Week in Review: February 22 – 26 (le français suit)

This week, the Speaker of the House ruled on Elizabeth’s Point of Privilege from last week. The Point of Privilege asked that the Speaker help resolve the situation of Greens being blocked from asking questions on Wednesdays when the Prime Minister answers all questions. Unfortunately, the Speaker ruled against Elizabeth’s request. The current situation is intolerable as Green MPs are now down to one question per month in QP. The Green Caucus pushes for every possible opportunity.

Elizabeth debated the failures of Canada’s climate policies in adjournment proceedings. She called out the government for skipping a commitment made in the 2015 Paris negotiations to improve Canada’s target in 2020. The government continues to pretend it did not make that pledge.

MPs also debated Bill C-7, the legislation on Medical Assistance in Dying (MAiD), which recently returned to the House of Commons with amendments from the Senate. In debate, Jenica asked her fellow MPs to be cautious about stoking fears based on untruths about the bill. Green MPs asked the government to commit more funding for mental health and palliative care. Elizabeth noted particularly how a Guaranteed Livable Income is essential to ensure that all Canadians can live with dignity.

Elizabeth, Paul and Jenica wore pink shirts to support anti-bullying on Pink Shirt Day, Wednesday.

On Thursday, Paul sought the Unanimous Consent of the House to pass his motion on Affordable Housing. He asked the government to crack down on the commodification of the housing market before hundreds of thousands more Canadians become homeless.

Later that evening in adjournment proceedings, Jenica pressed the government further on its leadership role in combatting gender based and intimate partner violence. She gave the government some tangible suggestions to start making progress for women, girls, and all who are facing violence at home.

On Friday, Paul put forward amendments to improve Bill C-18, the Canada-United Kingdom Trade Continuity Agreement Implementation Act. This transitional agreement replicates the Canada-EU trade agreement (CETA) and carries over CETA’s flaws. Paul emphasized the importance of transparency and public consultation as the government begins negotiating Canada’s new trade relationship with a post-Brexit UK.

       ​Jenica, Elizabeth, and Paul wore pink shirts to support anti-bullying on Pink Shirt Day.

Key Moments

• Paul Manly: How can we protect small vacation booking businesses from going under?
• Jenica Atwin: When talking about Medical Assistance in Dying, words matter
• Elizabeth May: Let’s keep GLI in the conversation about Medically Assisted Dying
• Paul Manly seeks unanimous consent to pass motion on affordable housing
• Paul Manly puts forward sunset clause amendment on Canada – UK Trade Agreement
• Paul Manly proposes amendments for greater transparency in the Canada – UK trade agreement

Question Period and Member’s Statements

• Elizabeth May: We are almost out of time to avoid more than 1.5 degrees global average temperature increase
• Jenica Atwin: Our generation has the power to end gender-based violence

In Their Own Words / Media​

• Elizabeth May: Good Sunday Morning – Feb 21
• Paul Manly: Motion 66 – The Housing Crisis

Petitions

• e-3071 Discontinue GDP measurement and shift to a wellbeing economy (closes Feb 27)
• e-3108 Enhance Canadians’ access to holistic health services and natural products (closes March 3)
• e-3094 Reduce dependency on China (closes March 8)
• e-3184 Make Bill C-12 a world-class climate law (closes March 20)
• e-3177 Condemn discrimination in Poland (closes March 20)
• e-3058 Ban fracking, transition to renewable energy (closes March 21)
• e-3206 Include long-term care in the Canada Health Act (closes April 25)
• e-3014 Modernize the complaints review panel of the Canadian Judicial Council (closes May 7)
• e-3075 Halt all transfer of Canadian made weapons to Saudi Arabia (closes May 27)
• e-3138 Make Election Day a paid holiday when it falls on a weekday (closes May 29)
• e-3159 Ban new strip mines in the Rocky Mountains (closes June 5)

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July 18, 2017

Written submission in response to the Canada Gazette Notice

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

What should be the goals of free trade? 

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

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

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

Current Problems with NAFTA 

Chapter 11: Investor-State Dispute Settlements 

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

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

Yet proponents of ISDS continue to make erroneous assurances that, as the Parliamentary Secretary of Trade, David Lametti, recently said of CETA, “Nothing .. prevents governments from regulating in the public interest to protect or promote public health, social services, public education or the environment. This principle, which is well recognized in international law, is clearly set out in the CETA text.”

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

Removal / Clarification of Chapter 11 

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

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

Water 

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

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

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

Resources 

Raw Logs

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

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

Energy

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

Commission for Environmental Cooperation 

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

Health Care 

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

Canada’s Dairy Industry

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

Solidarity with Mexico

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

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

The Possibilities and Perils of Renegotiation 

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

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

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

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“Canada and the U.S. had an opportunity to put a new softwood lumber deal in place during the Obama administration. Instead, thousands of jobs are now under threat and dozens of mills face closure after surprise and steep tariffs from an unpredictable Trump administration,” said Elizabeth May, Leader of the Green Party of Canada (MP, Saanich-Gulf Islands).

“As we move to cautiously renegotiate the North American Free Trade Agreement (NAFTA), Canada has the power to defend our forestry industry and put an end to exporting raw logs. For years, Greens have advocated to keep our value-added jobs in Canada by implementing a substantial whole log export tax,” Ms. May said. “I’m pleased to see Trump agree to a NAFTA renegotiation rather than a full exit, as this extreme measure would have thrown billions of dollars in cross-border trade into disarray.”

The post Statement on Canada-U.S. softwood lumber dispute and exporting of raw logs appeared first on Elizabeth May.

“Pending a decision from the European Court of Justice, CETA’s most controversial aspects, such as the investor court system, will require ratification by all 38 national and regional parliaments in the European Union,” said Elizabeth May, Leader of the Green Party of Canada (MP, Saanich-Gulf Islands). “This could take years. There will likely be a referendum in the Netherlands, and several regions in Belgium are recognizing the threat of CETA to their dairy industry. Prime Minister Trudeau should not be so quick to trumpet CETA’s success while many serious hurdles remain.”

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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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It is my intention to focus on the investor-state provisions within CETA. I want the record to show that the Green Party shares the concerns of many that this will drive up pharmaceutical drug prices for Canadians. We really do need pharmacare and we do not need to give pharmaceutical companies more advantages than they now have in terms of patent protection. We do need to protect the rights of municipal governments to put out local bids for tender, and not take away their ability to have local procurement. There are impacts on various economic sectors in Canada, including the dairy industry, that need to be better examined.

I want to focus on why this agreement remains so controversial that it is not yet a done deal in Europe. I think Canadians have been somewhat bamboozled on this point.

Certainly, the Conservatives have made the case that all the Liberals had to do was open up a gift package and it was all ready to go. That is clearly not the case. Why is the comprehensive economic and trade agreement in the EU so very controversial to this day? It is because this is the first time, the first proposed agreement, in which the European Union will be accepting an investor-state clause. That is why it remains controversial. That is why it is still to be ruled on by the European Court of Justice. The provision within CETA that many European parliamentarians think is not legal is the investor-state provision. That is why the European Court of Justice will be ruling on it. If it rules that it is beyond the scope of the jurisdiction of the European Union to take away the rights of states and give foreign corporations superior rights, that will blow a hole through CETA.

The same thing will be true when this trade agreement goes to the whole European Parliament for a vote sometime between December and February. If it clears the European Parliament, it then goes to the various parliaments. There are 38 national and regional governments that will still have to vote on this, which is a process that could take two to five years.

Therefore, my first point is this. Why the rush to put through Bill C-30? Why are we not having proper consultations across Canada, and proper and lengthy efforts to hear witnesses, as the government of the day has done under the TPP? This is being rushed despite the deal not yet even existing on the European side. Certainly, the European commissioners have accepted it, but it is not a done deal, and that is because the next trade agreement Europe is looking at having is with the United States. If members can imagine the European governments at the local and national level having a problem with the idea that Canadian corporations can come and sue them in these phony courts, they can be sure they would be even more worried about that happening with U.S. corporations.

Therefore, the first reason, and the number one reason, this agreement is controversial in Europe is the investor-state provisions. I want to back up and explain what these are.

In debate today we heard them conflated with dispute resolutions systems. Everyone understands that when we have a trade deal, the two or three countries involved, in this case a large trading block like the EU, may end up having disputes on trade issues. We have had enough softwood lumber disputes between Canada and the U.S. to explain dispute resolution on the commercial aspects of trade quite well. This is not that. This is not a process to resolve disputes over trade.

What are investor-state provisions doing in a trade deal? That is a good question. They should not be there at all. They are provisions that initially came into the trade world, I would say, by stealth. In all of the national debate, in all of the concerns that Canadians expressed, no one talked about chapter 11 of NAFTA. It was basically hidden away. I have to say that I have spoken to the negotiators of NAFTA. Even they did not know how this provision would be used. Chapter 11 of NAFTA, they thought, merely said that if a foreign government expropriated the assets of a corporation, like a scenario in Cuba where Fidel Castro has the Government of Cuba nationalize all U.S. assets, it would then owe that corporation money for the expropriation of assets. Everyone understood that. It is common law internationally. What chapter 11 did was put in some language that appeared benign but turned out to be a disaster for domestic democratic governance. It put in the words “tantamount to…expropriation”.

Therefore, chapter 11 of NAFTA waltzed through without any controversy, and then very clever lawyers got hold of it. This has created a cadre, a term I will use later as well, of global ambulance chasers, lawyers who went out to find corporations.

The lawyers said that when our government passed the rule that we cannot use that toxic gasoline additive, they thought the corporation had a case against the government under this investor-state dispute. Therefore, Canada, under chapter 11 of NAFTA, was sued for getting rid of a gasoline additive. Under chapter 11, there was the Ethyl Corporation case, where we were sued for banning the export of PCB-contaminated waste. AbitibiBowater sued. However, Bilcon is the worst and most recent case. This is a U.S. corporation that opted not to go to Canadian courts to seek a domestic remedy, but went to the secret Chapter 11 tribunal to get a judgment against Canada to overturn a very strong, solid, defensible, reasonable assessment.

There are no trade aspects to any of these cases by the way. These are not trade disputes. These cases are saying that, as a foreign corporation, a domestic decision by democratic governance has cost it money and its expectation of profits, and so it is bringing a case.

Chapter 11 of NAFTA gave rise to a proliferation of bilateral investment treaties. Generally speaking, the larger economic power is doing business in a small developing country, like a Canadian mining company operating overseas, and the international collective of investment treaties has created real hardships on smaller developing countries. The pattern is clear, and it was put forward and documented by a European think tank. It put together a review called Profiting from Injustice. There is a pattern: the bigger economic power is going to win.

The arbitration process, in other words, is neither fair nor neutral. The global ambulance chasers are a small cadre of international lawyers who get paid $1,000 an hour to be an adjudicator or to be a lawyer for a foreign corporation that is suing a domestic government. The larger economic power is going to win. Therefore, if Canada is being sued by the U.S., we lose.

The worst of all of these agreements has to be the Canada-China investment treaty, which Harper brought in and pushed through with a cabinet vote. It was never debated in the House and never voted on in the House, but it will bind Canadian governments until the year 2045, and it is all completely in secret.

We can now look at chapter 11 secret tribunals and the Canada-China secret tribunals. If our yardstick is those regressive anti-democratic trade deals, and we compare them to the European Union’s efforts here with Canada to create an investment court, they are doing everything they can to try to take an inherently anti-democratic system of corporate rule over governments and dress it up to look more democratic, but they have not done the job. It is still an anti-democratic notion at its essence that foreign corporations have the right to sue governments for decisions that have been made with no trade motivation whatsoever but to protect health, safety, and environment within a country.

Why should we agree to these at all?

Earlier in the debate today, I said that CETA creates an investment court. It has adjudicators who are semi-permanent. In other words, they are not being paid for one case and the next day they can go out and be an advocate within the CETA process. The hon. member with whom I was discussing this made that point. I was not able to come back and explain that they can be both a judge in the investment court in the EU and a global ambulance-chasing lawyer on a NAFTA case, or on a Canada-China investment treaty case. They can actually be in the pocket of someone who has hired them, because there are corrupt lawyers who work for companies like Bilcon. These lawyers can be in the pocket of a company like that and then sit as an adjudicator at the investment court between the EU and Canada without having to disclose that they have already been working and are already a lawyer for the very corporation that they would rule over in the case at the investment court in the EU.

These provisions are toxic. As Steven Schreibman, a leading Canadian trade lawyer, said, investor-state agreements are “fundamentally corrosive of democracy”. They have nothing to do with trade.

If Canada wants to get this deal approved in Europe, and if the Liberals want the support of the Green Party in this place, they have to take the investor-state provisions out.

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One of the issues that was frequently raised in the last round of town hall meetings I held with constituents in January 2013 was the threat of the Canada-China Investment Treaty.  As I write this, the treaty has still not been ratified.  While this is very good news, the treaty could be ratified at any time by a decision of the Prime Minister and his Cabinet. If ratified, the treaty would be binding on Canada and on future Canadian governments for a minimum of 31 years.

Meanwhile, there have been a number of interesting developments in countries around the world related to this type of treaty, often called a Foreign Investment Protection and Promotion Agreement (FIPPA or FIPA). Australia recently undertook a cost-benefit study of investment treaties, which showed that these treaties create far greater costs than benefits. Since this study, Australia has taken a new and strong position: they have decided not to enter into any new FIPAs. Similarly, India also recently decided that it would not only reject any new investor-state treaties, it would also attempt to re-negotiate any existing treaties that contained investor state clauses. India’s new stance may come as a surprise to the PM as it was just last fall that Stephen Harper returned from India claiming a Canada-India Investor-State agreement was just around the corner. Meanwhile, South Africa is also reconsidering its investor-state agreements, and a recent international report which makes clear the social and monetary costs of these agreements is likely to influence other nations to also reconsider entering into investor-state agreements.

I am writing this newsletter in response to the large number of my constituents who have asked for more information on these types of treaties, and I hope you find this information helpful and will share it with others.

In This Issue…

• What is an Investor-State Agreement?
• Is an Investor-State Agreement necessary to pursue trade?
• Why is the Canada-China Investment Treaty worse than NAFTA Chapter 11?
• What happened under Chapter 11 of NAFTA??
• Are these cases taken to court?
• In the House of Commons – Hearings on the Canada-China Investment Treaty
• In the House of Commons – How did Benin get better terms than Canada?
• Your opinion matters!

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Now that the treaty before us includes investor state provisions, which means Panama could complain should Canada later impose different conditions for more tax transparency in its dealings with Panama, should we not, as the official opposition has been suggesting today, execute those tax transparency measures prior to giving Panama the right to sue us if we bring them in later?

Bob Dechert: Mr. Speaker, I am kind of surprised by the member’s question. She knows that all treaties in Canada are subject to Canadian law, so there is no way that Panama, or any other government under any treaty, could make a claim against Canada for doing something that is subject to Canadian law. Therefore, the question really does not make any sense in that context.

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Elizabeth May, MP for Saanich-Gulf Islands and Leader of the Green Party of Canada, will meet the press to discuss the Canada-China Foreign Investment Promotion and Protection Agreement and its serious implications for Canada’s economic independence, national security, democracy, and environment.

When: 11:30 a.m., Thursday September 27, 2012
Where: Room 130S (Charles Lynch Theatre), Center Block, Ottawa

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