That was the point of view of a Special Committee on the Multilateral Agreement on Investment created by the British Columbia Legislature in 1998. Its December 29^th report stated that:

• “It must be emphasized that provincial governments are not simply another set of ‘stakeholders’ to be consulted by the federal government en route to treaty signature and implementation. Under the Canadian constitution, the federal government is incapable of unilaterally implementing international treaty obligations in areas that fall within provincial jurisdiction. Nor is it acceptable for the federal government to use its treaty-making powers to do an end run around the federal-provincial division of powers or in a way that diminishes Canadian federalism and democracy.
• “How is it that the federal government can expose provincial measures to binding international arbitration without the province’s consent? […] Who will pay if a provincial measure is found to violate the federal government’s treaty obligations?”
• “In the committee’s view, if the federal government fails to gain the express consent of the Legislative Assembly, then the Province must vigorously defend its authority on behalf of all British Columbians.”

“These are exactly the kind of issues the Green Party of Canada has been raising since the Conservatives quietly tabled the Treaty on September 26^th. We are the only party in Ottawa opposed to the Treaty. Our online petition against ratification has been signed by 22,637 citizens,” said Elizabeth May, Green Party of Canada Leader and MP for Saanich-Gulf Islands.

“The Treaty pays lip service to provincial authority by stating that provincial and

territorial representatives were ‘updated’ on the progress of the negotiations with China and ‘did not express any opposition to the Agreement.’ What kind of Federal government is Harper’s? An ‘update’ does not meet the federal obligations under the Constitution,” added the Green Leader.

“The provinces should be very worried of having Harper signing this without their consent. We have attempted to reach premiers across Canada. We now have 9 days to prevent Harper’s Conservatives’ attack on our democracy,” concluded May.

Green Party’s webpage against the Treaty: http://www.greenparty.ca/stop-the-sellout

The post The Canada-China Investment Treaty Cannot be Ratified Without Provinces’ Approval appeared first on Elizabeth May.

The question that leads tonight’s adjournment proceedings was a question I put in June, before the House rose for the summer. Unfortunately, the response came from a minister whose areas of responsibility do not actually fall within the parameters of the question I asked. It means that this time the representative for the Minister of Transport is here. However, my question did not specifically relate to transport. It was a tangential issue.

My question was one of constitutional authorities. In particular, I put it to the Prime Minister that since he was well known in opposition as an individual who believed that the provinces should exert their jurisdictional authorities to the maximum to press back against heavy-handed federal intrusion into their areas of authority, I wondered if he had now changed his mind. Those of us in British Columbia felt very clearly that the Prime Minister was pushing a particular project on the people of British Columbia whether we liked it or not.

Just to make it clear to all present today, to refresh their memories, the question I put was the following:

Mr. Speaker, the Prime Minister for many years expressed concern as an Albertan about the heavy-handed intrusion of federal policy on the will of Albertans.

Right now, British Columbians oppose supertankers on the coastline, the Union of British Columbia Municipalities opposes supertankers and today’s polls show by a margin of three to one that British Columbians do not want oil tankers on their coastline. Will the Prime Minister run roughshod over the will of British Columbians for his pet project?

In that brief question I was alluding to something that is famously known as the firewall letter. This was back in January 2001, when our current Prime Minister was not serving in the House but had left a position as MP to become the executive director of the National Citizens Coalition. In that capacity, he co-signed a letter with University of Alberta professor Tom Flanagan; with Ted Morton, who was described in the letter as Alberta senator-elect; with the head of the Canadian Taxpayers Federation; and with other Albertans, particularly Ken Boessenkool, who is now an advisor to Christy Clark.

The irony is not lost on British Columbians. This famous letter was designed to do the following. The current Prime Minister wrote in 2001 about what could be done to extend provincial powers to “limit the extent to which an aggressive and hostile federal government can encroach upon legitimate provincial jurisdiction”.

Perhaps I will have better luck tonight. I will put my question again.

Has the current Prime Minister lost track of his previous concerns that provincial rights, privileges and powers, and particularly the will of the people of a province, should be respected and that in fact he should be guided on the matter of the Enbridge proposal and the supertankers, which British Columbians do not want, by the will of the people of British Columbia and not his own preference for expansion of bitumen production?

Pierre Poilievre: Mr. Speaker, I will begin by addressing the constitutional and jurisdictional questions that the member posed. I would point out the very obvious, that even the most strong believer in the principle of subsidiarity would accept that the federal government is responsible for regulating shipping and the associated industries. That is because ships cross borders. It is an international business and it would be impossible for it to be adequately regulated on a province-by-province basis.

The member mentioned oil tankers and the safety-related issues around them. The reality is that oil tankers have been moving safely into west coast waters since the 1930s. This, contrary to the member’s remarks, is nothing new. In fact, a total of 82 oil tankers arrived at Port Metro Vancouver in 2011. During the last five years there were 1,302 tankers that arrived at that same port. During that time period, nearly 200 oil and chemical tankers safely visited the ports of Prince Rupert and Kitimat. They follow international and Canadian requirements, including double hulling of ships, mandatory pilotage, regular inspections, and aerial surveillance. With double hull, the bottom and sides of the vessel have two complete layers of water-tight hull surface. Tankers that are not double hull are being gradually phased out. For large crude oil tankers, like the Exxon Valdez was, the phase-out date for single hull vessels was 2010, which means that all large crude oil tankers operating in our waters today are double hull.

In compulsory pilotage areas, the pilotage authorities require tanker operators to take on board a marine pilot with knowledge before entering a harbour or busy waterway. The department ship inspectors are on board and they inspect foreign vessels, including oil tankers, entering Canadian ports to ensure they comply with all of our rules. In 2011, there were 1,100 inspections carried out across Canada, 147 of them on oil tankers.

We also have the eye in the sky which watches tankers as they approach our shores. Transport Canada performs aerial surveillance over Canadian waters to detect pollution from ships. In 2010-11, crews observed more than 12,000 vessels, nearly one-third of which were over west coast waters. It is an effective prevention tool because potential polluters know that Canada is watching and we have the power to prosecute.

What I am about to say is very important, so I ask that the member listen carefully. The good news is that over the last 20 years there has not been a single major oil spill in Canadian waters. We will work to ensure that the next 20 years are as successful as the last.

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Back in January 2001, our future Prime Minister sent a letter to Premier Ralph Klein in which he called for Alberta to exercise its Constitutional provincial powers to “build firewalls around Alberta.”  The letter was co-signed by Harper’s mentor from the University of Alberta Tom Flanagan, Ted Morton (at the time described as Alberta Senator-elect), the head of the Canadian Taxpayers Federation and other Alberta luminaries, including Ken Boessenkool, (described in the letter as former advisor to “Stockwell Day, Treasurer of Alberta,” who is currently none other than Premier Christy Clark’s Chief of Staff.)  Stephen Harper, who claimed top spot in the list of signatories, was at the time President of the National Citizens’ Coalition.

The letter set out what the signatories believed to be Constitutionally allowed steps Alberta should take,  including: withdrawal from the Canada Pension Plan, ending the provincial contract with the RCMP,  a provincial take-over of health care decision-making, and collecting revenue for the province from income tax.  The aim of this bullish use of provincial powers was “to limit the extent to which an aggressive and hostile federal government can encroach on legitimate provincial jurisdiction.”   

What a difference a decade makes.  Now Stephen Harper is so confident of the right of the federal government to insist on an over-land pipeline to a tanker route through the most treacherous waters on earth that he committed to the project’s approval and completion before the provincial government had so much as uttered a word on the project’s acceptability.  (I leave it to Patrick Brown to set out the nature of Christy Clark’s rather belated demands, but at least she has asserted that British Columbia has something to say in the matter. I leave for another day that other Constitutional objection to the Enbridge project – the constitutionally protected inherent rights of First Nations.) 

NDP leader Adrian Dix has announced he has a high powered legal panel, led by the well respected lawyer Murray Rankin, reviewing the province’s legal options.  The ugly reality is that if Stephen Harper is prepared to push this through, he can.  The Constitution allows the federal government to over-ride provincial powers under Clause 10 of Section 92.  If the federal government declares the Enbridge project to be “for the general advantage of Canada,” provincial rights are trampled.

In a recent piece in the Ottawa Citizen, Stephen Maher recalled the last time a premier approached a prime minister with the idea of requesting provincial objections be squashed through the invocation of Clause 10 of Section 92.  In 1966, Newfoundland’s first premier, Joey Smallwood, had gone to Prime Minister Lester Pearson to ask for the federal muscle of Clause 10, section 92 to force Quebec to accept transmission lines across that province to bring electricity from the Churchill Falls project in Labrador to be sold to Canada and the US. Smallwood recalled later that Pearson had begged him not to make the request because, “if you ask me I’ll have to say yes, otherwise we would not really be a country.  But I am asking you not to ask me, because we will not be able to keep the towers up.”    Smallwood did not ask and suffered the impact of a lop-sided deal to sell power to Quebec ever since.

Stephen Harper has already hinted that he is prepared to use the federal over-ride power.  In a January 2012 interview he said, “What I think I’d make clear is that I believe selling our energy products to Asia is in the country’s national interest.”

In addition to the Constitution, the prime minister has a precedent of expropriation.  Back in 1999, the federal government expropriated the seabed under the Nanoose torpedo testing grounds when British Columbia decided to end the contract allowing testing.  In that case, the Expropriation Act was used.  225 square km of BC territory was expropriated to allow the military tests to continue.  That was a first, but would Stephen Harper get away with expropriating the whole territory required to build the Great Pipeline of China?

Commentators like Stephen Maher will say that so long as BC objects, no federal government will force the construction of pipelines over provincial lands, nor force ports to accept high risk supertankers for bitumen and diluent.  And it is true, that to force such a thing would tear at the heart of Confederation and do real damage to our sense of ourselves as a nation.  But that does not mean Stephen Harper won’t do it.  No previous Prime Minister was sufficiently reckless and ruthless as to shut down Parliament to avoid a confidence vote he knew he would lose.  The Prime Minister has promised Beijing this project will proceed.  He has declared that those who oppose the project are “radicals.”  

Has Stephen Harper abandoned the idea that provinces have rights?  Is he prepared to ride roughshod over the wishes of the vast majority of British Columbians?  Has he reversed himself or is it merely the case that provinces only have rights when they seek to promote fossil fuel expansionism, never to manage such development?

Perhaps it is time for Mr. Harper’s former colleague, Mr. Boessenkool, to brief Premier Clark on how to build a firewall.  And maybe he could remind the Prime Minister of how he once urged provinces to resist and object “to an aggressive and hostile federal government … encroach(ing) on legitimate provincial jurisdiction.”

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I am going to approach this bill a little differently from the way some other members have. I think we need to recognize the context of where we are at second reading. This bill is going to go to committee. What I would like to do is dedicate my remarks and focus on a rather direct appeal to members on the government benches to take the opportunity to seize a victory that they could have by putting forward a bill that would have the support of all the groups that are now being critical. I do not think that is impossible at all.

We recognize that there have been some improvements. There is general agreement by all knowledgeable people in this area that we need to modernize the Copyright Act and that we have significant challenges with new technologies. I sometimes think about this place, this room, this House of Commons, and try to imagine our predecessors in Parliament in the 1930s trying to grapple with what we are speaking about today. It is all new, and it changes fast.

Almost as quickly as we might legislate this bill, we will find that we need to make additional changes to deal with new implications and new ways in which copyright becomes recognized and the way in which copyright is challenged creative rights need to be protected.

What I would like to do is concentrate my remarks not in attacking the bill so much, although I do have to attack sections of it, but with a goal of hoping that when this bill goes to committee, amendments will be allowed.

We have seen a worrying trend in this 41st Parliament; it is as though amendments to legislation after first reading are somehow incremental defeats of the government of the day, whereas in fact it is common practice in Parliaments around the world, and certainly in the Canadian Parliament, to recognize that a bill at first reading is not perfect. It can use improvement, and using the committee in as non-partisan a way as possible will bring improvements to the legislation.

When I look at this legislation and what the government has said, I see in the preamble, which always guides statutory interpretation:

…the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures,

—and this is the important part—

in a manner that promotes culture and innovation, competition and investment in the Canadian economy;

It goes on to say:

And whereas Canada’s ability….is fostered by encouraging the use of digital technologies for research and education;

A tremendous balancing is being suggested here and is being aspired to by the government in its preamble. It falls short, but we do not need to be condemnatory; there is much in the bill that is an improvement. The problems that remain tend to focus in one specific area, and that area has been referenced a good deal in the debate today: digital rights management and the use of devices and technology such as digital locks.

That is just a preamble to my point. We also see in the very beginning of the bill, in the preamble, that the Government of Canada wants our legislation to meet new global norms. It specifically refers to the World Intellectual Property Organization, which I will just refer to as WIPO. That WIPO treaty is one to which Canada wants to adhere.

However, numerous commentators have pointed out that the legislative approach in this bill exceeds anything required by WIPO. I am hoping that the government can pull back slightly–in a significant way, actually–from the parts of the bill that members on the opposite benches find unacceptable. Really, the government has accommodated a lot of concerns and has improved the bill. I know it is virtually the same as Bill C-32 in the last Parliament, but it has gone through some improvements from its first iterations. We are close.

Government members on committee, with the direction from the Prime Minister’s Office, I am sure, taking a keen interest in this bill, could actually accommodate the different concerns of critics and emerge with a bill that would earn praise across all parts of the House of Commons.

Professor Michael Geist has been referred to in the debates this afternoon. He is a professor at the University of Ottawa and is the Canada Research Chair in Internet and e-commerce law. I found his comment quite appropriate to my own sense. He criticized the bill initially as flawed but fixable. He still holds to that view–flawed but fixable–so let us fix it.

What he said he finds problematic is that as he sees it, the bill is an omnibus bill that combines two different pieces of legislation.

The first piece is the part that I think I can speak for all members of other parties, but I think it is fair to say that most members in the House find the first bit, which he described as the copyright modernization act, to be quite acceptable, generally good. Maybe some of the restrictions go too far, but overall, it is good progress in copyright modernization.

He describes the other part of the law, which we find unacceptable, and he has given it a title, “The reduce U.S. pressure copyright act”. The problems have emerged in that area.

The problems are in two areas, and I will refer to the first. Briefly, it is constitutional. The constitutional problem is simple to describe. Copyright is clearly an area of federal jurisdiction, whereas property rights are provincial. To the extent that we have intruded into property rights, we have a problem. This has been described in a learned article published by professors Crowne-Mohammed and Rozenszajn, both from the University of Windsor, in the Journal of Information, Law and Technology in which the authors describe the problem this way:

The DRM provisions of Bill C-61 represent a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations.

Let us de-link them. Let us protect the rights and protect copyright reform without acceding to pressure from U.S. interests, which want to have excessively restrictive controls in the form of digital locks. That is setting aside the constitutional issue.

The next set of concerns I would like to raise really relate to public policy concerns. One of the very strong groups of critics on this matter is the Public Interest Advocacy Centre. I should confess that the Public Interest Advocacy Centre was the organization that initially brought me to Ottawa in 1985. I left a law practice in Halifax to become senior general counsel to the Public Interest Advocacy Centre, not really a conflict of interest but a convergence of my history. I wish to quote their legal position:

Consumers enjoy certain rights to use content without infringing copyright. The presence of technological measures doesn’t change that, and neither should anti-circumvention laws. Consumers must be able to circumvent technological measures, like DRM, providing that their access to the underlying content does not infringe copyright.

It goes on to say, “Anti-circumvention laws shouldn’t statutorily undermine the values that are invoked in public policy goals such as consumer welfare, free speech, and innovation”. That is a public policy concern that comes from the Public Interest Advocacy Centre.

As members throughout the House will know, the bill has been criticized by many groups, but those criticisms are not in multiple sections of the act. They focus very clearly on the problem of digital locks.

Another group that has taken the digital lock section in its crosshairs is the Canadian Internet Policy and Public Interest Clinic, also based at the University of Ottawa. They point out:

Unfortunately, the bill also succumbs to U.S. pressure and makes fair dealing–including the new exceptions for the many ordinary activities of Canadians–illegal whenever there is a “digital lock” on a work. A digital lock will trump all other rights, forbidding all fair dealing and keeping a work locked up even after its copyright term expires. Overall, these digital lock provisions are some of the most restrictive in the world.

This again is an issue where we are exceeding what is required of us to meet international norms under the WIPO Treaty. The digital lock provisions go too far.

We have heard from members opposite on the government benches that the bill needs to do all these things because we must protect Canadian jobs. I just want to speak to that.

The Canadian arts and culture industry, as we realize, is a very important part of our economy. It is a $46 billion industry annually. It employs over 600,000 people. The government should take note of the fact that most of the professional organizations that represent the creative force in the arts and culture community collectively and separately have called on the government to amend the legislation, have urged it to amend the legislation.

I will not read out all the names of the organizations, but there is an organization to which I also confess to belong, the Writers’ Union of Canada, but beyond that there is also the Royal Canadian Academy of the Arts, Société québécoise des auteurs dramatiques, and the Writers Guild of Canada.

Therefore, I ask the government to consider, why would it be that just about every organization in the country representing creative people appreciate some portions of the bill and find others go too far? With that, I ask the hon. members opposite to please consider amendments, improve the bill…

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