Evidence of meeting #30 for International Trade in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was agreement.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Jeff Vogt  Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)
  • Theresa McClenaghan  Executive Director and Counsel, Canadian Environmental Law Association
  • Charles Kernaghan  Director, Institute for Global Labour and Human Rights

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

No, it has a provision, and as I say, it is better than the NAFTA provision. The language is in itself, on that point, not too bad. It says:

Except in rare circumstances, such as when a measure or series of measures are so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.

That's not bad, on its face. It sounds pretty good. My concern is that the companies can still bring that claim—and we've seen that they do—and say, for example, well, it wasn't reasonable, it wasn't good faith; it wasn't really directed at health or safety or the environment. So it still leaves the door open for these kinds of attempts to derail the regulatory agenda, even before it happens, by saying, well, we'll bring this kind of claim. That's my concern.

I really don't like to see the Canadian government and its subnational governments have their regulatory-making powers in the area of the environment constrained by this.

11:45 a.m.

Conservative

Russ Hiebert South Surrey—White Rock—Cloverdale, BC

I have some—

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

So it's better than the NAFTA, but it's.... We shouldn't even have the claims be possible.

11:45 a.m.

Conservative

Russ Hiebert South Surrey—White Rock—Cloverdale, BC

Do you have examples of other similar language being used for that purpose, as you've described it, or is this more what you “expect” might happen?

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

In terms of what we expect might happen, we've had many claims brought against Canada, for example, under NAFTA. The Dow is the most recent. It ended up being resolved.

On the other hand, we have a good precedent in a case called Methanex, where the arbitral panel ruled against the applicant and said that this kind of regulation is not expropriation. The problem is that it's not binding on any of the subsequent arbitral panels. It says, right in this agreement, that it's case by case. The issues about reasonability, legitimacy, good faith, etc., would be up for argument every time.

March 29th, 2012 / 11:45 a.m.

Conservative

Russ Hiebert South Surrey—White Rock—Cloverdale, BC

I ask that question because I also know that in the side agreement on the environment, both parties—Canada and Jordan—commit themselves not only to complying with their domestic environmental legislation as it currently stands, but also to not weakening but in fact strengthening their environmental laws, providing proceedings for a remedy, increasing public awareness, and ensuring that there are environmental impact assessments. It sounds as though by engaging with Jordan we're actually strengthening their environmental provisions and empowering them to raise their standards. Wouldn't that be an expectation of this agreement? If that were the case, then giving companies an opportunity to come along and challenge those increased standards would be inconsistent with the agreement.

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

Yes, challenging the increased or more protective standards would be inconsistent. Those kinds of provisions, I think, are good. Even in the NAFTA we had the commission for environmental cooperation, which does some very good things. For example, it compares the national emissions by the biggest polluters across the three countries. Those kinds of extra provisions are helpful.

I will be quite interested, as more and more of these agreements are negotiated, to see how much the parties—the states—actually give them living force, in terms of paying attention to how much they are improving and increasing the protective level of their environmental protection. Language is useful. It's somewhat vague, but it's useful, especially if the parties actually pursue that line of inquiry to say, “Well, what have you done lately to increase your environmental protection? Can you demonstrate that?”

11:50 a.m.

Conservative

Russ Hiebert South Surrey—White Rock—Cloverdale, BC

I haven't heard you say it, but it almost sounds as though you are suspicious that Jordan or any country that would be party to an agreement with this language might try to use environmental standards as a non-tariff barrier. That's what the companies that would be impacted would be fighting against. Is that kind of an indirect way of saying what you are concerned about?

11:50 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

It's not my concern that environmental regulation amounts to non-tariff barriers, but that is a claim that is often made by industry. A lot of the language in the free trade agreements is trying to both address the avoidance of non-tariff barriers and still allow for environmental regulation. I believe that's where it comes from in the first place, from the drafters.

11:50 a.m.

Conservative

Russ Hiebert South Surrey—White Rock—Cloverdale, BC

I also have read that the side agreement on the environment does not include any financial penalties to be applied when a party is deemed to be not in compliance with a panel report. Did that strike you as interesting, or is that standard?

11:50 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

It didn't strike me as interesting or as standard either. I was more concerned about whether that would extend into the investment agreement, and it doesn't. In the investment agreement, the investors still have the right to bring claims for expropriation or indirect expropriation.

The fact that the parties wouldn't seek financial claims for regulating or not regulating in the interests of the environment doesn't really surprise me. If they thought, for instance, that the other wasn't complying with the provisions to pursue high levels of regulation, I assume they would pursue other remedies in this agreement, such as talking to each other or setting up a committee, etc.

11:50 a.m.

Conservative

The Chair Rob Merrifield

Thank you very much.

Mr. Ravignat.

11:50 a.m.

NDP

Mathieu Ravignat Pontiac, QC

Thank you, Mr. Chair.

Thank you to the witnesses for being here.

My question is for Mr. Vogt. When workers' rights have not been established, it is usually women and children who must work in the toughest conditions. I am wondering if you could describe the situation for female and child workers in the Hashemite Kingdom of Jordan.

11:50 a.m.

Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)

Jeff Vogt

In the garment industry, as is typical in many places, the workforce is typically female. I am not by any means an expert on the question of child labour within Jordan. I can certainly research that and provide information to you on that question. I'm afraid that's probably the extent of what I can provide to you now. I'll be happy to prepare something in writing on that question.

11:50 a.m.

NDP

Mathieu Ravignat Pontiac, QC

That would be very helpful.

Often, the unions that are active in the region have a better idea of workers' conditions and the advantages of a possible agreement or the disadvantages of a possible free-trade agreement.

Do you know what concerns unions in the Hashemite Kingdom of Jordan have when it comes to trade liberalization? Do they support this measure, yes or no?