“Pending a decision from the European Court of Justice, CETA’s most controversial aspects, such as the investor court system, will require ratification by all 38 national and regional parliaments in the European Union,” said Elizabeth May, Leader of the Green Party of Canada (MP, Saanich-Gulf Islands). “This could take years. There will likely be a referendum in the Netherlands, and several regions in Belgium are recognizing the threat of CETA to their dairy industry. Prime Minister Trudeau should not be so quick to trumpet CETA’s success while many serious hurdles remain.”

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Elizabeth May – Saanich—Gulf Islands, BC:

Mr. Speaker, it is an honour to rise again in this place to speak to the concerns I have about Bill C-30, legislation to enact the comprehensive economic and trade agreement between Canada and the European Union.

There are a number of fallacies that have come up in the debate today, and I will try to address those. They relate, by the way, to the investor-state provisions, which I believe to be the key and most unacceptable part of the trade agreement. However, I want to make sure I do not skip over the other concerns that have been raised by many in Canada and in the European Union.

One is that this trade agreement will absolutely make pharmaceutical drugs cost more in Canada. There is no question about this. By giving greater patent protection, it will postpone the moment when drugs go to generic form, when they become much more affordable. The estimates are that it will increase the cost of pharmaceutical drugs anywhere between $800 million and $1.6 billion.

Let me give the reasons why. This is what the comprehensive economic and trade agreement commits to and that Bill C-30 would implement. It would commit Canada to creating a new system of patent term restoration that would delay the entry of generic medicines by up to two years. It would lock in Canada’s current terms of data protection, making it difficult or impossible for future governments to reverse them, and it would implement a new right of appeal under the patent linkage system that would create further delays for the entry of generics.

If this trade agreement is in the interest of big pharma, the pharmaceutical industry, which I would have to mention is an economic sector that does not need a handout, can we accept that the prescription drug business, the pharmaceutical industry globally, does very well for itself and does not necessarily do well for those who need life-saving drugs?

This relates to the debates we have had in this place about the need for pharmacare and a national pharmacare program. It is even in the mandate letter to our Minister of Health to pursue bulk purchasing of prescription drugs to try to bring down the price to the level we could get if we had a national pharmacare plan, when all prescription medication could be purchased centrally to try to drive down the cost.

The reality is that the single largest growing cost within our health care system is the cost of prescription drugs. I want to reference the hard work of my hon. colleague from Oakville, Terrence Young, who lost his seat in the last election. His daughter died from taking a drug, as prescribed by her physician. Her name was Vanessa, and in the last Parliament, we passed Vanessa’s Law.

It is very clear that the drug industry charges more than what it costs to produce a drug, because it can. This is the last sector on Earth we should be wanting to give yet more advantages to to make the price of drugs go higher.

At the same time, litigation relating to pharmaceuticals, the notice of compliance proceedings dealing with full patent infringement, has been termed by Canadian Lawyer magazine as streamlining litigation, again, to the benefit of the pharmaceutical industry. It has a very effective lobby. Hats off to the pharmaceutical industry in Europe and in Canada for getting its own way under this agreement, but that does not mean it is in the interests of Canadians.

I am also very concerned, as is the Green Party, about the protection of procurement. This has to do with the rights of municipalities and other government sectors to say that they want the right to choose where they procure their products. They want to say that it is okay to preference their local suppliers. That will not be possible under CETA.

We also know that the way this agreement is structured around intellectual property leaves a lot to be desired and does not adequately protect Canadian companies in the large, more predatory global marketplace.

Getting to the misconceptions, one was, I thought, rather unexpected in this debate. Just to put it to rest, I heard a number of Conservative MPs use this debate on the comprehensive economic and trade agreement with the European Union to rail against having a carbon price. This was a very unusual place to make that argument, since the European Union has carbon prices. Why, in a debate on CETA, would we hear distorted arguments about the economic impact of putting a carbon price in place? It is rather the contrary. If Canada does not put a carbon price in place, we might find ourselves at the other end of discriminatory tariffs brought forward by the European Union, because they have done so, and they want trading partners to do so as well.

Other fallacies have to do with the way in which we characterize investor-state dispute resolution. It is very important that we distinguish and differentiate between terms of trade agreements to resolve disputes over trade. We have those in NAFTA. We have those in CETA. We have those at the WTO. When there is a dispute over a tariff or an alleged subsidy, there is a dispute process that resolves trade disputes. The investor-state provisions are not those. Investor-state provisions have nothing to do with resolving trade disputes. That may seem counterintuitive, but let me back up. Trade dispute mechanisms within treaties are state-to-state. If Canada has a problem with Belgium, or Poland has a problem with Canada, the investor-state dispute resolution is entirely different.

If we go ahead with CETA, it would give a Polish company the right to sue Canada if any government, state, provincial, municipal, first nations, or a court decision, made a decision that interfered with that corporation’s expectation of profits. Therefore, it is not state to state, as it would be in a trade dispute. It is corporation to government.

Let us use a real life example from my home province. The people of Kamloops, B.C. are busy fighting a proposal for a large open pit mine within the town limits. It is called the Ajax mine. It is being proposed by a Polish state-owned enterprise. Kamloops is a mining community with other mines. It is not as if it is against mines, but the majority of people in Kamloops do not want an open pit mine in the town limits. If CETA is not in place and the Government of British Columbia decides it will not go ahead with an open pit mine, that is the end of the story. B.C. can make a decision and Kamloops can make a decision. However, with CETA in place, it would not be the end of the story. The Polish mining company, Ajax mine, could do what Bilcon from New Jersey did under chapter 11 of NAFTA. When its open pit mine on Digby Neck, Nova Scotia, was turned down by the Conservative government of Nova Scotia and the Conservative government federally, under the previous environment minister, John Baird, Bilcon went for a secret tribunal under chapter 11 of NAFTA and sued us for $300 million. Did it allege we were wrong on the science? No. Did it say this was a secret protectionist move to protect trade in Canada? No. It just said it did not think the environmental assessment process was fair to it.

Ajax, the Polish mining company, would have the right to bring secret arbitration cases. The one thing that is different under CETA is the process would not be a secret. There would be an investment court. However, there would be no room at the table to have litigants representing the public interest. No environmental group would be allowed before the so-called investment court to argue this was a reasonable decision that our government made.

Therefore, the presence of these agreements really needs to be much better understood, investor-state agreements, the chapter 11s or sometimes called FIPA, the foreign investor protection agreement, such as the one Prime Minister Harper secretly passed in cabinet, which binds Canada to the year 2045, so the People’s Republic of China has the right to sue Canada and we cannot get out of it until 2045.

These agreements need to be better understood as fundamentally corrosive to democracy. They do not belong in trade treaties. They have nothing to do with advancing trade. They are all about reducing the power of sovereign government and increasing the power of transnational corporations. That is why I will be voting against Bill C-30.

Kevin Lamoureux – Parliamentary Secretary to the Leader of the Government in the House of Commons:

Mr. Speaker, the member made reference to a company overseas being able to make a statement of claim against an entity in Canada. Could she comment on the reciprocal to that, a company in Canada and the rights it would have as a result of this agreement?

Elizabeth May – Saanich—Gulf Islands, BC:

Mr. Speaker, this is an open question. In essence, there would be reciprocity but for one thing. This provision is still so controversial within the European Union, it is going to the European Court of Justice. We do not know if it will be ruled to be ultra vires of the European Union to put such a provision in its treaty. However, we know from the state of Wallonia within Belgium that the EU has now accepted the notion that individual countries within the European Union can opt out. Therefore, will it be reciprocal? I think the answer to that has to be, it depends.

If a Canadian corporation loses money in the state of Wallonia, I do not think they are going to be able to rely on something such that a Polish company brings an action against Canada. By the way, although the actions may have been provincial, municipal, or federal, the litigation is always against the federal government. Our federal government has paid out millions of dollars under previous investor-state resolution decisions for things where we did not do a single thing wrong, or that were protectionist or against the science. We just cost a foreign corporation money.

Ziad Aboultaif – Edmonton Manning, AB:

Mr. Speaker, I know the hon. member spoke about the impact on the pharmaceutical industry, the cost of drugs, or the investor-state provision. This is on the negative side. I would appreciate if she could highlight some of the positive items of CETA. In fairness to the discussion here, it would be nice if we could hear about the positive side of CETA from the hon. member.

Elizabeth May – Saanich—Gulf Islands, BC

Mr. Speaker, it should be clear by now that I think the negatives outweigh the positives, but opening up trade with the European Union is an important balance. This is one of the things that gets overlooked in these debates as well. We certainly already have the General Agreement on Tariffs and Trade, and after the Uruguay round, the creation of the World Trade Organization means that the protectionist measures that people railed against in the call for free trade are already gone. In that sense, we already have free trade with the individual states within the European Union, because protectionist measures that are unjustified are already prohibited under the General Agreement on Tariffs and Trade.

However, opening up more connection to the European Union is certainly wise. We know that with regard to our traditional best trading partner south of the border, that its executive is at the moment in the hands of an unpredictable, reckless, and potentially damaging partner. We hope we can steer through that. We hope we can navigate that. However, trade with the European Union is going to be important.

Gord Johns – Courtenay—Alberni, BC:

Mr. Speaker, I want to thank the leader of the Green Party, the member for Saanich—Gulf Islands, for bringing up some very valid concerns around CETA. One thing she did not touch on very much was that this will be the first time that foreign-owned vessels and foreign crews will be allowed to transport goods between Canadian ports, and it will open up domestic dredging contracts to foreign suppliers.

In my riding and in my community, we have a company called G & N Towing, which is named after the founders, Gale and Neil Botting. Their son, Gord, now runs that business, and his sons crew that boat. It is a family business where they have local knowledge. They employ people from Esowista, Opitsaht, Tofino, local communities. These jobs are critical to the lifeline of our coastal communities. Local knowledge not only saves lives, but it protects the environment. It is very important that we protect local jobs.

Does the member share our concern around the lack of analysis and the economic impact of taking away these jobs from coastal British Columbians and coastal people, coast to coast to coast?

Elizabeth May – Saanich—Gulf Islands, BC:

Mr. Speaker, I thank my friend from Courtenay—Alberni, because I meant to mention the Coasting Trade Act. It is not one of the features that people hear about a lot under CETA. Starting on page 75, we find out that foreign ships, for the first time, will be exempt if they are within the European Union. They will be exempt from getting a licence, and it also affects dredging and other activities that take place in our coastal regions.

As a former Atlantic Canadian, I am very curious about the position of Saint Pierre and Miquelon. We have French islands off the coast of Newfoundland. I can see that it would very easily be the case that foreign shippers registering in Saint Pierre would say, okay now we are European and we do not have to be screened.

As far as I can see, there is no analysis from any entity within the Government of Canada on the impacts on coastal jobs in Atlantic and Pacific Canada from changes to the Coasting Trade Act. By the way, I meant to mention before the House committee on trade that the civil servants testifying on patent protection said that they had not had time to study that economic impact.

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Elizabeth May Saanich—Gulf Islands, BC:

Mr. Speaker, it is an honour to rise in the House at the point of calling the question on Bill C-30, the bill that would bring in the comprehensive economic trade agreement between the European Union and Canada.

I have the honour to represent the only party in this place that has voted against all investor-state agreements. Although mostly the NDP members vote against them, they do not always. I would urge them to reconsider and ensure, for the future, that all investor-state agreements be rejected. They really have nothing to do with trade at all. I want to dive into that aspect of the investor-state agreement and touch briefly on the other aspects Canadians should be concerned about.

First, as many members in this place have already raised, it will increase the cost of pharmaceutical drugs. It is very clear that this will happen. Numerous independent studies have looked at the implications of the so-called CETA on drug prices for Canadians.

Second, it is also clear, and it has been raised by a number of groups, that the language the European Union wants in the text on the question of municipal powers for procurement will also be negatively affected by CETA, including access to procurement for municipalities, academic institutions, school boards, and hospitals. If they should decide that they want to make sure they are buying locally, they could be offending the provisions of CETA.

The third part is the most controversial. It is certainly the most controversial in Europe. It is why Canadian parliamentarians are being sold a bill of goods when we are told that there is any urgency here. I am really surprised that the Liberal government chose not to have significant review and consultation nationally. We had that on the trans Pacific partnership agreement but not on the comprehensive economic trade agreement with the European Union. This is surprising, given that there can be no need for urgency in Canada to ratify when there are 28 countries, and an additional 10 subnational groups throughout the European Union, that have yet to ratify, and given that there is still a pending decision from the European Court of Justice as to whether the comprehensive economic trade agreement is compatible with European law.

The controversy within Europe is overwhelmingly about the one piece of this agreement that I think could be very conveniently and easily removed without affecting the trade aspects at all. This takes some underscoring. What kind of trade agreement has an entire section that has nothing to do with trade? The answer, these days, is almost all of them. We are being sold, hook, line, and sinker, the notion that a trade agreement must include something called investor-state dispute resolution systems, or FIPAs, foreign investment protection agreements.

The first of these anywhere in the world was chapter 11 of NAFTA, and we have a lot of experience with it. I do not believe that even the negotiators of NAFTA believed that they were introducing anything novel when they negotiated chapter 11. As much as Canada had a national debate on NAFTA, chapter 11 never came up, because it was a sleeper provision. It might have stayed asleep, actually, if it had not been for the ingenuity of a Toronto lawyer, Barry Appleton, who decided that chapter 11 of NAFTA could be interpreted in a completely novel way.

The essence of the legitimate protection of investor interests in other countries is that we do not want a government coming along and nationalizing the assets, saying, “You have built a lovely refinery here. We are now going to say it belongs to the government of ‘fill in the blank’, and you, as an investor, are not going to get your money back on that.”

That is what people thought chapter 11 was initially, because it talked about protection from expropriation, but chapter 11 used some novel language. It talked about governmental measures that were tantamount to expropriation. Here is where the clever lawyering came in.

The first chapter 11 came to us when this Parliament banned the trade and use of a toxic gasoline additive, a manganese-based gasoline additive, that had a human health threat component. It also gummed up the diagnostics of the on-board catalytic converters for automobiles, so car manufacturers were worried that it would void their warranties. Environment Canada was worried that it would cause more air pollution. Neurotoxicologists, like Donna Mergler, at the University of Quebec in Montreal, was worried about it causing an increase in a disease that looks a lot like Parkinson’s, but it is manganism.

Well, Parliament banned it, but because of a chapter 11 NAFTA challenge from a private corporation in Richmond, Virginia, Ethyl Corporation, Canada found itself in an arbitration case. This was just the first of many, and we keep losing them, or we keep having them settled out of court, although we cannot call these places courts, unless we use the word “kangaroo” first. These are arbitrations in hotel rooms with private arbitrators. They make money being arbitrators. They are expert lawyers. We can find Canadian lawyers who claim to be environmental lawyers suddenly selling out to be expert lawyers for U.S. corporations at these secret hearings.

The secret hearing process under NAFTA in chapter 11 is egregious. Just as egregious is the Canada-China investment treaty. I would have to say that it is more egregious, because every investor from the People’s Republic of China is going to be a state-owned enterprise for the People’s Republic China. Therefore, their ability to sue us is virtually unlimited. Of course, the Canada-China investment treaty never had even as much debate as we are getting on CETA. It never went through Parliament at all, because previous Prime Minister Harper approved it in cabinet, confidentially. The treaty binds the Canadian government until the year 2045 to the People’s Republic of China, and its state-owned enterprises have more right to challenge decisions made in Canada than any Canadian corporation does.

CETA falls somewhere in between. CETA is being sold to us by many as the gold standard. It was the head of trade negotiations for the European Commission, Cecilia Malmström, who came up with the idea that since this investor-state provision in CETA is so controversial and is attracting so much protest from within the European Union, maybe we can make it look more like a real court and end the fact that it is so clearly profit driven.

Can members imagine arbitrators who are one day working in their big downtown law firms and the next day are essentially judges determining whether the decisions passed through parliaments around the world are going to hold up to their private scrutiny? There is no appeal, no oversight, and no room for intervenors to make the case as to why it was appropriate to ban a gasoline additive or to stop the export of PCB-contaminated waste or to not put a toxic waste disposal facility next to a town’s freshwater supply. These are all real-life examples under chapter 11 where the polluters have won and the citizens have lost, and it happens over and over again.

CETA proposes some improvement, no question. It is much better than chapter 11 of NAFTA and better than the Canada-China investment treaty, which we seem to have forgotten ever even happened in this place. When I hear Conservative members getting up and asking whether the new administration under the Liberals is moving too close to China, I kind of want to run over, shake them, and ask if they do not remember that they passed, in secret, or their cabinet did, the Canada-China investment treaty, which is the worst of all of these.

Professor Gus Van Harten, of Osgoode Hall Law School, literally wrote the book on the bad investment deal with China. The book is called Sold Down the Yangtze, if members want to pick it up to find out how our sovereignty was sold out by the Harper administration.

Gus Van Harten has done a careful study of what is being offered in this so-called gold standard, and there definitely are flaws.

The arbitrators will have a more permanent roster. Can members imagine if our judicial system picked judges at random from the private sector, and they did better on cases where the rich guys won? Can members imagine how fair our judiciary would be seen to be? Well, CETA makes an improvement on that. There will be a permanent roster of such judges. They will still be drawn from private-sector work, and although they will be prohibited under the CETA terms from acting as advocates and lawyers before a CETA investment court, they will not be barred from operating as advocates and lawyers under other dispute resolutions, such as chapter 11 of NAFTA.

There is still this culture of an elite group of corporate lawyers who are literally global ambulance chasers. They find companies and tell them that they can sue a government if they want to.

The sad part, as well, is that, for a moment, Cecilia Malmström’s proposal called for allowing civil society to come forward as intervenors. That part of her proposed gold standard was dropped.

My plea to the current government, and my plea to all parliamentarians, is to dig in our heels on this. I commend the NDP caucus for digging in its heels on this. We should dig in our heels and say that these are anti-democratic by definition.

There is no chance in the world that a company that emanates from the European Union is going to expropriate Canadian property in Europe, contravening all the laws and international common law practice. We are in a safe zone here, developed country to developed country. Let us get rid of the unfair investor-state provisions and fix CETA so that it is about fair trade.

Irene Mathyssen London—Fanshawe, ON:

Mr. Speaker, there is an old saying that fools rush in where wise people fear to tread. My question has to do with rushing in to sign this agreement.

We know that CETA will not be fully ratified until all 28 EU member states have passed the agreement in their own parliaments. Clearly, we have time. We should take that time.

I wonder if the member has any thoughts in regard to taking time so we can address the issue of investor-state provisions and the very clear concerns expressed by CELA in regard to environmental degradation. Of course, there are our dairy farmers and those who produce the good food we rely on. Can we accommodate those folks? Can we slow down? Should we?

Elizabeth May Saanich—Gulf Islands, BC:

Mr. Speaker, absolutely we should slow down. This is going to take a minimum of five to seven years to get through the European parliaments we are dealing with. We also still have the very substantial, some might say risk but I say hope, that the European Court of Justice will say that it is not in accordance with European law to allow Canadian corporations to sue European governments.

The shoe is on the other foot. It is something like the Ajax mine they pushed in Kamloops, B.C. that local residents do not want. It is owned by a state-owned enterprise from Poland. If CETA does not go through, the B.C. government can turn down the Ajax mine without the risk of a corporate suit against B.C. taken at the national level. Goodness knows how much money we could lose.

I have to underscore this: The decisions under investor-state provisions have nothing to do with trade. They do not involve Canada doing anything wrong. They do not involve us violating any scientific principles or acting against evidence. We just have to be shown to have cost them money. That is it. It is completely corrosive to democracy.

Daniel Blaikie Elmwood—Transcona, MB:

Mr. Speaker, many European countries had reservations about signing this agreement, and many have now signed but with the proviso that they have not yet ratified. The debate within Europe, especially about the investor-state dispute settlement clauses, is far from over.

There are other aspects of the agreement that could be positive, and there are some negative ones too.

I am wondering who the member thinks is putting on all this pressure. If the investor-state dispute settlement clauses are what risks having the deal fall through in Europe, who is pushing for them? If it is the Canadian government, why would the Canadian government be willing to risk the rest of the deal for the sake of keeping these provisions? Certainly not many of the governments in Europe are pushing for these. In fact, that is where they are getting the push-back from their own population on this deal. Who is defending these, and why is it so important to keep them in there if it jeopardizes everything else the Liberals and Conservatives say is good about the deal?

Elizabeth May Saanich—Gulf Islands, BC:

Mr. Speaker, that is, as they used to say on the old TV show, the $60,000 question. Adjusted for inflation, I guess it is now the $6-trillion question.

We have issues with some of the trade aspects, and I am glad my friend from London—Fanshawe mentioned the dairy threat. I mentioned pharmaceuticals. There are the procurement provisions, but even they are not primarily about trade.

What we are talking about here is increasing the powers of transnational corporations while decreasing the regulatory powers of governments. In whose interest is that? It is not in any sovereign nation’s interest. It is in the interest of transnational corporations. It is the first plank of global corporate rule, and it is being advanced by the corporations.

The current Liberal government should look at who pushed it in the last round of negotiations, realize it was the Harper administration, not the Europeans, take it out, and start a rethink of all these investor-state provisions and renegotiate them so they make sense and defend the sovereign rights of governments to protect public health, safety, and workers’ rights within their own countries.

Daniel Blaikie Elmwood—Transcona, MB:

Mr. Speaker, it is a pleasure to rise again to speak to CETA in the House, because there is a lot to talk about and I do not think we have done a good enough job yet of discussing what is in this deal. We have heard a lot of platitudes by those who support the deal and, I would say, not a lot of information. The government has certainly not provided any detailed study of the anticipated economic impact of this deal. Canadians are supposed to just take it on faith that somehow it is going to be good for them, their jobs, and their communities.

It is reasonable for Canadians to expect at any time, and particularly from a government that has promised to bring back evidence-based decision-making and a scientific approach to government, to be provided with information and analysis on the particular ways that the government thinks this deal would be beneficial. However, we have not received that at all. Instead, we get an ideological repetition of the idea that these deals must obviously be good.

The NDP, instead, has been trying to offer an example of how to look at an agreement’s details, to evaluate the various clauses, and to come to a conclusion about whether, overall, it is a good agreement for the country. I do not think it is any secret that the conclusion New Democrats have come to on this particular deal is that it is not, on balance, good for Canada. I will get to why.

There is one thing we need to recognize, first and foremost, which may sound silly. When considering the positions and arguments advanced by other parties, it bears repeating that trade deals are an important part of public policy. It is not as if trade, on the one hand, is separate and divorced from all the other public policies of government, on the other hand. Trade deals have important implications for governments, particularly these kinds of comprehensive trade agreements. They set the economic framework and a number of other important rules under which government can or cannot apply other levers of public policy.

Consider, for instance, a previous trade agreement that Canada once had with the United States called the Auto Pact. It was an agreement on the trade of a particular good, in this case automobiles, across the border. The people who negotiated and concluded that agreement recognized that trade deals were public policy. Therefore, the public policy goals of that agreement were not just to create more wealth for transnational corporations. They said that if they were going to sign a trade deal, they needed to enunciate what their public policy goals were. An important public policy goal was to ensure that jobs were created within Canada and that the goods being sold in Canada actually meant that Canadians got a slice of the production of that good and received wages for the goods sold in Canada.

When we talk about trade deals of different kinds and the values that can be represented in them, here is an example of a trade deal that we should not need to approve just because it concerns trade. Let us face it, multinational corporations have negotiated with themselves, because they are advising all of the various governments involved in these negotiations. These are not negotiations in which union leaders and people represent the interests of the environment and ordinary Canadians. They are largely negotiations with government representatives and representatives of multinational corporations meeting behind closed doors and coming up with rules. Then, when they come out of that negotiating room, we are told that either we agree with trade or we do not, and that this particular set of rules that has been negotiated behind closed doors represents the best possible scenario for ordinary Canadians. That is a laughable claim. They never provide any evidence to back up that claim and we are supposed to just take it on faith. When we look at agreements like this, it is not clear what the public policy goal is.

Consider CETA, for instance. This agreement, we know, because it has been confirmed by a number of independent studies, will raise the cost of pharmaceutical drugs in a country that already has among the highest such costs. We need to go from where we are right now with respect to the costs of drugs and to find ways to bring those down, and we know that CETA would move us in the wrong direction. What gain would we be making that would offset that loss, unless the public policy goal, perversely, of the government is to fatten the wallets of international pharma?

I do not think that is a defensible public policy goal. However, if that is the goal of the government, let it say so; and if it is not, let it tell us what we are getting out of this deal that counteracts that effect on Canadians. If everyday Canadians are made to pay more for their pharmaceutical drugs, that is a tangible cost, and what tangible benefit can they expect to see in return?

There are lots of other ways we could pursue other public policy goals within the context of these kinds of trade agreements. For instance, we could say that because we want green public transportation in Canada and with our trading partners, whether they be in Europe, the United States of America, or wherever else, we want a firm commitment, with timelines and penalties if these goals are not met, to work toward a common charger for electric vehicles. That would be a legitimate thing to do. Certainly, if a trade deal like CETA can pronounce on the minuscule details of municipal procurement, we could certainly reach a deal that would bring its member parties together to pursue a common charging standard that would allow that industry to reach economies of scale, increase production, whether in Canada or the other member countries, and begin greening public transportation in those various areas.

However, we never hear about that because we do not actually get into a debate about what the public policy goals of a trade deal are. Rather, we are just told that this will create massive wealth, that it will be great for everyone, and that everyone is going to get a job after we pass this.

The evidence does not support that at all if we look at the historical record of what has happened in the Canadian manufacturing sector since the late 1980s and early 1990s when we began signing these kinds of agreements. No further evidence has been provided. When we look at the historical track record, I would argue it is not particularly good, and we are not given any contrary evidence.

We might also say that when it comes to labour mobility, for instance, these agreements tend to have lots of provisions on how companies can bring in their own workers from wherever to perform work here in Canada that ought to be performed first and foremost by Canadians who are looking for this kind of work. That is not the right way to go about this in these provisions, but we do know that there are labour mobility challenges. For instance, trade unions who have hiring halls have people here who are out of work and there are places with labour demand in the United States, and those people cannot get that work because in order to be authorized to do the work, they first need an employer and a visa. However, because there is an agreement in which the employers go to the hiring hall to fill their labour demands, the workers needs to be cleared to work at the hall first, but until they are cleared at the hall they do not have an employer so they cannot apply for the visa and cannot be cleared at the hall until they have a visa. That is a legitimate labour mobility issue.

We could be working to address labour mobility issues in that way rather than encouraging the import of temporary foreign workers who then work only for that company and who are thus, frankly, under the dictatorship of that company, because if the company decides for whatever reason that those workers are complaining too much about their working conditions or if the company does not pay them what they were promised when they came over, the workers can be sent back by the company. That is not a fair arrangement for those workers. It is not a fair arrangement for Canadians who are expected to then compete against them. There are other ways to do that, but these do not come up when we are talking about these deals.

What the NDP is trying to do in this debate is to say that there are other ways of doing this and there are other important public policy goals that ought to be taken into consideration when we pursue trade agreements. However, successive Liberal and Conservative governments have failed to do this. That is the problem. That is what we are trying to zero in on. We are trying to show that, yes, trade deals and trade is important, but there is more than one way to do it. There are an infinite number of ways. This particular way, in which we take away the ability of democratically elected governments in Canada and elsewhere to make decisions about health, the environment, and working conditions within their own jurisdiction and to put them at the mercy of trade tribunals that are more concerned about whether transnational corporations are losing money than about the substance of those issues, is the wrong way to do it. That is not to say there is not a way to do it, but it means that we have to ask more of our governments here in Canada when it comes to negotiating a trade deal.

Conservatives and Liberals alike have shown that they are not up to the task. Although we have seen a change in government, we have yet to see a change in approach. We saw the same when David Emerson switched from being the Liberal international trade minister to being the Harper international trade minister, and we saw it when the current Minister of International Trade hugged the former international trade minister on the floor of the House of Commons the day CETA was signed. There is no difference between the two.

Elizabeth May Saanich—Gulf Islands, BC:

Mr. Speaker, I again thank my friend from Elmwood—Transcona for his opposition to the investor-state agreement.

Getting back to the core of this, we really do need to ask how we became so ensnared in so many of these agreements that only privilege the rights of foreign corporations. Canadian corporations cannot sue under such provisions if the Canadian government makes a decision that hurts their profits, but if we accept this agreement, companies from Germany, Poland, Belgium, or wherever, would be able to sue the Canadian government just how U.S. corporations can do now. The People’s Republic of China’s corporations can, and if the TPP goes through, another nine countries’ corporations can bring these private cases against Canada.

Would the member agree with me that we need to reopen the whole bundle of investor-state agreements and renegotiate them globally to ensure that they fairly balance the rights of corporations versus the sovereignty of governments?

Daniel Blaikie Elmwood—Transcona, MB:

Mr. Speaker, I would agree with the member for Saanich—Gulf Islands that there is something fundamentally broken at the conceptual level with the investor-state dispute settlement clauses. There absolutely is. Giving foreign companies the ability to intervene in areas of domestic policy-making, which we elect democratically governments to do, is just completely backward.

The idea that somehow in order for those companies to get fair treatment in Canada we need these investor-state provisions, when we have a whole body of common law and other international agreements that give reasonable assurances to those companies they will not be treated unfairly, is also wrong. Added to that is a mechanism by which these transnational corporations can use the threat of serious financial punishment of a government in order to direct its policy behaviour. That is what is wrong about this. It is not about fair treatment. That already exists under the law before we sign these agreements. This is about whether we are going to give these companies the hammer and the threat of it use to direct government policy. That obviously is wrong and should not be a component of deals going forward.

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Mr. Speaker, it is my honour to rise this evening in adjournment proceedings to pursue a question I asked in question period almost a month ago, on November 2. It relates to the comprehensive economic trade agreement between Europe and Canada and specifically to the thorniest part of that agreement, which has drawn attention around the world, and particularly objections at the last minute from the Walloons, and spreading objections throughout the European Union. It is the investor-state provision.

In my question in question period, I drew a link with a proposal for an open pit mine, within the legal boundaries of the community of Kamloops, called the Ajax mine. I picked that as a particular example because it is very controversial, being within the town limits and right near the school. This is a community that likes mining and has other mines, but it is very concerned about this one.

The reason it ties into CETA is that if CETA did not have investor-state provisions, there would be no particular risk with respect to the fact that the Ajax mine’s proponent is a Polish state-owned enterprise. If CETA goes through and is ratified by Poland and Canada, and should the British Columbia government do the right thing and say no to permitting the Ajax mine to go ahead, that company, being Polish, would have rights that a Canadian mining company would not have. It could sue Canada for damages in an arbitration court for a decision made with no trade motivation whatsoever.

Investor-state provisions are poorly understood in Canada, which is particularly ironic, given that we have been at the losing end of more cases than most countries, because the first investor-state agreement was invented as part of NAFTA. It is chapter 11 of NAFTA.

Canada has been brought for investor disputes and tried at arbitrations that are held in secret. Chapter 11 arbitrations are held entirely in secret, such as the dreadful decision that occurred on a split decision of two arbitrators out of three. Both the federal Conservatives and the provincial Nova Scotia Progressive Conservatives refused the most appalling project I have ever seen in my 17 years working at the Sierra Club, the open pit quarry that was proposed for Digby Neck, Nova Scotia, which threatened the survival of the most endangered whale species on the planet. It was a strong decision based on good environmental assessments. To have that challenged by a proponent from the United States, who was claiming $300 million in damages because it was turned down by John Baird, at the federal level, and by the provincial government in Nova Scotia, was truly outrageous.

That is just one example of chapter 11 of NAFTA. Canada has lost many of these cases and has had our laws overturned in Parliament.

The more we look at this, the more we wonder why we do not better understand the threats of allowing investor arbitrators to make these kinds of decisions.

I quote Juan Fernández-Armesto, a Spanish arbitrator, who was quoted in a report called “Profiting from Injustice”, which states:

…it never ceases to amaze me that sovereign states have agreed to investment arbitration at all…. Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament.

I have very little time left. This is what I would like the parliamentary secretary to pursue with me. Let us get investor-state provisions out of CETA. They are better procedurally than the ones under chapter 11 of NAFTA, but they are not acceptable.

David Lametti: Parliamentary Secretary to the Minister of International Trade

Mr. Speaker, I thank the hon. member for bringing her unique voice to the House. CETA is clearly in Canada’s national interest and we feel it is time for all of us to rally around it. On top of delivering tangible growth for our economy and opportunities for the middle class, CETA will provide a strong foundation for Canada and the EU to demonstrate leadership on what is truly a progressive accord, a green accord, a health accord, and a labour accord.

It also enshrines the right to regulate. The ICS provisions are something that the trade committee has looked at over the last few sessions. We will continue to work with the committee, and with our European partners as well.

International investment flows are a key driver of economic growth. European investments in Canada create jobs for Canadians and vice versa. These investments also create new trade opportunities where none have existed before. A comprehensive agreement such as CETA cannot ignore this crucial aspect of the economic relationship between Canada and Europe.

CETA establishes a framework for Canada and the EU to build on our already substantial investment ties. CETA’s investment chapter is designed to give investors greater security, stability, certainty, and protection for their investments, and to secure access to each other’s respective markets.

There is no opt-out provision held by any party for any element of CETA, but CETA has been deemed a mixed agreement and, therefore, requires ratification, as a whole, by each individual EU member state for things falling within their jurisdiction. Only after all parties have ratified CETA will the ICS mechanism for the resolution of investment disputes become operational.

While we know that ratification by all 28 EU member states may require some time, we are confident that this will happen. Once ratified by Canada, the EU and all of its member states, CETA will provide Canadian and European investors with a predictable framework based on principles of non-discrimination, fairness, and transparency.

Under CETA, we created a permanent tribunal that is responsible for resolving investment disputes. It is made up of 15 members who are appointed by the European Union and Canada for fixed terms. The creation of this tribunal will make it possible to move away from the existing mechanism, which involves special arbitration tribunals. Hearings and any related documents will be completely accessible to the public. These improvements seek to assure citizens that the decisions rendered by the dispute settlement mechanism are fair and objective.

Nothing in CETA prevents governments from regulating in the public interest to protect or promote public health, social services, public education, or the environment. This principle, which is well recognized in international law, is clearly set out in the CETA text.

These improvements to CETA show our commitment to ensuring that this is a progressive agreement. All Canadians can consult the full, final version of the agreement, which has been available since July 2016, in order to better understand that this is a tremendous achievement in progressive trade policy.

To answer specifically the member’s question relating to the circumstances around the ISDS provisions and application, I would like to quote CETA chief negotiator, Steve Verheul, during his testimony to the House of Commons Standing Committee on International Trade, when he stated, “Given the investment dispute resolution process will not be in place until all member states approve, we will not be able to use that mechanism, and neither will the EU.”

Therefore, in the case of the Polish mine scenario, we need not worry.

Elizabeth May:

Mr. Speaker, I want to ask the parliamentary secretary to return to first principles. The whole idea of an investor-state dispute mechanism is to deal with countries that are relatively lawless, the idea that there might be a day when someone seizes power—indeed, we were debating Cuba all day today—and nationalizes the properties and the businesses placed there by other countries over the years.

This is a large agreement involving all industrialized countries, all bound by the rule of law, with no reasonable prospect of such a thing happening. In the European Union, the reason that so many individual states and regions continue to vociferously oppose this, and why it is being challenged in the European Court of Justice, is that the Europeans have never agreed to such a thing before in the European Parliament.

The question is why on earth do we think we need investor protection when dealing with Germany, France, and other countries that are industrialized and responsible, and not likely to seize our assets? This is ambulance chasing at its worst by a clique of global lawyers, done out of greed

David Lametti:

Mr. Speaker, I would like to point out that the European Union has a number of different bilateral and multilateral trade agreements, and ISDS provisions are a standard feature in all of them.

International investment is a key driver of economic growth. It creates more trade and more jobs. The government negotiated a progressive agreement that enhances economic opportunities while ensuring our ability to regulate in the public interest. CETA will deliver benefits for consumers through lower prices and more choice, for workers through more jobs and better jobs, and for businesses through reduced costs. Our government is committed to ensuring that these important benefits for Canadians are realized as soon as possible.

This is a landmark initiative, ensuring our country’s continued prosperity.

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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.

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Will the Prime Minister commit that Parliament will have adequate time to research, study, and understand CETA before we vote on it?

David Lametti: Mr. Speaker, I thank the hon. member for bringing her unique voice to the House. CETA is clearly in Canada’s national interest, and it is time for all of us to rally around it. On top of delivering tangible growth for our economy and opportunities for the middle class, CETA will provide a strong foundation for Canada and the EU to demonstrate leadership on what is truly a progressive accord, a green accord, a health accord, and a labour accord. It also enshrines the right to regulate.

The ICS provisions, I suspect, are something that the trade committee will look at over the upcoming weeks. We will work with the committee and with our European partners as well.

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The second point is that for all that CETA has more attention than the Canada-China Investment Treaty, it does not have enough either.

Unlike the Canada-China Investment Treaty, this trade deal is one the Prime Minister has not kept under a barrel.  It has already been over-hyped by PMO with Stephen Harper claiming the deal will bring $12 billion worth of benefit toCanada. Even though this figure was called into question by an assessment conducted by the European Commission, a study that put the benefits at a more conservative $3-6 billion, Mr. Harper continues to use the exaggerated figure.

The proposed Comprehensive Economic and Trade Agreement between Canada and the European Union (known as CETA) is an ambitious attempt to cover huge aspects of our economy – impacting health care costs, supply management in agriculture, procurement, arts and culture to name a few.  As well, like the Canada-China Investment Treaty it would create opportunities for arbitration for claims for the EU investors against Canada and vice versa. It has been on a three year negotiation track with the goal of concluding negotiations by the end of this year. But Matthias Brinkmann, head of the European Union Delegation to Canada, thinks the deadline may not be met.  Speaking in Halifax on October 22, 2012,  Brinkmann confirmed that little to no progress has been made on most of the key issues.  The issues identified as among those Brinkmann describes as leaving the most difficult until last include patent protection for pharmaceuticals, procurement rules for public projects, supply management in agriculture, rules of origin and investor-state provisions.

That’s a long list to get done by the end of this year.  And then there’s the approval process.  The EU must vote to approve and so must each parliament of the 27 member states. And some member states are already angry with Canada over more restrictive Visa requirements (Czech Republic, Hungary and Bulgaria) and quite a lot of parliamentarians, certainly all those in green Parties in the EU Parliament itself, as well as Germany, Finland, Sweden, Norway, France, UK, the Netherlands, Denmark, Greece, Spain, Italy, to name a few, are concerned about Canada’s efforts to over-turn the Carbon Fuel Standard, disrupt global climate negotiations, undermine the Kyoto Protocol,  our appalling obstruction in June 2011 at the Rotterdam Convention asbestos discussions, to name a few.  Even if this agreement were negotiated between Canada and the EU, approval is far from a sure thing.  One thing the Prime Minister cares about (CETA) could be sabotaged by his record on things he thought didn’t matter (Kyoto, climate, asbestos).

Take it as read that the Green Party will support the civil society groups that are opposed to higher prices for pharmaceutical drugs by granting greater patent protection to EU Big Pharma. We will oppose any agreement that undermines our ability to ensure municipal water systems remain public, or that undercut the Canadian arts and culture sector.  We will insist that any new trade agreement be about fair trade and a fair deal for Canadians.

There is no need to rush the negotiations to a desperate last push this year.  Given the EU approval process, it is more important to get the right deal than a rushed deal.

Elizabeth May is the Leader of the Green Party of Canada and the Member of Parliament for Saanich-Gulf Islands.
Originally printed in Embassy News.

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Witness testimony this week cemented the idea that work needs to be done in freight prices, and inconsistencies in the rail system which have led to a competitive disadvantage in a number of export markets for Canadian agri-products.

CETA received both negative and positive reviews from witnesses, some highlighting the need for increased market access in Europe, while other witnesses pointed out that the EU would likely remain closed to Canadian GM products.

Many groups highlighted the effectiveness of funding in expanding access to markets internationally, but said that funding fell short of promoting a grown-in-Canada market for agricultural products. The effectiveness of labeling of products as Canadian was an issue that drew a range of different opinions from witnesses and committee members. An interesting discussion was also generated about diversification of domestic agricultural product markets in value-added products like vegetable oil and fertilizers.

The committee has not gone in camera, but did recess for an emergency vote in the House of Commons on Wednesday.

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