House of Commons Hansard #38 of the 39th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was judges.

Topics

Aboriginal AffairsRequest for Emergency DebateRoutine Proceedings

3:20 p.m.

Liberal

The Speaker Liberal Peter Milliken

The Chair has examined the two requests from the hon. members about these two subjects.

I note that there are two procedures available to hon. members in respect of emergency debates, if I can call it that. One is the emergency under Standing Orders, which have been applied for in this case. The other is House leaders of parties can agree to a request for a take note debate on subjects that may be of considerable interest to hon. members.

I believe that the subjects mentioned by the hon. members for Rimouski-Neigette—Témiscouata—Les Basques and Winnipeg North are certainly of general interest to many, if not all members.

However, I do not believe that either of the requests meets the exigencies of the Standing Order for an emergency debate at this time. Accordingly I am declining both requests at this time.

The Chair has notice of a question of privilege from the hon. member for New Westminster—Coquitlam and I am prepared to hear her now on that point.

Statements regarding Afghan Detainee PolicyPrivilegeRoutine Proceedings

January 28th, 2008 / 3:20 p.m.

NDP

Dawn Black NDP New Westminster—Coquitlam, BC

Mr. Speaker, I have a question of privilege to raise regarding statements made by the Minister of Foreign Affairs in the House.

As the result of recent media reports and statements by the Prime Minister's Office, I believe the minister has been less than truthful with the House about the government's detainee policy in Afghanistan. Specifically, I believe that in answering the question I posed on Thursday, November 15, 2007, which appears on page 935 of Hansard, the Minister of Foreign Affairs misled the House.

I asked whether the government had the capacity to track detainees and I raised doubts about whether the current agreement on the transfer of detainees was being followed.

In response, the minister assured me:

We released yesterday all of the details about what we are doing right now and what we did in the past. It is very clear. It is very transparent.

It was recently revealed that all transfers of detainees in Afghanistan stopped on November 5, 2007. I posed my question nine days later and the minister made no mention of this change. I believe the Minister of Foreign Affairs deliberately misled the House because he did not provide all the information at that time that was available to him.

The updated agreement on the transfer of prisoners was coordinated by the Department of Foreign Affairs, and I have an affidavit that was filed in Federal Court to this effect. I will table that document if you wish, Mr. Speaker.

The Minister of Foreign Affairs is the minister responsible for this policy and if there were any change in the protocol for detainees, he should have provided a fulsome response to my question. If the minister truly believed that he could not give a full response because of operational security, he should have told the House that. Instead the minister went out of his way to say that he was releasing “all of the details” and that he was being “very transparent”.

If the minister wishes to inform the House that he was misinformed, I would like to give him an opportunity to do so. Failing that, Mr. Speaker, I would ask you to consider the matter. Should you find a prima facie breach of privilege, I would be prepared to move the appropriate motion so this matter could be dealt with by the Standing Committee on Foreign Affairs and International Development.

Statements regarding Afghan Detainee PolicyPrivilegeRoutine Proceedings

3:25 p.m.

Regina—Lumsden—Lake Centre Saskatchewan

Conservative

Tom Lukiwski ConservativeParliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform

Mr. Speaker, in response to the hon. member's question of privilege, I would ask you to check please, if you have not already done so, records in Hansard. I can assure you that there were no misleading statements whatsoever offered by any of our ministers with respect to the Afghanistan detainee question.

I would also point out that, as stated again in today's question period, there has been absolutely no change in policy, as the hon. member suggests. In fact, the policy remains the same, and that response has been given by the Minister of National Defence and the Minister of Foreign Affairs time and time again.

Last, I would point out that in previous rulings, and I believe this has been consistent throughout the years, the question of privilege that the member speaks of is actually a point of debate.

I would ask, Mr. Speaker, that you would make a ruling as expeditiously as possible to dispense with this matter.

Statements regarding Afghan Detainee PolicyPrivilegeRoutine Proceedings

3:25 p.m.

Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, I will simply add that, in my opinion, the NDP member is right and that, unfortunately, the Conservative member is wrong. Incidentally, that was the subject of my question today.

As members of this Parliament, we felt somewhat offended. This is an infringement on our rights. In my opinion, we are here as representatives of the public and the public has the right to get all the information on the issue of Afghan detainees.

I can say that Canadians and Quebeckers want Afghan detainees to be treated with respect, according to the Geneva convention. Over the past few weeks, the ministers have given us answers that did not reflect this. The culture of secrecy continues to exist, not only in the Canadian Forces, but also here in this House. This is evidenced by the fact that when we put questions to the Minister of National Defence on November 14, and to the Minister of Foreign Affairs on November 19, they both knew that transfers of detainees had stopped on November 5, but they did not mention it. They simply continued to deny the reality, and they referred us to an agreement that they had themselves decided to stop implementing. They also told us that there was no problem with the process, that everything was just fine, when in fact this was not the case at all and they themselves had put a stop to these transfers.

Today, they would have us believe that they had nothing to do with this issue; that these are military operations. But the fact is that the civilian authorities have the first and last word on military operations. It is up to them to make decisions on such an important issue, and to ensure that all the information is provided to members of the House of Commons, but they did not do that.

I am urging you to follow up on the proposal made by the hon. member. The Bloc Québécois supports her request.

Statements regarding Afghan Detainee PolicyPrivilegeRoutine Proceedings

3:25 p.m.

Liberal

The Speaker Liberal Peter Milliken

I would like to thank the member for Saint-Jean and the member for New Westminster—Coquitlam, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons for their comments on this question of privilege.

I will review the statements they have made.

Perhaps the hon. member for New Westminister-Coquitlam would be kind enough to forward a copy of the affidavit she referred to in her argument. It need not be tabled, but she can send it to me. I will review that as well as the questions to which she referred and the answers given by the minister and come back to the House with a ruling in due course in this matter.

I thank all hon. members for their submissions on the point.

The House resumed consideration of the motion that Bill C-8, An Act to amend the Canada Transportation Act (railway transportation), be read the third time and passed.

Canada Transportation ActGovernment Orders

3:30 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I am very pleased to rise today to speak on Bill C-8, which people will remember was previously Bill C-58 and which is an act to amend the Canada Transportation Act. We are dealing in this case specifically with railway transportation.

I have already regaled the House with the rich history of my family in that I come from a long line of railway magnates. My great-great-grandfather was John P. McNeil. The “P” did not stand for anything. It was just that every man in the village of Iona was named John so they had to distinguish him from his eight brothers whose first names were all John as well. There were John Roderick, John Francis, John Albert, John Alec and John P. They ran out of names because the Scottish only name people after dead people and there just were not that many dead people in the family.

The great John P. McNeil was a porter on the Sydney Flyer. My grandfather told me that the family did not eat at night until John P. came in. It did not matter how late. The kids would wait out in the hallway for John P. to come in. He would sit down and when he had finished eating, he would say, “McNeil has dined”. That meant the children could eat.

That is actually a tradition that goes back to the 1200s and even before that when the McNeils were on the island of Barra. It was a raiding base for the Vikings. The McNeil, who was the clan chieftain, claimed the right to eat before all the lords of the earth. That is an actual historical fact, not that any of my relatives ever lived in the castle. I think they pounded seaweed on the shore for a living and then were sort of unceremoniously removed from their land and sent to Cape Breton, where they had to find work. Some of them went to the coal mines, but John P. worked on the Sydney Flyer.

Mr. Speaker, I know you are waiting for me to get to the punchline, but I think it all adds to the story.

I do not know if John P. had many great skills, but one of his skills was that he could always tell that a bootlegger was coming into Sydney. When they were coming in on the train, he would say, “A man who has a bottle of whisky in his suitcase always puts that suitcase down with just a little more care than if it was just his long johns”.

Of course there was not enough work for all the McNeils, so they had to move to Ontario and work in the mines. The ones who did not want to work in the mines worked on the railway, the great Temiskaming and Northern Ontario Railway. Part of my long, illustrious history is that my uncles, Andy and John, were porters on the T and NO Railway.

My mother tells the story about their travel along that railway from Timmins to North Bay in the summer. They would load up on the car in Timmins with a ticket that would last them as far as Schumacher, which was about two miles down the road. They would have their sleeping bags and coats. Obviously they were going on a long trip. They were always terrified that someone was going to notice that their ticket was for only two miles, not for 250. My uncles knew everybody on the train and used to travel up and down the train line for free to go stay with the aunts.

I know, Mr. Speaker, that you are wondering what this is all leading to. It speaks to my passion and yours. I am very glad that you are in the chair because of your deep love of history and railway. I know that you will give me a little leeway to sort of draw out what exactly the point of this discourse is.

I would like to move forward now to the 1980s and my own interest in the railway. We are talking about the government and its vision for infrastructure. It is putting in all kinds of effort on the gateways and ports but if people ever travel across this country they have to understand that it is not just the gateways, the ports or the megaprojects that make infrastructure work in this country. It is actually being able to connect them to the various places that makes it work, which of course goes back to my family's history on the railway.

The railway plays an important role in connecting. We have seen over the last number of years how much of the railways have been left. In some parts of the country they are being torn up and there are other areas where we have not built the necessary infrastructure.

As I said, I would like to speak about the 1980s, when a famous Scottish band came to Canada. This is a true story, although I know it sounds like a joke. A Scottish band came to Canada. I think it was called Aztec Camera. The band members landed in Halifax at that great port and then flew to Montreal. They played in Montreal and then drove to Ottawa. They left Ottawa and drove along the great highway. When they got to Toronto they thought, “This is what we always thought North America was”. Then they were told, “Your next gig is in Winnipeg. There is the bus. Now drive to Winnipeg”.

About 16 hours up the highway on the way to Winnipeg, a highway consisting of two lanes of traffic, moose every 10 feet, trees and no lights, the road manager looked at the driver, who was Canadian, and asked him if he could not have picked the Trans-Canada Highway to travel across the country. The driver said they were on the Trans-Canada Highway.

Anyone who has driven across this country knows that long, terrible drive through northern Ontario. Northern Ontario is made up of some of the prettiest country in the world, but Highway 11, which I live on, is in a terrible state. It is the truck transportation route for this entire country. If goods have to be moved west to east, they have to be moved along that little strip of moose pasture that runs between the rocks. People in northern Ontario ask why so many trucks need to be on these two lanes of traffic when the rail line is sitting right there and half the time is empty. That is the issue in northern Ontario.

We need to connect the infrastructure of this country so we do not just have great port plans and great transportation links with our major trading partner, the United States. We need a forward looking plan to ensure that goods coming off container ships from the Far East can be transported across this country in an efficient, economical and environmentally friendly way. The train, of course, takes on an important light.

Our role in Parliament is to look at how to improve the transportation networks of this country. Bill C-8 addresses a number of concerns that have been raised by shippers dependent on railway transportation. Over the years shippers have raised many legitimate concerns about how pricing is done on railways and about access to goods.

They also have raised concerns about the duopoly that exists right now with Canadian Pacific and CN and their ability to basically call the shots for anything that is going to be shipped in certain areas of the country. This financial stranglehold has a major effect on competitiveness and trade.

Many people who ship goods, whether they are agricultural products or products being shipped out of a mine's large bulk operations, are very dependent on the prices they receive from CN or CP for the cost of bulk transportation. Under a duopolistic regime, these shippers have very few alternatives to get their products out.

We know that there are 30 federally regulated railways in Canada, but many rail shippers are still captive shippers who are still dealing with these two big players. We need to look at how we ensure fairness in a system that does not have major competition and a system where it is not practical to bring in competition on these lines.

One of the changes we are looking at is a change to ensure a little fairness in pricing and how pricing is done so shippers get a fair deal, whether they are shipping grain or copper concentrates to ports.

The amendments to the Canada Transportation Act in Bill C-8 would help address some of the shipper concerns about rail service and rates that have been raised time and time again while at the same time providing regulatory stability to the railways to encourage needed investments to keep our exporters and importers competitive in international markets. This is key. We really need to ensure that the railway system maintains a sense of strong commitment to invest.

As Canadians, of course, we want to invest in our railways because they do play such a vital role and they always have, the Brian Mulroney regime notwithstanding.

A number of the amendments brought forward in Bill C-8 were actually developed in concert with shippers who brought their concerns to Parliament.

We are looking at the regulatory impact of the bill. One amendment would remove the requirement for a shipper to prove substantial commercial harm before applying to the agency for certain competitive remedies. That is a fair amendment. It is unlikely to be abused because we are talking about long term customers of the railway.

We also need to allow shippers to jointly apply. Right now they can apply only individually for final offers of arbitration on a common matter. If there are disputes, they could be grouped together and thus would not be drawn out. A ruling could be received fairly quickly.

We need to give the agency the authority to establish charges or the associated terms and conditions that would apply to shippers for the movement of traffic or incidental services.

This also will allow for the suspension of any final offer arbitration process if both parties consent to pursue mediation.

Again, these are reasonable requests that are being brought forward to actually help address these longstanding concerns.

It would also permit the CTA upon the complaint of a shipper to investigate charges and conditions for incidental services and those related to the movement of traffic contained in a tariff that are of general application and establish new charges or terms and conditions if it finds those in the tariff to be unreasonable.

Once again, I think these are all fairly straightforward and reasonable.

This would increase the notice period for augmentation in rates for the movement of traffic from 20 to 30 days to ensure that the shippers receive adequate notice of rate increases. Once again, when we are dealing with large bulk transport we need to have some sense of security and some sense of stability in terms of pricing if we are dealing with products.

It would require the railways to publish a list of rail sidings available for the grain producer carloading and to give 60 days' notice before removing such sidings from operation. Once again, if we are going to take out some of that infrastructure that people are dependent on, we have to give the shippers some advance notice so they can begin to make other arrangements.

We also need to ensure that the abandonment and transfer provisions apply to lines that are transferred to provincial short lines and subsequently revert to a federal railway, including the obligation to honour contracts with public passenger service providers.

This is a fairly straightforward and fairly technical bill in which the government is trying to bring in these amendments. As I said, it is to give our shippers some sense of fairness in a market that does not allow very large scale competition. We all know that markets with more competition are generally ones that will favour larger investment and larger use, but certainly with railway, because of the incredible cost of infrastructure and also the history, we have the two big giants. We have always had the two big giants, augmented by many smaller lines and by provincial lines.

In my own region, the Ontario Northland is a provincial line that runs from Hearst. It used to be by rail but now it is by bus. From the Kapuskasing-Cochrane region and actually from Moose Factory the train line runs provincially down south to North Bay, and from North Bay south it becomes one of the CN lines. We are still moving provincial goods along that line. It is still a provincial railway.

It is of paramount importance in our region, because right now if we want to move out any of the goods from the mines, in particular the sulphuric acid cars that are coming out of the Horne smelter in Rouyn-Noranda and the Kidd Creek smelter in Timmins, it is superior by far to move it on the train lines.

These are massive bulk operations, so the shippers need to have some security. As well, we are moving out copper concentrates and zinc concentrates from the Horne smelter in Noranda and also from the Kidd smelter in Timmins. We need some stability in regard to knowing the pricing. As for what is being forwarded in this legislation, even though it is coming in on a provincial line, as I can see from my own region and our dependence on railway traffic, these changes are practical.

Certainly in western Canada the rail lines play an incredible role in the movement of goods and people. As we know, when we are driving across the country and we get to one of those rail sidings when the grain cars are coming along, we can pretty much read from one end of the newspaper to the other before the train has passed.

I am always thrilled to see those train cars come along. I see them coming to the port in Thunder Bay where they end the journey so the freight can then travel by boat. When we see how much can be transferred on those lines, it is truly impressive.

Certainly with the whole move we have seen to the container shipping system, which has actually revolutionized transportation and commercial dealings around the world, we in Canada need to make sure that our railways are in the game and are there with prices that shippers can actually trust so they choose the railway as opposed to simply putting their product onto our overstretched highways.

Whether it is provincial or federal, the investment in highways just has not kept up. In so much of our country, as I have said, we are dealing with two lanes of traffic, except on the busy 401 stretch. Having that massive amount of truck traffic has not been a bonus for our economy. It is costly to the taxpayer because of the impact on roads. We do have a railway system, but we need to ensure that system.

Before I close I will speak a little bit about the whole vision of a national infrastructure plan. As I said, the government is focused on the terminal ports and the gateways for trade, but in order to make trade work in this country we need a vision that says infrastructure and transportation go hand-in-hand. Whether it is the port or whether it is the highway, the two lanes of thin traffic that has to cut through the Canadian Shield carrying the goods, that has to be part of the equation as well.

Infrastructure also goes all the way down to a vision for our municipalities. They are increasingly having to carry the burden of maintaining infrastructure that used to be provincial or federal.

In my little community of Iroquois Falls over 30 kilometres of public highways has just been downloaded and called local roads. There is no base in the taxation to cover off the cost of those roads so they eventually start to deteriorate. It makes it very difficult to attract business to regions when the fundamental infrastructure, whether it is roads, bridges or sewage, begins to deteriorate because the ratepayers, average citizens, are having to pay for it on their water bill or municipal housing bill because there is no provincial or federal commitment to infrastructure.

We have to make infrastructure a priority in the House. The infrastructure deficit being felt across our municipalities right now is affecting regions of the country to maintain a competitive ability to attract business.

I had wanted to speak about infrastructure because railway is part of infrastructure and I will end on that and say that we are very interested in Bill C-8. We think it is a practical bill and the kind of bill that has been brought forward because there have been consultations with many of the shipping and trade associations, including the Canadian Wheat Board. I know that might upset some of my Conservative colleagues but the Canadian Wheat Board certainly felt that there were issues dealing with grain transportation and fairness of price.

We spoke with the Forest Products Association of Canada. We are hauling logs through northern Ontario. I know that in northern Canada rail plays a big part in hauling our wood, our finished products and our logs.

The Canadian Canola Growers Association is in support of this along with the Mining Association of Canada. If are going to do large scale mineral development in this country, at the end of the day we have to ship the products out and rail, by far, is the vehicle of choice to move concentrates or finished products out of mining operations to the ports, particularly the ports on the Pacific right now because the Chinese boom has certainly fuelled a major boom in base metals. We know that is a fact in my region of Sudbury as well as Rouyn-Noranda and Timmins. The railway plays an incredible role in the movement of base metals to serve the expansion in the Far East.

The Western Grain Elevator Association has shown its support for the bill along with Pulse Canada and the Inland Terminal Association of Canada.

At the end of the day, we are talking about some practical amendments to the Transportation Act to ensure fairness of price and that the overall dominance of the market by the two big giants does not come at the expense of the people who need to be able to ship products, who need certainty in price so that they can make long term planning decisions and investments in the economy that will help it continue to grow in the 21st century.

I look forward to seeing the hon. Speaker tonight at the Robbie Burns dinner. I know he apparently has some Scottish background. As one who also has a Scottish background, I wish him all the best, two days after Robbie Burns day.

Canada Transportation ActGovernment Orders

3:45 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

I thank the hon. member for his good wishes in that respect.

Is the House ready for the question?

Canada Transportation ActGovernment Orders

3:45 p.m.

Some hon. members

Question.

Canada Transportation ActGovernment Orders

3:45 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Canada Transportation ActGovernment Orders

3:45 p.m.

Some hon. members

Agreed.

On division.

Canada Transportation ActGovernment Orders

3:45 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

(Motion agreed to, bill read the third time and passed)

The House proceeded to the consideration of Bill C-9, An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), as reported (without amendment) from the committee.

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

moved that the bill be concurred in.

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

There being no motions at report stage, the House will now proceed without debate to the putting of the question on the motion to concur in the bill at report stage.

Is it the pleasure of the House to adopt the motion?

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

Some hon. members

Agreed.

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

(Motion agreed to)

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

NDP

The Deputy Speaker NDP Bill Blaikie

When shall the bill be read the third time? By leave, now?

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

Some hon. members

Agreed.

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

Conservative

Tony Clement Conservative Parry Sound—Muskoka, ON

moved that the bill be read the third time and passed.

Settlement of International Investment Disputes ActGovernment Orders

3:50 p.m.

Calgary East Alberta

Conservative

Deepak Obhrai ConservativeParliamentary Secretary to the Minister of Foreign Affairs

Mr. Speaker, I am pleased to speak today in support of Bill C-9, An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which I will refer to as “the convention”.

The convention was sponsored by the World Bank to facilitate and increase the flow of international investment. It establishes rules under which investment disputes between states and nationals of other states may be resolved by means of conciliation or arbitration. It also creates the international centre for the settlement of investment disputes, known as ICSID.

Bill C-9 implements the ICSID convention for Canada. It deals with enforcement of ICSID awards for or against the federal government and foreign governments, including the constituent subdivisions designated by foreign governments.

The convention deals with what is commonly called the resolution of investor-state disputes. Such disputes arise in a variety of situations. For example, they can arise when a state where a foreign investor has invested adopts laws affecting the activities of the investor in a discriminatory manner or nationalizes the investment.

International arbitration is a recognized method for resolving disputes. It provides a way of resolving legal issues without resort to the domestic judicial process.

It has long been recognized that when parties to a dispute have recourse to arbitration, the result of the arbitral process ought to be recognized by the courts. Thus, for example, the awards resulting from commercial arbitration, in other words from arbitrations between business enterprises, are recognized and enforced by courts.

The decision as to whether to have recourse to arbitration or the judicial process is a decision for the parties to dispute. This flexibility is welcomed in many types of situations.

In the case of the convention being implemented by Bill C-9, one of the big advantages of having recourse to arbitration is that it “denationalizes” the process. Let me explain.

When a dispute arises between a foreign investor and the host country, one of the options is for the investor to pursue the case before the courts of that host country. In most cases, as would be the case in Canada, the foreign investor would benefit from a fair and equitable process; the national court would not prejudge the matter and would render a decision in conformity with the law.

However, in some situations this might not happen. The tribunal might favour its government to the detriment of the foreign investor.

The fact that the parties to an arbitration can select the arbitrators who will hear and decide the case is another advantage of the arbitral process. If the dispute involves a specialized matter, for example, petroleum exploration, or maritime issues, the ability to choose arbitrators with specialized knowledge on the subject matter of the dispute can make the entire process work much better and can lead to better decisions.

The arbitration mechanism established by the ICSID convention is one that is used for disputes between investors and states. The convention has been ratified by 143 states, making it one of the most widely ratified of all international instruments.

The distinguishing feature of ICSID, what makes it uniquely valuable, is the enforcement mechanism which this legislation will implement for Canada. The ICSID enforcement mechanism is very effective. This effectiveness contributes to the protection of the investor. ICSID's enforcement mechanism lies at the heart of the effectiveness of the ICSID convention.

An arbitral award from any other arbitral body is subject to review by a domestic court before it can be enforced, but an ICSID award merely has to be presented to a domestic court with a request that the court enforce it. Under Bill C-9 the award must be recognized and, with this recognition, enforcement mechanisms become available immediately. Enforcement could include payments seized by officers of the court.

In the great majority of cases the losing party in an arbitration will pay the award of an arbitral tribunal without the need for the successful party to take any enforcement proceedings. The same is true for investor-state arbitration.

In Canada, arbitral awards, including investor-state arbitral awards, are currently enforced pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The New York convention permits a limited review of an arbitral award by domestic courts. It allows a court to refuse to enforce an award if to do so would be contrary to the public policy. In addition, it permits a state to exclude certain subjects from the application of the convention and thus from enforcement.

The ICSID provides a better enforcement mechanism. It does not permit a state to exclude from dispute settlement any matter which the state has consented to submit to arbitration. The ICSID awards are enforceable as if they were final decisions of a local court. This simple, efficient mechanism guarantees better protection for Canadian investors abroad.

Clause 8 of the bill authorizes any superior court in Canada to recognize and enforce awards as described in the bill. The Federal Court is a superior court. The Federal Court would have jurisdiction over awards involving the Government of Canada and awards involving foreign governments or their constituent subdivisions designated under the convention.

In addition, the ICSID convention provides explicitly that the ICSID awards are binding between the parties and once parties have agreed to arbitration they cannot seek remedy before another body, such as courts of justice.

Therefore, it is not open to a foreign tribunal to refuse to enforce an award on the basis that the ICSID arbitration tribunal has exceeded its jurisdiction or was not validly constituted. These kinds of issues can affect enforcement of awards other than ICSID awards, thereby delaying resolution of the dispute. The ICSID does not permit such dilatory tactics.

Section 7 of the bill provides that an ICSID award is not subject to any remedy by a Canadian court. Remedies thus prohibited would include appeal, review and nullification. The decision to have recourse to arbitration is entirely voluntary, but once the parties have consented to ICSID arbitration they cannot seek review in another forum, such as the courts.

The only review of an ICSID award, if a party to a dispute considers it contains errors, is the review process provided by the convention itself. It provides that a request for revision, interpretation or annulment of an award must be made to the secretary-general of the ICSID. This procedure allows the parties to avoid having national courts involved in assessing allegations that claim there is something wrong with an award, while at the same time ensuring the awards which are erroneous can be corrected.

There are numerous reasons to support Canada's adherence to the convention. It would provide additional protection for Canadian investors abroad by allowing them to have recourse to the ICSID arbitration in their contracts with foreign states.

It would also allow investors of Canada and foreign investors in Canada to bring investment claims under the ICSID arbitral rules where such clauses are contained in our foreign investment protection agreements and free trade agreements.

To date, 143 states have ratified the ICSID convention. The majority of our trading partners are parties to it, except for Mexico, India and Brazil. Ratifying the ICSID would bring Canadian policy into line with our OECD partners. In a survey conducted by the ICSID center in 2004, 79% of the respondents said that the ICSID played a vital role in their country's legal framework and 61% said that the ICSID membership had contributed to a positive investment climate.

We know, anecdotally, that Canadian investors are trying to find ways to benefit from the ICSID, even though Canada is not party to the convention. Firms have, for example, arranged investments through a third country that is party to the ICSID. However, such convoluted financing is not possible for all investments by Canadian investors.

International investment arbitration is growing in importance. The stock of Canadian direct investment abroad in 2005 increased to a record $469 billion. As a result of the globalization of investment, the number of investment disputes has greatly increased in the last five years.

ICSID arbitration has soared: only 110 ICSID arbitrations have been completed over the past 40 years but 105 proceedings are now under way. The NAFTA parties alone have faced over 40 investor-state arbitration claims since NAFTA entered into force.

The tremendous growth in investment and investor-state disputes has made Canada's failure to ratify the ICSID the focus of attention by Canadian businesses, the Canadian legal community and our trading partners.

The ICSID regime provides several important advantages. Compared to other arbitration mechanisms, the ICSID regime provides better guarantees regarding enforcement of awards and more limited local court intervention.

Any arbitral award rendered under the auspices of ICSID is binding and any resulting obligation must be enforced as if the award were a final domestic court judgment. Moreover, all ICSID contracting states, whether or not parties to the dispute, are required by the convention to recognize and enforce the ICSID arbitral awards.

Investors often prefer to rely on such arbitrations rather than on the local courts of the country whose measures are in dispute to ensure an independent resolution of the dispute.

The ICSID's relationship with the World Bank assists investors in obtaining compliance with the ICSID award and its roster of arbitrators gives investors access to well-qualified arbitrators at ICSID controlled rates, with extensive experience in international investment arbitration.

The ICSID also provides important institutional support for litigants. The ICSID convention is a well known tool for settlement of investment disputes. Therefore, the interpretation of the convention and its usefulness are predictable.

Canada already has numerous links with the ICSID. Provisions consenting to ICSID arbitration are commonly found in contracts between governments of other countries and Canadian investors. The NAFTA in chapter 11, the Canada-Chile FTA and most of our bilateral foreign investment protection agreements known as FIPAs all provide for the ICSID as a dispute settlement option that can be chosen by an investor if both the state of the investor and the host state for the investment are party to the ICSID.

However, Canada and Canadian investors cannot benefit from this choice if Canada is not a member.

It is important that Bill C-9 be passed in order to facilitate adherence by Canada to the ICSID convention as soon as possible.

Settlement of International Investment Disputes ActGovernment Orders

4:05 p.m.

NDP

Chris Charlton NDP Hamilton Mountain, ON

Mr. Speaker, for me this has a bit of the same feel to it as the multilateral agreement on investment did under the former Liberal agreement. I have concerns about transparency and about accessibility for people to actually participate in the process.

However, I guess my most important concern focuses on accountability. As I look at all of this, the decisions issued through an ICSID arbitration are binding and there are limited grounds under which the process can be appealed. They are all very narrow reasons. They include: the tribunal was not properly constituted; it manifestly exceeded its powers; there was corruption on the tribunal; there was a breach in the rules of procedure; or, the award failed to state the reasons on which it was based. These grounds make absolutely no allowances for other substantive reasons for which a sovereign state might well decide, for the benefit of its citizens, to disagree with an arbitration decision.

I wonder if the member could elaborate a little more on why he feels comfortable, as a member on the government side, to do this to the Canadian public, to support a process that, as I said earlier, has no transparency, no accountability and no accessibility.

Settlement of International Investment Disputes ActGovernment Orders

4:05 p.m.

Conservative

Deepak Obhrai Conservative Calgary East, AB

Mr. Speaker, I thank the member for asking a question that many would want to ask. She wants to know why we have the ICSID convention because it is under the World Bank and it gives transparency under the World Bank rules to ensure that what she has expressed as a concern is overridden. The confidence level given by this convention is what investors are looking for.

However, there is a provision in the convention where the secretary-general of the ICSID can accept a request for a revision, interpretation or annulment of an award.

As I mentioned in my speech, this convention, as signed by 143 countries, has put international confidence in the mechanism for investment where both the investor and the government can have confidence. We cannot have confidence on one side where we can say that the investor is subjected to a government board or a court of law where he feels he did not receive justice.

At the end of the day, the issue is about receiving fair treatment and justice and that it is transparent. This convention provides that, which is why 143 countries have signed on to it.

Settlement of International Investment Disputes ActGovernment Orders

4:05 p.m.

NDP

Paul Dewar NDP Ottawa Centre, ON

Mr. Speaker, I listened carefully to the parliamentary secretary's comments on the bill and certainly listened carefully at committee to presentations and representations by those who brought forward their opinions.

At committee we heard from those who are backing this bill that the sky would not fall and that productivity and investment would still continue if the bill does not pass. If we were to listen to the government and the official opposition party, we would think that this is something that we need, that this is key to Canada's success and to investment coming into Canada.

However, what was not touched upon is the opinion of some of the provinces. I find it passing strange that the Bloc will be supporting the bill because it would actually take away, in some respects, sovereignty, particularly in the case of financial oversight from Canada. I am surprised that the Bloc would support taking decisions that could be made here in Canada and really throwing them over to the World Bank which, as we know, is situated elsewhere. That is not to mention the concerns people have had as of late in terms of transparency and accountability at the World Bank. I need not go into that narrative. It is a long one and we know the recent problems at the top.

At committee we heard very clearly that notwithstanding that countries have signed on to this, this is a file that has been around for quite awhile. We also heard that this would not guarantee increased investment but that there is jeopardy in terms of handing over accountability.

Why would the government, which has told the Canadian public many times that it believes in accountability in its own operations, hand this kind of process procedure over to the World Bank when those decisions should be made right here in Canada, have Canadian oversight and remain a tool that we can use? Once we sign on to this, we are handing it over to another institution and, indeed, to another jurisdiction.

Settlement of International Investment Disputes ActGovernment Orders

4:10 p.m.

Conservative

Deepak Obhrai Conservative Calgary East, AB

Mr. Speaker, one would not expect the NDP to look at the advantages of foreign investment in Canada. The member seems to forget the other side of the coin with investment going out of the country.

Over 45% of Canada's GDP is based on imports and exports. We are a trading nation. We need prosperity. We need mechanisms that not only provide for foreigners to invest in Canada but provide Canadians with the opportunity to invest overseas as well. That is the way our country prospers. We need mechanisms in place that would give confidence to both sides of the coin.

The NDP would never want that. The NDP wants Canada to live in a cocoon of its own. I am happy to say that is not what Canadians want. That is not what the Canadian business community wants either. With 143 states signing, this gives confidence now.

It is surprising to me that NDP members are today saying that they have no confidence in the World Bank because they are known as the biggest supporters of the World Bank. At the end of the day, those members want development and all these things. The World Bank is one of the institutions that does that.

We do have dispute mechanisms in other areas. As I alluded to in my speech, this is one of the best dispute mechanisms and it would give investor confidence to both sides of the business community.