The trans-Pacific partnership agreement has had a convoluted and somewhat rocky road. I think we would all admit that. I would like to take a bit of time to go through its history and then take as much time as possible, given that it is abbreviated now that we are down to only 10-minute speaking segments and time allocation has already been applied, on why it is completely anti-democratic to have investor-state provisions included in agreements, particularly the one currently before us.

I would like to adopt and support the submissions of the hon. member for Essex. The trade critic for the New Democratic Party has put forward clear arguments. So has the MP for Vancouver Kingsway. I agree with all I have heard from them. This allows me to concentrate on investor-state provisions rather than delve into the different sector-by-sector problems with the TPP.

Going back to where it started, the TPP was well under way in negotiation under the previous Conservative government of Stephen Harper. It knew the TPP was under way and Canada did not have a seat at the table. Therefore, there are a number of reasons the agreement is lopsided against certain Canadian sectors. It has to do with the fact we joined late. We were aggressive with trying to be in. Some will remember that even during the 2015 election, when a government is supposed to have no more than a caretaker role, the former minister of trade was working hard to try to get this deal done. That was inappropriate, given that the writ had already dropped, but he certainly did work hard to achieve the TPP.

We know that the incoming U.S. president pulled out. That had a very substantial impact on the economic reach of the agreement. With the U.S. out, it looked like the TPP was dead. However, bad trade deals never die, they rise again, and this one came back without the United States and now with 11 countries in the trade pact.

It is important for Canadians to know that we already have trade agreements, within NAFTA, with Mexico. Therefore, that means we are agreeing to new agreements with nine new nations. When we talk about the Pacific region, I think a lot of Canadians would assume this includes the big economic players. When we hear TPP, the trans-Pacific partnership, or now as it is styled, the comprehensive and progressive TPP, or CPTPP, one would assume it would include China and Indonesia. However, large economic players in Asia are out of the agreement, other than the big one, which are Japan, as well as Malaysia, and of course Australia and New Zealand. There are smaller economic countries, such as Peru and Vietnam, as well as Singapore, which is significant but relatively small in terms of trade.

We have a cobbled together agreement that we now are rushing to pass. We were promised that we would not rush through trade deals in this place, that we would have full debate. I gather the committee has been told that it has to rush as well. Therefore, this trade agreement will not be adequately debated. That is now a foregone conclusion because of time allocation.

In the six and a half minutes remaining to me, let me explain why I submit to the House that investor-state dispute resolution sections do not belong in any agreement. They do not belong in trade agreements. They in fact have nothing to do with trade. They are often conflated and confused with trade dispute resolution agreements. Therefore, in the case of NAFTA, which, by the way, was the source of these investor dispute resolution systems, chapter 11 in NAFTA had never been requested before. They were not understood. They were not even understood by the people who negotiated NAFTA.

What we have under NAFTA is chapter 19, which deals with how one sorts out disputes over tariffs and unfair trade decision. We are used to those. That is appropriately a trade dispute resolution provision. One needs those if one has a trade deal. What we do not need is this bogus, anti-democratic investor-state provision, which arose in chapter 11 of NAFTA. What does it mean? On paper, when people first read NAFTA, including in all the fights over adopting NAFTA, none of the anti-NAFTA groups ever noticed chapter 11. No one talked about it; it was a sleeper.

What chapter 11 seemed to say was common sense. If someone had invested in a country and the asset that was built was expropriated, such as when Fidel Castro took over Cuba, the expropriation of assets would require compensation, which is the international norm already. It looked like chapter 11 was about that. We found out that was not what the chapter was capable of doing in the Ethyl Corporation case, when Ethyl Corporation of Richmond, Virginia brought the first chapter 11 case again Canada.

It should be noted that as of now, Canada is the most sued industrialized country under these investor-state agreements and we have lost repeatedly. We have lost, but it was not as if we did something that was a subversion of our trade, not as if we treated some country that we promised we would give it friendly treatment and it was a duplicitous action in pursuit of a trade benefit. No, we have lost when we were trying to protect public health and the environment.

Let us look at Ethyl Corporation. In that instance, the former minister of environment, Sheila Copps, heard of the efforts of groups like the one I was executive director of, Sierra Club Canada. We worked hard to get rid of a toxic gasoline additive called MMT, which is manganese based. We were joined in that effort, believe it or not, by the car makers. The car makers said that MMT gunked up the engines and compromised the catalytic converters. In other words, it increased pollution in a way that could void their warranties.

Therefore, the auto manufacturers, the environmental groups and a number of health groups, with evidence from neurotoxicologist Dr. Donna Mergler of the University of Quebec in Montreal, said that this stuff increased manganism in the human population, in other words tremors that looked a lot like Parkinson’s, and at the same time threatened to void the warranties of cars. The minister of the environment brought forward a law which was passed in Parliament. The law said that we would get rid of MMT in gasoline.

It is important to know that at this point the United States Environmental Protection Agency had refused to register MMT, because its advice was that this stuff was bad for the environment, bad for human health and we should not use it. Therefore, Canada banned it.

Ethyl Corporation said that it was going to chapter 11 of NAFTA. However, before that chapter 11 case was through, the government of the day decided to settle, and we cannot say “out of court” because there are no courts involved here. These are private arbitration matters generally heard in hotel rooms. Therefore, if we are going to call a chapter 11 arbitration “out of court”, we have to insert the word “kangaroo” before the word “court” so the whole thing makes sense.

However, Ethyl Corporation got out of Canada an award of $13 million U.S., which was taken out of the A-base budget of Environment Canada. If members do not think that had a chilling affect on Environment Canada’s willingness to ban dangerous chemicals that were made in the United States, then they are not looking at the facts of what has happened since then. That was the first one. By the way, what was Ethyl Corporation’s investment in Canada? Did it have a plant here? No. Did it create jobs here? No. It was selling the toxic gasoline additive here, and that was enough to make it an investor. The same thing happened with S.D. Myers, which was the next case.

S.D. Myers is an Ohio-based company that runs incinerators for PCB contaminated waste. Sheila Copps, former minister of environment, banned the export of PCB contaminated waste from Canada consistent with the Basel Convention to which Canada was a signatory, but S.D. Myers sued. Guess what. It was suddenly an investor. It had expected profit from taking Canadian PCB waste and burning it in Ohio.

However, when we banned the export of PCB contaminated waste from Canada, the import of PCB contaminated waste into the U.S. was illegal under U.S. law. On that set of facts, we could not imagine that we would lose, but we lost. Canada appealed to the Federal Court of Appeal, which said that it was not significant enough of an egregious error under the rules of arbitration for us to win, and so we had to pay S.D. Myers money.

We are now awaiting Bilcon, which has asked for $580 million in damages. Canada has lost in Federal Court in our efforts to defend the good decision of a very ethical, thorough, independent, thoroughly evidence-based finding of the environmental assessment panel on Bilcon’s efforts to do an open-pit quarry in Digby, Nova Scotia.

Ethyl Corporation did not go to the courts in Canada, which it could have done. By the way, that decision led to the Progressive Conservative government of Nova Scotia turning down the permit and the previous Conservative Government of Canada environment minister John Baird turning down the permit. However, Bilcon, in New Jersey, went to a secret hearing under chapter 11 of NAFTA and it won.

TPP does not have such egregious secrecy; that is the one area in which this is different. However, we pass this and we will regret it. We will have chapter 9 suits under TPP, again from Malaysia and from Japan, and we will lose because Canada generally loses. This is corrosive to democracy, and I urge us to take investor state out of the bill in front of us.

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October 30, 2017

Re: Consultations on Canada’s discussions with the remaining members of what was previously the Trans-Pacific Partnership
This brief is prepared as a contribution to Global Affairs Canada’s public consultation on Canada’s discussions with the remaining members of what was previously the Trans-Pacific Partnership agreement (TPP). I prepared a similar submission for the Standing Committee on International Trade during their study of the trade agreement earlier this year. I appreciate that this approach is an improvement from the Harper Conservative government approach, but there needs to be much more than a consultation. I have urged the government to hold public hearings accessible to all Canadians, which include expert analysis from neutral parties who can shed light on the implications of this agreement. These hearings should be broadcast in order to reach a wide audience.

The situation changed dramatically with the withdrawal of the US from TPP by President Trump’s executive order. The essence of the TPP for Canada is that we joined the negotiations late and the previous government’s zeal to be “in” the deal led to a series of very uneven and poor results for Canada.

The TPP has very important and serious implications for all Canadians. The TPP consists of 30 chapters, 6000 pages of text and appendices using legal language that obfuscates their meaning and makes it difficult, if not impossible, for the average citizen to dissect and comprehend. It is important for the public to understand the implications of this far-reaching agreement, and the best way to do that would be through public hearings where experts can parse the language and make it more understandable for citizens.

There are a number of concerns about the TPP. Canada is not in a position to make changes to the agreement. While it is not a comprehensive list of the shortcomings of the TPP, I have listed my concerns below. Based on these concerns and the Canadian government’s inability to address these through changes to the agreement, I believe that the TPP should be rejected and that Canada should not sign or ratify the agreement, or one similar to it under a different name.

With access to public hearings, I believe that the majority of Canadians would come to the same conclusion.

Investment

The Investment chapter contains language and clauses that are very similar to previous trade agreements, including the investment chapter of NAFTA, Chapter 11. The Investor State Dispute Settlement (ISDS) provisions of this agreement will be used in the same way the ISDS provisions in NAFTA are being used. Terms such as “Minimum Standard of Treatment”, “National Treatment” and “Indirect Expropriation” have been interpreted to give foreign corporations massive leverage to challenge Canadian regulations that are created in the public interest. These ISDS provisions allow foreign corporations to bypass our judicial system and seek financial compensation in secretive arbitration tribunals that are made up of corporate lawyers who have a vested interest in perpetuating this arbitration system. Canadian taxpayers have paid out hundreds of millions of dollars in arbitration settlements under NAFTA, and there are billions of dollars in disputes currently before these arbitration panels. ISDS allows foreign corporations to seek financial compensation for the loss of potential profits when Canadian regulations get in the way of corporate interests. A great many of the arbitration cases brought forward under NAFTA relate to environmental legislation and protections, but there are also many examples around the world of ISDS being used to challenge health, safety, and labour standards as well. These ISDS provisions are anti-democratic in their very nature and undermine the sovereignty of nation states. Investor State provisions have no place in trade agreements.

Intellectual Property

The Intellectual property chapter extends both patent and copyright periods. It is expected that the cost of pharmaceuticals will increase as patents are extended and generic drugs take longer to come on the market. This is bad for our health care system and for Canadian consumers. It is also disastrous for health care in developing countries where the cost of pharmaceuticals will be out of reach. Many people will die as a result.

As a Doctors Without Borders/Médecins Sans Frontières release stated, “The TPP, which is currently being negotiated between the U.S., Canada and ten other Pacific Rim nations, is on track to become the most harmful trade pact ever for access to medicines in developing countries…”

There are concerns from Canada’s tech industries that the rules on intellectual property favour other nations and threaten to make Canada a “permanent underclass” in the economy of selling ideas. There are also concerns about new criminal penalties for minor non-commercial copyright infringement.

The TPP rules will also tilt the playing field in innovation to the large players.  As James Balsillie made it clear in his testimony, had the TPP been in place when he started Research in Motion, the global success of Blackberry would simply never have been possible.

Agriculture

The TPP undermines food sovereignty and the production of food through ecologically sound and sustainable methods. Increased trade in food commodities undermines small-scale local farming and shifts production to large factory farms and agribusiness corporations, increasing the environmental footprint of the food chain.

The TPP will undermine the efficient and equitable supply management system in Canada, which provides a stable price and market for Canadian dairy, egg and poultry producers.

Standards set for genetically modified food (GMOs) including GMO approval processes, GMO import monitoring and GMO labelling requirements could all be cited as trade barriers. Local municipal, regional or provincial rules governing the cultivation of GMOs, the use of GMO associated herbicides, or increased food chain transparency could be challenged.

Environment

The TPP text fails to mention the words “climate change” even though this is the most pressing issue of our time. The Investor State rules could be used to undermine efforts to tackle climate change and force governments to compensate corporations for mitigation initiatives. ISDS has already been used to undermine efforts to create energy alternative policies of national and state governments. Fossil fuel corporations will be able to challenge the limits placed on them by governments trying to mitigate climate change. As an example, Trans-Canada pipelines has launched a $15 billion NAFTA arbitration suit against the United States government for the loss of potential profit after the Obama administration blocked the Keystone XL pipeline project for environmental reasons.

The environmental rules in the TPP are weak and the provisions do not include specific obligations or enforcement. Rather than using stronger terms such as “obligated”, “banned” or “prohibited” the terminology is aspirational and uses terms such as “endeavour” and “promote” and non-binding lists of suggested measures that countries “should” take.

Financial Services

The TPP will constrain government’s abilities to regulate their financial institutions and allow financial firms to challenge financial stability measures. Governments will not be able to impose regulations on risky financial products such as derivatives or hedge funds or ban risky new financial products and services if other TPP countries permit them.

Large financial institutions from other TPP nations could challenge Canadian financial regulations using the investor state provisions of the TPP and seek compensation from taxpayers in secretive tribunals for the loss of potential profit that those regulations might entail.

Rules of Origin and the Loss of Canadian Manufacturing Jobs

The Rules of Origin chapter in the TPP will encourage the continued trend of off-shoring manufacturing jobs from North America to countries with lower labour and environmental standards and enforcement. The 62.5% content rules under NAFTA are being lowered to 45% under the TPP. Under the NAFTA rules there was a major shift in manufacturing from Canada and the USA to Mexico. Under the new rules a vehicle with 55% Chinese content could still qualify as Made in Canada or Made within the TPP signatory countries. These new rules will further undermine Canada’s auto manufacturing sector and will result in the loss of Canadian jobs.

Labour Standards

The TPP countries have agreed to adhere to the International Labour Organization (ILO) declarations and maintain statutes and regulations governing acceptable working conditions, but the agreement fails to set minimum standards for those regulations. The ILO agreements call for minimum wages but countries such as Vietnam and Brunei could establish minimum wages that are pennies per hour and still be in compliance with the ILO.

Human Rights

Brunei, Vietnam and Malaysia are countries with very poor human rights records; in Brunei, for example, the punishment for homosexuality is death by stoning. Brunei and Vietnam are not democratic countries. We should not be liberalizing trade with these countries without guarantees that they will reform their laws and respect human rights.

Conclusion

This is not an agreement that will benefit Canadians or the citizens of the other TPP countries. The main beneficiaries of the TPP are large multi-national corporations and wealthy investors. The Investment chapter of the TPP will increase the number of foreign corporations that can challenge Canadian laws and regulations though private secretive tribunals. The Financial chapter opens up sovereign countries to more deregulation of their financial systems and increased risk from financial crashes. Rather than raising the standards of developing countries within the TPP with mandatory targets for better labour, environmental, health and safety regulations, the agreement uses aspirational language that allows countries and corporations to utilize loopholes and exploit lax regulations.

The TPP is not an agreement that is worthy of support, nor is it worthy of a resurrection.

Thank you for the opportunity to provide these points.  I am very happy to meet with the department and staff to provide more detailed background to any of these points.

Sincerely,

Elizabeth May, O.C.

Member of Parliament

Saanich – Gulf Islands

Leader of the Green Party of Canada

PDF version of submission available here.

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Briefs exceeding 10 pages must be accompanied by a summary of no more than 1,500 words. The Committee may decide to translate, distribute and/or publish only the summary.

More information on the process for providing a brief can be found in the Guide for Submitting Briefs to House of Commons Committees. Briefs should be emailed to: ciit-tpp-ptp@parl.gc.ca.

The post Share your views on the Trans-Pacific Partnership (TPP) with the standing committee on International Trade (Deadline: Jan 27, 2017) appeared first on Elizabeth May.

To: The Standing Committee on International Trade

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

Date: January 27, 2017

This brief is prepared as a contribution to the Committee’s public consultation of the Trans-Pacific Partnership agreement (TPP). I appreciate that this approach is an improvement from the Harper Conservative government approach, but there needs to be much more than a consultation. I have urged the government to hold public hearings accessible to all Canadians, which include expert analysis from neutral parties who can shed light on the implications of this agreement. These hearings should be broadcast in order to reach a wide audience.

The situation has changed dramatically with the withdrawal of the US from TPP by President Trump’s recent executive order. The essence of the TPP for Canada is that we joined the negotiations late and the previous government’s zeal to be “in” the deal led to a series of very uneven and poor results for Canada. This is particularly clear when one reads the years of protection for US car manufacturers against imports from Japan, versus what Canada negotiated.

The TPP has very important and serious implications for all Canadians. The TPP consists of 30 chapters, 6000 pages of text and appendices using legal language that obfuscates their meaning and makes it difficult, if not impossible, for the average citizen to dissect and comprehend. It is important for the public to understand the implications of this far-reaching agreement, and the best way to do that would be through public hearings where experts can parse the language and make it more understandable for citizens.

There are a number of concerns about the TPP. Canada is not in a position to make changes to the agreement. While it is not a comprehensive list of the shortcomings of the TPP, I have listed my concerns below. Based on these concerns and the Canadian government’s inability to address these through changes to the agreement, I believe that the TPP should be rejected and that Canada should not sign or ratify the agreement.

With access to public hearings, I believe that the majority of Canadians would come to the same conclusion.

Investment

The Investment chapter contains language and clauses that are very similar to previous trade agreements, including the investment chapter of NAFTA, Chapter 11. The Investor State Dispute Settlement (ISDS) provisions of this agreement will be used in the same way the ISDS provisions in NAFTA are being used. Terms such as “Minimum Standard of Treatment”, “National Treatment” and “Indirect Expropriation” have been interpreted to give foreign corporations massive leverage to challenge Canadian regulations that are created in the public interest. These ISDS provisions allow foreign corporations to bypass our judicial system and seek financial compensation in secretive arbitration tribunals that are made up of corporate lawyers who have a vested interest in perpetuating this arbitration system. Canadian taxpayers have paid out hundreds of millions of dollars in arbitration settlements under NAFTA, and there are billions of dollars in disputes currently before these arbitration panels. ISDS allows foreign corporations to seek financial compensation for the loss of potential profits when Canadian regulations get in the way of corporate interests. A great many of the arbitration cases brought forward under NAFTA relate to environmental legislation and protections, but there are also many examples around the world of ISDS being used to challenge health, safety, and labour standards as well. These ISDS provisions are anti-democratic in their very nature and undermine the sovereignty of nation states. Investor State provisions have no place in trade agreements.

Intellectual Property

The Intellectual property chapter extends both patent and copyright periods. It is expected that the cost of pharmaceuticals will increase as patents are extended and generic drugs take longer to come on the market. This is bad for our health care system and for Canadian consumers. It is also disastrous for health care in developing countries where the cost of pharmaceuticals will be out of reach. Many people will die as a result.

As a recent Doctors Without Borders/Médecins Sans Frontières release stated, “The TPP, which is currently being negotiated between the U.S., Canada and ten other Pacific Rim nations, is on track to become the most harmful trade pact ever for access to medicines in developing countries…”

There are concerns from Canada’s tech industries that the rules on intellectual property favour the United States and threaten to make Canada a “permanent underclass” in the economy of selling ideas. There are also concerns about new criminal penalties for minor non-commercial copyright infringement.

The TPP rules will also tilt the playing field in innovation to the large players.  As James Balsillie made it clear in his testimony, had the TPP been in place when he started Research in Motion, the global success of Blackberry would simply never have been possible.

Agriculture

The TPP undermines food sovereignty and the production of food through ecologically sound and sustainable methods. Increased trade in food commodities undermines small-scale local farming and shifts production to large factory farms and agribusiness corporations, increasing the environmental footprint of the food chain.

The TPP will undermine the efficient and equitable supply management system in Canada, which provides a stable price and market for Canadian dairy, egg and poultry producers.

Dairy products from the United States, which can include bovine growth hormone, will be allowed into the Canadian market and will not be labeled for consumers to avoid. These dairy products will compete with locally produced, hormone-free dairy products and undermine local farmers.

Standards set for genetically modified food (GMOs) including GMO approval processes, GMO import monitoring and GMO labelling requirements could all be cited as trade barriers. Local municipal, regional or provincial rules governing the cultivation of GMOs, the use of GMO associated herbicides, or increased food chain transparency could be challenged.

Environment

The TPP text fails to mention the words “climate change” even though this is the most pressing issue of our time. The Investor State rules could be used to undermine efforts to tackle climate change and force governments to compensate corporations for mitigation initiatives. ISDS has already been used to undermine efforts to create energy alternative policies of national and state governments. Fossil fuel corporations will be able to challenge the limits placed on them by governments trying to mitigate climate change. As an example, Trans-Canada pipelines has launched a $15 billion NAFTA arbitration suit against the United States government for the loss of potential profit after the Obama administration blocked the Keystone XL pipeline project for environmental reasons.

The environmental rules in the TPP are weak and the provisions do not include specific obligations or enforcement. Rather than using stronger terms such as “obligated”, “banned” or “prohibited” the terminology is aspirational and uses terms such as “endeavour” and “promote” and non-binding lists of suggested measures that countries “should” take.

Financial Services

The TPP will constrain government’s abilities to regulate their financial institutions and allow financial firms to challenge financial stability measures. Governments will not be able to impose regulations on risky financial products such as derivatives or hedge funds or ban risky new financial products and services if other TPP countries permit them.

Large financial institutions from other TPP nations could challenge Canadian financial regulations using the investor state provisions of the TPP and seek compensation from taxpayers in secretive tribunals for the loss of potential profit that those regulations might entail.

Rules of Origin and the Loss of Canadian Manufacturing Jobs

The Rules of Origin chapter in the TPP will encourage the continued trend of off-shoring manufacturing jobs from North America to countries with lower labour and environmental standards and enforcement. The 62.5% content rules under NAFTA are being lowered to 45% under the TPP. Under the NAFTA rules there was a major shift in manufacturing from Canada and the USA to Mexico. Under the new rules a vehicle with 55% Chinese content could still qualify as Made in Canada or Made within the TPP signatory countries. These new rules will further undermine Canada’s auto manufacturing sector and will result in the loss of Canadian jobs.

Labour Standards

The TPP countries have agreed to adhere to the International Labour Organization (ILO) declarations and maintain statutes and regulations governing acceptable working conditions, but the agreement fails to set minimum standards for those regulations. The ILO agreements call for minimum wages but countries such as Vietnam and Brunei could establish minimum wages that are pennies per hour and still be in compliance with the ILO.

Human Rights

Brunei, Vietnam and Malaysia are countries with very poor human rights records; in Brunei, for example, the punishment for homosexuality is death by stoning. Brunei and Vietnam are not democratic countries. We should not be liberalizing trade with these countries without guarantees that they will reform their laws and respect human rights.

Conclusion

This is not an agreement that will benefit Canadians or the citizens of the other TPP countries. The main beneficiaries of the TPP are large multi-national corporations and wealthy investors. The Investment chapter of the TPP will increase the number of foreign corporations that can challenge Canadian laws and regulations though private secretive tribunals. The Financial chapter opens up sovereign countries to more deregulation of their financial systems and increased risk from financial crashes. Rather than raising the standards of developing countries within the TPP with mandatory targets for better labour, environmental, health and safety regulations, the agreement uses aspirational language that allows countries and corporations to utilize loopholes and exploit lax regulations.

The TPP is not an agreement that is worthy of support.

Thank you for the opportunity to provide these points.  I am very happy to meet with the committee and staff to provide more detailed background to any of these points.

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Almost by rote, people who defend investor state agreements say that it is just a standard FIPA. I would ask my hon. colleague if she would agree with me that there is nothing standard about something so corrosive to democracy as allowing foreign corporations to bring charges and, in private arbitration suits, seek damages against the Government of Canada for bills passed municipally or provincially.

We have a bad history. Canada has been a victim of more of the chapter 11 cases than most nations have, of investor state agreements. I would just ask the member to reflect on that aspect of the TPP and CETA.

The post Elizabeth May Comment on Investor State Provisions appeared first on Elizabeth May.

The first group of flaws has a lot to do with Canada joining the talks when they were already quite far advanced.  We started from a very weak negotiating position on a wide range of trade issues – from the auto sector to the patent protection of prescription drugs to intellectual property protection – and from that weak position, we caved.  The US auto sector gets protected far longer from Japanese competition than their Canadian counterparts.  The cost of Canadian pharmaceutical drugs will soar.  And the potential for Canada to excel in the ideas economy is kyboshed while those new economic winners in the virtual economy are enshrined in their existing power position.  Canada will be frozen out.  As Jim Balsillie, founder of Research in Motion, told the trade committee, Canada will be a “colossal loser” under the TPP.  The game will be fixed and we will not have a seat at the table.  His advice to Canadian innovators if the TPP goes through?  Move to the US and start your business there.

Which is quite the observation when one considers what US economists are saying about the TPP.  Nobel Prize winning economist and professor at Columbia University, Joseph Stiglitz describes the TPP as “the worst trade deal ever.”  Not the worst deal for Canada – the worst deal ever for the United States too.  And the US negotiators struck a much better deal.

Stiglitz observes that the TPP is not really a trade deal at all.  It is about managing trade in a way that benefits a new global regime of corporate rule and not the actual promotion of the trade in goods and services.  In that sense it is not a traditional trade deal at all.

The alarm felt about the TPP in the US has much to do with the dawning recognition of how investor-state agreements work.  The TPP is not the first one the US has entered into. The US has executed dozens of ISDS treaties.  But unlike the first one, Chapter 11 of NAFTA and unlike ones between the US and Ecuador or the US and the Philippines, this is an ISDS in which the US might actually lose. The reality of these provisions, that allow a foreign corporation to bring arbitration suits against governments that enact changes that have the incidental, even if unintentional, effect of reducing a foreign corporation’s profits, is that the arbitration is neither fair nor neutral.  Almost every single case is resolved in favour of the larger economic power.  So if it is a case between a US corporation and the Canadian government, or between a Canadian corporation and the US government, the US is about 95% likely to win – whether state or investor.  But the TPP opens up the chance of other serious economic players being able to bring arbitration cases against the US.

The political debate over TPP has separated Hilary Clinton from Obama’s legacy.  She has come out against the TPP, and so has Trump.  It will make no sense at all to ratify a treaty that the US may not ratify.

Meanwhile, the debate gives us a chance to re-examine all of the investor-state agreements.  They are offensive and anti-democratic by their very nature.  They have nothing to do with trade promotion or protection of the assets of foreign investors.  They are all about the erosion of the ability of sovereign states to act in the public interest.  The ability to act in the public interest remains, but is forever constrained.  Profits of foreign corporations will trump acting in the public interest.  That such an unholy and outrageous scheme could be elevated to “routine” is shocking.  The CETA agreement with the EU now boasts a new approach – setting up an Investment Court.  Don’t be fooled.  It is no different than its predecessors.  It has some window dressing, but fails to remedy the central objectionable feature of ISDS agreements.  Whether under the CETA approach, NAFTA or the Canada-China Investment Treaty, foreign corporations are given extraordinary rights to demand compensation when a government – municipal, provincial or federal – acts in a way that reduces a foreign corporation’s expectation of profits.

We need to engage a global process of re-negotiation of all ISDS.  Canada should open the dialogue about the creation of a rebalancing of nation state rights versus corporate rule.  We should propose within the WTO the creation of a model agreement to protect the legitimate interests of the investor and the protection of domestic sovereignty.  With the litany of perverse decisions accumulating under these agreements, we should find many countries willing to demand a new approach leading to the replacement of all current ISDS agreements.

Meanwhile, we start by saying “no” to the TPP.

Originally published in the Hill Times.

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These provisions allow a foreign corporation to bring a challenge by way of private arbitration against a government if that government’s actions can be interpreted as “tantamount to expropriation.” Ever since Chapter 11 of NAFTA where this anti-democratic instrument first emerged, arbitrators have been willing to find that perfectly reasonable measures by governments have reduced foreign corporations’ expectations of profits.

“Tantamount to expropriation” ceased to mean anything close to actual expropriation. It has become a way for foreign corporations to threaten and punish governments for regulating to protect health, safety and the environment around the world. Trade lawyer Steven Shrybman once correctly described them as “fundamentally corrosive to democracy.”

The remarkable thing is the way in which such outrageous measures have cloaked themselves with the language of the ordinary. When the Green Party tried to raise awareness about the threat to our sovereignty of the Canada-China investment agreement, we were treated to repetition of the bromide, in patronizing tones, “this is a standard foreign investment protection agreement” (FIPA). It is like being told, “but this is a standard water-boarding technique.”

Governments have lost in secret arbitrations for warning citizens that cigarettes cause lung cancer, or for terminating contracts, even when allowed within the terms of the contract, where oil and gas leases are at stake, for banning toxic gasoline additives, or ruling that projects are such a significant threat to the environment that the damage cannot be mitigated. In none of the cases was the foreign corporation required to establish that a government had acted in a discriminatory manner. None required evidence that a government had lacked scientific evidence. All that is required is that a foreign corporation is likely to make less profit.

The most controversial part of the Comprehensive Economic Trade Agreement (CETA) with the European Union is the investor-state provision. The most controversial part of the Trans-Pacific Partnership Agreement (TPP) is the investor-state agreement. These concurrent debates create the opportunity to debate for the first time whether such agreements are in the public interest—anywhere.

Essentially the issue has never been debated. Despite a significant public debate in Canada before ratifying NAFTA, Chapter 11 was never identified as a source of concern. It was a sleeper. Not even Canada’s NAFTA negotiators had contemplated that the language could be interpreted as it has been. An elite group of lawyers globally have profited—enormously—as arbitrators, as counsel and as expert witnesses in ripping off governments in the interest of corporate power. Domestic governments and legislatures at all levels—municipal, state/provincial and federal have lost around the world.

Now the EU Trade Commissioner Cecilia Malmström has proposed what is described as a reform—an Investment Court System (ICS). Despite being oversold in the media, the actual proposal is simply rebranding the ISDS mechanism. One of the few independent Canadian experts in investor-state dispute systems, uncompromised by a career in profiting from the inherent injustice of the ISDS system, is Prof. Gus Van Harten of Osgoode Hall Law School. In a recent article for the Social Science Research Network, he has carefully critiqued Malmström’s proposal. Van Harten rejects it as allowing the continuation of ISDS, despite a degree of whitewashing of its sins.

The sensible thing to do, as the issue is hotly debated in the CETA and TPP context, is to move for a thorough global review of all these agreements in the context of the WTO. The Canada China investor-state agreement is arguably the worst Canada has ever entered into. The Conservative cabinet ratified it in secret by order in council. The earliest Canada can exit the agreement is 2045. Our only way out is either through a global review or if Beijing agrees to renegotiate FIPA in the course of our new trade talks.

A global review of all such agreements is long overdue. Their rationale was never established. They are clearly not a necessary precondition to investment. Australia, for example, has a far larger volume of trade with China than Canada and never entered into an ISDS with China at all—much less the lop-sided deal with which Harper has left us.

The first priority is a new law ensuring all Canadians transparency. The minute any government or foreign corporation threatens Canada, that must be made public. Canadians need to know if we are being threatened. Secondly we need to re-open the TPP and CETA to remove the proposed ISDS provisions. Take them out now and gather up all these pernicious instruments to be replaced by a newly drafted and fair set of rights and responsibilities of foreign corporations.

This ugly threat to democracy slipped out of Chapter 11’s Pandora’s Box. It’s long since time to put it back in the box.

Originally published in the Hill Times. 

The post Time to ditch investor-state agreements appeared first on Elizabeth May.

February 27, 2016

Source: rabble.ca

Elizabeth May is once again alone. For a period of almost two years she was joined on the Green Party parliamentary benches in Ottawa by former New Democrat and former independent MP Bruce Hyer. However, Hyer lost his seat in the 2015 election leaving the MP for Saanich-Gulf Islands as once again the sole Green Party representative in the House of Commons.

However, May is used to being a one-person caucus and it doesn’t seem to have affected her level of political effectiveness, and it certainly has not diminished her political enthusiasm. Indeed despite, or perhaps because, of her position as a partisan outlier on the parliamentary playing field she has been able to blaze a distinctive path. May is a straight-talker, unencumbered by party whips and unafraid to call it like she sees it. In a political universe too often dominated by party lines and talking points, spokespeople and handlers, protocol and general political fustiness, May is a refreshing bolt out of the clear blue sky. You may or may not agree with her but you won’t hear any bafflegab from her.

Full disclosure: I’ve known Elizabeth May for over 30 years, from the time when we first worked together on a campaign to stop the aerial spraying of herbicides in Nova Scotia and collaborated as members of the Ecology Action Center’s Forestry Committee. Over those years I’ve seen her political acumen and environmental dedication grow in leaps and bounds, from her years as a grassroots activist, lawyer, senior policy advisor of Progressive Conservative Environment Minister Tom McMillan, executive director of the Sierra Club of Canada, and finally leader of the Green Party of Canada. It’s been a remarkable arc.

One of the definitions of gadfly in my dusty dictionary is, “a person who threatens the status quo of a society by posing novel and potentially upsetting questions, usually directed at authorities.” This notion originates with Socrates who considered his role as μύωψ (myops or gadfly) in Athenian society, “to sting people and whip them into a fury, all in the service of truth.”

I sometimes think that in addition to a Speaker of the House of Commons there should also be the position of Parliamentary Gadfly — a post that May would be admirably suited to occupy. While some political leaders may find her probing “upsetting” and take periodic swipes at her, the threat of being stung by her command of the facts and rhetorical skills is more than a little salutary for Canadian democracy.

For a candid view of the state of Canadian democracy, the health of parliamentary institutions, the results of climate negotiations, or almost anything else of consequence crossing the Canadian social, political, or environmental radar, there is no one more engaging or salubrious to speak with than Elizabeth May. I caught up with her while she was in Halifax to speak about democratic reform at the Schulich School of Law at her former alma mater, Dalhousie University.

Paris Climate Change Convention

Christopher G. Majka: You attended COP-21 the 2015 Paris Climate Conference. In the aftermath of the conference, there has been much discussion as to whether this summit was a success or failure. On the one hand 195 countries entered into the Paris Agreement, the object of which is to keep anthropogenic climate change to “well below” 2 degrees Celsius (above pre-industrial levels) by end of the 21st century, and indeed to “pursue efforts” to limit this temperature increase to 1.5 degrees Celsius.

On the other hand, experts who have tallied up the current greenhouse gas reduction targets of these participating states, estimate that they would lead to a temperature increase of something on the order of 2.5 — 3.7 degrees Celsius — far in excess of what everyone now understands are tolerable limits to temperature increase that does not result in enormously disruptive climate change.

While there are no binding targets unless and until the treaty has been ratified under the ratification formula (55 parties who produce over 55% of the global Greenhouse gas emissions) and important CO2 producing activities like international air and shipping are not included in the Paris Agreement targets, on the other hand both the United States and China, by far and away the two largest global greenhouse gas emitters, prominently participated and arguably broke a logjam that had previously stymied efforts to reach a meaningful global consensus on climate change.

There are many other “on the one hand, on the other hand” comparisons that can be adduced to an evaluation of the Paris Climate Conference. What is your view? Is the Paris glass half empty or half full?

Elizabeth E. May: Had this agreement failed, if this had been another “Copenhagen” we would have had no chances ever to get another agreement on a multilateral global basis. This was the last chance.

In my view we could have got this agreement in 2009 in Denmark (Copenhagen Climate Change Conference — December, 2009) if we hadn’t had a dysfunctional host government. Denmark’s right-wing prime minister (Lars Løkke Rasmussen) had his own cadre of experts doing their own thing and not talking to Connie Hedegaard who was the Danish Minister of the Environment [Note: Connie Hedegaard was the president of the Climate Change Conference and chair of the proceedings from December 7-16, 2009 at which point she left the chair to Rasmussen for the final three days of the conference.], so there were two competing groups.

CGM: And that made such a substantial difference in terms of the outcome of the conference?

EEM: Oh, huge. When Rasmussen took the chair of the conference away from Hedegaard he didn’t know how to run the UN negotiations; ignored countries like Venezuela with Hugo Chavez waiting to take the floor; decided he could bully through with a backroom deal that he had crafted with a handful of countries. So, Copenhagen was a disaster, not just because countries weren’t ready, although that’s the story that is generally told, but also because the Danish government completely screwed it up. And then Barak Obama showed up and decided to act like the gunslinger in the OK Corral saying, “Meet me out back, boys, and we’ll fix this.” The damage done to global negotiations by the Copenhagen Conference cannot be overstated.

Now, damage to global negotiations before Copenhagen began in the mid 1990’s with the creation of the World Trade Organization (WTO), which took away from environmental treaties the only useful enforcement mechanisms, which were trade sanctions.

Negotiations after Copenhagen were rescued the next year in Cancún, Mexico (Cancun Climate Change Conference – November 2010), by a brilliant foreign affairs minister from Mexico, Patricia Espinosa, whose single-handed and extraordinary work expunged the ghost of Copenhagen and put things back on track. That led to Durban, South Africa (Durban Climate Change Conference – Nov/Dec 2011) where negotiations were weakened at every turn by Canada’s presence under the government of Stephen Harper.

One of the innovations in the post Copenhagen process was not to wait until COP-21 to find out what pledges countries were prepared to put on the table. The idea was for countries to bring forward their pledges in the first quarter of 2015 so that everyone would know what the INDCs (Intended Nationally Determined Contributions) were going to be ahead of time.  So it was no surprise to anyone, or a critique of the conference’s success or failure that current pledges from all governments, if they are all achieved, total a projected 2.5 – 3.7 degrees Celsius (of temperature increase) above preindustrial levels. This is why there is pressure on all countries to improve their targets. The targets are not embedded in the treaty so at any time a country can put in place a new one so long as it’s not weaker — it must ratchet up.

Now, back to the Paris negotiations: I saw the language that was negotiated last year in Lima, Peru (Lima Climate Change Conference – December 2014) weakened during the last negotiations (before the Paris Summit opened) of the final ADP (Ad Hoc Planning) Working Group which took place on October 19-23, 2015. The Canadian election took place on October 19, 2015 and the Harper Government was still in the room trying to make the agreement less legally binding. It freaked me out entirely that even after our election the negotiating position of Canada did not change.

So, the context here is that it mattered to get some success out of Paris. It was essential to get a work plan to go forward with. In the language of the people who work on this, it mattered more to get the “architecture” right so that there would be a workable approach that would continue to hold governments to account and push us toward better targets. So, if this treaty was simply ‘popping champagne corks and going away’ it would be a disaster. But it’s not that. And no one there thought it was that.

So what we have now are two things that were agreed to in Paris. One is the Paris Agreement, which will be legally binding (on all signatories) as soon as 55 parties who produce over 55% of the global Greenhouse gas emissions ratify it. That will probably take effect by 2020. If we are to keep climate change within 1.5 degrees Celsius everyone understands that if you wait until 2020 (to ramp up the targets) it will be too late.

Which is the second thing that was agreed to in Paris. It is called the COP Decision (Decisions adopted by the Conference of the Parties) and is a work plan in which the next important date is April 22, 2016, with a signing ceremony for the agreement to be held at a high level at the United Nations to push countries to improve their targets. The (existing) INDCs aren’t good enough. The next ramping-up and assessing of all the targets — asking, “Have the INDCs been improved over what they were in Paris?” — starts in March.

CGM: So that process has been constructed so as to maintain momentum and to have teeth?

EEM: It doesn’t actually have teeth because there are no enforcement mechanisms such as trade sanctions. The “teeth” that there are, are in what’s called “global stock taking,” in the frequency of the reviews (of the INDCs) and, essentially, global peer pressure.

CGM: How will that global stocktaking be done?

EEM: It will be done every five years. The first one is actually built into the COP Decision, although it’s … called a “facilitative dialogue” in 2018 to assess all the (greenhouse gas emissions) targets.

If there was a mistake in (regard to the) the Kyoto Protocol, it was that it was agreed to in 1997 and the end point was in 2010-2012, which meant that there was a fifteen-year gap without such a global stocktaking. Now it will be done in 2018, 2020, 2025, and 2030. There was not a single government representative at COP-21 who failed to realize that the totality of current commitments was twice too weak. The COP Decision gives us the tools to push forward for reducing emissions. The Paris Agreement by itself doesn’t save us.

I’m also pleased that through the negotiations in Paris, at every step, the document got stronger, which is almost unheard of. That 2018 date fell out of the draft agreement at one point, and then it came back in. It wasn’t until the final negotiated text that the words “climate justice” appeared.

If this agreement had failed, it wouldn’t be “glass half empty or glass half full” it would have been “glass smashed on the floor and now what are we supposed to do?” There was no other forum or mechanism (remaining).

CGM: When the 1.5 degree Celsius target appeared in the documents many environmentalists were astonished to see a so much more ambitious target being embraced.

EEM: It took (Environment and Climate Change Minister) Catherine McKenna personally to do that and overcome what I think was the general advice of the Canadian bureaucracy, bearing in mind that the negotiators for Canada in Paris were all appointed under the previous government, and the current Deputy Minister for Environment Canada was the lead negotiator for Canada in Copenhagen. It was quite something in Paris to have Canada support a legally binding treaty and for the 1.5 degrees Celsius goal.

What we really need in this country right now is a lot more mobilization of citizen groups and environmental groups to push for more, faster. I was pleased to see that the Climate Action Network is organizing around carbon pricing. We should be pushing very hard on Trudeau to ask, “When are you going to come up with a new target (for greenhouse gas emissions) since the one that was in place since the middle of last year is Stephen Harper’s target?

National Price on Carbon

CGM: Following on that, the new Liberal government recently announced that is was considering setting a $15 per tonne national minimum carbon price by September 2016.

Establishing a price on carbon is undoubtedly an important political undertaking for a Canadian government and a significant conceptual step in conveying the understanding that establishing a price for pollution is key to harnessing economic forces to curb such activities.

That said, and climbing back aboard the “on the one hand, on the other hand” seesaw, a $15 per tonne levy would be more symbolic than actually effective. The carbon tax in British Columbia is currently $30 per tonne and Alberta’s will rise to that level by 2018. The Canadian Centre for Policy Alternatives’ (CCPA) Alternative Federal Budget calls for a $30 per tonne national harmonized carbon tax, and the Green Budget Coalition proposes a $50 per tonne levy by 2020. Environmental economist Dave Sawyer says a carbon tax increasing to $180 a tonne by 2030 would be required to meet Canada’s current carbon emission reduction targets.

EEM: If a carbon tax was the only policy instrument being used to lower emissions.

CGM: Right. So, in your view and that of the Green Party, is this a small but significant step in moving along a path to reign in carbon emissions, and hence provide an economic impetus for moving from a carbon economy to a renewable energy economy? Or is $15 per tonne to modest by half? Is there a danger that setting targets that are far too slender and don’t substantively address climate change, that we both lull ourselves into thinking we have actually done something useful, and also erect a smokescreen behind which the petro-economy can continue to function, business pretty much as usual?

EEM: The Liberals had a very thin platform on climate change during the election, but one thing that was there as a firm commitment was to establish a price on carbon and to remove all subsides (for fossil fuels). So, I would hope to see such a removal of all subsidies in the 2016 federal budget. I would also hope to see the carbon price in the budget.

The notion of $15 per tonne doesn’t make sense to me. We should have a uniform carbon price across Canada. At the moment there is one carbon price for Ontario and Quebec, a different one for British Columbia, a different on for Alberta, and no carbon price for Saskatchewan (or Manitoba). [Note: Newfoundland and Labrador, Nova Scotia, New Brunswick, Prince Edward Island – are in various stages of rolling out carbon policies. For further information see Trudeau government considers $15 a tonne national minimum carbon price.] So it makes sense to me to have a minimum carbon price of at least $30 per tonne to start with, ramping up to $50, and $60 and so forth.

In British Columbia there is a now a recognition, even in Christie Clark’s government — because she is the one who stalled the ramping up of the carbon tax — that it has to increase, because we’ve got as much benefit in emissions reductions as we’re going to get. [Note: For further information see British Columbia carbon tax. BC Liberal Premier Christie Clark froze the tax at the 2012 level of $30 per tonne in the 2014 provincial budget.]

The Green Party believes that the best way to administer a carbon price is through the “fee and divided” approach. This approach could be used by the federal government as ‘backfiller’ and ‘gapfiller.’ For example, the carbon price could be $30 per tonne everywhere to start with. So where the price is already $30 per tonne nothing further needs to be done. Elsewhere (the government) would tax (to meet that level) and the additional revenues from the carbon pricing would be returned directly to the residents of those provinces.

[Note: In a fee and divided approach, carbon emissions are ‘taxed’ by per tonne fees, which are then returned to citizens via a progressively structured dividend system so that those who are least able to afford price increases receive the greatest dividends (i.e., benefits). For further information see the Green Party’s Climate Change Plan.]

This would reduce the aggressive pushback (to carbon pricing), which thus far we’re only hearing from (Saskatchewan Premier) Brad Wall, but we can imagine that we will hear it from (Nova Scotia Premier) Stephen McNeil as well.

What people need to appreciate is that in a system of market economics where dumping pollution into the atmosphere is considered free, there is a problem. You have to put a price on carbon, because dumping carbon is not free, it’s a huge threat to our survival. So putting a price on it begins to internalize that externality. But that by itself is only the beginning. That’s a foundation (to build on).

Another reason the federal government needs to be involved is that we need border tax adjustments. So, on goods coming into Canada from other countries that don’t have a carbon price that is equivalent to our own we have to have a border adjustment. All of that requires federal action.

So, the Trudeau Liberals have to bring in a carbon price. Ideally it should be a uniform price across Canada. I know that the Canadian Centre for Policy Alternatives (CCPA) would rather see the carbon fee accumulated and used for other infrastructure investments, but the Liberals are prepared to spend billions on infrastructure anyways and its easier to get acceptance for a carbon fee if people realize that it’s revenue neutral. [Note: In Nova Scotia the CCPA-NS has proposed in their 2016 Alternative Provincial Budget a carbon tax in which 50 per cent of the revenues are returned to citizens via the Affordable Living Tax Credit and the other 50 per cent are invested in the development of renewable energy.] That’s the way it is structured in British Columbia, the BC carbon tax is celebrated around the world, and that’s what I’ll keep pushing for in Parliament.

Sexual Assault

CGM: Switching directions, the first trial of former CBC radio host Jian Ghomeshi has now concluded and Ontario Court Justice William Horkins has said he will deliver a verdict on March 24.

This trial has touched a raw nerve across Canadian society in regard to the issue of sexual assault and how it is treated within the Canadian justice system. There are those who believe that the way sexual assault is prosecuted is excessively grueling to alleged victims, that this discourages victims from pressing changes, and that the low prosecution and conviction rates speak to the difficulty of successfully navigating such cases to a conviction.

There have already been major legislative reforms in this area, notably in 1983 with the passage of Bill C-127, in which the crime of “rape, which originated in property law, and which women’s groups and legal scholars viewed as incorporating deep-seated sexist notions, was replaced with sexual assault to emphasize the violent nature of the crime and that it was an offense against person. Then in 1992 with the passage of Bill C-49 that enacted the so-called “rape shield” legislation, which greatly limited (and in most cases eliminated) the admissibility of any questions related to a witnesses’ previous sexual history, which were also perniciously sexist. These were made at the behest of feminists and with the involvement of frontline rape and transition-house workers and national women’s organizations that participated in the drafting of Canadian government legislation.

Bearing this in mind, are there ways that you, as a lawyer and politician, can envision, that further improvements can be made to the way that sexual assault is dealt with by the criminal justice system?

EEM: Not really. The criminal justice system may not be the right place in terms of some of these cases. That’s because there are some fundamental legal principles, such as the presumption of innocence on the part of the accused and proof beyond a reasonable doubt, that are inherent to (the prosecution of cases) under the criminal justice system.

CGM: Sandy Garossino, a former Crown Prosecutor has recommended that women consider prosecuting incidents of sexual assault through the civil law system rather than through criminal law, noting that in civil cases defendants can be forced to testify, and that a determination for a conviction is made on “a balance of probabilities” rather than “beyond reasonable doubt,” a significantly easier threshold to achieve.

EEM: I think Sandy Garossino is onto something in (indicating) that maybe the context is wrong on this kind of an issue. In a different context altogether we have cases like Donald Marshall where law enforcement wrongfully leapt to judgment. This is why we have the presumption of innocence. The notion in law, and this certainly gets drilled into you in law school, is that it is better that one guilty person go free than an innocent person is sent to prison.

In the context of a trial about what appears to be sexual predator activities and violence, which were the allegations against Jian Ghomeshi — allegations not proven in court but remarkably similar stories over a long period of time — it seems that those elements of presumption of innocence and the burden of proof being on the Crown make people feel “Is this a good system to put women complainants into?”

I’m no longer a practicing lawyer, but as someone who used to practice law, I would want to see this issue discussed much more broadly with the feminist bar, with groups that actually work in the area of rape and sexual assault counseling, as to what is the best method for making sure that people feel safe to come forward. A vigorous defense of someone whose liberty is at stake is one of those things that are fundamental in our system of criminal justice. How do you change that in a context like this where a lot of us felt that the level of the cross-examination of the complainants was offensive? How are you ever going to get women to come forward if this is how you are going to get treated? I don’t have an easy answer because I don’t think there is an easy answer.

I would have to say that this case raises questions to me about the extent to which the Crown adequately prepared their witnesses. As someone who practiced law, and not to impugn anyone’s reputation, it is baffling to me that those complainants were not (apparently sufficiently prepared) in terms of questions (such as), “Is there any chance that the accused has any messages from you? Is there any chance that you have forgotten that you ran into him some place later?” Because credibility of witnesses does matter. These are things that you do as a prosecutor to prepare your witnesses.

In terms of the burden of proof in criminal cases, if the Crown hasn’t proved its case, then the Crown hasn’t proved it’s case, and no inferences can be drawn from the decision of a defendant to testify or not to testify. That’s a principle of law that goes back hundreds of years, and for good reason.

As you know, Jian Ghomeshi is someone I’ve known for years and I was just horrified as the stories came out. But this trial has shone the light on something that is a problem for complainants, and we need to figure out how that get’s fixed.  We don’t know what the verdict will be, but it wasn’t what people thought would happen to women brave enough to come forward.

Electoral Reform 

CGM: The Trudeau government promised during the election campaign that the 2015 Canadian federal election would be the last one ever conducted under the First-Past-The-Post (FPTP) electoral system. Canada now has a new Minister of Democratic Institutions, Marayam Monsef, who is tasked with the file of electoral reform — and many other proposals to reform the operations of the House of Commons, such as having more free votes, giving House Committees more authority and allowing them to elect their own chairs, and allowing Members of Parliament to select what Committees they would like to sit on.

As to electoral reform, moving from FPTP to another model such as proportional representation or a ranked- or preferential-ballot system, this will certainly be a major initiative involving processes as to determine what system is to be selected and the particulars of its implementation in a Canadian context, very likely a revision of electoral boundaries, a significant educational effort to teach Canadians how it works, and significant work on the part of Elections Canada in terms of preparing itself to administer an election in 2019 conducted on an altogether different basis.

What does the Green Party favour in terms of a specific electoral model? How do you see the public process around electoral reform unfolding? And, do you think there needs to be a referendum on changing the electoral system, or is the explicit plank on this in the Liberal’s electoral policy sufficient to give them the mandate to move on this file?

EEM: The Green Party has remained relatively agnostic with respect to what form of proportional representation (PR) we would want, but we want proportional representation. Pure PR is the one kind that we would reject, for example like the systems in Israel or Italy where there is no connection between a Member of Parliament and a local community. Single Transferable Vote (STV) and Mixed Member Proportional (MMP) both allow for citizens to know who “their” MP is while at the same time ensuring that every vote counts.

I have to say that not only was (the commitment to electoral reform) in the Liberal platform, it was also in the Speech from the Throne. If you look at where the Liberals have the legitimacy to make this change without having a referendum, it’s not just from those who voted Liberal (in the last election), which was 39.5 per cent, it is also those who voted New Democrat (19.7 per cent) and Green (3.5 per cent) which totals 63 per cent of the popular vote. All these votes were cast for candidates whose parties favoured getting rid of first-past-the-post. Beyond that, if you want to count on the NDP and Green votes for legitimacy, then the Liberals have to adopt proportional representation.

First-past-the-post is a majoritarian system — the majority, riding-by-riding wins, and all the other votes don’t count. Preferential or ranked ballots are also a form of majoritarian voting — as soon as you have reached a majority the rest of the votes don’t count. So, if you are trying to claim that there is a legitimacy to move to a new voting system without having a referendum, then in my view it has to be a form of proportional representation.

The NDP are rigidly in favour of MMP and I’m not sure why they are so rigid in this. I understand being rigidly in favour of PR and nothing else will do, but STV could work perfectly well in Canada. And there may be hybrid models that could work given our regional geography. Stéphane Dion (Liberal MP and current Minister of Foreign Affairs) has proposed a hybrid system (the P3 Vote) and is a strong supporter of PR. We know that Justin Trudeau doesn’t like PR; he prefers a preferential ballot system, which most of us who know about electoral reform see as being (inadequate), and which would entrench Liberal power for a very long time. So having proportional representation is fundamental.

How will this national process go forward? In her mandate letter Marayam Monsef is instructed to create a committee to look at options, and proportional representation is included in those options. So is online voting, mandatory voting, and the preferential ballot. One thing that I would like to raise, which hasn’t been listed in her mandate letter, is changing the age at which people can vote from 18 to 16. Why not?

So I’m hoping — and I’ve met with Marayam about this — that there will be an effort to go out across the country, collect views, and use that as part of what you mentioned, that is the need for education. When New Zealand stopped using first-past-the post and shifted to mixed-member-proportional they had had several years of national meetings under the auspices of a Royal Commission, and discussions in lots of (other) places. They did have a referendum ahead of time but they weren’t under the gun of (what we have in Canada), namely a promise that 2015 will be the last election held under FPTP. (Consequently), a referendum would be very problematic and would probably mean that we couldn’t meet that commitment.

In the past the Green Party had favoured a referendum but the people who championed the issue most within the party got rid of that prior to this last election. Because if you look at how referenda have gone — and I lived through them in British Columbia — there are a lot of deep pockets of support for the status quo that show up out of nowhere. And the status quo has the advantage in such referenda, because people are used to how they have been voting under first-past-the-post. So, the first step is to recognize what’s wrong with first-past-the-post. I think the conversation Canadians need to have first — before discussing should it be STV or MMP, or ranked balloting — is why do we need to get rid of FPTP? That’s an educational process that really needs to happen.

I agree with Nathan Cullen (MP from Skeena-Bulkley Valley, BC and NDP critic for democratic reform); we could have a referendum later, say after two election cycles had been held. The voters of New Zealand, having gotten rid of FPTP and having implementing MMP, then after (more than) a decade had a referendum attached to an existing national election. [Note: In 2011, at which time 57.77 per cent supported retaining MMP. For more information see Electoral reform in New Zealand.]

Jean Pierre Kingsley (former chief electoral officer of Elections Canada) was recently speaking to a committee of the Senate, and I was there to hear what he had to say, and he said that if the change to a new electoral system was made by 2017 or 2018 Elections Canada could be ready (by 2019). It doesn’t functionally change what you have to do at the polls; you mark your ballot, it gets counted a little differently.

There are pros and cons to all the different PR systems. Ideally we will tailor something that fits Canada. I hope that we’ll see reform move very quickly. I hope that lots of Canadians will be interested, will write Marayam Monsef, ask for the opportunity to present their ideas in hearings, and get really involved in this process.

Monetary Reform

CGM: In 2011 the Committee for Monetary and Economic Reform (COMER), represented by constitutional lawyer Rocco Galati, filed a suit in Federal Court to try and compel the Bank of Canada to continue doing what it had done prior to 1974, namely providing Canadian federal, provincial, and municipal governments with interest-free loans as mandated by the Bank of Canada Act. The Federal Department of Justice has repeatedly tried to throw up roadblocks to this action, but the courts have thus far rejected them all and the case is ongoing.

It’s not clear to me why this practice changed after 1974 but the consequence has been that all three levels of Canadian government now must finance public expenditures when there are budget deficits by borrowing money from private banks at the going rate of interest. Who ultimately pays for this, of course, are taxpayers. So, depending on your perspective you can understand this as a massive wealth transfer from the Canadian public to private banks.

What is the perspective of the Green Party on this issue of monetary reform? Should we not compel financial institutions to serve identifiable public objectives?

EEM: Green Party policy is determined by our members and we’ve had a number of vigorous debates at various conventions around monetary reform. [Note: Current Green Party policy on this says that the party will, “Review the economic and fiscal implications of returning to borrowing from the Bank of Canada.”] We really need to find out the facts. As you said, we don’t know why this change happened. I’ve had some serious economists say that this issue is not that simple.

My view, and what emerged in debates in the Green Party, was that we should open this up for discussion. We should bring in the experts. Some people have argued that it would be inflationary. We would like to see a thorough discussion before the Finance Committee. If there is some problem with borrowing through the Bank of Canada we should find out what it is, because right now this seems like the way to go because you can have interest-free loans, you are borrowing from yourself, you’re not enriching the banks. Why not? No one ever seems to take it seriously within Parliament itself. Why not?

Prime Minister’s Office

CGM: During the 2015 federal election, one of the topics you drew attention to was the metastatic growth of the Prime Minister’s Office (PMO), particularly under the administration of the Harper Conservatives. Indeed we spoke about this last fall when you were here in Halifax when you said:

“We need to dismantle the Prime Minister’s Office (PMO), brick by brick. It doesn’t exist in our Constitution. What it is now is dangerous. It controls everything. It’s made a mockery of the supremacy of Parliament. It’s made a mockery of Cabinet. It calls the shots for what Cabinet Ministers say, how they say it, and how both they and backbenchers vote. But it’s (control) has now extended to crossing what once used to be a real firewall between (it and) the Privy Council (PCO).” [See: Exclusive: Elizabeth May on political reform, climate change and democracy.]

Since the election of the new Liberal government in Ottawa, have you witnessed any change in regard to the scale and/or the influence of the PMO? Is the firewall between the PMO and Privy Council Office being rebuilt?

EEM: I would say that the changes so far are dramatic. And they are under-reported by our national media.

For one thing; we mentioned before that we know what is in Marayam Monsef’s mandate letter. The content of these mandate letters has never been made public before. And they clearly state that Justin Trudeau, as Prime Minister, expects his ministers to carry their own weight, run their own shop, and know what their (portfolios) are about. That’s the opposite of what occurred before.

I have a friend who has recently been hired to work in the Prime Minister’s Office, and when I called them with ideas of what should be getting advanced, the pushback was that it has to come from the Minister and the Department. The PMO is not running things. The difference is very dramatic. I don’t know about the size of the PMO; I am still proposing to (Finance Minister) Bill Morneau that the size of the PMO’s budget be cut in half.

There was one article (I read) that said that Justin Trudeau was assembling a PMO that looked more ‘Pearsonian’. And it’s true. It’s really interesting that the first Prime Minister to really establish the PMO as a power base was Pierre Trudeau, and the first Prime Minister to start disassembling it his son.

Justin Trudeau is also the first Prime Minister since Lester B. Pearson to recognize that being Prime Minister is not a full-time job. He has kept for himself two cabinet portfolios; he is Minister for Intergovernmental Affairs and Minister Responsible for Youth. So this “superman” vision of Prime Minister, this all-encompassing, all-powerful emperor-type role — and Stephen Harper was the most extreme example of this, but Jean Chrétien was also known as a dictator — Justin Trudeau is disassembling that. The changes are quite dramatic and they are real. This is real cabinet government again. This is real ministerial responsibility.

John McCallum (Minister of Immigration, Refugees, and Citizenship) is actually doing the work on refugees. Jane Philpott (Minister of Health) is actually doing the work on Health Canada. Marayam Monsef is the one who will decide on what gets recommended (with respect to electoral reform). I don’t believe the fix is in, top down, for a preferential ballot just because that’s what Justin Trudeau favours. The mandate letter to (Government House Leader) Dominic Leblanc says, “no more omnibus bills; no more illegitimate prorogations; more free votes.”

There are a few things that Justin Trudeau said in every single ministerial mandate letter that bear repeating; respect for indigenous peoples and rebuilding a nation-to-nation relationship with them. Every minister is tasked with this. Also climate change is raised as a serious issue for every minister. And every minister is also told that we must respect the independent, non-partisan civil service.  So that Chinese firewall between the Prime Minister’s Office and the Privy Council Office is being rebuilt.

One of the concerns that I have is that in department after department, ministers are having problems on the pace of change they would like to see because of pushback from the departments. So, the people who were promoted throughout the Harper era (are still in place), and even if they were not pro-Conservative they were not unhappy with what they were delivering. That makes it hard to make a 180-degree policy turn. Particularly where for ten years the civil servants were told, “Don’t call anyone without permission.” So, you can take the gag off but you’ve got a lot of people who, culturally, are not used to how you (openly) develop public policy. There are still some things there to work out.

So, it’s a very significant shift. Whether it can hold to the next Prime Minister, whether true cabinet government and true ministerial responsibility can return, remains to be seen.

CGM: Thank you very much for your time.

Many of my friends and colleagues feel as if we have emerged from some sort of strange hallucination. What was that last decade of Canada all about? Did we really descend to such depths of stupidity, vitriol, dysfunctionality, regressive politics, and sheer meanness? Could this country have functioned in such abject denial of evidence, science, fact, knowledge, and common sense? Could we have descended to such extreme levels of hyper-partisanship? Could we really have washed decades of painstakingly built international credibility down the drain? Could Orwellian Newspeak actually have made such inroads into our political discourse? Could we really have filled a PMO with a legion of servile sycophants and bludgeoned our civil service into abject and sullen silence? Did all that really take place, or did we just imagine it in the course of some dystopian nightmare?

The grim truth, of course, is that it the last decade of Harper Conservatism actually did take place. How long it will take to shake off its corrosive effects is hard to determine. Research institutes have been shut down, libraries eliminated, scientists dismissed, investor protection agreements signed, and countless opportunities lost or squandered. The full cost of this reactionary lurch will probably never be known, but, dark clouds always having silver linings, two opportunities do present themselves:

1) We can learn from how Canada descended into this chasm and make changes to make sure we never go there again. As the American election campaign illustrates, demagoguery can rear its head anytime and there will always be some people who are seduced by its primitive philosophy and mob mentality. In the last Canadian election the trial balloons of “barbaric cultural practices” were already aloft. Had the Harper Conservatives won another majority, who know where these would have touched down.

Citizens and governments work for decades to dispel hatred and intolerance, yet these genies can be conjured up by demagogues in an instant. We must never forget this, educate every coming generation to the danger, and be ready to immediately counter such tendencies should they appear.

2) We can learn from this decade of acrimony, of zero-sum, divide-and-conquer politics that splintered Canadians, and build instead a politics of robust cooperation that serves the broad swath of the Canadian populace and the social, economic, and environmental values that underpin our society.

The issues touched on in this discussion with Elizabeth May — the imperatives of addressing climate change and implementing measures such as carbon pricing that can leverage renewable energy development, equitable gender relations protected by law, electoral, political, and monetary reform — are part of the large suite of issues that require urgent attention by the Canadian body politic.  And by urgent I do mean urgent.

Addressing climate change, ratcheting up our commitments, and making the changes required to meet them simply cannot wait. Reforming an economy sinking from an over-reliance on raw natural resources extraction and primitive notions of economic development cannot be delayed. The ever-increasing economic inequality that is needlessly crippling the aspirations of far too many Canadians is a blight whose resolution cannot be postponed. The desperate circumstance of life on too many native reserves, struggling with poverty, substance abuse, dreadful housing, polluted water, and substandard education, cries out for resolution — not in future decades, but now.

Relying on knowledge, harnessing evidence-based reasoning, employing processes of consensus and compromise in our political conduct, placing social, environmental, and economic justice squarely in the limelight of political action, and honouring our nation-to-nation commitments to indigenous peoples, could move us a long way along the path that we need to go.

During Elizabeth May’s tenure on the Canadian environmental and political stage she has proffered many suggestions about where we should be going. As have many others. The opportunity that affords itself, now that it is 2016 and we can look at the era of the Harper Conservatives in the rear-view mirror, is to seriously engage with these issues in a political climate that discards toxic hyper-partisanship and embraces informed, respectful dialogue.

Yogi Berra famously opined that, “If you don’t know where you are going, you will wind up somewhere else.” It’s time we heeded his advice.

Christopher Majka is an ecologist, environmentalist, policy analyst, and writer. He is the director of Natural History Resources and Democracy: Vox Populi.

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Of course, Canada has a choice and should decide to reject the TPP.  We shouldn’t sign. In that, the new government would have a solid argument – the agreement was concluded in secret by the previous Conservative government in the midst of the election.  It was pretty shocking as, in a writ period, the tradition is that any government is limited to minimal and essential activities.  The terminology is that the any government in an election is a “care-taker government.”  In the writ period, under the Conservative government, Canada skipped major United Nations meetings to negotiate the new Sustainable Development Goals, replacing the MDGs.  But when it came to the TPP, Ed Fast, former Trade Minister, left the campaign trail to negotiate in Florida.

In the campaign, the Conservatives lauded the TPP as opening up the world’s largest ever trade bloc, with a combined “new” market of over $27 trillion. Of course, the reality is that the vast majority of that “new” market is found in the three members of the existing NAFTA.  Canada, the US and Mexico make up $21 trillion of the “new” markets open to Canada.  The nine nations of the Pacific region joining NAFTA nations are Vietnam, Singapore, Peru, Chile, Japan, Malaysia, Brunei, New Zealand and Australia. For a Pacific regional deal, large economies like China and Indonesia are not included.

Meanwhile, the key elements of TPP are not in Canada’s interest.

Provisions that protect pharmaceutical companies from competition and generic drugs will drive up the costs of Canadian medicines.  The dairy sections pose a threat to supply management and Canadian dairy producers. Despite the fact that TPP promoters deny this is true, former Prime Minister Stephen Harper announced billions of dollars in compensation to dairy farmers in the midst of the election campaign.  In fact, this TPP compensation was never secured, but why was it put forward, if, as promoters claim, supply management is protected? The reality is that the Canadian milk supply will be open for the first time to competition.  US milk, contaminated by the GMO Bovine Growth Hormone, will be allowed in Canada.

Prominent businessman and Blackberry founder, Jim Balsillie, has blasted TPP.  He argues that the Intellectual Property (IP) provisions of TPP are skewed structurally.  The IP provisions will enrich those countries that already have significant IP ownership.  Due to years of failed policies, Canada has fallen behind in innovation.  No wonder the previous government worked to expand export opportunities for Canadian beef, seafood and canola, but has negotiated an agreement that will prevent Canada from ever establishing our economy as one benefitting from innovation and IP.  As Balsillie wrote in a January 30, 2016 article in the Globe and Mail, “Make no mistake about it: This is not your father’s trade agreement. TPP clearly demarks a shift in global value creation from tangible to intangible goods by creating unprecedented advantages to current large holders and producers of IP.”

For all this, even with the lop-sided benefits to the US, this is the first trade deal to face serious opposition in the US.  Two prominent members of the Clinton administration now oppose Obama’s TPP.  Both Nobel prize winning economist Joseph Stiglitz and former Labour Secretary Robert Reich oppose TPP.  The major reason for their objection is the Investor State provisions.  Their objections, and likely those of her surprisingly effective competitor Bernie Sanders, appear to have influenced Hilary Clinton who now opposes TPP. There is a compelling case for Canada to avoid any commitment to TPP when there is a strong chance it may never be ratified by the US.

The primary driver for US politicians (0n the left and the right) to denounce the TPP is the presence of an investor-state agreement.  The TPP will give corporations from nine new nations the right to bring multi-billion dollar arbitration claims against Canada.  Based on the first of these pernicious agreements, Chapter 11 of NAFTA, the growing web of investor state agreements (also called “Foreign Investor Protection and Promotion Agreements – FIPA’s) are a threat to the sovereignty of nations.  Together they comprise the machinery of global corporate rule. That is why Joseph Stiglitz pointed out that TPP is not a trade agreement.  It is an agreement to manage trade.

With the recent Chapter 11 challenge by Trans-Canada against the US government for its decision to reject the Keystone pipeline, more Americans are now noticing Chapter 11. The size of Trans-Canada’s claim- $15 billion – gets their attention.  Canada has been the loser in case after case of Chapter 11 challenges to environmental laws and decisions.  The US government and its corporations virtually always win contributing to low public awareness of the threat of Chapter 11 in the states.  Ironically, we may end up thanking Trans-Canada for the defeat of the TPP.

Originally published in Island Tides.

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A trade deal, as conventionally understood, sets out an agreed commitment to reduce and/or eliminate barriers to trade rated by protectionist impulses of governments.  Trade deals open up sectors of one country’s economy for investments by other countries. Trade deals, in essence, are about trade in goods and services.

On the other hand, agreements to convey to foreign corporations rights and privileges not available to domestic corporations are not about trade.  Such investor-state agreements, or foreign investor protection and promotion agreements (FIPAs), travel alongside trade agreements (as in Chapter 11 of NAFTA) or sometimes masquerade as trade agreements (as in Canada’s FIPA with China), but they are not trade agreements.  As Nobel Prize winning economist Joseph Stiglitz pointed out in his damning New York Times critique of the Trans-Pacific Partnership Agreement, deals such as the TPP are more about managing trade in the interests of foreign corporations than they are about trade.

Understanding the difference between an investor state agreement and a trade deal is critical.  Note that the Investor-State agreements have a number of acronym descriptors – ISDS, FIPAs, Investor-State.  This alphabet soup may not have intentionally further disguised this stealth attack on national sovereignty, but disguised it unquestionably is.

Canada has lost, or caved and settled rather than lose, more environmentally premised attacks through the ISDS of Chapter 11 of NAFTA than any other country.  We have considerable experience in this area, yet little awareness that such is the case.  Canadians, in particular, need to understand that our losing track record under Chapter 11 is not because our government, federal or various provincial governments, have behaved in ways that were rooted in trade discrimination.  To lose when taken to Chapter 11 arbitration does not require that our actions were unreasonable, discriminatory, trade disruptive or unsupported by science.  All we have to have done is act to reduce a foreign corporation’s expectation of profits.  In the most recent Chapter 11 loss, a US corporation ignored its right to pursue its complaint in our federal courts.  This was an unprecedented move to opt for a secret arbitration tribunal instead of open courts.   US mining company, Bilcon of Delaware, asked a secret NAFTA arbitration panel for $300 million in damages against Canada.  No Canadian corporation in similar circumstances could have sought this amount, nor accessed a private tribunal.

Bilcon’s proposal for a basalt quarry in Digby Neck, Nova Scotia had been rejected by a joint Federal-Provincial Environmental Assessment Panel back in 2007.  The panel found the proposal to be so seriously damaging to the environment that no mitigation was possible.  Transiting shipments of basalt through the Bay of Fundy to build highways in New Jersey threatened the survival of the most endangered whale species on the planet – the North Atlantic Right Whale. It threatened existing economic activity in tourism and the lobster fishery.  It offended community values.

Based on the panel’s recommendations, the project was rejected by Progressive Conservative Nova Scotia Environment Minister Mark Parent and federal Conservative Environment Minister John Baird.  Then Bilcon opted for Chapter 11 of NAFTA.  The local community had no access to the secret proceedings. Neither did the Canadian environmental law community.

In spring of 2015, two out of three arbitrators found for Bilcon.  The dissent by the only Canadian arbitrator, Prof Don McRae of University of Ottawa Law School, outlined the outrageous nature of the ruling.  McRae noted that the Bilcon Chapter 11 ruling does unprecedented damage to Canadian sovereignty and to the integrity of the environmental assessment process.  Thankfully, the previous government filed an appeal to the ruling.  It is hoped the new government will vigorously pursue the appeal. Still, NAFTA Chapter 11 cases are virtually impossible to win on appeal.  (Someday perhaps Murray Rankin, MP for Victoria, may explain his service to Bilcon, testifying against Canada in the secret tribunal while a sitting MP).

As damaging as Canadian experience has been with Chapter 11 of NAFTA, even graver threats to our sovereignty are posed by the Canada-China Investment Agreement.  The Canada China FIPA was ratified by the previous Cabinet, without any hearings in Parliament, without any vote in Parliament.  Osgoode Hall Law professor Gus Van Harten has done all Canadians a service by writing “Sold down the Yangtze: Canada’s lopsided investment deal with China.”  We are locked into that deal until at least 2045, unless Beijing agrees to renegotiate.  And now the TPP presents the threat of another nine countries with the right to take Canada to arbitration.

It is time to shine a light on these investor-state agreements.  It is time for a multi-lateral review and re-negotiation of the lot of them to an agreed upon international template to fairly protect investors without undermining national sovereignty, as well as domestic health, labour and environmental laws.

Originally published in Embassy.

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