After facing the threat of international arbitration from foreign companies, India has ordered in January 2013 a freeze of all bilateral investment protection agreements negotiations until a governmental review is carried out and completed. Although news of India’s decision has not been mentioned in the Canadian media, the decision is clearly relevant.

“In November 2012, Prime Minister Harper told me in the House of Commons that the Indian Prime Minister was committed to signing a foreign investment promotion and protection agreement with Canada. I think Canada should take good note of India’s freeze on all investment protection agreements,” said Green Leader Elizabeth May, Member of Parliament for Saanich-Gulf Islands.

“The investor/state dispute system contained in investment agreements allows foreign companies to sue Canada outside of Canadian courts. Special arbitrators would take the decisions; their decision cannot be subject to judicial review. And the arbitrations are to be secret. Even the fact they are happening is to be secret,” said May.

“India is joining nations such as Australia and South Africa in saying ‘no’ to investor/state provisions. It’s time for Canada to also turn the page on this out-of-date and undemocratic international trade model,” said May.

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“Under NAFTA, we gave US and Mexican corporations the right to sue us if they felt our laws hurt their ‘expectation of profits’,” said Green Party Leader Elizabeth May, MP Saanich-Gulf Islands. “We’ve lost half of those suits and it has cost us in both arbitration battles and awards. Now Stephen Harper is about to give powerful Chinese State-Owned Enterprises similar rights.”

Since NAFTA came into effect in 1994, taxpayers have had to pay about $157 million to US corporations disagreeing with Canadian laws and regulations – and there are awards pending.

Canada is already the sixth most sued country under the investor-state dispute settlement regime, according to a recent UN Conference on Trade and Development report. At the same time, Canadian investors have sued other countries, usually the US, 16 times and lost every case – involving softwood lumber, cattle, gold mining, and more.

There is every reason to expect Chinese enterprises and investors to make use of their new right, especially in the resource sector. The Canada-China Investment Treaty does contain exemptions that were not in NAFTA. However, it is not clear these exemptions will be effective as China can still make claims for damages if it believes an environmental or health measure is “arbitrary” or a “disguised trade barrier.”

Unlike lawsuits under NAFTA and other treaties signed by Canada, the Chinese suits must be kept secret; the arbitration hearings and all documents, except the actual award, can be kept confidential at the discretion of the country being sued. We might not know if Canada has been ordered to change government decisions.

“If Chinese companies like CNOOC – the Chinese National Offshore Oil Corporation – make crucial inroads into Canada with the Nexen deal, for example, we will be even more vulnerable. Even the provinces, which will have no say in the process, might be asked to pay up,” said May.

“It is interesting that the Conservatives are pushing us into a secretive, potentially treacherous deal as countries like Australia, India, and South Africa are pulling away from investor-state provisions.”

The Canada-China Investment Treaty was tabled quietly in the House of Commons on September 26. The Conservatives do not plan any debate or vote. Once it is ratified, it will bind Canada for a minimum of 15 years and could apply for 31 years.

Suits under NAFTA have included:

1997 – Ethyl Corporation sued Canada for $250 million after it banned MMT, a neurotoxin gasoline additive. The Canadian government repealed the ban and settled for $13 million.

1998 – S.D. Meyers Inc., a US waste-disposal firm, challenged a ban on the export of PCB wastes and sued for $20 million. Canada paid $5 million, plus interest

2007 – Mobil Investments Canada Inc. & Murphy Oil Corporation claimed Canadian guidelines supporting local research and development were anti-NAFTA and sued Canada for $65 million The tribunal process continues.

2009 – After AbitibiBowater Inc. closed its last pulp and paper mill, Newfoundland enacted legislation for the return of certain land and assets. The company sued for $467.5 million. Canada paid $130 million to settle claim.

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If they have money, we have a different approach. It is a carefully executed piece of hypocrisy that requires a sanctimonious tone. The listener is somehow to suspend disbelief in the face of a counter-intuitive advanced wisdom, which is this: ‘If we are really concerned about human rights, the best way to secure improvements is through trade and forging relationships with countries that abuse human rights.’ Over and over again, Canadian governments have advocated that trading with China will cause China to absorb, as if through some mercantile osmosis, Canadian values.

No set of diplomatic criteria drove Stephen Harper to refuse to meet with Cuba in the room, while courting Communist China. If Cuba had all the money, our prime minister would be smoking cigars in Havana every chance he got.

It was not always so. Former Prime Minister Mulroney led the charge to enforce sanctions against apartheid South Africa. Against the indomitable Iron Lady herself, Mulroney succeeded in getting South Africa ejected from the Commonwealth.

It was former Prime Minister Jean Chrétien who first argued we had to trade to improve human rights as he inked a nuclear deal with the butcher of Beijing, so-called for his role in the Tiananmen Square massacre. On November 26, 1996, Chrétien made a quick visit to Shanghai and clowned around with former Chinese Premier Li Peng. Coverage of the visit noted that replying to Amnesty International’s criticism, ‘the prime minister responds that quiet diplomacy and stronger trade ties are the best way to promote political liberalization.’ (Jim Brown, ‘China deal warms China ties, sparks hot attack,’ November 27, 1996, Canadian Press.)

That nuclear deal is highly significant in light of Bill C-38. The 1996 CANDU deal marked the first time that in order to accommodate China, Canada violated its own environmental assessment laws, and, retroactively, weakened them.

In order to get China to buy two CANDU reactors, Canada lent China $1.5 billion. This was, at the time, the largest external loan in the history of Canada. The use of federal money triggered an environmental assessment under the Canadian Environmental Assessment Act (as it was before C-38.) On discovering they had accidentally triggered a mandatory environmental review, the Cabinet met in a hasty late night session and passed a regulation to change the review of projects outside Canada. In January 1997, the Sierra Club of Canada, of which I was Executive Director at the time, launched a court challenge against evading environmental assessment law to accommodate the Chinese government.

Here we are, fifteen years later, and China still does not like our environmental assessment laws. According to a 2010 report, Canada’s environmental assessment laws are a barrier to greater Chinese investment (Canadian Chamber of Commerce, Canada-China: Building a Strong Economic Partnership, July 2010.) In the 2010 Conservative budget implementation bill environmental reviews were weakened to accommodate China.

In the House, explaining why Bill C-38 must be passed, the Prime Minister said it was in order ‘to provide certainty to investors.’ (May 10, 2012). What investors would those be?

In the last few years direct ownership of Alberta oil sands by Chinese state-owned oil companies has gone from nearly nothing to over $12 billion. Chinese money is already invested in the Enbridge pipeline and tanker scheme, Petro-China wants to build the pipeline, and Suncor is talking about using lowerwaged Chinese temporary workers–just in time to drive down wages and environmental standards. Sinopec is the fifth largest corporation in the world with a board of directors appointed by the Chinese Communist polit-bureau. And now Sinopec’s 9% share in Syncrude has given it veto power over any future decision to refine Syncrude bitumen in Canada, rather than put it in tankers.

‘The servility of Canada’s political leaders…to the obvious manipulations of Chinese strategists who flaunt world trade and financial market principles and jail democracy–promoting authors for 10-year terms is a national disgrace.’ That quote was cited by Victoria writer Terry Glavin, who added, ‘It wasn’t some dweebish umbrage-taker from the Kitsilano Civil Liberties Union who wrote those words. It was Tony Campbell, the former head of the Intelligence Assessment Secretariat for the Privy Council Office.’ (‘China has our forests, now we’re sending our oilfields too,’ National Post, January 17, 2012).

So, back to that wonderful transmission of values through trade. Does anyone else notice that it seems to be working? Canada is absorbing Chinese values respecting human rights, labour laws, and environmental protections. It is indeed a national disgrace.

The post Values that rub off appeared first on Elizabeth May.

“This should be a day to celebrate the fact that seven years ago humanity began to act together to prevent the grave dangers caused by increased greenhouse gas emissions,” said May.  “But the prime minister’s plan to pull out of Kyoto, in spite of the accord`s support by most Canadians, makes it a day of mourning instead.

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“Our international reputation is tragically diminished.  This week, Brazil, South Africa, China, and India condemned Canada for its decision to withdraw, saying it ‘seriously’ brings into question our credibility in dealing with the very real threat of climate change.

In regard to the withdrawal from Kyoto, Environment Minister Peter Kent has stated that, if it remains, Canada risks having to pay $14 billion in compliance costs for not achieving its Kyoto targets.

“This is spin, designed to confuse Canadians,” said May.  “Hypothetically, if we were to decide we wanted to meet the 2012 target Harper repudiated back in 2006, when he cancelled all programmes to reach the Kyoto target, it would only be possible through buying credits.  These credits might cost the $14 billion Kent has claimed, but no one in their right mind would demand such a thing, and there is nothing in the Kyoto Protocol to force Canada to spend a dime.”

“Prime Minister Harper and his cabinet are playing fast and loose with the facts in order to convince Canadians that developing the oil sands, one of the world’s largest polluters, and allowing state enterprises of China to own and export bitumen crude production is good for our country.

“They claim that this won`t really hurt Canada’s national security and the already-overheated atmosphere, but let’s look at reality.”

Minister of Natural Resources Joe Oliver stated in the House on February 14 that:  “We should be proud of the fact that greenhouse gas emissions (in the oil sands) have been reduced by 30 percent over the last 10 years.” In fact, in 2005, the Pembina Institute reported that the oil sands released 37 megatonnes of GHGs, compared with 23 megatonnes in 2000.

Also, since the level of production is set to significantly increase, Environment Canada has predicted that GHG emissions will triple from 30 million tonnes in 2005 to 92 million tonnes in 2020. 

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If the Minister meant to say per barrel emissions have gone down, he was correct until recently. In 2010, even the Canadian Association of Petroleum Producers admitted that per barrel GHG emissions rose by two percent over 2009 levels due to the increase of in situ production. That same year, total emissions increased by 14 percent. 

Last year, the Harper Conservatives had to admit that they deliberately left out data from their annual UN inventory indicating that oil sands emissions had gone up. 

At the same time, Minister Oliver told the House of Commons that the oil sands industry will create “$3 trillion in economic activity”, generating “hundreds of billions of dollars for government services to Canadians … and over 700,000 jobs a year over the next 25 years.”

“Are we to believe that China is investing in Canada for altruistic reasons?” asked May.  “We know that Sinopec purchased almost 10 percent of Syncrude, giving it a veto on that company’s right to keep jobs in Canada.  The Enbridge-China pipeline-and-tanker scheme will provide some temporary construction jobs, but it`s designed to take refining jobs from Canada.  Keystone XL, if it goes through, will do the same.

 “Experts have testified in committee that this approach has already been harmful to Canadian refineries, which have lost 10,000 jobs since 1989. So it sounds like the jobs and the profits will be leaving the country.

“Canadians need to know the truth about Kyoto and the Axis of Oil, and pressure the prime minister to stop the fiction.  One final distortion is that we are already out of Kyoto. Not true. We have only filed a legal notice of intent to withdraw.  It won’t take legal effect until December 2012.  Let’s cancel that notice and start being responsible global citizens.”

Greens are urging Canadians to go http://keepkyoto.ca/ to sign up and keep Canada in Kyoto.

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In my last column for 2010, appearing on December 9, I wrote about the inspiring work of Canadian youth, using the example of pressing for climate action. Our young people were out in force in Cancun, Mexico for the 16th Conference of the Parties (COP) of the UN Framework Convention on Climate Change.

They wore a powerful message on their T-shirts. It was a quote from Christina Ora, a young woman from the Solomon Islands, at last year’s COP: ‘You have been negotiating all my life. You cannot tell me you need more time.’

Now for the rest of the story.

After last year’s failure in Copenhagen, few held out any hopes for a good result in Cancun. The abuse and lack of trust in Copenhagen—the hijacking of negotiations to back-rooms by Barack Obama, the repeated insults to various delegations, particularly (and inexplicably) China by the host government, the rich country gambit that developing countries would take large amounts of money and look the other way as industrialized countries continue polluting—all led to a deep level of distrust as negotiations opened in Cancun.

By the time I arrived in Cancun on December 4, the atmosphere was gloomy. Initially there were rumours that the Mexican host was also working on a secret text, as Denmark had done last year. Prospects for success were dampened when Canada, Russia and Japan were named as countries unwilling to commit to a second phase of Kyoto. The mood was not optimistic.

At the mid-point in negotiations, Sunday, December 5, the president of the conference, Mexico’s Minister of Foreign Affairs, Patricia Espinosa, convened an informal session of the plenary. Espinosa used that Sunday session for what amounted to a group therapy session. She set out how she planned to work over the remaining week, emphasizing repeatedly that she would not hold secret discussions. She explained that she was setting up a number of informal working groups on key issues, with co-chairs selected to pair a developing country with an industrialized country. While she was asking small groups to meet behind closed doors, risking comparisons to Copenhagen, she ensured that any country could join any meeting underway. Her repeated assurances of transparency and inclusiveness led to a remarkably cathartic discussion, with country after country calling for an exorcism of the ‘ghost of Copenhagen.’ That discussion seemed to shift the negotiations to a more constructive approach.

Still, progress was slow and sessions laboured in fragmented discussions, all off to the side. On the afternoon of the last day of the conference there was no sense of the dramatic events that were to unfold.

What we had not understood that: Mexican host Patricia Espinoza and Christiana Figueres, respected Costa Rican diplomat and new head of the United Nations FCCC Secretariat, had decided to try something novel (and risky). As each sub-group made progress, whereever consensus appeared, comprehensive draft language was prepared and distributed—fifty nations were in direct consultation around the emerging, consensual text.

Last Minute Surprise

Finally, in the afternoon of that last day, two texts were released. One dealt with the future for Kyoto, the other with the so-called ‘Long-term Cooperative Action’ (LCA) issues. In total over 30 pages of detailed text. The text had something for everyone. If accepted, everyone would have to give a little ground.

The two draft texts had been distributed and delegations were the mood of the room was clear. Espinoza was greeted by a prolonged, emotional, standing ovation. Work continued through the night, indeed until 6:30 the next morning. But the enthusiasm for the text was shared, nearly universally.

Only Bolivia registered its objections. Canada clearly didn’t like the text, but Canada was not going to block what was a widespread consensus. (I spoke with acting Environment Minister John Baird just as the plenary resumed at 9pm. He told me Canada had lots of problems with the agreement, and if the text was opened up, it would not survive.)

What Was Agreed?

The documents do not by themselves obligate governments to take any new steps to reduce emissions. What they do is build a strong foundation for agreements to be reached at COP17 next year in Durban, South Africa.

The language is strong and unequivocal. In the LCA decision it is stated ‘climate change represents an urgent and potentially irreversible threat to human societies and the planet, and thus requires to be urgently addressed by all Parties.’

The decisions confirm that the science and IPCC advice is compelling. It commits to find ways to avoid allowing global average temperature from increasing by 2oC, but recognizes the need to consider that the high point should be 1.5oC. For the first time in a UN decision, it mandates that all nations should immediately determine the year by which GHG emissions should peak and begin to fall. It states all parties agree ‘that Parties should cooperate in achieving the peaking of global and national greenhouse gas emissions as industrialized countries should reduce emissions by 25-40% below 1990 levels by 2020.

It deals extensively with the need for adaptation (creating a Cancun Adaptation Framework and Adaptation committee), for financing, it creates a new Green Climate Fund, as well as funding to help arrest deforestation.

What Does It Mean?

It means Kyoto is still alive, but the parties are not committed to a second commitment period when Kyoto’s first period ends in 2012. It just means there could be a second commitment period. Anchoring of voluntary pledges from the Copenhagen Accord may fit into the language of the LCA text, but the Copenhagen Accord targets are laughably weak. Hence, the language calling for industrialized countries to ‘raise the level of ambition’ in their targets.

Somehow in Durban at COP17 we will have to find a way to either continue this two-track process (Kyoto and FCCC) or merge them in one agreement.

What Can Canadians Do?

Once again, our government won the Colossal Fossil Award for being the most obstructive nation in the negotiations. Before Durban, we have to get a change in our government’s position, or get a new government. Canada stepping up to commit to a second commitment period, even on weaker targets, could help shift the balance to saving Kyoto. The bottom line is that we are running out of time. In the next 12 months, we must seize the small ripples of hope that are emanating from Cancun. We must build a public demand for real action to bring the words and framework of the Cancun agreements to life.

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On December 22, in The Guardian ran free-lancer Mark Lynas’ assessment: ‘How do I know China wrecked the Copenhagen deal? I was in the room’ www.guardian.co.uk/profile/marklynas. But even being ‘in the room’ in the bizarre, last minute, non-UN process to force a deal doesn’t give the full picture. There is more than enough blame to go around.

One starts with the host government. Much was at stake, but Denmark’s diplomatic efforts contributed to failure. The poisoning of the negotiating climate began on Day 2 with the leaked draft Danish text—a rich countries’ agreement to kill the Kyoto Protocol. Further problems were the bizarre logistics and security mess. It was egregious enough to accredit 40,000 participants for a space that accommodated 15,000 (and the UN Climate secretariat must answer for much of this mess), but when security barred members of country delegations from the building, the negotiating climate worsened. China’s head of delegation was reported to have been denied access for the first few days. At times, Brazil’s senior negotiator was unable to get in the room.

As soon as the High Level segment began and Prime Minister Rasmussen took over chairing duties from Environment Minister Connie Hedegaard, things went from bad to worse. The negotiators had worked all night agreeing to a new text on the Kyoto Protocol. As Minister Hedegaard left the chair, she noted a new text would be circulated soon from the Presidency. The question hanging in the room was ‘where is the text we negotiated all night?’ As she retreated, Prime Minister Rasmussen refused to allow the question to be answered, so keen was he on keeping the set speeches to take centre stage and run on time. In this brief public display the extent of the hostilities was clear. The head of the Chinese delegation spoke of the issue being a ‘matter of trust with the host country.’ Brazil and India agreed, the head of the Indian delegation still being quite flustered by the problems he encountered getting through security. South Africa and the Sudan, speaking for the group of 130 developing countries, also spoke of a lack of transparency in denying the primacy of the negotiated text in favour of some new text from the chair. Prime Minister Rasmussen ploughed ahead, ignoring the flag of Venezuela, cutting off none other than Hugo Chavez who had already joined his negotiators in the room.

The diplomatic gaffes continued the next night as leaders from around the world were invited to attend dinner with the Queen of Denmark. In an effort to get key leaders in the room for an informal chat, Prime Minister Rasmussen invited what he considered were the most important countries. Rumour has it he forgot to invite China. So, I do not doubt that what Mark Lynas saw looked like China wrecking a deal, but the wrecking started with a bizarre number of affronts to China before the world leaders arrived.

Blame also goes to Canada. In spring 2006 when Environment Minister Rona Ambrose was President of the COP, post Montreal’s hosting of COP11, Canada made itself the ‘bad boy’ of climate talks. With Canada actually chairing the negotiations, Ambrose announced Canada was not going to even attempt to reach our Kyoto target. Ever since, Canada has expanded the space for bad behaviour. Countries could be very uncooperative and counter-productive and still not be as bad as Canada. At the same time, in negotiation after negotiation, we laid down our square brackets (in international negotiations, applying square brackets to a draft text indicates disagreement with a phrase or section), blocking consensus on multiple issues. The reason Canada kept winning the Fossil of the Day award in negotiations, at COP 12, 13, 14 and 15, was that we were actively obstructing progress. And we continued being counter-productive right through the COP15 talks, winning, once again, the Colossal Fossil of the Year award.

On top of that, the US let everyone down. If there had been any hope, it was that President Obama would bring some flexibility to negotiations. Instead, he delivered a speech that had elements of Gary Cooper in ‘High Noon.’ It led to a forced, back-room effort to achieve something that could be used to appease a domestic US audience. So too was the United Nations hijacked to the US Senate and Obama’s desire to pass the Waxman-Markey bill. What now? Thanks to the round of all-night negotiations after the leaders had climbed on their jets for home, the so- called Copenhagen Accord was not the decision of COP15. Through the UN fudge of saying COP15 ‘took note’ of the five country deal, the commitments by China to allow verification of its reductions, and the financial commitments of wealthy countries, have been preserved as somehow meaningful. At the same time, the COP15 process did not allow the back-room accord to kill the Kyoto Protocol.

Copenhagen was a disaster, but it was not an unmitigated one. The negotiations continue. Civil society has found its champions, in the small low-lying island states, in African nations that argued that 2 degrees was too much in global temperature rise. We have a hellish hard task ahead to achieve the real carbon cuts that are urgently needed. Copenhagen was supposed to be the end of the road. Instead, it was a nasty pot hole.

This report was previously published in Embassy Magazine, who have kindly granted permission for its inclusion in Island Tides.

Elizabeth May, OC, is the author of Losing Confidence—Power, Politics and the Crisis in Canadian Democracy (McClelland and Stewart, 2009) and is the federal leader of the Green Party of Canada. ShelivesinSidney,BC.

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