Elizabeth May (Saanich—Gulf Islands)
2021-05-10 15:50 [p.6969]

Madam Speaker, very quickly I would add that we did canvass the issue in an emergency debate. It is a legitimate concern of the State of Michigan to protect the waters of the Great Lakes, but we all agree a solution must be found. This is an existing route and it should be maintained by one means or another.

I would say this very quickly to the hon. member. He mentioned in debate the other night that losing the energy chapter of NAFTA in the new CUSMA somehow hurt Canada’s energy security. I actually believe it is the opposite since that section only served to ensure that whatever quantity of fossil fuels or any product Canada was exporting to the U.S. would have to be maintained in perpetuity for those energy products. For instance, even if we were running out of our supplies of natural gas we would be required to continue to sell whatever share the U.S. got at its highest level. Would he not agree this is an improvement to have autonomy?

Greg McLean (Calgary Centre)
2021-05-10 15:51 [p.6969]

Madam Speaker, that is a good question. The actual terms of the energy agreement in the former NAFTA was a proportional sharing agreement. It was not an absolute sharing agreement to the highest levels that we provide to the U.S.; it was a proportional sharing agreement so that if in some emergency or international incident we had to cut back one-quarter to the U.S. we would be incumbent to cut back one-quarter of our own supplies, as would the U.S. if we think about the way this product goes across the borders in both its raw and finished states. It is called a treaty for a reason, so that we can get some solidity on our energy security as an economy going forward.

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Elizabeth May (Saanich—Gulf Islands) 2020-03-11 16:21

Madam Speaker, it is always difficult to look back. I know people tend to forget what happened in the 41st Parliament. The passage of the Canada-China investment treaty is one on which we really need to focus. People forget that it exists. I have heard so many members speak to the issues we have in CUSMA, now that we have gotten rid of chapter 11, the investor-state dispute settlement provisions, that allowed the U.S. government to sue us in secret. However, it was under Stephen Harper that we are now obligated, for decades, to secret tribunals, where the People’s Republic of China state-owned enterprises have the right to lean on the Canadian government in secret, first for six months, and then bring secret arbitration cases, if we do anything that hurts the expectation of profits of corporations from the People’s Republic of China. Would the member be willing to look into the implications of that, which was passed in secret, in cabinet, without a vote in Parliament?

Cathay Wagantall (Yorkton—Melville) 2020-03-11 16:22

Madam Speaker, I cannot answer that. However, if we were forming government, we would be far more careful about the way we encourage investment from China in our country going forward.

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OTTAWA — The Green Party of Canada welcomes the improvements in the final NAFTA 2.1 (officially the Canada-United States-Mexico-Agreement, or CUSMA) signed this week in Mexico, but still sees flaws in the agreement.

Green Party International Trade critic Paul Manly (MP, Nanaimo-Ladysmith) voiced guarded support.

“There are definitely positive outcomes in this agreement as it does strengthen labour and environmental standards,” said Mr. Manly. “I’m glad to see investor state dispute settlement (ISDS) provisions gone. I’m encouraged to see that the proportionality clause that obligates Canada to maintain a fixed share of energy exports to the U.S. has been eliminated.

“The proposed patent extension on biologic drugs has been removed, which is a positive measure for implementing a universal Pharmacare program. Improved Rules of Origin governing where goods are produced and what materials they contain will be critical to ensuring standards of transparency in manufacturing.”

However, Mr. Manly is waiting to see how the new state-to-state arbitration will play out and whether the new agreement will finally put an end to the softwood lumber dispute. “With regulatory cooperation, will regulations improve or be incrementally eroded?” he wondered, adding that he is also concerned about the erosion of our supply management system which will certainly elicit pushback from Canadian farmers.

“This agreement is definitely an improvement over the first NAFTA,” said Green Party Parliamentary Leader Elizabeth May (MP, Saanich-Gulf Islands). “Even before the changes insisted upon by U.S. Democrats, it was already significantly better due to eliminating the energy chapter and Chapter 11 (ISDS). Ultimately, we have to remember that there is not a choice between no NAFTA and new NAFTA. We certainly support this revised NAFTA as an improvement on the status quo.”

# # #

For more information, or to arrange an interview contact:

Rosie Emery
Press Secretary
613-562-4916×206
rosie.emery@greenparty.ca

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July 18, 2017

Written submission in response to the Canada Gazette Notice

RE: Consultations on the Renegotiation of the North American free trade agreement (NAFTA)

What should be the goals of free trade? 

NAFTA, despite being a deeply flawed agreement, has become a template for free trade and bilateral agreements around the world. As the number of agreements have multiplied, so too have the problems arising from the form and structure of NAFTA. It is time we rethink how we structure free trade. Trade isn’t just about the export and import of goods and services. Trade agreements also impact human rights, labour standards, cultural diversity, environmental laws, and even constitutional rights. Hewers of wood, drawers of water – Canada’s longtime international reputation – was to be reformed under NAFTA. Now, many Canadians and public policy think-tanks admit that the trilateral integration has not lived up to its promises of widely-shared income benefits and increased productivity.

As our Prime Minister acknowledges: “What we’re facing right now – in terms of the rise of populism and divisive and fearful narratives around the world – it’s based around the fact that globalisation doesn’t seem to be working for the middle class, for ordinary people.”

Where I think we disagree, and has been apparent from the Prime Minister’s recent decisions to sign and implement the Canada-European Union Comprehensive and Economic Trade Agreement (CETA) and push for the Trans-Pacific Partnership (TPP), is that the Prime Minister believes the problem is in style, not substance. He believes the positive impacts of globalization are not being effectively communicated to the middle class. The Green Party, on the other hand, believes that there are simply not as many positive outcomes of free trade, as currently structured, as there are drawbacks. Free trade can’t simply be seen to work better for Canadians – it has to actually work better.

Current Problems with NAFTA 

Chapter 11: Investor-State Dispute Settlements 

Chapter 11 of the agreement has been interpreted so broadly as to be nearly unrecognizable in its enforcement in comparison to its original intent. Let’s not forget that foreign investment protection agreements (FIPAs), as they are now commonly referred, were devised as a mechanism to protect Canadian and American investors from the Mexican justice system, which at the time was seen as susceptible to corruption and political interference. The Mexican justice system has since undergone substantial reforms. We now deal routinely with large agreements, as in the case of CETA and the TPP, that involve industrialized countries bound by the rule of law, with no reasonable prospect of expropriation of property. Canada need no longer act as prime protector of Canadian investment abroad.

The reality of the arbitration system as currently structured is that the Canadian government is the most sued under Chapter 11 provisions, the majority of which are not for violations of article 1110 (direct or indirect expropriation) but rather the use of other articles to challenge environmental protection, resource management and health care. As of 2015, nine active Investor-State Dispute Settlement (ISDS) claims places Canada liable for over $6 billion in alleged damages. And Canadians should be concerned about losing these cases – Canada is notoriously unsuccessful in tribunals, with claimants being successful in 46% of claims against Canada.

Yet proponents of ISDS continue to make erroneous assurances that, as the Parliamentary Secretary of Trade, David Lametti, recently said of CETA, “Nothing .. 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.”

The reality is that ISDS mechanisms lead to regulatory chill. As Professor Gus Van Harten explains succinctly : “Corporate giants and the super-rich, alongside the ISDS legal industry, have been the main beneficiaries of ISDS by far, at significant expense and opportunity cost to countries and to those who would have benefited from laws and regulations that were deterred by ISDS.”

Removal / Clarification of Chapter 11 

There are those who claim that recent jurisprudence suggests a limiting of the interpretation and scope of the NAFTA tribunals. In fact, the opposite is true. While the recent decision in the long-awaited Eli Lilly Case went in Canada’s favour, the implication was that had Lily’s claims not been as baseless as they were, the tribunal could have ruled in their favour. As the tribunal pointed out in its conclusion, it could not find allegations of arbitrariness or discrimination because there was no “fundamental or dramatic change in Canadian patent law.” As Michael Geist, professor of Law at the University of Ottawa, puts it: “While Eli Lilly failed in its efforts to use the dispute settlement system to extract hundreds of millions from Canadian taxpayers, the dangers of the system remain a reality … as new trade deals are negotiated or renegotiated, should rethink the need for investor-state dispute settlement provisions in agreements with countries with respected court systems that offer investors sufficient protections and reliable legal recourse.”

The ISDS provisions in NAFTA are deeply flawed. Any renegotiation of the agreement must have at its fundamental core the goal of limiting the potential of ISDS tribunals to intercede on Canadian sovereignty by deterring or chilling the exercise of lawmaking power. The Green Party advocates for wholesale removal of Chapter 11 from the agreement, or at the very minimum, a limiting of investor protections. Investors should be protected from threats of expropriation, but it is unreasonable and over broad to protect their profit-loss at the expense of taxpayers.

Water 

Of the threats to Canadian sovereignty posed by NAFTA, the agreement’s stipulations with regards to water are of chief concern. NAFTA threatens Canada’s control over our water – classifying Canadian freshwater as a good or service capable of being exported for a price.

This characterization was summed up by then Assistant Deputy Attorney General Mr. Konrad Von Finkenstein, who testified to the House of Commons Legislative Committee on the NAFTA implementation bill in 1993: “… if you trade water in its natural state you put in tanks, or bottles, or something and sell me freshwater that you’ve taken out of a well or something like that, then you are indeed trading in water and it’s then a good and is covered by the GATT, by the FTA, or by the NAFTA … Water is no different from any other resource.” We disagree. As stewards of 9% of the world’s renewable water, we cannot simply treat it like any other resource.

The issue of freshwater will only become more vital as we face the effects of climate change and the accompanying scarcity of water resources. We must act to enshrine, enforce and strategically implement the 1987 Federal Water Policy to meet the requirements of sustainable water management – equity, efficiency and ecological integrity. We must remove all mentions of water as a good from NAFTA, in addition to passing federal legislation to prohibit bulk water exports, building on the current law banning exports from trans boundary basins. Canada can also work to ensure the removal of similar language from CETA, and other trade deals based on the NAFTA template.

Resources 

Raw Logs

Donald Trump may be the loudest sabre rattler on NAFTA, but it was under Barack Obama that Canada failed to reach an amicable settlement to the long lingering softwood lumber dispute. Thousands of jobs and dozens of mills are under threat without an agreement. Canada’s forest heritage – 300 million hectares or 10% of all the world’s forests – is on the line.

Canada has the power to defend our forestry industry. We must cease the practice of exporting raw logs, and focus on keeping value-added jobs in Canada by implementing a substantial whole log export tax. And throughout the process of renegotiation, Canada must work toward a management strategy for our forests with long-term, environmental sustainability as a priority.

Energy

While energy lobbyists and others have advocated that the NAFTA provisions touching the energy sector shouldn’t be altered, the Green Party believes it must be a part of the renegotiations. Canada’s need for an energy reserve and its own long-term energy security must be recognized. Export controls must be allowed in the context of domestic environmental frameworks, especially in light of the recently agreed to Pan-Canadian Framework on Clean Growth and Climate Change.

Commission for Environmental Cooperation 

NAFTA’s Commission for Environmental Cooperation (CEC) has been effective, though slow, in holding all three NAFTA countries to account on issues of environmental stewardship. Some have suggested the future of the council is in jeopardy due to recent Trump cuts to the Environmental Protection Agency. Despite this more recent development, it’s been Canada, not the US, that has been threatening the credibility and effectiveness of the Commission.  During a period of one year under the former Harper administration, the Canadian government successfully stopped three separate CEC investigations into Canadian misconduct, including BC salmon farms, polar bear protection and Alberta’s tailings ponds. Renegotiation serves as an opportunity to not only redouble our commitment to the principles of the CEC, but also to protect and strengthen the Commission by putting into place mechanisms to ensure the Commission operates free from political interference.

Health Care 

The threat of a NAFTA challenge from the American for-profit health care industry cannot be over-estimated. Allowing further for-profit health care schemes to operate in Canada will be the ‘thin end of the wedge’ that could jeopardize our entire health system. Based on the rules for ‘national treatment,’ if Canada allows increasing numbers of for-profit facilities, we run the risk of losing our entire universal single-payer system in a single NAFTA challenge. We cannot take that risk. As Dr. Danielle Martin, vice-president at Women’s College Hospital Toronto, recently framed the issue: “If strong provisions that exclude health care from free trade are not maintained and in fact strengthened, in any renegotiated trade agreement, American insurance companies and health care delivery organizations could claim the right to a Canadian private health care market.”

Canada’s Dairy Industry

Canada needs to ensure that supply management is defended and protected. One key reason has to do with human health and the health of dairy cow, namely that Canada rejected regulation of the Monsanto product, Bovine Growth Hormone (BGH). Competition between US dairy products and Canadian dairy products will inevitably lead to the approval of BGH in Canada, unless we reject changes. We must be very clear – any US dairy products allowed into Canada must be free of BGH. Canadian regulators found that the health risks were too high.  This aspect of Canadian dairy supply management must be advocated forcefully by Canada’s negotiators.

Solidarity with Mexico

Canada may not be in the cross-hairs of the US Administration, but Mexico surely is.  Mexico’s economy underwent a far more radical transformation than Canada’s due to NAFTA. The Maquiladora areas set up under NAFTA have created pollution havens. The diesel truck exhaust has negatively affected the health of Mexican children along heavily trafficked routes. The dumping of US corn in Mexico undermined local agriculture and led to a movement of displaced growers to urban areas.

Mexico must not be abandoned by Canada. We should use our economic influence and clout to help protect the economy and people of Mexico.

The Possibilities and Perils of Renegotiation 

As Canada enters a renegotiation of NAFTA, we have an important opportunity to address the negative impacts of the agreement. As President Trump rejected the TPP, perhaps he is open to removing the ISDS provisions from NAFTA. Protecting legitimate economic activity while removing perverse elements of NAFTA is a winning formula that may give the US President what he craves in populist approval domestically, while protecting the significant and symbiotic trade linkages between Canada, the US and Mexico. Canada’s success in these renegotiation talks depends on standing up for Canada – acknowledging that not all of NAFTA was ever to our benefit.

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

A PDF copy of the original submission is available, here.

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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.

The treaty has never had so much as a day of committee hearings – one hour was allowed in the trade committee on October 18, 2012.  The Thursday motion allowed six hours of debate, but Green Party leader Elizabeth May, who has studied the treaty and led the fight against it, was not allowed a speaking slot.  Her 60-second briefing on October 24, 2012, using her S.O. 31 to alert the public and fellow Parliamentarians remains the only briefing to the House. She will rise in the House today at 2 pm using an S.O. 31 to detail why the motion must pass.

“I call on all Members of Parliament, regardless of party affiliation and heedless of whips, to vote in support of the NDP motion today.  While I regret that the NDP did not accept Liberal amendments to achieve a compromise on Thursday, the reality is rejecting this particular treaty could still allow negotiation of a better one if the motion carries,” said Elizabeth May, M.P. for Saanich-Gulf Islands.

All Liberal and Conservative MP’s should ask their party the following questions:

1. Why does this treaty lock Canada in for 31 years, when NAFTA allows 6 month notice to exit, and even the investment treaty with Benin, tabled in the House after the China Treaty, allows exit in 16 years?
2. Why does the China treaty give the State Owned Enterprises from China a six month window for diplomatic wrangling, within which Canadian governments and businesses can lose in behind-closed-doors pressure by China on the Canadian government? No other investment treaty includes a 6-month nation to nation diplomatic process.
3. Why is this the first treaty in years that allows the entire arbitration process to remain secret, allowing Canada only the option of making it public?
4. Why has Australia, with a 10-fold larger volume of two-way trade with China than Canada, refused to enter into investor-state agreements, including refusing to negotiate one with China. Why has Canada not conducted a study, as Australia did, to determine whether these treaties do more economic harm than good?

“Unless every Member of Parliament can get satisfactory responses to these questions, any vote in support of this treaty will be an abdication of our responsibility as Canadians to ensure we are not giving the Peoples’ Republic of China the right to challenge our laws – whether municipal, provincial or federal, or court judgments – claiming billions even for measures taken with no intent or evidence of trade discrimination,” said Ms. May.

“While a courageous First Nations community, the Hupacasath First Nation, seeks an injunction in Federal Court against the ratification of this treaty, Canadian MPs should do the right thing and vote to calls on the federal Cabinet to refuse ratification.”

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It is now sitting before the Privy Council of this country. Most Canadians would take that term to mean the cabinet. At the time it decides to pass an order in council, the Canada-China investment treaty will be legally binding on Canada. Given its difficult provisions, it is very difficult to exit the Canada-China investment treaty compared to NAFTA, for instance, which has a six-month exit clause that can be exercised by any one of the parties: Canada, the U.S. or Mexico.

The Canada-China investment treaty is in effect for a first 15-year period. If a future government wants to exit the treaty, it needs to give a one-year written notice. Any existing investments from the People’s Republic of China within Canada would be further protected for another 15 years after we try to exit the treaty, so it is essentially locking us in for 31 years.

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I raised the issue with the Prime Minister on November 21, because he was just back from a trade mission to India. Some of the news reporting at the time had been a little misleading. It suggested that we had a treaty with India on investments and that the Indian parliament was not yet ready to vote on that treaty. The Prime Minister’s response was right. I had taken the newspaper coverage at face value. We do not yet have an investment treaty with India.

Since the time that has elapsed that I could pursue this question in adjournment proceedings, a lot has happened in India on this subject. I am looking forward to the government representative’s response to this. India is taking a very dim view of investment treaties, such as the one that now sits before Privy Council between Canada and the People’s Republic of China. This class of agreements, investor state provisions, do not open up new markets necessarily. Certainly the one with China does not. What they do is give foreign investors superior rights to seek arbitration damages against the country in which they are investing.

In the case of India, the Indian government has decided, as recently as late-January 2013, after a raft of suits from foreign corporations—they are looking at upwards of $5 billion in current arbitration charges against India—to put a freeze on all investment agreements. Certainly any hopes Canada has for getting a new investor state agreement with India are on hold, because India is putting on hold all investor state agreements, and it wants to reopen and renegotiate the ones it has already agreed to.

This puts India in the same category as Australia. It did a full cost-benefit analysis on investor state provisions and decided that they are not of benefit to Australia. South Africa is now also re-examining investor state agreements.

It is time for Canada to do a cost-benefit analysis, as India is doing and as Australia has done, and not only refuse to ratify the Canada-China investment treaty but never enter into one of these things ever again.

Gerald Keddy: Mr. Speaker, I thank the member for Saanich—Gulf Islands for her interest in this subject, and I wish her good luck in maybe reaching a better understanding of it.

I know that she is new to this House and may not be aware that prior to our forming government in 2006, treaties such as the FIPA with China were never brought to this place. There was no opportunity to debate them. There was no discussion about them. I think it was around 2007 that we brought in the rule that treaties would be tabled in the House of Commons for 21 sitting days. Of course, the hon. member did not take advantage of those 21 days. Unfortunately, her party is not large enough to take advantage of those 21 days to force debate. The official opposition did not take advantage of that opportunity to force debate on this issue, and the Liberal Party of Canada did not take the opportunity to force debate on this issue.

What we have, quite frankly, is a whole lot of innuendo, rumour and some misinformation, although I will be fair to the member for Saanich—Gulf Islands. She has not come anywhere near the rumour and innuendo the NDP have put onto this issue.

The principle of a FIPA, or the Canada-China Foreign Investment Protection and Promotion Agreement, is to make sure that Canadian investments in China are protected and that there is reciprocity so that Chinese investments in Canada are protected. The member was quite right when she said that it is over a 15-year period and that at the end of that period, either side, either China or Canada, can opt out of it.

Obviously, those investments already made need some longevity and protection, so another 15 years for those investments that have already been made is not untoward or unreasonable. I suspect, with the hon. member’s background as a lawyer, that she probably wrote a number of agreements similar to that herself in the past.

This is about giving Canadian companies investing in China the same rights and privileges a Chinese company would have. This is about protecting Canadian foreign direct investment in China. We cannot do that without allowing those same rights and privileges to the Chinese. It is called reciprocity. It is called fairness. It is called reasonable, rules-based trading.

I appreciate that the hon. member did not go along with the fear-mongering of the NDP. This treaty in no way impedes Canada’s ability to regulate and legislate on such areas as the environment, culture, safety, health and conservation, which is another thing that needs to be brought up.

What this does is establish a clear set of rules for trading and investment between Canada and China. It promotes trade, helps the Canadian economy, and provides jobs and opportunities for Canadian workers. It is a good agreement.

Elizabeth May: Mr. Speaker, let me amend my earlier statement to make it very clear that I also believe that the Canada-China investment treaty will create a chill for future Canadian governments if we ratify it on those very areas of the environment, health, safety and labour.

I will move to the member’s point that I may be new to this House. I did not just drop off a turnip truck. I have been working on investment treaties for a very long time.

Go back to chapter 11 of NAFTA, which was the first in the world. Of course, it was subjected to a vote in this House, because NAFTA was a much larger treaty and had to have lots of other ancillary laws changed. Interestingly enough, if Canada were to give the six-month notice to exit NAFTA, there would be no grandfathering of other investments. In that sense, the Canada-China investment treaty is very unusual in having a 15-year first period and a further 15-year lock-in.

This treaty is one that should never be ratified. Canada should follow India’s and Australia’s lead and study this whole area to see if, on a cost-benefit analysis, these treaties are worth the paper they are written on and protect Canada’s interests.

Gerald Keddy: Mr. Speaker, I know I only have a minute to sum up, so I am going to try to stick to a couple of important issues and simply correct the record.

Again, in no way, shape or form does this treaty impede Canada’s ability to regulate and legislate in areas such as the environment, culture, safety, health and conservation. The hon. member is incorrect. She is fearmongering and following in the footsteps of the NDP. It is unfortunate to hear that type of rhetoric in the House, quite frankly.

This is no different from 24 other foreign investment promotion and protection agreements that we have already signed with other countries around the world. It is similar to the agreements that apparently dangerous countries, according to the hon. member, such as New Zealand, Germany, the Netherlands, Belgium and Japan have already signed with China. There is nothing untoward here. This again is broken down to rules-based trading. Everybody knows the rules. That is fair trading.

The post Adjournment Proceedings – Foreign Investment 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/

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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/

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