International Trade committee  Just because a government passes an environmental protection measure doesn't mean that somebody should be able to make a claim.

International Trade committee  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.

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

International Trade committee  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.

International Trade committee  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.

International Trade committee  If we use NAFTA as the benchmark, we do see some improvement in language in some of the bilateral agreements negotiated since. That was, of course, some time ago. As I say, we'll see how far those go in terms of improving the conditions. What I like about the U.S.-Australia agreement is the fact that it doesn't allow those claims by foreign investors against Australia at all.

International Trade committee  Yes, I will. The written notes that the committee will get from me this afternoon are lengthier on this very point. Our contention is not so much on the two states taking issue with each other if they think they've breached the agreement, and then taking that forward for resolution.

International Trade committee  First of all, under NAFTA, the subnational governments are not bound by the restrictions on procurement. Second, their government procurement is protected. So we have an ongoing concern as subnational governments start to be bound by these agreements, and there is provision here that that could happen if provinces agree down the road; Canada could indicate that to Jordan.

International Trade committee  Thank you very much. Thank you for this opportunity to attend and make a presentation to the committee today. The Canadian Environmental Law Association is an environmental law legal clinic, one of the specialty clinics in the Ontario legal aid system. We're 41 years old, and we're a federally incorporated ENGO.

International Trade committee  Yes, just fine. Thank you.

International Trade committee  Yes, I'm sorry, I'm looking for where that is. Be that as it may, in general, the debate between environmental interests and trade interests sometimes does become grounded on the debate between taking precautionary approaches to sustainable development and environmental protection on one hand and economic interests on the other hand.

International Trade committee  I'm sorry that I'm not going to be very helpful on that, because CELA has not been directly working on tar sands and oil sands issues. Some of our colleagues have been working on those issues, and I would have to ask them to make comment, which I could do.

International Trade committee  If I may, I don't think I said there wasn't public consultation. I said that the draft text has not been out in the public for comment, and that's where I think it would be extremely valuable, and I presume not just on environmental matters that we can comment on and many others can comment on, but across a whole range of other topics.

International Trade committee  The analysis was prepared several weeks ago, but that was only in English, so my apologies for that.

International Trade committee  I think it's one of the most significant issues in the free trade agreements. So I gave you the Australia-U.S. example to say that we don't even need that kind of a clause; we could just do away with it entirely and not have this problem. In the current draft that we saw, it was a little bit better than NAFTA because it had a better statement that indirect expropriation claims could not be made for environmental protection reasons.