If Our Premiers Only Had the Courage of Our First Nations

Murray Dobbins weighs in on our prime minister's obvious contempt for democracy.

Investment is always portrayed as a good thing, period. It creates jobs, increases tax revenues, grows the economy. But the conditions under which investment takes place can quickly cancel out many of those benefits. Just look at any Third World country and the other side of the coin: starvation wages, terrible working conditions, horrendous pollution, environmental destruction and political corruption.

Since signing the pattern agreement NAFTA, Canada has signed 24 of these deals, mostly with small countries. But perhaps the most egregious of them all is the one already signed, in complete secrecy, with China: The Canada-China Foreign Investment Promotion and Protection Agreement (FIPA).

What we're poised to give China

FIPA has not been ratified yet but it threatens to give the enormous, often corrupt, always secretive state-owned corporations of China enormous power -- power to hoover up dozens of energy and resource companies and prairie farm land as well as challenge any new law that attempts to ensure the public interest is being met.

It is stunningly one-sided. It is almost as if Harper is using the deal not for trade or investment at all, but to deliberately poison the legislative well so that future governments will be unable to act. 

The notion that this was deal was "negotiated" seems a euphemism -- it might just as well have been written by China without consultation. (Come to think of it, that pretty much describes the initial Free Trade Agreement with the US, too: "Okay Sam, we'll give you everything but that's our final offer.")

...Harper's elimination of environmental review on 99 per cent of the waterways of the country is an outrage that other political parties would be pressured to reverse if elected. FIPA, anticipating China's increased interest on energy, would make that reversal so expensive if challenged by China that it would be all but impossible to implement.

One faint hope of environmentalists after the passing of Bills C-38 and C-45 (withdrawing federal protection of lakes and waterways) was that pressure could be applied to provinces to step up and replace the law with provincial regulations. Provinces share constitutional authority over the environment with the federal government. But FIPA would allow Chinese corporations to sue all levels of government that pass legislation or regulations that reduce its expected profits. And of all the corporations in the world likely to use investor-state provisions, Chinese state-owned entities carrying out Chinese foreign policy would be at the front of the line.

And it's not just legislation that is threatened. China has been buying farm land all over the world including New Zealand and Africa (where heated controversy has resulted). Most recently, China purchased five per cent of Ukraine's farmland. They reportedly have their eye on Saskatchewan and there is little its government could do. The provinces don't have legislation dealing with foreign ownership of farmland and now that the treaty has been signed, it could be too late.

Except, it is quite plausible that FIPA is unconstitutional given that provinces have jurisdictions under the British North America Act that cannot be tampered with by Ottawa. The provinces are not party to the treaty, and yet their legislation could be challenged and overturned by a panel of three trade lawyers operating completely outside the political and legal institutions of the country -- and in complete secrecy. Efforts have been made to lobby the provinces to formally reject FIPA. But so far -- despite the posturing of premiers as mini-prime ministers for the past 20 years -- not one of them has had the sense or courage to protect their own jurisdictions. (State governments in the U.S., even one far to the right, have vigorously challenged World Trade Oragnization provisions that affect them and actually prevailed.)