The Hupacasath have taken Prime Minister Stephen Harper to court over his failure to consult with them on the Canada-China Investment Promotion and Protection Agreement (FIPA), contrary to their constitutionally protected legal right.

“Stephen Harper planned to quietly table the treaty, hoping no one would notice, and then ratify it through Cabinet when Canadians weren’t looking,” said Green Party Leader Elizabeth May.  “Fortunately, the Hupacasath have challenged his right to act unilaterally on an agreement which will have a huge and destructive impact on Canada for at least 31 years.”

The Green Party called on its members and all concerned Canadians to join the Hupacasath, Idle No More, and others for a rally in support of the FIPA court challenge.

Where: Vancouver Federal Courthouse, 701 West Georgia,  Pacific Centre
When:  12:30 pm, June 5 (6&7)

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“For years, the Conservatives have been promising a definition as they accepted the CNOOC takeover of Nexen and other foreign takeovers,” said May.  “Today, in the confines of a parliamentary committee, they showed their real colours.  So did the Liberals.”

The Conservative-appointed Competition Policy Review Panel recommended in its June, 2008, Compete to Win report that:  “ … it is in Canada’s interests in a post-911 world to have in place an explicit national security test to support its trade and investments policies.  As such, we support the Minister of Industry’s statement that the government intends to carefully consider the creation of a new review requirement for transactions that raise ‘national security’ concerns …”

The Regulatory Impact Assessment Statement for the National Security Review of Investments Regulations noted that one of the major comments received from stakeholders in 2009 was that “the term national security should be explicitly defined and national security reviews should take place according to concrete, objective and transparent criteria.”

Earlier today, after being invited by the Finance Committee, May attempted to introduce an amendment calling for a national security definition.  May was not allowed to vote and, although her amendment was supported by NDP MPs, it was defeated.

“Canadians need a very clear definition of national security so that the present and future governments will be forced to act according to an agreed-upon set of principles, and not act arbitrarily,”  May said.  “Today, this was sabotaged.”

The post Conservatives/Liberals Nix National Security Definition appeared first on Elizabeth May.

One of the issues that was frequently raised in the last round of town hall meetings I held with constituents in January 2013 was the threat of the Canada-China Investment Treaty.  As I write this, the treaty has still not been ratified.  While this is very good news, the treaty could be ratified at any time by a decision of the Prime Minister and his Cabinet. If ratified, the treaty would be binding on Canada and on future Canadian governments for a minimum of 31 years.

Meanwhile, there have been a number of interesting developments in countries around the world related to this type of treaty, often called a Foreign Investment Protection and Promotion Agreement (FIPPA or FIPA). Australia recently undertook a cost-benefit study of investment treaties, which showed that these treaties create far greater costs than benefits. Since this study, Australia has taken a new and strong position: they have decided not to enter into any new FIPAs. Similarly, India also recently decided that it would not only reject any new investor-state treaties, it would also attempt to re-negotiate any existing treaties that contained investor state clauses. India’s new stance may come as a surprise to the PM as it was just last fall that Stephen Harper returned from India claiming a Canada-India Investor-State agreement was just around the corner. Meanwhile, South Africa is also reconsidering its investor-state agreements, and a recent international report which makes clear the social and monetary costs of these agreements is likely to influence other nations to also reconsider entering into investor-state agreements.

I am writing this newsletter in response to the large number of my constituents who have asked for more information on these types of treaties, and I hope you find this information helpful and will share it with others.

In This Issue…

• What is an Investor-State Agreement?
• Is an Investor-State Agreement necessary to pursue trade?
• Why is the Canada-China Investment Treaty worse than NAFTA Chapter 11?
• What happened under Chapter 11 of NAFTA??
• Are these cases taken to court?
• In the House of Commons – Hearings on the Canada-China Investment Treaty
• In the House of Commons – How did Benin get better terms than Canada?
• Your opinion matters!

The post Spring 2013 Newsletter – Investor-State Treaties appeared first on Elizabeth May.

Given his extreme attempt at secrecy, it is possible that the Prime Minister could have succeeded in quietly passing this dangerous treaty into force without the public knowing had Elizabeth May not been waiting and watching for the treaty to surface.

This treaty would give China the unacceptable power to secretly challenge Canadian laws that infringe on its business interests, and Prime Minister Harper planned to ratify it without any public consultation, meaningful debate, or vote in the House.

Although he could have ratified the Agreement months ago, huge public opposition from Canadians of all political stripes and walks of life has caused many Members of Parliament, including many Conservatives of good conscience, to reconsider the wisdom of turning over this much power to a foreign government. We suspect that it is precisely this massive public outcry that has succeeded in forcing Prime Minister Harper to reconsider ratifying this treaty for the time being.

Thankfully, Members of Parliament will finally have an opportunity to vote on this secretive and dangerous Agreement, and we need your help to make sure that all MPs stand with the majority of Canadians who do not want this treaty ratified.

On Monday, there will be a vote on an NDP motion to demand that Canada not ratify the Canada-China FIPA. We strongly support this motion and believe that it represents the will of Canadians.

Currently, both the Conservatives and Liberals have promised to vote against the NDP motion. However, the Liberals have proposed a compromise motion, which we also support and which we believe could represent a starting point for real dialogue and consultation on the Canada-China FIPA across party lines.

Please take a few minutes of your time to call or write to your NDP and Liberal Members of Parliament ask them to reach a compromise to prevent the ratification of the Canada-China FIPA without ANY public consultation.

Most importantly, please call or write to your Conservative Members of Parliament and ask that they stand up for Canada and vote to prevent Prime Minister Harper from ratifying this Agreement behind our backs. We only have a few days left.

Write a letter to your MP

Sign the online petition

Email your friend

The post We Only Have Days to Stop the Canada-China FIPA appeared first on Elizabeth May.

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Why is this? Why could we not negotiate as good a deal as Benin got from us?

Right Hon. Stephen Harper: Mr. Speaker, once again, as I think I have said many times before, Canada’s economic relationship with China is very important. China is the second-largest economy in the world and growing. I note that Canadian businesses, Canadian investors and Canadians generally have welcomed the fact that we will have legal protections in our dealings with China.

The post Question Period: International Trade appeared first on Elizabeth May.

This agreement does not open a single new market with China. It can still refuse Canadian investors’ interests in its energy sector or its IT sector. However, we are wide open to investments from the People’s Republic of China, and if this agreement is ratified we will be sued for billions of dollars if we improve our laws to protect the environment, health or labour standards.

Kerry-Lynne D. Findlay: Mr. Speaker, as I have said, this investment treaty will fundamentally help protect the interests of Canadian investors. I also point out, and we so assert, that it is our government that brought greater transparency to the treaty review process. It was our Conservative government that, in 2008, introduced a formal tabling policy that requires international treaties to be tabled in the House before their ratification or coming into force. In this case, the opposition parties simply chose not to debate it, despite having had several opportunities to do so.

The Canada–China FIPA is similar to the 24 other investment treaties Canada has signed with key trade and investment partners. This is yet another demonstration of how our government is creating jobs, growth and long-term prosperity for hard-working Canadians and protecting their interests.

Part One: http://elizabethmaymp.ca/parliament/questions/2013/01/30/adjournment-proceedings-foreign-investment/

The post Adjournment Proceedings – Foreign Investment appeared first on Elizabeth May.

As I had been anticipating, this treaty fairly closely models what has been done in other investor state treaties, but it is more egregious than usual in that we are allowing the People’s Republic of China and its state-owned enterprises the ability to circumvent our courts, bypass our court system, and go directly to an international arbitration and challenge any law passed at the municipal level, provincial level, federal level, or even any decision of our courts. They can challenge that it has cost them profits and therefore they demand an arbitration process, which is set out in the Canada-China investment treaty.

The practice of previous governments in this circumstance is well documented in constitutional law texts. I would refer anyone who is concerned to review the foundational text by Professor Peter Hogg. Even with treaties such as this one that did not require implementing legislation, which is the usual reason that treaties must be put to a vote in the House of Commons and the Senate, the usual practice by previous prime ministers was to bring such treaties to a vote in the House whether they required implementing legislation or not. I would refer briefly to the Kyoto protocol. There was no need for implementing legislation, but it was brought to the House of Commons for a vote.

Instead, and this has been lauded by representatives from the other side of this House, they adopted a practice called mandatory tabling of a treaty for 21 sitting days. The timing on those sitting days, taking into account weekends, Thanksgiving and so on, was from September 26 to November 1. Thereafter, at any point, the treaty could be ratified by a decision of cabinet in order in council.

The question I put to the Prime Minister was whether or not the constitutional aspects of this had been properly considered. I will quote my question: “Do arbitrations for damages against Canada for decisions at the provincial level not demand explicit agreement” with the provinces before the treated is ratified?

In support of the case that I have made that this treaty violates constitutional rights and promises–and let me also say in light of the Idle No More movement of first nations–I put into discussion this evening a letter to the Prime Minister dated October 12, from the recognized international law expert in arbitration process, Gus Van Harten, associate professor at Osgoode Hall Law School.

What he wrote to the Prime Minister on this topic was this:

The treaty clearly impacts on provincial powers on natural resources, taxation, land and property rights, and other matters. It applies to provincial legislation, regulations, or court or tribunal decisions that affect Chinese-owned assets, with limited exceptions. It does not contain a NAFTA-style carve-out for provincial performance requirements or any carve-outs for provincial measures regarding the treaty’s expropriation and fair and equitable treatment provisions.Thus, there is a real possibility that, over the lifespan of the treaty, Canada will face billion dollar-plus awards due to provincial decisions that are not reviewable in Canadian courts.

This is clearly unacceptable. I await the parliamentary secretary’s response.

Kerry-Lynne D. Findlay: Mr. Speaker, exporting Canada’s world-class goods, services and expertise to new, fast-growing markets around the world is a key part of Canada’s economic action plan for jobs, growth and long-term prosperity. Our government is delivering on this commitment. In fact, the Minister of International Trade is leading a trade mission to Ghana and Nigeria this week to do just that. Africa is one of the fastest-growing regions in the world. According to the International Monetary Fund, five of the world’s twenty fastest-growing economies are in sub-Saharan Africa. Canadian companies are creating jobs and prosperity throughout Africa, and our government is creating new opportunities for Canadian exporters by opening new markets in this dynamic region.

However, promoting Canadian interests internationally also means creating the conditions for Canadian investors to invest with confidence. That is exactly what our government is doing with our foreign investment promotion and protection agreements. In fact, our government has concluded several such agreements with our partners in Africa, including Tanzania, Benin and Senegal. We have also concluded such an agreement with China, the world’s second-largest economy. This agreement will provide stronger protection for Canadians investing in China and create jobs and economic growth right here at home. This agreement establishes a clear set of rules under which investments are made and under which investment disputes are resolved. This treaty is about protecting the interests of Canadians. The FIPA also ensures that all investment disputes are resolved under international arbitration, ensuring that adjudications are independent.

I emphasize that ours is the first bilateral investment agreement China has signed that expressly includes language on transparency of dispute settlement proceedings. Let me be clear. It is Canada’s long-standing policy that all dispute resolutions should be open to the public and that the submissions made by the parties be available to the public. It is unfortunate that anti-trade activists have continued to spread such misinformation about this agreement.

Part Two: http://elizabethmaymp.ca/parliament/questions/2013/01/30/adjournment-proceedings-foreign-investment-2/

The post Adjournment Proceedings – Foreign Investment appeared first on Elizabeth May.

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I urge members to look at the inherent unfairness of arbitration.

Hon. Tony Clement: Mr. Speaker, I thank hon. leader of the Green Party for her intervention and question on this issue, but I would remind her that, as we know in this place, in fact, this whole treaty is about protecting Canadians who are investing in China, to give them the same rights and protections that Chinese investors and other foreign national investors already have under Canadian law here in Canada. I cannot imagine the hon. leader of the Green Party would not want that to happen.

The post Question Period: Canada-China Investment Treaty appeared first on Elizabeth May.

The Indian government’s resistance is understandable. Following an attempt by the Indian government to recover taxes from an Indian subsidiary of UK-based multinational Vodafone, Vodafone threatened to challenge the Indian government’s decision by initiating arbitration proceedings under a bilateral investment treaty such as the pending Canada-India or Canada-China FIPAs. In response to this threat by a multinational against a decision taken by a democratic government, the Indian Parliament is reviewing all such agreements and will not likely sign another, similar to the decisive stance taken against FIPAs by the Government of Australia.

“Despite signing this FIPA more than 5 years ago and despite Canadian pressure, the Indian Parliament has declined to ratify this treaty and instead decided to reconsider some aspects of the Agreement that it found troubling,” said Elizabeth May, Green Party Leader and MP for Saanich-Gulf Islands. “This is precisely what Canada should be doing now with the Canada-China FIPA”.

In an ironic twist, Prime Minister Stephen Harper calmly indicated his patience with the decision by the Indian Parliament to review such treaties, stating, “It’s hard to simply impose solutions and there are often a lot of barriers to getting things done at the governmental level. I’m one who happens to believe that democratic institutions, while they may slow things down, actually in the long term produce more robust outcomes with greater social buy-in and more secure long-term economic development.”

“What is truly shocking about the Prime Minister’s stated willingness to respect the democratic preferences and institutions of other countries while negotiating FIPAs”, observed May, “is his complete disdain for the will of Canadians and the role of our Parliament here at home. Will he take his own advice and submit the Canada-China FIPA to a Parliamentary review?”

The post Prime Minister’s Trip Fails to Pressure India to Ratify Canada-India FIPA appeared first on Elizabeth May.

Now that the treaty before us includes investor state provisions, which means Panama could complain should Canada later impose different conditions for more tax transparency in its dealings with Panama, should we not, as the official opposition has been suggesting today, execute those tax transparency measures prior to giving Panama the right to sue us if we bring them in later?

Bob Dechert: Mr. Speaker, I am kind of surprised by the member’s question. She knows that all treaties in Canada are subject to Canadian law, so there is no way that Panama, or any other government under any treaty, could make a claim against Canada for doing something that is subject to Canadian law. Therefore, the question really does not make any sense in that context.

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