Questioning Canada's FIPA Deal with China

Questioning Canada's FIPA Deal with China

by Elizabeth May

Elizabeth May: Mr. Speaker, I rise today to pursue a matter that I have been raising since the month of September. The specific matter for tonight’s discussion relates to a question I put to the Prime Minister in question period on October 23. It relates to the Canada-China investment treaty.

I would like to take us back to where we were on October 23. With no ceremony, no warning, no briefing for parliamentarians and no lock-up, on September 26 the Canada-China investment treaty was quietly tabled in the House by the Parliamentary Secretary to the Minister of Foreign Affairs. Under rules adopted by the current administration, we were given 21 sitting days to essentially sit on it. There was no opportunity for debate. There was no opportunity for a vote.

As I had been anticipating, this treaty fairly closely models what has been done in other investor state treaties, but it is more egregious than usual in that we are allowing the People’s Republic of China and its state-owned enterprises the ability to circumvent our courts, bypass our court system, and go directly to an international arbitration and challenge any law passed at the municipal level, provincial level, federal level, or even any decision of our courts. They can challenge that it has cost them profits and therefore they demand an arbitration process, which is set out in the Canada-China investment treaty.

The practice of previous governments in this circumstance is well documented in constitutional law texts. I would refer anyone who is concerned to review the foundational text by Professor Peter Hogg. Even with treaties such as this one that did not require implementing legislation, which is the usual reason that treaties must be put to a vote in the House of Commons and the Senate, the usual practice by previous prime ministers was to bring such treaties to a vote in the House whether they required implementing legislation or not. I would refer briefly to the Kyoto protocol. There was no need for implementing legislation, but it was brought to the House of Commons for a vote.

Instead, and this has been lauded by representatives from the other side of this House, they adopted a practice called mandatory tabling of a treaty for 21 sitting days. The timing on those sitting days, taking into account weekends, Thanksgiving and so on, was from September 26 to November 1. Thereafter, at any point, the treaty could be ratified by a decision of cabinet in order in council.

The question I put to the Prime Minister was whether or not the constitutional aspects of this had been properly considered. I will quote my question: “Do arbitrations for damages against Canada for decisions at the provincial level not demand explicit agreement” with the provinces before the treated is ratified?

In support of the case that I have made that this treaty violates constitutional rights and promises–and let me also say in light of the Idle No More movement of first nations–I put into discussion this evening a letter to the Prime Minister dated October 12, from the recognized international law expert in arbitration process, Gus Van Harten, associate professor at Osgoode Hall Law School.

What he wrote to the Prime Minister on this topic was this:

The treaty clearly impacts on provincial powers on natural resources, taxation, land and property rights, and other matters. It applies to provincial legislation, regulations, or court or tribunal decisions that affect Chinese-owned assets, with limited exceptions. It does not contain a NAFTA-style carve-out for provincial performance requirements or any carve-outs for provincial measures regarding the treaty’s expropriation and fair and equitable treatment provisions.Thus, there is a real possibility that, over the lifespan of the treaty, Canada will face billion dollar-plus awards due to provincial decisions that are not reviewable in Canadian courts.

This is clearly unacceptable. I await the parliamentary secretary’s response.

Kerry-Lynne D. Findlay: Mr. Speaker, exporting Canada’s world-class goods, services and expertise to new, fast-growing markets around the world is a key part of Canada’s economic action plan for jobs, growth and long-term prosperity. Our government is delivering on this commitment. In fact, the Minister of International Trade is leading a trade mission to Ghana and Nigeria this week to do just that. Africa is one of the fastest-growing regions in the world. According to the International Monetary Fund, five of the world’s twenty fastest-growing economies are in sub-Saharan Africa. Canadian companies are creating jobs and prosperity throughout Africa, and our government is creating new opportunities for Canadian exporters by opening new markets in this dynamic region.

However, promoting Canadian interests internationally also means creating the conditions for Canadian investors to invest with confidence. That is exactly what our government is doing with our foreign investment promotion and protection agreements. In fact, our government has concluded several such agreements with our partners in Africa, including Tanzania, Benin and Senegal. We have also concluded such an agreement with China, the world’s second-largest economy. This agreement will provide stronger protection for Canadians investing in China and create jobs and economic growth right here at home. This agreement establishes a clear set of rules under which investments are made and under which investment disputes are resolved. This treaty is about protecting the interests of Canadians. The FIPA also ensures that all investment disputes are resolved under international arbitration, ensuring that adjudications are independent.

I emphasize that ours is the first bilateral investment agreement China has signed that expressly includes language on transparency of dispute settlement proceedings. Let me be clear. It is Canada’s long-standing policy that all dispute resolutions should be open to the public and that the submissions made by the parties be available to the public. It is unfortunate that anti-trade activists have continued to spread such misinformation about this agreement.

Part Two: http://elizabethmaymp.ca/parliament/questions/2013/01/30/adjournment-proceedings-foreign-investment-2/