This letter is in response to Conservative MP John Duncan’s explanation of the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA).
Mr. Duncan states that, “This treaty is designed to protect Canadian investors in China through stable, predictable rules and to protect them against discriminatory and arbitrary practices…” I have seen a great deal of information about FIPA prepared by reputable researchers and journalists.
Almost without exception they express concern that this agreement offers Chinese state-owned companies investing in Canada unprecedented rights and privileges, that it imperils Canada’s sovereignty over our resources, and that it could have serious financial implications for future Canadian governments if they are sued under its terms. Yet Mr. Duncan is telling us that its main purpose is to protect Canadian investors in China.
In addition, Mr. Duncan wrote: “What this agreement does NOT do is impair Canada’s ability to regulate and legislate in areas such as the environment, culture, safety, health and conservation.” However, those who have researched this agreement say that Chinese investors would be able to sue our government should their “expectations of profit” be reduced by actions taken in Canada. And according to Andrew Nikiforuk, writing about it in The Tyee on Oct. 11, the treaty gives Chinese state-owned companies “the right to full protection and security from public opposition.”
Apparently Mr. Duncan has a very different interpretation of this agreement than its critics have.
Mr. Duncan also wrote that, “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.”
Yet Gus Van Harten, a professor at Osgood Hall Law School and a researcher into investor-state arbitration, wrote in an editorial about FIPA in The Star on Sept. 29, “Remarkably, the lawsuits can proceed behind closed doors. This shift to secrecy reverses a long-standing policy of the Canadian government.”
One has to wonder why Prof. Van Harten’s explanation is so different from Mr. Duncan’s.
Mr. Duncan also says that, “Every single treaty is now tabled in the house for 21 days to give the opposition an opportunity to debate the treaty.”
However, on Oct. 31, Postmedia news reporter Tobi Cohen quoted MP Thomas Mulcair, leader of the Opposition, as saying “the NDP has “tried every technique at our disposal” to convince the Conservatives that Parliament ought to examine the deal before it’s approved.
The NDP has sought to delay its ratification so that it can be studied by a Commons committee, and on Tuesday the Opposition requested a “take note” debate in the House of Commons, both of which were denied. Now at the “11th hour,” the NDP asked for an emergency debate but that too was denied by House Speaker Andrew Scheer.
Green Party MP Elizabeth May had also asked for an emergency debate on the agreement on Oct. 26 and was denied. So whether the opposition has really had an opportunity to debate the treaty is, well, debatable.
Mr. Duncan compares this treaty to those signed with China by countries such as New Zealand and Germany. He fails to mention that a number of countries, including Australia, India and South Africa, have decided to no longer include investor-state arbitration in their trade agreements.
In any case, there have been so many questions raised about this agreement that the government should have independent investor-state experts and foreign investment experts study it at length so that Canadians can be fully informed about what is in it and what its implications are for Canada’s future.
Then there should be a full debate in Parliament as to whether or not it is in our best interests. Is that too much to ask of a democratic government?
Of course, with the Conservatives holding a majority of the seats in Parliament, the government could sign this agreement despite the concerns of so many Canadians.