 of NAFTA has never been assessed. I submit that the chilling effect of the Ethyl Corporations and S.D. Myers was profound. I am aware of a letter warning Alan Rock when he was Health Minister that removing the registration of pesticides for use in lawns for cosmetic purposes could give rise to Chapter 11 suits, so the move was not made. We have no way of assessing the “chilling effect” of the Chapter 11 cases that Canada has lost. In my opinion, there is a compelling case that the Ethyl and S.D. Myers case have resulted in failures of the Canadian government to regulate and/or ban toxic substances that they would have in the pre-Chapter 11 era. A thorough review of the regulatory process by the Commissioner for Environment and Sustainable Development, within the office of the Auditor General, assessing why certain pesticides and toxic substances have not been banned could provide empirical evidence of the chilling effect. In my view that is the single greatest environmental threat in this treaty. I believe municipal, provincial, territorial and the federal government will find themselves second-guessing policy and law-making related to environmental quality, health and safety based on how they imagine the investors awarded these powers by the TPP might respond.

More recent instances of such investor-state provisions being used to challenge sustainability or environmental protection measures here in Canada, and by Canadian firms abroad, are equally troubling. This past November, US energy company Lone Pine Resources launched a Chapter 11 challenge against the Quebec government, demanding $250 million in compensation. The damages that Lone Pine is alleging emerge from Quebec’s adoption of a province wide moratorium on hydraulic fracturing (or fracking), and related suspension of exploration rights in the Gulf of St. Lawrence, pending the results of a comprehensive review into the negative environmental impacts of the practice. Such cases represent clear barrier to environmental protection and regulation in Canada. As stated by company spokesman Shane Abel, “We think that the expropriation is arbitrary and without merit,” he said. “… We think that’s a clear violation of the NAFTA agreement.”

In practice, findings that such a regulatory decision is “arbitrary” are themselves arbitrary, since a many government decisions, such as those resulting from a democratic change in government, can be viewed as “arbitrary” from the perspective of investors. This creates a basis for arbitration claims in any area of Canadian policy. And while guarantees against arbitrary and uncompensated expropriation are important to ensure a stable investment climate, in reality, the domestic courts in any of the countries participating in the ongoing Trans-Pacific Partnership negotiations would provide sufficient protection for investors against such risks.

At minimum, I would insist that any inclusion of investor-state arbitration clauses into the Trans-Pacific Partnership Free Trade Agreement include clearly stated exceptions against claims of expropriation for any laws or regulations pertaining to environmental, social, or labour policies that a future government may want to pursue. Yet while better than nothing, even here such exceptions present unacceptable risks to Canadian’s sovereign, democratic rights to govern ourselves, including in environmental protection.

As explained by investment law expert Gus Van Harten, “The catch is that these exceptions are always uncertain and, ultimately, in the arbitrators’ hands. Arbitrators have often decided that a measure was not “necessary”, for example, where a less restrictive option was available to a government.” The potential environmental impact of this degree of power being vested in an unelected and unaccountable body is both direct, wherein an arbitral panel may award damages in response to environmental laws or regulations that, in its sole opinion, are not strictly “necessary”, creating pressure for them to be rescinded, and indirect, wherein the implicit threat of such legal action is sufficient to pre-empt a government from enacting an environmental law or regulation that could even potentially be challenged using the dispute resolution mechanism likely to be included in the TPP.

As described above, and for the reasons listed here, the Government of Australia has commissioned a major national review of the impacts of investor-state dispute resolution on the Australian economy and environment. Published in November, 2010, the 400 page “Bilateral and Regional Trade Agreements Productivity Research Report” formed the backbone of the “Gillard Government Trade Policy Statement”, from April, 2011. The Policy Statement arrives at some conclusions that are particularly relevant in considering the environmental impact of the Trans-Pacific Partnership.

Describing the negative impact of investor-state mechanisms on the ability of an elected government to pursue laws and regulations in the public interest, the Policy Statement states:

Some countries have sought to insert investor-state dispute resolution clauses into trade agreements. Typically these clauses empower businesses from one country to take international legal action against the government of another country for alleged breaches of the agreement, such as for policies that allegedly discriminate against those businesses and in favour of the country’s domestic businesses.

The Gillard Government supports the principle of national treatment – that foreign and domestic businesses are treated equally under the law. However, the Government does not support provisions that would confer greater legal rights on foreign businesses than those available to domestic businesses. Nor will the Government support provisions that would constrain the ability of Australian governments to make laws on social, environmental and economic matters in circumstances where those laws do not discriminate between domestic and foreign businesses. The Government has not and will not accept provisions that limit its capacity to put health warnings or plain packaging requirements on tobacco products or its ability to continue the Pharmaceutical Benefits Scheme.

Australia has, in no uncertain terms, identified the linkage between investor-state provisions and the erosion of democratic control over the laws governing its social, environmental, and economic spheres. As a direct result, as a matter of policy the Government of Australia “will not support [investor-state] provisions in trade agreements that constrain our ability to regulate legitimately on social, environmental or other similar important public policy matters.”iv When it comes to our domestic ability to enact environmental laws or regulations, Canada would do well to heed Australia’s example during these negotiations.

I urge the Trade Agreement Secretariat to make public the terms of this Agreement currently being negotiated in our name.

Sincerely,

Elizabeth May O.C., M.P.
Member of Parliament for Saanich-Gulf Islands
Leader of the Green Party of Canada

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“Under NAFTA, we gave US and Mexican corporations the right to sue us if they felt our laws hurt their ‘expectation of profits’,” said Green Party Leader Elizabeth May, MP Saanich-Gulf Islands. “We’ve lost half of those suits and it has cost us in both arbitration battles and awards. Now Stephen Harper is about to give powerful Chinese State-Owned Enterprises similar rights.”

Since NAFTA came into effect in 1994, taxpayers have had to pay about $157 million to US corporations disagreeing with Canadian laws and regulations – and there are awards pending.

Canada is already the sixth most sued country under the investor-state dispute settlement regime, according to a recent UN Conference on Trade and Development report. At the same time, Canadian investors have sued other countries, usually the US, 16 times and lost every case – involving softwood lumber, cattle, gold mining, and more.

There is every reason to expect Chinese enterprises and investors to make use of their new right, especially in the resource sector. The Canada-China Investment Treaty does contain exemptions that were not in NAFTA. However, it is not clear these exemptions will be effective as China can still make claims for damages if it believes an environmental or health measure is “arbitrary” or a “disguised trade barrier.”

Unlike lawsuits under NAFTA and other treaties signed by Canada, the Chinese suits must be kept secret; the arbitration hearings and all documents, except the actual award, can be kept confidential at the discretion of the country being sued. We might not know if Canada has been ordered to change government decisions.

“If Chinese companies like CNOOC – the Chinese National Offshore Oil Corporation – make crucial inroads into Canada with the Nexen deal, for example, we will be even more vulnerable. Even the provinces, which will have no say in the process, might be asked to pay up,” said May.

“It is interesting that the Conservatives are pushing us into a secretive, potentially treacherous deal as countries like Australia, India, and South Africa are pulling away from investor-state provisions.”

The Canada-China Investment Treaty was tabled quietly in the House of Commons on September 26. The Conservatives do not plan any debate or vote. Once it is ratified, it will bind Canada for a minimum of 15 years and could apply for 31 years.

Suits under NAFTA have included:

1997 – Ethyl Corporation sued Canada for $250 million after it banned MMT, a neurotoxin gasoline additive. The Canadian government repealed the ban and settled for $13 million.

1998 – S.D. Meyers Inc., a US waste-disposal firm, challenged a ban on the export of PCB wastes and sued for $20 million. Canada paid $5 million, plus interest

2007 – Mobil Investments Canada Inc. & Murphy Oil Corporation claimed Canadian guidelines supporting local research and development were anti-NAFTA and sued Canada for $65 million The tribunal process continues.

2009 – After AbitibiBowater Inc. closed its last pulp and paper mill, Newfoundland enacted legislation for the return of certain land and assets. The company sued for $467.5 million. Canada paid $130 million to settle claim.

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We believe that the process should be transparent. This agreement has been negotiated behind closed doors with a level of secrecy that is completely unacceptable in a democratic society.

The Right to Set Our Own Laws

The governments of Australia, Canada and New Zealand traditionally have the right to set down their own laws for the good of public health, consumers, workers and the environment.

Leaked details of the TPPA reveal that, foreign investors and firms could sue Canada or New Zealand in a private international tribunal if their parliaments or local councils pass laws that reduce their profits or adversely affect their businesses. This could include laws such as:

• a requirement for large graphic warnings or plain packaging of cigarettes and other tobacco products (such as in Canada and Australia, and forthcoming in NZ);
• laws requiring labelling of genetically-modified food and drink (NZ); and
• retention of agricultural regulations such as Canada’s supply management system for dairy, which aims to preserve farmers’ livelihoods.

The Australian government has indicated it will not agree to these clauses intended to protect multinational businesses from the impact of policy decisions, but New Zealand and Canada’s leaders refuse to do the same (even after Canada was on the receiving end of costly lawsuits under NAFTA).

The End of a Free Internet

We believe the TPPA is being used to sneak in measures to bind its member countries to extensive and harsh laws on Internet use that wouldn’t be acceptable at the domestic level – including harsher criminal penalties for minor, non-commercial copyright infringements, a ‘take-down and ask questions later’ approach to pages and content alleged to breach copyright, and the possibility of Internet providers having to disclose personal information to authorities without safeguards for privacy. The European Parliament voted 478-39 against the international ACTA treaty, which was trying to create similar standards. Now, the same type of regulation is being attempted under the TPPA.

More IP Rights for the Big Players

The Intellectual Property Rights chapter of the TPPA was leaked in draft form in February 2011. We anticipate that unless a more moderate and balanced version is adopted, NZ, Canada and Australia’s shoppers, schools and libraries would end up paying more for their books and DVD’s  because it would let copyright holders veto parallel importing. Small and medium-sized software and IT businesses would have their innovative visions stifled by constraining patent laws. Finally, large pharmaceutical companies could use the legislation to deny state drug-buying agencies like those in Australia and NZ access to reliable, low cost medicines.

Behind Closed Doors

Almost everything we have learnt about the TPPA’s contents comes from leaked documents that the negotiators didn’t want the public to see. No agreement this important should be finalised without the informed input of the ordinary people it will affect.

Yet while representatives of AT&T, Verizon, Cisco, major pharmaceutical companies and the Motion Picture Association of America have access to the text, democratically elected members of parliament, advocacy organisations for healthcare and the environment and ordinary citizens are being left out in the cold.

Governments, including the US, have opened up to the public in the past by releasing the draft text of agreements. In 2001, all nine chapters of the Free Trade Area of the Americas Agreement were released. At the time, this was called an ‘important step’ that would make the trade negotiation process ‘more transparent and accessible’. If this was the standard for public accountability in 2001, it is disconcerting that similar standards are not in play in 2012.

Together, we Green Parties are declaring that we will only support a fair, genuinely progressive trade agreement that promotes sustainable development and the creation of new jobs alongside the protection of the environment and human rights (including freedom of association and the right to collective bargaining). We call on our current governments to remove the veil of secrecy surrounding this agreement and to open these negotiations to public input and comment.

The post Joint Statement on Trans-Pacific Partnership Agreement appeared first on Elizabeth May.

“From the few details emerging, the TPP – a highly secretive pact initiated by the George W. Bush administration – grants special privileges to already powerful corporations,” commented Green Party Leader Elizabeth May, MP Saanich-Gulf Islands.  “It has been dubbed ‘NAFTA on steroids.’  Some are even calling it a ‘corporate coup.’  This is not what Canadians want or need.”

Mainly based on leaks, it appears that the talks, which have included the United States, Australia, New Zealand, Chile, Peru, Singapore, Malaysia, Vietnam, and the Sultanate of Brunei, are focussed on ensuring new enforceable corporate rights along with increased constraints on governments.  Only two of TPP’s 26 chapters actually have anything to do with trade.

What is emerging is a pact promoting extensions on price-raising drug patent monopolies, increased corporate rights to attack government drug-pricing plans, safeguards for job off-shoring, and added corporate control over natural resources.  This is particularly interesting in light of Bill C-38’s destruction of government influence over resource extraction.

There also appear to be severe limits to government regulation of financial services, zoning and land use, product and food safety, energy, and other essential services. The copyright chapter poses several threats to internet freedom along the lines of the Stop Online Piracy Act (SOPA), which was held up in the US Congress after effective public pressure.

The proposed pact will even limit the way governments can spend their tax dollars.  Buy local procurement policies would be banned and human rights or environmental conditions on government contracts could be challenged in behind-closed-door foreign tribunals.  There are proposed rules regarding the activities of publicly owned enterprises.

A recent leak of a particularly controversial TPP chapter revealed that the agreement will raise corporations and investors to the same status as sovereign nations.  The so-called “investor state” provisions would give any foreign companies incorporated in TPP countries the right to ignore our courts and laws and sue our government directly by way of foreign tribunals.  Businesses would be able to demand compensation for financial, health, environmental, land use, and other laws they think undermine their TPP privileges.

Already, in San Diego, we saw the CEO of Australian Pork Limited going after Canadian federal and provincial pork supports, even though Canada’s share of the world pork market has fallen because of the strong Canadian petro-dollar and high feed costs.

“The TPP negotiations were yet another disturbing example of the larger pattern of unaccountable, secretive, and undemocratic practices by the Harper government,” said May.  “This pattern, once again, shows a real contempt for Canadians and for our democracy.”

The Green Party is determined to bring more TPP information to light before the 14th round of secret talks in early September inLeesburg, Virginia.

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The Green Party is the only truly global party, with Greens in 70 countries and elected Members of Parliament in Europe, Latin America, Australia, and New Zealand. Together we work to press the nuclear super-powers to meet their obligations for disarmament, to reduce and eliminate the nuclear threat. We work to shift military budgets to peacekeeping and peace-building. We work to ensure the education, health protection and economic autonomy of women and girls around the world to address poverty and over-population.

Greens see the world as a planetary whole. We believe the essence of a strong security policy starts with addressing the single largest security threat to modern civilizations the climate crisis. As Gwynne Dyer pointed out in his book, Climate Wars, military establishments around the world are aware that the threat of increased political destabilization due to increased severity and frequency of severe climatic events warrants treating climate as a security threat. The spectre of millions of environmental refugees is a real and near-term reality, if we do not move aggressively to reduce greenhouse gas emissions. Honouring binding multilateral treaties, such as the Kyoto Protocol, is a measure of a nation’s reliability and integrity in the world. As the only nation to have ratified and then repudiated Kyoto, we have blotted our copy book in the community of nations. Our domestic fossil-fuel expansionist policies put us at odds with the International Energy Agency, the European Union, and more.

Meanwhile, addressing global disparities, working together as nation-states to improve the standard of living for all, is more than a free market issue. It requires equity, the rule of law, and enhanced global governance.

Defence policy needs to be nested in the context of how we see our role in the world. Increasingly, Prime Minister Stephen Harper appears to defining our role in two ways trade and military hardware.

We are entering into cookie-cutter trade agreements with small (and in some cases corrupt) economies. Jordan, Panama, Colombia, with China yet to come. Our international posture is one of unquestioning support for Israel (I support the existence of the state of Israel, but think unquestioning cheer-leading is a disservice to peace in the region), and joining NATO missions with zeal.

Meanwhile, we are sending the signal that diplomacy is a dwindling concern. For some time, the Harper Conservatives have been shrinking our embassy presence so that a Canadian in trouble in Nicaragua, for example, is told the closest Canadian presence is in Guatemala and in any event, your phone call is directed to a 1-800 emergency line in Ottawa. With the 2012 budget, we are selling off diplomatic residences a decision surely to be rated penny wise and pound foolish by successor governments.

The most high-profile domestic defence question is clearly the botched procurement process for the F-35s. In many ways the F-35 fighter jet is the perfect object lesson from former U.S. President and former General Dwight Eisenhower’s warning to beware of the “military-industrial complex.” Canada’s rationale for joining in the process in 1997 had little, if anything, to do with domestic security and everything to do with hoped-for aerospace contracts.

Under Liberal prime ministers Chrétien and Martin, Canada put up initial funds to participate (first $10-million in 1997 and then a further $150-million in 2001). Up until this point, the auditor general found no fault with the process and accountability of decision-making. It was beyond the scope of the auditor general’s report to investigate whether Canada needed the F35s. Just as it was beyond the auditor general’s responsibility to find out which of the political masters were aware of the various and repeated acts of incompetence and failures of due diligence he went on to report.

The auditor general recounted such a trail of violations in the fundamentals of normal procurement process that even seasoned Ottawa-watchers are stunned. The decisions were generally taken in reverse order. First came the decision, followed by inventing criteria to justify the decisions, and then, lastly the rationale. Not one, but two, departments were found to have failed in the exercise of basic due diligence. Both the Department of National Defence (DND) and the Department of Public Works and Government Services Canada (Public Works) were found to have fallen below the standard of due diligence. 

The essence of the AG report is not, as Defence Minister Peter MacKay now claims, that the AG found a novel way to add up the costs of the jets. The essence of the report is that Canadians were lied tofor years. Parliament was misled for years. And the whole F-35 project, from 2006 onwards, was typified by a litany of rogue decision-making. What we need to know is how it happened that two departments suspended judgment, cut corners, and violated process. One theory is that Public Works and DND were independently willing to abandon normal procurement rules. More likely, the orders came from the one in control of all departments the Prime Minister who wants to remake us as a warrior nation.

Green Party Leader Elizabeth May represents Saanich-Gulf Islands, B.C.
Originally printed in the Hill Times.

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I have been in most of the debates on Bill C-31 since it was tabled and also in the earlier debates on its predecessor, Bill C-4. What we have been hearing from the Conservatives is that this bill is necessary to end human smuggling. We hear a lot of cries about human smuggling. We hear that people are jumping the queue. We have heard a lot of allegations.

I have structured what I hope to say in the next 10 minutes by mentioning some of the things that are most frequently alleged here and providing some counterbalance. I think there are egregious parts of this legislation. I think it violates the charter and that future courts will find it to be illegal.

Let us just start with one that we hear all the time, the notion that there is queue jumping if refugee claimants come to Canada in some fashion that is different from the way normal immigration to Canada occurs. We must keep very clear in our minds the distinct and large difference between people who come to this country as immigrants, as my parents did, and people who come to this country as political refugees, people fearing for their very lives.

In this category there is no such thing as a queue jumper. There is no such thing as going to line up at an immigration office for Canada in some country, when people know that their lives are at risk and they flee with the clothes on their back. We need to keep these things very separate in our minds. Much of this bill deals with that latter category, people who are seeking refugee status in Canada.

Some people can fear for their lives when they come to Canada and their refugee claims may be rejected. That does not mean that the adjective “bogus” applies to their claims. Some people are rejected even though they have a legitimate fear of persecution. They do not make it through our process.

We like to think that our process has been, and still is, fair and generous. However, sometimes it has rejected people who really did need our protection. Let us be clear about that.

The vast majority of refugees in this world, and they number in the millions, never make it to an industrialized country. Most of the migration that occurs among those people who are refugees is from one developing country to another. That is the vast majority of claimants.

We have heard that this bill, because of its punitive nature towards people who arrive by ship or some other means of arrival deemed an “irregular entry”, one of the new terms that comes up in Bill C-31, will discourage so-called human smuggling. I have yet to hear any empirical evidence that that is the case.

I have taken some time since the bill was first tabled to try to find evidence, and what I have found is the absence of evidence. An expert analyst of the Office of the United Nations High Commissioner for Refugees, Alice Edwards, said:

Pragmatically, there is no empirical evidence that the prospect of being detained deters irregular migration, or discourages persons from seeking asylum. In fact, as the detention of migrants and asylum-seekers has increased in a number of countries, the number of individuals seeking to enter such territories has also risen, or has remained constant. Globally, migration has been increasing regardless of governmental policies on detention. Except in specific individual cases, detention is generally an extremely blunt instrument of government policy-making on immigration.

Let me go to a letter that was sent to the Prime Minister of this country by a group of people in Australia who have had a lot of experience. Certainly it is true, as the Minister of Citizenship, Immigration and Multiculturalism has said, that other countries are going in a similar direction. It has failed there, it will fail here. This is a letter advising the Prime Minister of Canada not to go in the direction of Australia from the Asylum Seeker Resource Centre in Australia.

They refer to the fact that Australia is already learning some hard lessons about trying to discourage refugees by putting people in prison. Australia has abandoned its temporary protection visas because they found they were not working.

I will quote from their letter to our Prime Minister:

Contrary to popular belief, ‘tough’ immigration policies in the past have not succeeded as an effective deterrent: 

In 1999, less than 1000 ‘unauthorised arrivals’ applied for asylum, the year TPVs [temporary protection visas] were introduced. 

In 2001, when the policy was in full force, the arrivals rose to more than 4000. 

Under this policy, denying the right to refugees on TPVs to apply for family reunion pushed the wives and children of asylum seekers onto boats in an attempt to be reunited. 

In 2001 353 people drowned in the tragic SIEVX disaster while travelling by boat to Australia. 

Most of the 288 women and children aboard the SIEVX were family members of TPV holders already in Australia.

We have also been told that bringing in this bill would save money because people would be discouraged from coming here and our social safety net programs would not be available to refugees. I have asked several times in the House and I have yet to have one Conservative member of Parliament offer up a cost of this legislation. As far as I can find, it has not been costed.

Anyone, men, women, and children over 16 years of age, coming here by irregular entry would be put in detention. Minor children would likely be placed in detention as well because they would opt to stay with the mother rather than be placed far from their families in a foreign land.

Let us see what it has cost Australia. Australia maintains 19 immigration detention facilities. In the last year for which I could find costs, 2011, it was spending over $668 million on refugee detention. The Australian secretary in the department of immigration and citizenship remarked, and I do not know when we will hear this from the Canadian Minister of Citizenship, that “The cost of long-term detention and the case against the current system are compelling…. The cost to the taxpayer of detention is massive and the debt recovery virtually non-existent”.

We have heard that children would no longer be jailed, unlike the previous version of this legislation Bill C-4. We have been told that the change would allow children to go somewhere else, but we have not been told where. Under the international Convention on the Rights of the Child these children are defined as legally children. Sixteen to eighteen year olds would be jailed, their parents would be jailed, everyone would go to jail for up to a year if they arrived by irregular entry.

I just want to share what Australia has started doing. The Australian Human Rights Commission found that detention actually violated the Australian human rights provisions. It also was not working. In October 2010 the Australian government changed its tactics. It decided that it would begin to move a significant number of families with children into community detention. In other words, the Australian government is keeping track of anyone who arrives by irregular entry. These people are not essentially integrated into the community in the same way that they would be if they were allowed to work or move around freely. This community detention process has reduced costs. Placement in communities bridges visas and is essentially community detention but requires that the people involved report to someone, similar to parole, but they actually live in communities.

Lastly, we have been told that the bill would deal with people coming from the European Union. We have also been told that there is no reason for anyone to worry about the European Union. Since the bill was tabled, a Federal Court decision was tabled on February 22, 2012, in the case of Hercegi v. Canada. Mr. Justice Hughes of the Federal Court said clearly, “The evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens”.

I have one last court decision to refer to and that is Charkaoui v. Canada, 2007 in the Supreme Court of Canada. Madam Justice McLaughlin ruled that charter rights extend to foreign nationals. Charter violations are endemic to this act.

We must change this legislation in order to not violate Canadian values, Canadian law and the charter.

The post Protecting Canada’s Immigration System Act (Bill C-31) appeared first on Elizabeth May.

When I wrote “Fact Check on Kyoto Distortions” on November 28, 2011 for my blog, I covered the most frequently cited, misleading/dishonest bits of spin on the subject. That blog covered the top 5, but now there are more. It’s time for “Fact Check on Kyoto Distortions—The Sequel.”

Distortion number six:  If Canada does not withdraw from Kyoto, we will owe billions in penalties.

Fact Check: Sadly, there are no effective compliance mechanisms under Kyoto.  There are no financial penalties.  I say “sadly” because effective compliance mechanisms were available to the negotiators in 1997.  The 1987 Montreal Protocol to protect the Ozone Layer had a great enforcement tool —  trade sanctions.

If any party to the Montreal Protocol on ozone were to violate its commitments to reduce and ultimately eliminate use of ozone-depleters, the other nations in the protocol could punish the offender with trade sanctions.  In 1995 the World Trade Organization was created.  Although there were no rulings on the matter, its Trade and Environment Committee raised the question of whether there were any environmental treaties that compromised trade, concluding that the enforcement mechanisms under the Montreal Protocol might violate the GATT.  By 1997 in Kyoto, Canada refused to sign onto any Protocol that included trade sanctions, as did many other countries.  This is why Kyoto’s enforcement mechanism is essentially a wet noodle. The only sanction is that in negotiating a second commitment period target, whatever amount of the first target that country missed, it would have to add an additional one third of a ton as penalty.  But since the target is individual to each country and since it is a product of negotiation, it would be easy enough to negotiate the next phase target in a way that anticipated the .3 ton top up.

So how does the Minister of Environment get away with saying something that is patently untrue?  He chooses his words carefully.  This is how Peter Kent explained it in a recent opinion piece in the Financial Post:

“The math is clear: The total number of carbon credits required multiplied by the average cost of a carbon credit is $14-billion. And the facts are simple: You cannot enter the second commitment period without completing the first, and we either pay the $14-billion or we would be in violation of the protocol.”

Kent is careful to say that the $14 billion is the cost of compliance. Hypothetically, if we were suddenly to decide we wanted to meet the 2012 target Prime Minister Stephen Harper repudiated back in 2006, when he cancelled all programmes to reach the Kyoto target, it would only be possible through buying credits.  Sure, it might cost the $14 billion Kent has claimed, but no one in their right mind would do that, and there is nothing in the Kyoto Protocol to force Canada to spend a dime.

Distortion number seven: “You cannot enter the second commitment period without completing the first.” (see Kent quote above)

Fact Check:  It certainly sounds logical, but it is not true.

There are two ways in which the statement can be interpreted and neither is true.

1. The first issue is the matter of staying in the Kyoto Protocol as a party, but not agreeing to second commitment period targets.  Japan and Russia are doing just that, but neither face penalties.  Japan is still hoping to hit its target, and is already below 1990 levels of emissions (while Canada is 28% above 1990 levels).  Japan is unlikely to hit its target, but has said it will stay in Kyoto, participating as a party.  It will be both out of compliance and refusing to take on second commitment period targets.  It will not face penalties because (see above), there are no penalties under Kyoto.  Canada is not the only Kyoto Party out of compliance; but we are the only country planning to legally withdraw.
2. The second way of framing Kent’s distortion is to say that Canada could not take on a new round of legally binding targets without first meeting the 6% below 1990 target by 2012 we legally obligated ourselves to meet under Kyoto.  This is also not true.  The targets in the second commitment period are a matter of negotiation.  To get Canada committed to new legally binding emission reductions, other countries would likely be accommodating.  As an example, back in 1997, Australia refused to sign onto Kyoto unless their target was 8% above 1990 levels, when all other industrialized countries were pledging to cutting below 1990 emission levels. Australia’s increase in emissions was allowed through negotiation.  There is nothing in the protocol that requires being in compliance with the first commitment period before negotiating the second.

Distortion number eight:  Canada has withdrawn from Kyoto.

Fact check:  Canada has filed a legal notice of intent to withdraw.  It will take legal effect in December 2012.  Until then, Canada is a Kyoto party.  Let’s cancel that letter and start being responsible global citizens.

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