Submission in Response to “Our Security, Our Rights: National security Green Paper, 2016”

To: The Standing Committee on Public Safety and National Security

From: Elizabeth May, O.C.
Member of Parliament
Saanich-Gulf Islands

Date: November 18, 2016

Introduction:

This brief is prepared in response to the Green Paper, “Our Security, Our Rights: National security Green Paper, 2016.”  I am incorporating the views of my constituents who attended a Town Hall on this paper on November 8, 2016.  Those in attendance overwhelmingly want most of what was C-51 repealed.

I hold both of the ministers under whose signatures the document was released, as individual public servants and as members of the government’s Privy Council, in the highest regard.  Therefore, I regret that my response to the Green Paper is to find it slanted and distorting. It should not be the frame within which the previous parliament’s Bill C-51 is reviewed.

It misses by miles the main objections to the omnibus Anti-Terrorism Act, (formerly known as C-51, and which I will reference as C-51 in this submission).  It frames the issues in such a way that public commentary is likely to be misdirected to lesser concerns.

The four bulleted points in the Ministers’ message presumes that the range of review and change is exceedingly narrow.

I will take each in turn:

1. “Guarantee that all Canadian Security Intelligence Service (CSIS) warrants comply with the Canadian Charter of Rights and Freedoms”

This commitment may mislead the average citizen into thinking the Liberal government is serious about redressing the egregious and anti-democratic nature of C-51.  But the commitment presumes that CSIS agents will be going about seeking warrants.  It anticipates and pre-judges the future role of CSIS.

The elephant in the room is ignored:  Was the previous government justified by evidence of good public policy to convert the Canadian Security Intelligence Service into an active agency for “disruption of threats”?

The original raison d’être for CSIS was to ensure it remained exclusively an intelligence gathering agency.  There was no justification for abandoning that role.  It makes far more sense for CSIS to be mandated to provide full intelligence at its disposal to the RCMP.  It makes far more sense for there to be a Federal Security Czar to ensure that information is shared between and among Canadian security agencies. While the proposed C-22 to establish a committee of Parliament to provide oversight is a step in the right direction, it is, by itself, inadequate to ensure full information sharing, as was recommended by the Air India Inquiry.

It must be on the table for public consultation that Part 4 of C-51 (the amendments to the Canadian Security Intelligence Service Act) be repealed.  The fundamental question is “Will empowering CSIS to disrupt plots and threats improve Canadian security?”

The evidence before the House and Senate committees examining C-51 was that it will not.  In fact, C-51 decidedly will reduce the security of Canadians.  This was the advice of no less than Mr. Justice John Major, who chaired the Air India Inquiry, as well as of UK intelligence expert, M-15 agent Joe Fogarty.

Creating CSIS as a secret police, for that is what it has become, is not only an affront to the Charter, it sets in motion competition and non-cooperation between the various agencies engaged in security in Canada.

The architects of C-51 completely ignored the advice from the Air India Inquiry.  As Craig Forcese and Kent Roach testified to the House Standing Committee on Access to Information (November 3, 2016), “Information is the currency of any effective security system, especially one that seeks to pre-empt terrorism.  The Air India commission recognized this, and urged that the CSIS Act ‘should be amended to require CSIS to report information that may be used in an investigation or prosecution of an offence either to the relevant policing or prosecutorial authorities or to the National Security Advisor.’ ” (Recommendation 10).

The testimony presented to this committee on November 1, 2016 from Michael Coulombe, CSIS Director, and Deputy Minister Malcolm Brown that CSIS and the RCMP pride themselves on their ability to share information is self-serving and run contrary to vast experience, such as that proffered as evidence in the last parliament.

Mr. Justice Major testified to the House committee on C-51 that it was “human nature” that Canadian spy agencies would keep information from each other. Before the committee in the last parliament, John Major testified, “The system just doesn’t work if there isn’t some way of ensuring that you have information-sharing.” By this he did not mean information sharing about all Canadians as in Part 1 of C-51, but information sharing between CSIS and the RCMP. He went on to say, “…there’s no way from what I’ve seen that the present proposed legislation is going to do that.”

That was why Mr. Justice Major forcefully argued that C-51 should not be passed without a strong Federal Security Czar with pinnacle authority and review in real time.

British intelligence expert Joe Fogarty testified to the Senate committee of specific recent incidents in the public domain in which CSIS knew the RCMP was tracking the wrong people, or knew of terrorist preparations of which the RCMP were unaware but should have been tracking. His evidence was of recent examples where CSIS kept such vital information from the RCMP.  Mr. Fogarty hinted that there were many other instances of this type not in the public domain. His conclusion was that C-51 left Canada as “…sitting on top of a tragedy waiting to happen.”

The safest course for public security is to ensure that CSIS revert to its intelligence gathering role ONLY.

The following is from my speech at Third Reading of C-51:

“It is one of the most offensive sections of the whole bill. It is the notion in Part 4 that CSIS agents with an operational role now, what Roach and Forcese describe as ‘kinetic’ functions, would go from collecting the data in the information to taking up disruptive activities themselves. If they thought they were going to break a domestic law or violate the Charter, they would go to a judge in a secret hearing and ask for permission to violate the Charter…. Every legal expert who testified before the committee said that this was outrageous and that no other government, and certainly none of our Five Eyes partners, allows their spy agencies to violate the Constitution through the simple expedient of going to a federal court judge in a secret hearing…

That brings me to a brief from a group that was excluded from giving testimony to the committee, the special advocates. Special advocates are security cleared lawyers who operate in secret hearings, usually on security matters, to ensure that the public interest is protected. These experts who were not heard before committee did submit written evidence urging that the bill be changed to ensure that we do not have secret hearings with no one present other than the minister and CSIS.

This kind of secret hearing, by the way, is particularly egregious, because it is very unlikely to ever be subjected to judicial challenge. It would be hard to ever find out what happened in a secret hearing. It would not come before the Supreme Court of Canada and be struck down. Establishing standing, for instance, for a civil liberties organization to challenge this would be nearly impossible. That is why my position is so firm that the bill must be repealed if it should ever pass.”

Well, it has passed and I suspect the security establishment within the bureaucracy has prepared a discussion paper that prevents the new government from even examining these questions:

• Why should Canada, alone in the democratic world, unlike any of our Five-Eye partners, allow a “warrant for constitutional breach?” (to use Craig Forcese and Kent Roach’s term).
• Why should we empower CSIS to break laws in foreign countries with no review or warrant?  Do we not foresee other countries acting reciprocally and having their security agents break our domestic laws?
• Why did C-51 include these alarming provisions (in what was formerly s. 42 of C-51, amending section 12.2 of the Canadian Security Intelligence Service Act):  (1) In taking measures to reduce a threat to the security of Canada, the Service shall not (a) cause, intentionally or by criminal negligence, death or bodily harm to an individual; (b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice or (c) violate the sexual integrity of an individual.”
• Are CSIS agents allowed to accidentally pervert the course of justice?
• Why change the role of CSIS as an intelligence gathering agency? Why create a secret police?

There was no evidence brought forward in the initial hearings on C-51 to justify the need to convert CSIS from intelligence gathering to active “disrupters” of threats to security.

It is clear CSIS will not have powers of arrest, but the following are the likely activities CSIS will be able (with secret warrants) to conduct:

• Interfering with software, inserting or removing things from the computers and other devices of people who have no legal recourse and may be completely innocent.
• Prompting computer crashes, loss of critical data;
• Overheating or inducing over-voltage incidents;
• Remotely engaging the target’s device’s microphones for non-sanctioned eavesdropping;
• Disruption of devices, including cars, home lighting and appliance controlled by smart computer systems.

This suggests the ease with which CSIS can engage in a modern-day version of 1944 mystery-thriller “Gaslight.”  The mental health of innocent people could be easily compromised by manipulation with the gadgets of the modern world.

More nefarious, but hardly far-fetched, is the potential for more invasive actions.  The recent successful appeal of the so-called terrorism case of John Nuttall and Amanda Korody should be considered when parliamentarians are examining our security laws. The following brief summary is from the Globe and Mail,July 29, 2016, “B.C. bomb plotters set free after judge rules RCMP entrapped pair:”

B.C. Supreme Court Justice Catherine Bruce said the Mounties used trickery, deceit and veiled threats to engineer the terrorist acts for which Nuttall and Korody were arrested on Canada Day three years ago.

The couple believed they were planting pressure-cooker bombs to kill and maim crowds gathered to celebrate at the B.C. legislature.

“The world has enough terrorists. We do not need the police to create more,” Bruce said in a landmark ruling Friday as she characterized the RCMP’s methods as “multi-faceted and systematic manipulation.”

“There is clearly a need to curtail the actions of police … to ensure that future undercover investigations do not follow the same path.”

Without the heavy-handed involvement of undercover officers, it would have been impossible for Nuttall and Korody to articulate, craft and execute a terrorist bomb plot, Bruce said.

“Ultimately, their role in carrying out the plan was minuscule compared to what the police had to do,” Bruce said. “It was the police who were the leaders of the plot.”

She also condemned the behaviour of the primary undercover officer who, at the direction of the operation’s overseers, discouraged Nuttall and Korody from seeking outside spiritual guidance and convinced them he was a member of a powerful international terrorist group that would likely kill them if they failed to follow through.

“He was their leader and they were his disciples,” said Bruce, who stayed the proceedings, which threw out the convictions and allowed the couple to walk free after more than three years behind bars.

While this case involved RCMP under-cover efforts prior to C-51, in the context of C-51 it raises important questions:

• Did CSIS know the RCMP were wasting vast resources on a non-threat?
• Did CSIS share information about Nuttall and Korody with the RCMP?
• Did the RCMP ask CSIS for intelligence on the two suspects?
• With its new C-51 powers, CSIS will be able to offer immunity to informants from ever having to give evidence or face prosecution, yet nothing in C-51 requires CSIS to alert the RCMP that they have provided such protections. With the RCMP conducting undercover efforts, leading to planned arrests, what will ensure the agencies are not tripping over each other?  Will the RCMP know before a suspect produces a CSIS “get out of jail free” protection?
• Imagine the Nuttall/Korody case with the additional layer of CSIS “disruption.”  Just think about it.

It is far from clear that there is any security advantage to giving CSIS new powers of disruption. There is evidence it could make us much less secure both from terrorist plots as well as from invasive action by our own security agencies.

1. “Ensure all Canadians are not limited from legitimate protest and advocacy”

I believe this bullet point has been included by the bureaucracy as a red herring.  I believe the departments involved, having brought in C-51, are comfortable with it as status quo and hope to leave it as untouched as possible, so this section is more of a diversion than anything.

The use of the word “lawful” as a modifier for protests and actions in civil society was originally found in C-51 at First Reading in the Part 1 “Information Sharing” provisions.  The clause on “Interpretation” included a long list of activities considered to “undermine the security of Canada.”  It concluded with:

“For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.”

I raised this issue within days of First Reading of C-51. The use of the word “lawful” attracted concern about non-violent civil disobedience, the use of wild cat strikes and so on. It was removed prior to Third Reading. It was a small improvement; but it is insufficient to deal with the dangers that are embedded in this act.

Section 1 on information sharing’s greatest risks are in the lack of reviewable tests or screens before information about Canadians is shared with foreign governments.  The recommendations of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar must be brought to bear on this section, as well as the “no fly list” of Part 2 of C-51(Secure Air Travel Act).  The threat to Canadians abroad of being shopped out to foreign governments and unable to board a plane home are deeply alarming.

1. “Enhance the redress process related to the Passenger Protect Program and address the issue of false positive matches to the list”

I submit this consumer concern about interference with holidays, while serious and annoying, is easily handled and does not focus on the far deeper threats to Canadian democracy of C-51.  By all means, let’s protect those accidentally on the list.  But if C-51 is a Frankenstein’s monster, this problem is a pimple on his nose. Another red herring in a public consultation.

1. “Narrow overly broad definitions, such as defining  ‘terrorist propaganda’ more clearly”  

Once again, the public consultation document neatly avoids the most dangerous elements of what was Part 3 of C-51, amending the Criminal Code to remove terrorist propaganda from the internet.  But just as in the section on how CSIS agents obtain warrants, this section pre-supposes no problem with one of the most contentious aspects of this section.  In fact, the Green Paper repeats the phrase “terrorism in general” as though it has meaning.  It was repeatedly brought to the attention of the House Committee studying C-51 that the use of the phrase, unknown in law, only adds to the risk of the section infringing on the rights of innocent Canadians, while increasing the threat of radicalization.

This committee must make an issue the term “terrorism in general.”  The term “terrorism” is understood. It has legal meaning.  “Terrorism in general” has no meaning.  The Criminal Code sections must be amended to eliminate this vague term.

In addition, the sections on internet promotion of terrorism lack crucial protections found in other such provisions of Canadian law. As I explained in my speech at Third Reading of C-51:

“…the fallacy that the provisions in the act to take terrorist propaganda off the Internet will in fact stop radicalization needs to be understood in the context of a legal analysis of the words that are used. In the section of the bill that deals with the Criminal Code and what I now call the thought-chill section in Part 3 of the act, what it says is that this bill would deal with something called promoting terrorism “in general”, which is not a defined term. Terrorism and general propaganda would include any visual image or general language.

“Legal experts have looked at this and are concerned about a couple of things. This business of getting things off the Internet is not brand new to Canadians. We have hate speech laws that take things off the Internet, and we have child pornography laws that take things off the Internet. In what way have we constructed these provisions on terrorism in general that are fundamentally different from what we did about hate speech and child pornography, which I think we would all agree we take very seriously. Those kinds of laws have statutory defences, and more significantly, those laws specifically exclude private conversations. This one does not.

“A person could be arrested and go to jail for a private conversation, for discussing things that, in general, and it is very vague, could be seen to promote terrorism or might be reckless as to whether they promoted terrorism or not. Legal experts are concerned that this chill provision would make it harder for a community to continue to converse with people who are at risk of radicalization to stop them, to argue with them, to say that their understanding of Quran is entirely wrong and that they need to talk about this.

“By failing to exclude private conversations, we increase the likelihood that no one will reach out to that person, and we have no programs to deal with it.” (emphasis added)

1. Additional comments on the Green Paper

The paper fails to note that there is not adequate over-sight and review of security agencies even with the improvement of a Parliamentary Committee as proposed in C-22.  Even with C-22, the measures are inadequate to meet Mr. Justice Major’s plea for pinnacle oversight.  Review functions for CSIS and RCMP are after the fact and weak.  The RCMP review body still lacks powers of subpoena, despite strong recommendations that those powers be made available by the previous chair, of what was then called the RCMP Public Complaints Commission, Paul Kennedy.

Unlike CSIS and the RCMP, the Canadian Border Services Agency has neither review body nor oversight.  Given its recent legal transgressions, clearly CSEC is also inadequately controlled.

It will be all too easy to say, “Well, if I am a law-abiding citizen, I have nothing to fear from security agencies.  Those calling for protection of civil liberties do not recognize the terrorist threat. It is a higher order good in society to prevent terrorism.”

But it must be stressed that expert evidence in the C-51 hearings was that without proper controls and mandatory information sharing, C-51 makes us less secure. The last part of former C-51 that requires review is the rather vague change to the Immigration and Refugee Act.  This section received nearly no discussion. No witnesses spoke directly to the amendments to the Immigration Act. The only expert who explored the oblique and mysterious impact of those changes was Prof Donald Galloway of the University of Victoria Law School.  Prof. Galloway is a leading expert in refugee and immigration law and the author of the current definitive text. Although he was not invited to testify in 2015, he published an opinion that the purpose of this section was to allow judges in security certificate cases to be given evidence obtained by torture, without telling the judge the evidence was obtained by torture. I urge this committee to seek Prof. Galloway’s opinion and re-examine the implications of the C-51 changes to the Immigration and Refugee Act.

To the question on page 10, What more can we do?

In December of 2014, the U.K. came up with a very specific anti-terrorism bill, with proactive programs to go into schools and prisons to find those people at risk of radicalization and stop them, prevent them, dissuade them. We know that the horrific attacks of 2015 in Europe were conducted by people who were allegedly radicalized in prison. The UK programmes should be studied in the Canadian context.  We should learn from any early experience in the UK and bring well-funded programmes to Canadian schools and prisons.

Constituents at my Town Hall meeting overwhelming identified the gaps in mental health programmes a key issue.   I agree.  The October 22, 2014 attack on Parliament Hill and murder of Corporal Nathan Cirillo, an unarmed member of the Argyll and Sutherland Highlanders of Canada, could have been prevented had addiction and mental health counselling been made available when the so-called terrorist first begged a Vancouver judge to incarcerate him long enough for him to get help.

It is not too late to call for a public inquiry into the events of October 22, 2014. It is quite incredible that in a modern democracy, the events of that day and the security failure inherent in its occurrence, have had zero public accountability.

There were numerous officers, particularly in the House of Commons on October 22, who risked their lives to protect Members of Parliament and others in the building.  Although there has been no public investigation and report of what happened on that day, we do know that the gunman was stopped at the door by an unarmed House security guard, Samearn Son. He wrestled with the gunman and stopped what could have been a much worse event by giving others the chance to prepare themselves.  Samearn Son had delayed the gunman at the door, with the rifle barrel at his chest at one point, forced the gun down and was shot in the leg. The bravery of many individual Hill Security and RCMP officers remains in the minds and hearts of those of us who were on Parliament Hill that day.

Without adequate debate, we abandoned a principle of over 500 years. That is that security for our parliament must never be in political government control.  It must rest with the Speaker.  The RCMP are now in charge of hill security.  We should never have violated the principle that security for all MPs is not in the hands of the government.  We do not want (as unlikely as it may be) a future PM to be able to ask security forces to impede the work of Opposition MPs.

There are lessons to be learned – about radicalization, about the urgent need for mental health and addiction programmes.  But what bothers me to this day is that there has never been a full investigation of how one of the best guarded buildings in Canada was so poorly protected.  I urge this committee to recommend that this veil of secrecy be lifted.

Conclusion:

I recommend that, using the original C-51 sections, sections 1, 3, 4, and 5 be repealed and section 2 modified to ensure protections for Canadians travelling abroad.

Thank you.

Please click on the link below to view her submission:

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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.”

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The Chair: It’s my understanding that after round two there would be unanimous consent.

Would that be the case, Mme LeBlanc?

Hélène LeBlanc: We have many questions to ask.

The Chair: It has to be unanimous. No consent.

Dan Harris: Maybe ask again after the second round.

The Chair: Maybe we’ll ask again.

I’ll be glad to ask as many times as you allow me.

Elizabeth May: Thank you, Mr. Chair, and thanks to members of the committee for allowing me a chance to ask questions.

Do I have five-minute time limit, Mr. Chair?

The Chair: Five minutes, that’s correct, Ms. May.

Hélène LeBlanc: Mr. Chair, can we make sure that the time allocated for the opposition is not used for this and that we would still have our time to ….

The Chair: That’s correct.

Hélène LeBlanc: Thank you very much.

The Chair: That said, that means I’ll have to stick very tight now to the five minutes. So for the questioners and the answerers I’m going to have to stick a lot tighter because we only have 27 minutes left.

Hon. Mike Lake: Just to clarify, where are we with questions?

The Chair: After Ms. May is done, then we’ll go to our third round. It will be Conservative, NDP, Conservative, Liberal.

Ms. May.

Elizabeth May: Thank you, Mr. Chair. I’ll attempt to use my time efficiently. Thank you witnesses.

I want to go back to the competition policy review panel and their advice before the amendments were tabled in 2009. I’m really going to ask questions specifically around the fact that these amendments through Bill C-60are attempting as I see it to bring greater clarity around certain concepts and to extend timelines for national security reviews.

What I want to know is if whether within Industry Canada, whether you received advice that it would be helpful to review and clarify the term national security which currently isn’t defined within the act?

Paul Halucha: It’s been something that has been mentioned by I would say think tanks and certain legal firms that represent foreign investors. Again in their efforts to have maximum certainty, they wanted to have a prescribed definition of it or a list the way that some other countries do like the United States.

Elizabeth May: Yes, I think the United States, the U.K., China, Japan and Germany that would have reviews that would be triggered by an actually defined term of national security.

What I’m wondering is whether Industry Canada, whether you’re aware of any studies in the Canadian context that, as you said think tanks have recommended this. It’s in the Canada Gazette from when the 2009 amendments were accepted that there were recommendations at the time that the term national security should be “explicitly defined and national security reviews should take place according to concrete objective and transparent criteria”.

Are you aware of any empirically design studies that would in any way question the benefit of having such defined terms and such transparent reviews?

Paul Halucha: I’m not. We don’t have any studies on that. I’d clarify, it was a policy decision by the government to not have a prescribed definition for national security on the basis that the types of threats that Canada could face from period to period can change. Given the evolving nature of threats, you wouldn’t want to have a definition of national security that precluded you from considering certain specific types of threats.

Elizabeth May: But you’d agree with me that other countries haven’t found a defined term to be an impediment to applying their investment tests in relation to national security.

Matthew Dooley: I would point that the United States, as a clear example, has an non-exhaustive list—it’s exhaustive in that it’s very long, but it’s non-exhaustive in that they can add more to it if they want to. I would argue that they don’t have a clearly defined definition for “this is national security”. What they have done is list their sensitive industries or sectors that they’re going to be concerned about and by the way if another sector comes up, as Mr. Halucha said, the threats change and they’ll add that to the list.

Elizabeth May: Yes, Mr. Dooley, you may find their list exhausting but it’s not exhaustive. In any case, it might be a model we can look at.

Those are all of my questions. Thank you.

The Chair: Thank you very much, Ms. May.

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Elizabeth May: Mr. Speaker, I would like to raise for the first time in question period an issue that is of some concern nationally to the Prime Minister, which is the strange case of Dr. Porter.

Can it be explained how Arthur Porter ended up with top secret security clearance, as chair of the Security and Intelligence Review Committee, and as a member of Privy Council? Were normal background checks suspended? Importantly, is he still a member of Privy Council?

Vic Toews: Mr. Speaker, Arthur Porter submitted his resignation from his position as chair of the Security and Intelligence Review Committee. We accepted this resignation. The allegations Mr. Porter is facing do not have anything to do with his former responsibilities.

The post Questions: Public Safety appeared first on Elizabeth May.

Will there be a clear definition of “national security” to test against future deals?

Michelle Rempel: Mr. Speaker, my colleague opposite’s question gives me an opportunity to remind her that in I believe 2009 it was our government that included natural security in the review process of the Investment Canada Act, an important step in clarifying the rules around foreign investment in our country. That was action on the part of our government.

What is interesting is my colleague opposite has also given me an opportunity to point out that she has consistently opposed trade deals that would see Canada’s economy grow in a variety of sectors. Time after time she pushes back against any sort of trade deal, whether it be a trade agreement or clarity around investments. In future, I hope she will change her tune on some of these opportunities for the sake of our country.

The post Opposition Motion – Investment Canada Act appeared first on Elizabeth May.

Meanwhile, there is an even larger issue that no one is asking about. On September 8, when Prime Minister Harper was in Vladivostok, he and President Hu signed the Foreign Investment Promotion and Protection Agreement (FIPPA) between China and Canada. The text is still secret. I asked last week in Question Period when the text would be public and if we would be able to debate it in the House before the Nexen decision is made. Unfortunately, I got the pre-prepared answer from Minister Paradis about the thoroughness of the Nexen review with zero relevance to my question. The summary on the Foreign Affairs website about the FIPPA and various analyses by large trade-focused law firms suggests it will operate the same way Chapter 11 of NAFTA works.

Chapter 11 of NAFTAset the template for what are generally called ‘investor-state provisions.’ I talked to our negotiators for NAFTAa few years ago and believed them when they told me the idea was only to create a binding agreement to ensure any expropriation of investor property was compensated. But the provisions of Chapter 11 of NAFTA have been interpreted in a far more damaging way. The term ‘tantamount to expropriation’ has been interpreted to mean changes in domestic laws that reduce a foreign corporation’s expectation of profits.

Chapter 11 of NAFTA is now understood to allow 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 profit than had been anticipated. Canada actually repealed a law limiting a toxic gasoline additive, MMT, when the US-based manufacturer, Ethyl Corporation of Richmond, Virginia sued under Chapter 11–and we paid over $10 million in damages. The reality is that for the company to win in the Chapter 11 claim there was no need to show any scientific or policy flaw in the government’s decision. As Barry Appleton, the Toronto-based lawyer who represented Ethyl Corporation said at the time, if you were making a profit adding liquid plutonium to children’s breakfast cereal and a government made that illegal, you can claim damages under Chapter 11.

Canada has also paid millions in damages to a PCB disposal company, SD Myers of Ohio, for loss of profits when Canada banned the export of PCB contaminated waste. And without waiting for any decision from the NAFTA Chapter 11 arbitration, in 2010 Prime Minister Harper ordered a payment of $130 million to US-based Abitibi Bowater when Newfoundland and Labrador insisted the company had no right to keep water rights and forest cutting rights to sell to a new buyer when it closed its mill. At the time, the Prime Minister said he will create a mechanism to ensure that if provinces create liability under investment rules, provinces would have to compensate the federal government. The fact there was an argument to be made by Newfoundland and Labrador (Abitibi Bowater was benefiting from a 99-year lease, with water rights and logging contingent on running the mill) never got noticed as the money was paid out. The Prime Minister did not listen to the merits of the argument, cutting Premier Danny Williams off at the knees. Williams was left looking like a Canadian version of Hugo Chavez.

The idea that decisions by municipal, provincial and federal government can result in multi-million dollar payments to multinational corporations is quite distressing. As Steven Shrybman, lawyer for Council of Canadians, has said, ‘Chapter 11 is fundamentally corrosive of democracy.’

This outrage only gets more outrageous if the claims for multiple millions in damages come not from a private corporation, but from corporations which are branches of a foreign government. In the case of China, the FIPPA could mean that an authoritarian enormous country will have the right to claim damages if any level of democratically-elected government in Canada passes a law China claims hurts profits. 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 over claims launched by the Communist Party of China?

I hope against hope that the text, whenever we see it, does not convey Chapter 11-like rights for state-owned Chinese enterprises to claim damages in retaliation against Canadian laws. If it does, I will hope for support of my constituents to do whatever is required to protect Canadian sovereignty and democracy.

After this article was filed, on September 26, the FIPPA text was tabled. MP May promises an analysis as soon as possible.

The post The Nexen – CNOOC Deal & the Unasked Question appeared first on Elizabeth May.

Elizabeth May: Mr. Speaker, I thank the member for LaSalle—Émard for her very important speech. She spoke about a key national security issue, which is CNOOC’s takeover of Nexen.

I am particularly concerned that the government of the current Prime Minister chose to reject expert advice that the term “national security” should be defined and that there should be objective criteria within the Investment Canada Act. This was a recommendation that came when the special blue-ribbon panel was put together, following the moment when Minmetals nearly bought a Canadian mining giant.

The advice was objective criteria and an objective definition of national security. The Conservatives chose to ignore that advice, claiming in the 2009 notes to the Investment Canada Act within the Canada Gazette that the term was a fluid concept and impossible to define.

Now we know CSIS has national security concerns about this sale. Why do we not have hearings across the country on the national security impacts?

Hélène LeBlanc: Mr. Speaker, I thank the member for Saanich—Gulf Islands for her very apt comment.

This brings up the need to hold public hearings to clearly define the net benefit to Canada and to address national security issues, especially with respect to Canada’s strategic resources. She confirmed the importance of holding such hearings.

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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.”

The post Why I think we are absolute idiots if we approve CNOOC take-over of Nexen appeared first on Elizabeth May.

I can’t and won’t explain or defend the $16 orange juice or the limo, but why people focus on that and not the fact that every single day Stephen Harper moves within Ottawa with a motorcade of two black sedans (front and rear) with three smoky-glassed, bullet proof SUVs in between – FIVE vehicles – is beyond me. The reality of our outrage levels are such that $16 orange juice grabs headlines and $20 million a year on the PM’s personal security (more than double previous PMs) rolls right by without notice. It’s the way people freak out over a few pennies increase on a litre of gasoline, but, without a whimper, purchase completely unnecessary bottled water at a higher price per litre than gas. It’s just one of those human nature things that defy rational explanation.

Where I think we need to give our collective head a shake (and here I am looking directly at the national news media reporters) is the forgery of the KAIROS approval documents. The story line from the mainstream press seems to be that Stephen Harper has been putting up with a Minister who makes mistakes and gets into trouble. The inserted “NOT” in the KAIROS document gets remembered as a mistake by Oda for which Stephen Harper defended her.

I wrote the following column in February 2011 for a local community paper, Island Tides.

Please read it to refresh our collective memory. The very most logical conclusion of the train of events is that Bev Oda approved KAIROS funding and someone higher up, someone in the Prime Minister’s Office being the most likely suspect, ordered the Minister’s approval be reversed – resulting in the crude forgery. Harper has not been covering for Oda. She was covering for him. And, in true form, he just threw her under the bus.

KAIROS — a scandal that matters

Scandals in “Harperland” (as Globe and Mail columnist Lawrence Martin has dubbed current day Ottawa) are increasingly disturbing. The mystery of why the aid group KAIROS was denied CIDA funding – and how critical documents were forged — is now occupying the Speaker of the House, Parliamentary committees, and a fair amount of media ink. The fact that it happened at all is an outrage.

“Kairos” is a Greek word with a number of meanings, all related to time. In its theological meaning, it suggests the appointed time. It suggests opportunity within crisis. It is a moment that is critical.

Nearly all the major Christian denominations in Canada are core groups in KAIROS — the United Church, Anglican, Catholic, Lutheran, Society of Friends, and more. Back in my Sierra Club days, I had the pleasure of working closely with KAIROS. We were partners in climate work and advocating for social justice in international trade deals. The group has a superb record.

It was a shock when, in late November 2009, after thirty five years of CIDA support, CIDA funding for KAIROS projects overseas was cancelled. KAIROS had been expecting a $7 million grant for the next five years of its work. The Green Party issued a press release within days of the loss of funding (December 3, 2009), calling for CIDA support to be restored. Political interference seemed likely, as through its climate work, KAIROS had been critical of the oil sands. There were protests across Canada, including in Ganges where Salt Spring Island clergy and multi-faith parishes held a protest, calling for KAIROS funding to be restored.

In the House, throughout late 2009 and into 2010, International Development Minister, Bev Oda, denied that there were any political motivations. She stated that the programmes no longer fit CIDA’s current priorities.

It was even more shocking when the minister for Immigration, Jason Kenney, claimed that the reason KAIROS had been denied expected continued support for its programs was that the group was anti-Semitic and anti-Israel. Kenney made the charge in a speech delivered two weeks after the funding was cut at the Global Forum for Combating Anti-Semitism in Jerusalem (December 16, 2009). KAIROS reacted quickly, proving it had no involvement in Israeli boycott campaigns.

Anyone tracking this issue now had two Cabinet ministers (three if you count Oda’s Parliamentary Secretary Jim Abbott) with very different stories. Oda (and Abbott) claiming it was routine CIDA decision-making; Kenney claiming a clamp-down on anti-Semitic, anti-Israel groups.

In late October 2010, an Access to Information request revealed the CIDA documentation. CIDA had recommended that the $7 million be approved. Senior CIDA officials, first V-P Naresh Singh, and then President Margaret Biggs, had signed off on the advice to the Minister to approve the funding. Her signature appeared on the document, but inserted crudely, with a hand-drawn carrot, was the word “NOT” (in capitals.). CIDA officials had signed a document approving funding. Testifying to the parliamentary committee investigating the matter, Minister Oda told the committee she had no idea how the word “NOT” was inserted.

Thanks to Liberal MP, John MacKay, the Speaker of the House was asked to investigate the whole mess. His findings were released February 10th. Speaker Milliken found that the document was “doctored” and that it raised “disturbing questions:”

“Any reasonable person confronted with what appears to have transpired would necessarily be extremely concerned, if not shocked, and might well begin to doubt the integrity of certain decision-making processes.”

Now, Minister Oda has changed her story. She now claims the document was changed at her direction, although she still does not know who did it.

Of course, the Opposition members of the Committee have pointed out that she misled the Committee. NDP MP Paul Dewar says the minister lied to the Committee when she said she had no idea how the “NOT” appeared.

None of this washes. If the Minister did not want to fund KAIROS, the solution was easy enough. There are a number of tried and true ministerial responses to advice they don’t like (even when the advice is solid, as the CIDA approval of KAIROS). Send the unsigned document back downstairs to CIDA officials, leave it on the desk to gather dust, ignore it.

The only plausible explanation for the state of the document is that Bev Oda signed the approval and the “NOT” was inserted subsequently.

This is where long-standing attacks against KAIROS from Harper Cabinet members, Stockwell Day and Jason Kenney, as well as right-wing Christian lobbyist Charles McVety, are highly relevant. In particular, Jason Kenney’s speech in Israel and its timing seem pivotal. People like right-wing Evangelical leader Charles McVety, of the Canada Family Action Coalition, was a KAIROS detractor. Targeting KAIROS for the speech in Jerusalem would explain PMO interference. Someone, and I am willing to bet, not someone directed by Oda, inserted the “NOT” after funding was approved.

We now have a case of fraud. It is part of a pattern of abuse of the essence of Canadian democracy and our foundational principles of “peace, order and good government.” The victims of this fraud are not just in Canada. They are the people in developing world whose projects were not supported. In a larger sense, we are all victims of this fraud. Will it be like so many other abuses of power, of contempt for Canada’s historical record in the world of peace-keeping and development assistance, that are just swept under the rug? Or will this be a moment of “kairos” that allows Canadians to wake up to the crisis and seize the opportunity to fully explore this act of fraud and forgery.

The post Bev Oda deserves a defence appeared first on Elizabeth May.

As foreign ownership of the Alberta oil sands increases, the leader of the federal Green Party warns that China’s large—and rapidly growing—stake in Alberta oil is putting Canadian national security at risk.

In a period of 18 months between 2009 and 2011, Chinese state-owned companies invested $15 billion in the oil sands, according to a study sponsored by the Canadian Council of Chief Executives (CCCE).

Green leader Elizabeth May says this is cause for alarm because these companies are owned by the Chinese Communist Party, and the more Beijing controls Canada’s natural resources, the more influence it can exert on federal policies.

View the full original article >>

The post China’s Stake in Canada’s Oil Sands a National Security Threat, Says May The national interest is not being protected, Green leader says appeared first on Elizabeth May.