Attention should be paid to the fact that the Prime Minister has signed a deal with President Hu of China that promises investor protection. The text of said deal is not yet before the House of Commons, but everything I read about it (including from business analysts at Heenan Blaikie and Osler, Hoskin and Harcourt) anticipates the deal will include investor-state provisions similar to those in Chapter 11 of NAFTA.

Chapter 11 of NAFTA allows corporations from Mexico or the USA to claim damages against Canada if any level of Canadian government (municipal, provincial or federal) causes them to experience less profits than they had anticipated. Canada has actually repealed a law limiting a toxic gasoline additive when the US-based manufacturer sued under Chapter 11 — and we paid $10 million plus in damages. This outrage only gets more outrageous if the claims for multiple millions in damages come from a non-democratic enormous economy to which we have hitched our wagon as a compliant resource colony.

When will Mr. Harper share the text of this investor agreement with Parliamentarians? When will it be shared with Canadians? It was signed on September 8th when both Harper and Hu were in Russia. It must now be ratified. Assuming all the Conservative MPs who are worried about selling out our country to China do what they always do and submit to the will of the Boss, it will become a trade obligation. China will, if offended by any new health, labour, or environmental law, be able to make a claim for damages. I have already witnessed the chilling effect of Canada knowing a US based corporation can sue under Chapter 11. It was rumoured that former Liberal Health Minister Allan Rock refused to ban cosmetic use of pesticides for fear of Chapter 11 claims by US pesticide manufacturers.

What happens when Canadian laws, passed democratically, are struck down in hotel room arbitrations launched by the Communist Party of China?

I pay attention to things that CNOOC’s CEO says in public. In the August 29, 2012, Wall Street Journal, CNOOC CEO Wang Yilin said, “Large-scale deep-water rigs are our mobile national territory and a strategic weapon.” OK, so the bitumen isn’t mobile – until you mix it with diluents and stick it in a pipeline. But the oil sands do become Chinese territory. What did he mean about “strategic weapon?”

Are there national security implications?

I would love to trust in a national security review under the 2009 amendments to the Investment Canada Act, except that Stephen Harper specifically rejected the advice of the blue ribbon panel (struck after the Minmetal attempt to buy Noranda) that Canada needed a clear, objective definition of “national security.” The experts thought we should have a definition and use it to assess any takeovers of Canadian companies by foreign interests — particularly state-owned enterprises. Our PM rejected the advice. Instead the Canada Gazette for the 2009 amendments says that “national security” cannot be defined. It is, apparently, a fluid term.

Smart people I respect, like Andrew Coyne, say “don’t worry — there’s no national security threat when you cannot take the resource out of the country.” But then I run into stories like this:

Beijing hints at bond attack on Japan

Jin Baisong from the Chinese Academy of International Trade – a branch of the commerce ministry – said China should use its power as Japan’s biggest creditor with $230bn (£141bn) of bonds to “impose sanctions on Japan in the most effective manner” and bring Tokyo’s festering fiscal crisis to a head.

Writing in the Communist Party newspaper China Daily, Mr. Jin called on China to invoke the “security exception” rule under the World Trade Organisation to punish Japan, rejecting arguments that a trade war between the two Pacific giants would be mutually destructive.

Separately, the Hong Kong Economic Journal reported that China is drawing up plans to cut off Japan’s supplies of rare earth metals needed for hi-tech industry.

– The Telegraph, September 19, 2012

OK, maybe he’s just threatening to destroy Japan’s economy. Maybe he doesn’t mean it. Maybe the WTO wouldn’t let him do it…. but then there was the Sino-Forest fraud, busted by the Ontario Securities Commission:

OSC puts the spotlight on Sino-Forest gatekeepers

In its allegations Tuesday, the OSC noted that auditors Ernst & Young “were not made aware” of Sino-Forest’s “systemic practice of creating deceitful purchase contracts and sales contracts.” The commission makes no further comment on the audit firm’s work. A spokeswoman for Ernst & Young could not be reached for comment Tuesday.

The OSC issued a report in March calling on boards, underwriters, auditors and stock exchanges to improve the practices for listing foreign companies on Canadian stock exchanges, saying there has been a broad lack of “skepticism” about business practices in emerging companies like China.

– Globe and Mail, May 22, 2012

There’s a beautiful term: “broad lack of skepticism.”

It makes me nervous that Chinese companies are merely branches of the Chinese government. The Communist Party hierarchy appoints the boards of directors of CNOOC, Sinopec and Petro-China.

When I read in the business pages that Petro-China wants to bid on construction of the Enbridge pipeline, and read in the same story that Chinese companies are very competitive in their bids because of low labour costs, I picture the labourers who built the national dream of Pierre Berton’s imaginings… with a brutal and nasty history. We have a temporary foreign workers programme. It could happen. And the bitumen going through the proposed pipeline is to go to Chinese supertankers to Chinese refineries.

All this makes me nervous. It makes me nervous in two quite contradictory ways. Firstly, I am a tolerant small “l” liberal type of person. I am not Sino-phobic. China is not a country one can ignore. In terms of global climate negotiations, China’s engagement is essential. China has been, at least at COP17, far more progressive than Canada in talking about the need for a global climate deal.

I want greater ties with China for environmental endeavors, and cultural exchanges, and — yes – trade too. Losing sovereignty to China makes me nervous. I don’t want to be intolerant. But I want us to trade items made in Canada, by Canadians, to China. I don’t like the idea of China owning Canada. It makes it hard for us to point out to the Chinese government that it must start respecting human rights. We need to be really forceful in advocating for religious and political freedom in China. How do we do that when they have veto power over Canadian laws?

And then there are issues of global tensions. Mr. Harper and John Baird are talking tough to Iran. But what about the fact that, while we claim we are exerting sanctions on anyone doing business with Iran, Sinopec, now a major stake-holder in Syncrude, is Iran’s number one customer for oil? Or, that Chinese oil money helps prop up Bashar al-Assad?

So, bottom-line, the Nexen-CNOOC deal doesn’t have me nearly as freaked out as the investor deal Stephen Harper signed in Russia. But when I think about the idea of “net benefit” I just don’t see any answer but “no.”

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Canada undermined global climate negotiations in Durban in December, negotiated in bad faith, and immediately announced intent to withdraw from the Kyoto Protocol when the Environment Minister touched down on Canadian soil. Natural Resources Minister Joe Oliver kicked off the New Year with an assault on environmentalists and First Nations as “radicals.”  The Prime Minister attacked environmental groups for accepting foreign funding, even as he courted Communist Party controlled state operations from China as investors in the oil sands.  One Parliamentary Secretary said anyone opposed to pipelines and tankers was “against Canada.”  When asked to withdraw the remark as un-parliamentary, she refused.

The legislative juggernaut, C-38, repealed the Canadian Environmental Assessment Act, replacing a coherent piece of legislation with a discretionary formula for confusion, conflict and court cases.  The gutting of the Fisheries Act raised the ire of four former federal Ministers of Fisheries.  Environment Minister Peter Kent insulted the four former ministers, suggesting they had not read the Act.  Mulroney era Minister Tom Siddon showed up to testify before the sub-committee on Finance and in short order made it clear he may be the only Minister who has read the act.  While Fisheries Minister Keith Ashfield tried to claim the new Fisheries Act will improve habitat protection, the assault to habitat is real, underscored by the subsequent lay-off notices to all DFO habitat officers in British Columbia. The National Round Table on the Environment and Economy is scrapped.  The Species at Risk Act and Navigable Waters Protection Act amended to allow the National Energy Board to assume jurisdiction of endangered species or navigable waters are in the way of any pipeline.

Basic science and monitoring is being savaged with the end of funding to the Canadian Foundation of Climate and Atmospheric Science, elimination of the Adaptation research group within Environment Canada, the cuts to ozone monitoring, the closure of the Polar Arctic and Environmental Laboratory (PEARL) in Eureka, the sale of the 58 lakes in the globally unique Experimental Lakes Area near Kenora, Ontario, the elimination of the marine contaminants programme within DFO, the loss of scientists in Natural Resources Canada to study ice cores data (and the hope to find a university with a large fridge willing to take the 80,000 year ice core record Canada’s government no longer wants), the end of monitoring smoke stack emissions, cut backs in the Canada Oil and Gas research group in Halifax, and cuts at NSERC (Natural Sciences and Engineering Research Council of Canada) resulting in the closing of the Yukon Research Lab at Yukon College in Whitehorse.

The thin end of the wedge of privatization has hit National Parks – first Jasper and then the hot springs at Banff, while cuts to ecological staff in the parks compelled former Deputy Minister Jacques Gerin to call on Harper to stop gutting National Parks.

It is a blitzkrieg of bad news as cut-backs and programme cancellation hit the core areas of federal responsibility to protect nature.  The multi-faceted assault has the effect of blinding media and the public to the largest threat.  In 2012, Canada still has no plan to address the threat of climate change.

While Stephen Harper has succeeded in dramatically reducing the Canadian media coverage of climate science through the muzzling of government scientists, the atmosphere does not seem to have gotten the memo.  Around the world, the force and frequency of severe weather events has woken up even the mainstream US media.  Fires, floods, tornadoes, heat waves are wreaking havoc on agriculture and running up the bills to the insurance industry.  The culprit for much of this year’s strange weather phenomenon is the rapidly warming Arctic.  As the Arctic warms the differential in temperature between the Arctic and the Equator becomes less pronounced. That causes the jet stream to lose its straight and fast course. (Francis, Vavrus study, Rutgers/Univ of Wisconsin). Slowing down, it has allowed large low pressure systems and high pressure systems to sit for far longer periods than normal in one place —  causing flooding in the low pressure zones and heat waves and fires in the high zones.

Loss of agriculture, losses to floods and fires also cost the economy, as well as human lives. Despite the Prime Minister’s attempts to destroy the collection of data, the evidence of the climate crisis is all around us.  We are sabotaging our children’s future – but what does it matter as long as the bitumen flows?

Elizabeth May is the Member of Parliament for Saanich-Gulf Islands and Leader of the Green Party of Canada.

First published in the Hill Times.

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It can be a useful opportunity.  The NDP opted for Defence and Environment and the time for the meetings was duly scheduled by the Conservatives.  As customary, the Committee of the Whole (COW) begins when the daily business of the House is over.  The Conservatives chose the week the environment committee was out on the road, holding meetings across Canada, to have the Environment COW and then scheduled late votes both nights.  Earlier that day it was announced that last night would be the cut-off on Copyright legislation, Bill C-11.  I had many amendments to attempt removing the most onerous digital locks sections of the Copyright bill. Thanks to support from the Liberals as seconders and in forcing votes, we were able to force recorded votes.  Only once all substantive amendments had been defeated did I ask to compress the voting process to “Apply the vote,” cutting about an hour and a half off our voting time.  Still, COW did not start until about 9:30 pm and ran for four hours til 1:30 am. I attended both and wondered why anyone thought this could be useful.

True, departmental officials were available.  In each case a small table was placed at about the spot where the Prime Minister usually sits (although he was not there), and at the table top ranking officials sit in case their expertise and background is needed to answer questions.  I want to try to paint the picture of the table, one side pressed against the government bench.  In close formation, one on each of the three open sides of the table, sit the highest ranking officials.  Sitting like statues, facing each other.  True, General Walter Natynczyk had the best ram-rod like posture.  Staring straight ahead at the Defence Deputy Minister Rob Fonberg at a distance of a few feet.  The same formation for the Environment Deputy, Paul Booth, only he stared straight at Peter Kent, in the front row of government benches, flanked by the head of Parks Canada Paul Latourelle and Canadian Environmental Assessment Agency head Elaine Feldman.  What must have been going through their minds? In four hours of Defence and four hours of Environment, they never spoke.  Why were they there?  Maybe that’s what they were thinking: why am I here? 

Certainly not to help Peter MacKay or Julian Fantino answer a simple question from Liberal John McKay who asked (three times? four times?) if anyone knew the cost per hour of the Department’s current jets, the F-18s.  And the only person rustling through papers to provide answers to Peter Kent was Michelle Rempel, his Parliamentary Secretary.  And, really, when nearly every answer was like a Chinese menu, why did anyone need to be there to help with answers?

Menu options for Peter Kent:

Option A: If asked anything by an NDP MP, answer with some variation of how bad bad bad the leader of the Official Opposition was to call the oil sands a disease;

Option B: If asked anything by a Liberal MP,  say “we will never ever ever bring in a carbon tax;”

Option C: If asked by a Conservative backbencher, for extra measure one MP actually bothered to read from the script and ask Peter Kent, “will you ever bring in a carbon tax?”  Answer: We will never ever ever bring in a carbon tax, unlike those bad bad bad Liberals. 

So was there anything new?

Well, last night Peter Kent said some unbelievable things.   For one, when Megan Leslie asked if the government planned to allow Opposition Members on the delegation to the Rio plus 20 conference this June, he said “no” (that was the believable part). And then he said, for the Durban climate conference, the government had offered assistance to the two Opposition MPs who attended. He claimed that while not actually providing credentials as part of the Canadian delegation, the government helped with getting the Opposition MPs into the UN FCCC Conference of the Parties in Durban.  Well, that description only applies to two people: me and NDP MP Laurin Liu.  I tried to help Laurin.  She had a whole day in Durban without being able to get into the conference centre at all. The NGO Climate Action Network finally succeeded in begging the UN Secretariat to grant her a badge with them. I asked her last night if she had had any offer of help from the “official” delegation that I didn’t know about. Nope. 

I know for a fact I was never offered any help.  And I know I never saw any help.  Since I was granted credentials as an advisor to the Government of Papua New Guinea (PNG) and they never had any request from Canada, the whole claim was as unnecessary as it was invented.   (Fun to imagine the conversation as a senior Canadian diplomat rings up his counter-part in PNG, “We have the Leader of the Green Party, you know. And it’s kind of awkward because we are not going to allow Canadian MPs on our delegation, unless they are Conservatives, so we aren’t paying her way or helping her find a hotel, and frankly, we feel pretty lousy about it, but it would be just aces if you could accept her on your delegation.” Not.)

There was also the claim, not once but twice, that the contaminated sites programme was a Harper Conservative initiative: “Our government invested $3.5 billion”. Twice, they said it.  Even though the $3.5 billion was put in place in 2005 by Paul Martin’s government to remediate contaminated sites on federal land.  At the time they thought there were a total of 8,500 sites.  Now, with half the money gone and 40% of the sites remediated, they realize the total is 22,000 sites.  So the Environment Commissioner Scott Vaughan reported that a plan is needed.  More to the “unbelievably score card,” when Liberal Kirsty Duncan asked about the Commissioner’s report, Kent managed to insult both her and Scott Vaughan (and here I paraphrase) “The hon. member is as confused as the Environment Commissioner.”  She pressed to find out if he accepted the commissioner’s report. Nope. Not really. On toxics, Vaughan was confused. On climate, well, the poor man is obviously out of his depth.  Used out of date data sets. 

To both Liberal and NDP environment critics wanting to see plans for climate or toxic sites, Kent delivered a paternalistic, “the hon. members should be patient.”

Perhaps most unbelievable was Kent confusing the goal, to which Stephen Harper affixed his signature in Copenhagen (in the non-binding Copenhagen Accord) to avoid allowing global average temperature from reaching 2 degrees Celsius above pre-industrial levels.  Kirsty Duncan prefaced a question noting that the “window is closing” on our ability to avoid a global average temperature increase of 2 degrees Celsius. Kent looked at me as he said, (not yet recognized by the chair) “it’s closed.”   And then he rose and said the temperature in our Arctic has already risen above 2 degrees Celsius.

He said the same thing to me in Durban and I had explained that Arctic temperature increases are not the same thing as a global average temperature increase. The poles warm more rapidly than any other part of the planet.  The reason scientists are warning that we must avoid 2 degrees Celsius global average temperature increase is because that is a level of serious danger. It will be too late for low-lying island states at 2 degrees global average temperature.  That is why scientists and African nations rally around the slogan “1.5 to stay alive.”  Going beyond a 2 degree global average temperature increase is catastrophic.  The Minister of Environment doesn’t know the difference.  Kirsty Duncan explained the difference.  She is both a Liberal MP and a scientist. She worked on the IPCC. When she had clarified the science for the minister, she let out a sad sigh. It carried on her mic.  And Peter Van Loan and Peter Kent and Michelle Rempel all found that a hilarious moment.  And they all laughed uproariously. I wish I had found that more unbelievable.

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The matter relates to the composition of government delegations to international conferences, in particular to the 17th conference of the Parties that took place in Durban, South Africa at the close of 2011 under the framework convention on climate change. Members may recall that there was a change in government policy and a decision was made to exclude members of the opposition from the delegation that took part in COP 17 in Durban.

Given the passage of time, I am hoping that I will be able to determine from the parliamentary secretary what the position of the government will be in relation to the composition of the delegation to COP 18 when it occurs in Doha. I am particularly interested to know whether, at this point, the Parliamentary Secretary to the Minister of the Environment can confirm whether Canada plans to participate in COP 18 which will also include negotiations relating to the Kyoto protocol.

The reason for this question will be obvious to those who have been attentive to this issue. On return from Durban, the hon. Minister of the Environment announced that Canada had no intention of participating in the second phase of Kyoto and that we also intended to legally withdraw.

There has not been sufficient attention to the fact that when the Minister of the Environment made this announcement he did not legally withdraw Canada from Kyoto. That is not possible In one fell swoop, so he sent a letter to the UN secretariat on climate change. The effect of that letter was to give a one year notice of Canada’s intent to withdraw. This creates an interesting dynamic for the Privy Council in that the legal withdrawal from Kyoto will not take place until after the conclusion of COP 18 which is taking place in Qatar in the city of Doha.

I want to explore a couple of future prospects that I am hoping the government has considered. Will we participate in negotiations relating to the second phase of the Kyoto protocol, as we did in Durban, undermining the progress that other nations intend to make in that second commitment period? Will we stay home from Doha? If we attend Doha at COP 18, will we return to the practice of decades, not merely of a previous Liberal government or a previous majority government or a previous minority government, but going back in time, at least as far as the government under former Prime Minister Trudeau, certainly the practice of former Prime Minister Mulroney and so on through the decades, until we find ourselves in a situation where opposition members for the first time were excluded by the current government?

Will Canada be participating in COP 18? Will members of opposition parties be included? If we participate in COP 18, will we have the effrontery to participate in negotiations under the Kyoto protocol when we have already signalled our legal intention to withdraw?

Michelle Rempel: Mr. Speaker, I am glad to be able to speak to my colleague opposite’s questions this evening, because there are a lot of mistruths in her statement.

First, I will address her question with regard to the composition of the delegation leading into Durban. Our government has been quite clear in our approach to priorities, that we have a strong mandate to ensure that our economy continues to thrive and that we see job growth in this country. From that, I think in the lead-up to Durban, we felt it was very important for our government to speak with one voice at Durban, because of the varying positions that would be in violation of, or in a dichotomy with, that initial principle.

When we look at the NDP, they actually have worked against the interest of the country by going to the United States and lobbying against our jobs in the energy sector. The Liberals have a track record of complete inaction when it comes to climate change. The former Liberal government signed on to Kyoto with no plan to implement it. We also saw greenhouse gas emissions rise under its tenure. My colleague opposite’s party has been varied in its policy stance on how to approach environmental stewardship while balancing the need for economic growth.

By contrast our government has been very clear. We have said that we need to ensure that we take real action with regard to greenhouse gas emission reduction, but we also need to do that in a pragmatic way to ensure that our economy retains a competitive advantage.

That said, we felt it was very important to have our country speak with one united voice at Durban, including a recognition of the fact that we are taking strong action here at home domestically. We are leaders. The International Institute for Sustainable Development said in a recent report that our government’s policy is a good start. We are making actual progress with our sector by sector regulatory approach. We have seen regulations come into place in the transportation sector. We are now looking at the coal-fired sector. We have plans for other sector reductions and regulations as well.

Thus, number one, we have had a strong domestic approach. Number two, our government has said that the Kyoto protocol is not something we should just be standing still on with regard to an international approach to greenhouse gas emission reductions. We need to see all major emitters come to the table.

My colleague opposite has to acknowledge that the Kyoto protocol now includes less than 20% of the world’s greenhouse gas emissions at present. Therefore, we need a new agreement. We need to have all of these countries come to the table and sign on to an agreement with binding targets.

We did not feel that the opposition parties had that stance. As such, because we are proud of the approach we are taking and because we want to see real action, our government was proud to go to Durban and take that message forward.

With regard to some of the other questions the member asked, we do have a very clear position. We have been very transparent. We withdrew from the Kyoto protocol because it does not work. The international community needs a new agreement to see real reductions in greenhouse gas emissions.

Therefore, we will continue on the good work that was started in Copenhagen and continued in Cancun and in Durban this year toward that new agreement, but we will also continue with our pragmatic, balanced action-focused approach, a sector-by-sector regulatory approach to reduce greenhouse gas emissions, while ensuring that our economy is not competitively disadvantaged while we do that.

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The Kyoto Protocol is an international treaty, not merely a document signed by a former prime minister. It was ratified by a vote in the House of Commons.

If Canada legally withdraws, it will be the first time in our history we have ever withdrawn from a global treaty.

Contrary to often repeated claims, China, India and Brazil are in the Kyoto Protocol. Of all countries on Earth, only the United States has not ratified Kyoto. The element of truth in the distortion is that the first Kyoto commitment period, 2008-2012, by design, required industrialized countries to hit specific targets and deadlines.

This approach was modelled on the successful 1987 Montreal Protocol to protect the ozone layer. In that protocol, industrialized countries took on emission targets in the first phase, while developing countries could actually increase emissions.

Subsequent agreements within the Montreal Protocol brought all countries to phase out ozone depleting substances.

Under Kyoto, the developing countries took on the commitment to reduce emissions in a more general way. Brazil has done far more than Canada without specific targets. So too have India and China.

Another misunderstanding is the idea that Canada would owe anything in penalties. There are no penalties under Kyoto. (If you want to read the text for yourself, you can find it on the United Nations Framework Convention on Climate Change website). The claims by Canada’s Environment Minister Peter Kent that we would be exposed to huge costs was carefully worded to avoid a lie, but clearly was designed to mislead.

Kent speaks of the “costs of compliance.” Canada is clearly not in compliance. We are 34 per cent above the 2012 target we pledged to achieve back in 1997.

So, 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 programs 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.

Another common myth is that renewable energy gets loads of subsidies while fossil fuel pays its own way. According to the International Energy Agency, fossil fuels receive over $300 billion per year globally, while renewables receive one tenth that amount.

Having participated in climate negotiations since 1990, as well as in the ozone negotiations in 1987, I am very familiar with the ins and outs of the agreements.

In Durban, South Africa, last month, the nations within Kyoto decided to undertake a second commitment period. These commitments will begin when the first phase of Kyoto ends on December 31, 2012.

As of January 1, 2013, most of the industrialized world, but no longer representing most of the pollution, is committed to further reduce emissions to 25 to 40 per cent below 1990 levels by either 2017 or 2020 (completion date still under negotiation.) China insisted in Durban that in order for it to take on specific targets and deadlines, a second phase of Kyoto was required.

In order to get China, India and Brazil to take on targets, the most significant way Canada could help would be to rescind our letter of intention to withdraw from Kyoto and negotiate a new target that we could reach by 2017 or 2020.

As a proud Canadian, I look forward to our nation accepting our responsibilities once again and playing a constructive role in the crucial effort to control greenhouse gas emissions.

Elizabeth May (Green Party) is the MP for Saanich-Gulf Islands.

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I share Ms. May’s concern about our federal government’s withdrawal from the Kyoto Protocol. As an international treaty, with years of careful negotiation behind it, the protocol represents the best and most timely opportunity of reducing global greenhouse gas emissions. As Canada has always insisted, all polluters are now onside but we are running out of time.

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1992—The UN Framework Convention on Climate Change

The story starts 20 years ago with the over-arching climate treaty. The United Nations Framework Convention on Climate Change (UNFCCC) was negotiated between 1990 and 1992, and was signed at the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil (the ‘Earth Summit’).

Canada was the first industrialized country to both sign and ratify the UNFCCC, doing so in 1992. Signing is the easy part, usually done at a conference. Ratification is necessary for an international instrument to have legal force. It is typically conducted by a vote in a nation’s legislature.

In Canada, ratification can take place by a decision of the Privy Council (Cabinet). The UNFCCC ratification in 1992 was by Cabinet.

In the United States, ratification of treaties requires not only a vote in the Senate, but that it pass by a two-thirds vote. This additional Constitutional hurdle is why even when the US Senate has a Democratic majority, the Administration has not submitted Kyoto for ratification. However, the US did sign on to the UNFCCC under the Bush Administration, and the US Senate ratified it.

The Climate Change Threat—Assessment and Action

The UNFCCC confirms that climate change is a real threat. Its objective is ‘the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’

The difficulty, of course, is the word ‘dangerous.’ When does the additional loading of greenhouse gases from human activity (an amount far smaller than the beneficial natural levels) cease to be beneficial and become dangerous?

The answer to that comes through the guidance of another UN agency, one established for this purpose back in 1988. The UN Intergovernmental Panel on Climate Change (IPCC) is comprised of scientists appointed by governments. Their summary reports, Advice to Policy Makers, tackle this question. Whereas the danger level was once thought to be twice the pre-Industrial Revolution concentration of carbon dioxide (going from 275 parts per million to 550 ppm), the IPCC has constantly revised downward as evidence of danger comes into sharper relief.

The head of the IPCC has confirmed we should work to halt the global rise in GHG emissions such that by 2015, global emissions stop growing and begin to fall. The growing consensus is that emissions need to stabilize at 350 ppm, even though we are now at 390 ppm.
As well, the UNFCCC established the ‘precautionary principle’ which sets out:

‘Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.’

There are many other provisions within the UNFCCC, including calling on governments to both reduce emissions (‘mitigation’ in convention-speak) and adapt to those levels of climate change which are no longer avoidable (‘adaptation’).

What’s Missing

What the UNFCCC did not do was assign timelines and deadlines to the general promise to reduce emissions. Prior to the Rio Earth Summit,
former US President George HW Bush said that if the UNFCCC included deadlines and timetables he would refuse to attend the event, declaring, ‘The American lifestyle is not on trial.’

All countries have signed and ratified the UNFCCC, making them ‘parties’ to the agreement. Once enough countries had ratified to make the treaty enter into force, annual meetings called the Conference of the Parties (COP) began.

1997—The Kyoto Protocol

The third Conference of the Parties, COP3, under the UNFCCC was negotiated in Kyoto, Japan. Its goal was to bring forward the timeline and deadlines that had not been possible in Rio. There was optimism it would be possible to come to agreement. Optimism came from two events: the replacement of Bush with Clinton, and the success of a protocol to protect the ozone layer.

The Montreal Protocol on the Ozone Layer had been concluded in 1987, dealing with the Reagan Administration. (I was part of the Canadian team in Montreal. That’s another story, but I recall US Interior Secretary Don Hodell trying to block progress by saying we didn’t need to get rid of ozone-depleters. We only needed sunscreen and broad-brimmed hats!)

As early as 1995, at the first COP in Bonn, Germany, the model of the Montreal Protocol was mandated for the climate protocol. The Montreal Protocol had gotten all countries on Earth, rich and poor, to sign on.

The core principle was called ‘common but differentiated responsibilities.’

All countries agreed that as the problem had been caused by the wealthy industrialized countries, those countries would face specific time-limited commitments while the developing countries could actually increase their use of ozone depleters in the short term.

Once the industrialized world has demonstrated it’s bona fide (and developed the alternatives), the developing world takes on firm cuts as the agreement moves forward. The protocol also committed that parties would be influenced by the scientific advice as it changed.

The only significant difference between the Montreal Protocol and the Kyoto Protocol was that the ozone agreement had effective enforcement mechanisms. If any party violated the protocol, other parties could bring trade sanctions against them. With the creation of the World Trade Organization in 1995, and the mere questioning of whether environmental treaties might impede trade, Canada announced we would not sign any agreement in Kyoto that included trade sanctions. And we were not alone.

That failure is why there are no financial penalties should Canada stay in Kyoto and fail to meet targets.

Kyoto set out a combined set of firm emissions reductions that should have taken the industrialized world to 5.2% below 1990 levels by the end of this year. In fact, of those countries that made serious efforts, they collectively did reach the 5% goal. The EU, having committed to 8% reductions, actually hit a goal closer to 20% below.

But the United States under George W Bush reneged and never ratified. And, as we all know, the economies of China, India and Brazil grew enormously. Today, China is the world’s biggest polluter, but it is still a relatively small contributor to our existing problem. It only overtook the US as largest polluter recently.

Looking at the atmosphere as though it were a garbage dump (which is how we treat it), the overflowing mess from the last 100 years is still there. The mess from the last few years is certainly serious, but the industrialized world’s ‘historic’ pollution is not history. It operates every day to disrupt the climate we used to know.

As you know from the Durban updates in the past two editions of Island Tides, there is now a second commitment period under Kyoto. Without that commitment, China, India and Brazil made it clear they would not take on any hard and fast cuts down the road.

We need Kyoto. And we need to keep Canada in Kyoto. Under Article 27 (2) of the Kyoto Protocol, a party can file a legal intention to withdraw. It takes effect one year from the date it was received.

Canada is in Kyoto until December 2012. And we need public pressure to keep us there.

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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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To give you a sense of the nail-biting finish, look at this photo (new tab), taken (not by me) in the wee hours of Sunday, December 11 as two weeks of negotiations, and three days of round the clock talks, hung by a thread.

Since 2005, climate talks have been moving along two tracks – decisions under the 1992 U.N. Framework Convention on Climate Change (described as the Long-term Cooperative Action – or LCA – track) and under the 1997 Kyoto Protocol.  The key difference between the two tracks is that the US is part of the 1992 FCCC, but not Kyoto.  All other countries are within Kyoto, but the support for a second commitment period has been waning. Sub-issues abound, from funding adaptation, to monitoring, to how to account for changes to forest cover. It is ultimately enormously complicated.  But it would be a mistake to think it is challenging primarily due to its complexity.  It is challenging because the weight of some of the biggest corporations in the world, Big Oil and Big Coal, have been blocking progress.

People talk about “the U.N.” as though it were a building, or a bureaucracy.  It is both, but it is in its workings, and failings, a collection of nations, and they are a collection of people.

This is what the U.N. looks like.  It is not institutional.  It is excruciatingly human.  Here you see the faces of the key movers of progress (or blockers of progress depending on where you sit) after many sleep-deprived hours.

Standing is the President of COP17, the woman who chaired all proceedings, formal and informal – South African Minister of International Relations, Maite Nkoana-Mashabane.  To her left, sits India’s Minister of Environment and chief climate negotiator, Jayanthi Natarajan.  Across from her, the blond woman in profile is Denmark’s former environment minister, the woman who unsuccessfully battled her own Prime Minister to try to avoid disaster in Copenhagen at COP15. (William Marsden’s new book, Fools Rule: Inside the Failed Politics of Climate Change Knopf Canada, has nailed down critical details of how and why COP15 went so very badly).  Connie Hedegaard left Danish politics soon after the Copenhagen train-wreck to take up the challenge of negotiating climate on behalf of the EU. 

There in that snapshot is the drama of our future in negotiation.  Three women working in English, not the first language of any of them, translation headsets abandoned on the table. In the end, it was the Brazilian minister who found the language that allowed the whole package of agreements to be approved (dubbed “weasel words” by The Economist, and not unjustly).  Instead of “legally binding” agreements under the LCA track, the Durban agreement sets out that the LCA commitments will be in the form of “a protocol, another legal instrument or an agreed outcome with legal force.”

Some have denounced Durban as a complete failure; others claim it was an historic break through.  In truth, it was a bit of both.  If this set of agreements were all we ever achieved to reduce emissions, human civilization would not have much hope of survival.  But if the negotiations had made no progress at all, our hope of future progress would be dashed.  As Gwynne Dyer commented in his analysis, Suicide Pact in Durban, http://gwynnedyer.com, “The outcome at Durban could have been even worse – a complete abandonment of the concept of legal obligations to restrict emissions – but it was very, very bad.”

What the EU,  low-lying island states, Africa and environmental groups all wanted was a legally binding second commitment period under Kyoto.  A second commitment period under Kyoto was also the sine qua non for China, Brazil and other growing economies to take on new commitments under the LCA track.   EU leadership gained the lifeline to Kyoto with a second commitment period, to begin January 1, 2013, avoiding any gap in legally mandated reductions. 

The weakness is obvious.  The targets for reductions on the order of 20-30% below 1990 levels by 2020, only apply to the European Union and a handful of other countries  — Norway, New Zealand and Australia.  

But what did the EU gain to win that second commitment period?  An LCA track decision for an all-inclusive set of reductions (having “legal force”) negotiated by 2015, to take effect by 2020. 

And here is where it is clear the negotiations failed. 2015 is too late to act and 2020 is certainly too late to avoid shooting way past those tipping points in the atmosphere that preclude civilization from having a chance. As one scientist put it to the BBC:

“The agreement here has not in itself taken us off the 4C path we are on, but by forcing countries for the first time to admit that their current policies are inadequate and must be strengthened by 2015, it has snatched 2C from the jaws of impossibility.

“At the same time it has re-established the principle that climate change should be tackled through international law, not national, voluntarism.” (Michael Jacobs, visiting professor at the Grantham Research Institute on Climate Change and the Environment in London, UK).

Lessons from Durban?  Kyoto still matters. For Canadians to help the global process, we need to reverse the letter of intent to withdraw from Kyoto, which will not take effect until December 31, 2012. Somehow, we need to mobilize a global public to take on the fossil fuel industry. There is still hope, but with each year’s delay, we have less time.  The atmosphere is not negotiating with humanity.  And time is not our friend.

Originally published in Island Tides,Vol 24, Number 1, Jan 12, 2012.

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Never before in Canadian history has this country withdrawn from a treaty we have ratified – not on any issue. Ever.

I don’t see how other delegations that dealt with Canada’s obstructionist position in Durban, in which we negotiated as a Kyoto party, will possibly regard this as anything but negotiating in bad faith.

Ever since CTV broke the story that the Harper Cabinet had decided to legally withdraw from Kyoto – with no debate and no vote in the House – I have been, at one and the same time, certain the leak was correct while hoping they would not go through with it.

And now they have.  It is devastating.  It is even worse than all the other regressive steps of the Harper government in blocking climate action.

Kent announced legal withdrawal with a flurry of bizarre and untrue scare tactics.  As if the Kyoto Protocol had effective sanctions for law breakers like Canada.  As if Kyoto had the kind of draconian mandatory minimums of the Omnibus Crime Bill.   Kyoto has no effective enforcement mechanisms.  The only penalty would be for a country that decided to enter into second commitment period negotiations (NOT Canada). And even then it would only mean that the target Canada would negotiate (if we were negotiating) would have a top up of .3 of a tonne for every tonne we agreed to.  So in negotiations we could take into account the amount of the penalty and set out target low enough to absorb the penalty.  Each country negotiates what it will accept.  That’s why in 1997, Australia’s Kyoto target was 8% above 1990 levels, when all other industrialized countries were to go below 1990 levels. (Canada by 6%, US by 7%, and the EU by 8 %.)  True most European nations did not hit 8%.  They cut 20% and more.  Europe as a block has more than met its Kyoto targets.

Kent claimed staying in Kyoto would cost $14 billion.  Rubbish.

What are they spinning?  The cost of trying with no plan and a year from the target to reduce our emissions enough to meet the 6% target — and then deciding to buy enough credits to meet the target — could be $14 billion.  I haven’t checked their math because the whole idea is screamingly bogus.  Nothing in Kyoto obliges us to spend one dime.  Nothing in Kyoto could induce or require a country to buy credits.

And now, despite Harper’s death wish for Kyoto and Kent’s “Kyoto is in the past,” look what was approved in Durban:  a second commitment period under Kyoto.  Not enough countries have signed up to accept targets, but the intention is to do so.  Hardly “in the past.”

What’s in the past?  Canada’s reputation as a country with any integrity.  Canada’s reputation as a country showing environmental leadership.

What must not be “in the past” is our chance to avoid cataclysmic climate change.

We are running out of time (see latest International Energy Agency report).  Durban’s agreements are weak and Canada just gave them a swift kick in a place that hurts.

So although, like me, you may feel like throwing yourself down and weeping for the betrayal of our future, for the loss of Canada’s ratification of Kyoto, do not waste the energy.  Get back up.  And fight.

Get back up and resolve: Stephen Harper must not be allowed to get away with this.  There must be a political cost.

Write letters to every newspaper denouncing the will of the majority of Canadians who support Kyoto was ignored.  Spend some time on media websites.  Write comments. Vote thumbs up and down. If you have a Conservative MP, leave them messages on the constituency phone lines.  Demand an appointment. Organize protests. Go on line to petitions.  Send a donation to the Sierra Club, Suzuki Foundation, or WWF and ask them to mount campaigns to demand we stay in Kyoto.  Our legal withdrawal does not take effect until next year, so we have time to push back.

Ask why Parliament was allowed to vote on Kyoto ratification (December 17, 2002) but given no chance to debate or vote on withdrawal in 2011.  Ask why they are lying to Canadians and claiming staying in Kyoto would cost $14 billion.

I know it is almost Christmas, but how can we rejoice with our children and grandchildren when a lifeline to their future was just sawed off by a reckless government?

This is not a partisan issue.  Mulroney showed global leadership on climate.  Chretien ratified, but never gave us a plan.  Paul Martin (with Dion as Environment minister) produced a decent plan.  Stephen Harper killed the plan within weeks of becoming Prime Minister.  It is clear that the Prime Minister does not have one single solitary clue of why reducing GHG matters.  But he does understand political cost.  This betrayal must cost.

Even though it is almost Christmas, almost Hanukkah and holidays, skip some last minute shopping.  Whatever you were going to buy, your children need a liveable world much much more.

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