Bill C-9 (Historical)

Settlement of International Investment Disputes Act

An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)

This enactment implements the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on March 18, 1965.

Settlement of International Investment Disputes Act

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I would like to review article 71 which states, “any contracting state may denounce this convention by written notice to the depository of this convention. The denunciation shall take effect six months after receipt of such notice”.

If things do not work as we anticipate they will, if it is not a positive outcome in becoming a signatory and having it ratified, then we have the ability to opt out. There is an escape mechanism which is very prudent and very beneficial, but I would anticipate that this country would not exercise its rights under article 71.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Mr. Speaker, it should not come as a surprise to any of us that the Liberals are so enamoured with Bill C-9. The bill has all kinds of flaws, dutifully pointed out by many in the House and by organizations which are expert in this whole area. It comes as no surprise given the fact that it was the Liberals who tried to slip through Parliament and into public policy the multilateral agreement on investment. Thank goodness there were Canadians who said it was dangerous and problematic. Thank heavens there was enough pressure to bear to stop the MAI.

Today we have this proposition before us through Bill C-9 which has problems of the same nature that we identified with respect to the MAI. We also have on our plates the SPP, the security and prosperity partnership agreement, which evokes all kinds of images about lack of transparency and accountability, executive power and power by the international corporate elite.

Is there a pattern here? If the Liberals were in support of the MAI, and in fact they propelled the issue of the multilateral agreement on investment onto the public agenda, if they are in support of Bill C-9, which is clearly problematic in terms of the power of the World Bank, are they also in favour of the SPP?

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I certainly respect my colleague's comments on the Liberals' position on the MAI. The Liberal Party is always open to suggestions and constructive comments. Following a review of the possibility of entering into it, they withdrew it and that was a good move.

To suggest that the ratification of this agreement is the same as the MAI, I would suggest it is not. I look at the business community and the trading community, all of whom are very supportive of this agreement. I would suggest that if the worker on the street or in the factory were given the option, if he had the choice between arbitrating disputes under this agreement or not having a job, he would welcome the assurance of stability in his employment and would also endorse it.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, given what the member said, that we do not want Canadian companies to be prejudiced overseas when they invest, does he believe that can create a lot of jobs in Canada? Obviously Canada has investments around the world which create jobs and he would like to give some certainty through this mechanism so that a lot of union jobs and other jobs are maintained in Canada and not lost by some frivolous action against which there was no protection.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, job creation and job maintenance are so important for this country. It is certainly one of the issues of the day. It is my position that this would provide for stability and would provide new jobs. We are a trading nation. It would also protect existing jobs. As such, we should be endorsing this unanimously, all the parties in this House.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, it is interesting to note that we have heard the positions of all the parties on this bill and our party has taken the view that this bill is not up to speed on where Canadians are at and on how to protect Canadians in terms of investments, institutionally speaking.

I would concur with those who say it is not the end of the world if this treaty goes through, that other countries have passed it and therefore it is just something we can go ahead and agree to, no problem, thanks very much. I would agree that it would not be the end of Canada as we know it. It would not wreck or destroy our economy.

Let me start off with those measured comments, but we need to be very vigilant on what we are actually deciding and what potential pitfalls there are. If we look at the International Centre for Settlement of Investment Disputes, we will see that it is one of those groups within the World Bank that is not very well known. If we were to ask our constituents about it, or if I went out here on Bank Street and asked people if they were aware of the ICSID, most of them might look at you quizzically.

There is a reason for that. It is an investor dispute mechanism that provides multinational corporations with powers to sue governments when they impose domestic laws or regulations that have a significant detrimental effect on corporate profit-making. In other words, what is critical here is to understand why this is in place. Who does it benefit? Then it comes back to us as legislators. What does it do for everyday people?

I would submit that this is something that benefits multinational corporations and large investors, but I cannot make the argument that this benefits everyday Canadians. In fact, it has the potential to see us give up our sovereignty. I say that because this arrangement agreement has been around, as has been mentioned already, for more than 40 years, but it seems we now have a rush to sign on to this.

I find that a little strange. It is of concern to me when we see a major sell-off of resources, particularly here in Canada, a major sell-off of our resources, of companies that have been Canadian from the beginning, we might say, and certainly companies that have been around for more than 20 or 30 years, and we note that there is not a problem in terms of foreign investment in Canada.

The dilemma we have is in making sure that we have some hold on the economic reins, that we in fact get to determine our financial pathway, that we are able to have an economy that is a mixed economy for sure, a pluralistic economy absolutely, but one in which there is a balance.

When we take a look at this agreement, we see that what this agreement will do is allow multinational corporations powers to sue governments when they believe they have been wronged. We have already heard some examples from my colleague from Timmins about the perils of that.

We know that the World Bank organized the international body in 1966. Historically, capital-exporting countries have used a variety of these kinds of carrots and sticks to protect the economic interests of their major corporations abroad. They use these as a vehicle, as a tool, so to speak. If they cannot get what they want in a forum that is agreed upon between states, they use this forum.

While many might say it is fine, that if we look at some of the decisions we can see that they were amicable and there were no problems, we also have to take a look at the potential for this to be a negative situation for Canadians and, for that matter, for Canadian investors.

For instance, the United States has a long history of using these kinds of tools to its benefit, so we have to take a look at how the mechanism works. What we find is that in the way the tribunal is set up, we have what I think is really an imbalance in the structure. We know that the way the panellists are chosen and put forward is that they are agreed upon by members of the treaty. That sounds fine until we get to the point of asking this question: what if there is a problem with a decision that has been made by the tribunal?

We know there is no satisfactory appeal process, not in my opinion. The decisions are pretty final once they are made, once we have entered into the process. If someone thinks that a decision was not fair or that not all the evidence was brought forward, unless it can be proven there was corruption or unless there is a smoking gun, an appeal is not permitted.

In fact, let us look at article 52. To be clear, the appeal process is actually an annulment. It says to get rid of the whole decision. That is really not an appeal in my books. Article 52 lays out the annulment. It kind of reminds me of how the Catholic church dealt with marriages at one time, when a divorce would not be recognized but there would be an annulment, meaning the marriage did not happen.

However, the annulment may be permitted only if the following criteria are met. One is that “the Tribunal was not properly constituted”, but one agrees to the tribunal from the get-go so one would have to prove that somehow one did not agree. Another is that “the Tribunal has manifestly exceeded its powers”, but if one agrees to the agreement, one agrees to the powers and the decision-making. That one would be hard to prove.

Another is that “there was corruption” on the tribunal. My colleague from Timmins pointed out the problems the World Bank has had in that area. I am not sure that the tribunal would have a very non-jaundiced view of its own operations and it is the tribunal that would determine this. Another is that there was a breach in the rules of procedure. That would be when one filed and what time periods were involved.

The final criteria is that the award “has failed to state the reasons on which it is based”. We are talking about agreements that are in the millions and tens of millions of dollars. It would be very unusual to have an award that would not state the reasons on which it was based. Both sides have lawyers, if not teams of lawyers, who certainly would have provided the reasons why they were in the dispute.

Therefore, what we have here in article 52 is a train to nowhere. It is not an appeal process. It is an annulment process. It does not allow a window on the decision-making and therefore I think is a flaw. It is very difficult for anyone to be able to challenge things. We know that about four countries now are trying to get out of this agreement, but it is very difficult.

I will mention one of the reasons why it is difficult. If I may turn to article 71, in terms of being able to get out of this agreement it sounds good, in that one gives notice and gets out of the agreement. The problem is that we can have companies and corporations that have in fact signed on to these agreements and will tell their respective governments that if they pull out of an agreement it will harm them and there will probably be some legal action from those corporations against their very own governments. Sometimes this can mean corporations that are not centred in their respective countries but have business in those countries.

What does that mean? It means that notwithstanding the fact that article 71 allows a nation-state to withdraw from the agreement, it is much more difficult than that. This is not unusual. We know that with some of the trade agreements we have signed on to it is one thing to see there is an escape clause to get out of an agreement that we do not believe is in our best interests, which is easily stated in an agreement, but it is another thing to actually do.

Why? Simply put, when we get into these trade agreements, they become intertwined. Corporations do their business based on those agreements. If they feel they will lose out, it is their right to take their respective governments to court. It is important to note that and to note as well that there are nation-states right now that are trying to withdraw from this treaty and are encountering challenges and difficulties.

It is important to note that this is not in isolation. Recently the government built on the work that was done by the previous government on the Security and Prosperity Partnership of North America. As I said at the beginning of my remarks, I am not suggesting that this treaty will be the end of our country or that we will be giving up all of our sovereignty, but--and I underline “but”--it is one of the threads that is undoing the fabric that we have to be a sovereign state, to decide how investment is done and certainly how to challenge when unfair investment is taking place.

I would say the same with the security and prosperity partnership. It was really interesting when the previous government brought forward the security and prosperity partnership. The Liberals said it was something they had to do to streamline procedures and processes and we should not worry. They said we should just trust them because it was something that would be good for Canadians.

Most recently we have seen that partnership extended when the SPP talks were held not far from here with Mexico, the United States and Canada. What is disturbing about that agreement and also this particular treaty is that most Canadians are unaware of what the consequences will be for them.

When people talk about the security and prosperity partnership, they always say that it is a very dense kind of document, the little bit that is available, and they ask why it is something they should be concerned about. I simply ask them if they are concerned about what is on their table. Who decides the regulations around pesticide residue? Who decides the degree to which additives are put into our food supply and what kinds? Who decides what kinds of security arrangements we have at our border? If we are concerned about those things, we should be concerned about the security and prosperity partnership.

The Liberals said they just wanted to streamline procedures and regulations. This government says the same thing. Why would they be concerned about bringing these changes in procedure to this place, to Parliament, to allow Canadians, through their members of Parliament, to understand what they are?

It is a matter of how we think government should work. Is this something that governments should have a role in? Should they decide, in an open forum, how food quality and security arrangement procedures are done? Should that be done in the full light of day or should it be done behind closed doors? If we believe the previous government and this government, they have said that we elected them to do that, that we should just trust them and just not worry about it.

When we look at this particular treaty and some of its pitfalls and at the security and prosperity partnership and the lack of transparency there, we come to the conclusion that our governments simply do not want to share this information with Canadians. As I mentioned, in this particular treaty there are problems in article 52. There are also problems in article 71.

We also have to evaluate what it is that Canadians are going to receive from this. When I asked at committee what benefits would accrue to Canadians, even those who were supportive of the treaty said it was something that would actually help business. That is fine. That is good. We want to have a healthy business sector, as I mentioned before, and a mixed economy, one that creates investment opportunities. However, I asked one of the witnesses if this is something we are lacking right now, as a result of which we are not receiving investments, and the answer was clearly no. It is not something we need to have in any way, shape or form to entice people to invest in Canada.

People have probably noted, by looking at the business pages of late, two things. One is the manufacturing jobs, which have been the foundation of many of our communities, are falling apart. They are basically bankrupt or are going down the highway. The other thing people will note is that the businesses doing well are the ones that are taking our resources, be it bitumen and the oil sands or natural resources on the west coast, forestry, et cetera, but not having that value added.

We are not getting the kind of investment that would help those in our cities, town and villages to build a better life and a better community. Why? I think it is because the government is more focused on standing up for corporations and streamlining things for them. Let us be honest about it, the government is not really concerned about the investments that go to help in the communities, villages, towns and cities across the country.

I give the forestry sector as an example. This will not help the forestry sector in any way, shape or form. The $14 billion in tax cuts, the great tax cut swindle this past fall, will not guarantee key investments in the forestry sector or in the auto sector. In fact, we are waiting on the government to give some sense that it is there to help everyday Canadians, but it has said only if we pass its budget.

These kinds of treaties, the SPP kind of process, are a clear indication to Canadians of where the present government, the previous government and opposition parties stand on this bill. The government is more concerned about making sure things are nice and streamlined, thanks very much, for multinational corporations. However, when it comes to the person who gets up every morning, goes to work, does his or her best, contributes and builds through the individual's community, the government says sorry that is does not have much for them.

Ask people who have been laid off in the forestry and manufacturing industries. There is nothing there for them. All they have been given is a cent off the GST. That is great. I am sure they are very thankful of their government for that.

When we look at the cost benefits of the bill and what the government has done for working families and everyday Canadians, one has to say not much. By changing the dynamics and how we settle investment disputes through the international tribunal process on lawsuits by foreign investors against governments over alleged violations and protections, Canadians understand whose side the government is on, and I guess we can now say the Bloc and the Liberals, and who is on the side of Canadians.

I think most Canadians would want their government to say that in the area of investment dispute settlement what should matter is how it benefits citizens. I can guarantee that by passing the bill, we will be telling corporations that they now have a nice, streamlined procedure so if they need to sue someone, it is no problem, not to worry, to be happy. They will be happy. We heard it in committee.

What I have not heard from government or opposition members is that old adage of what is in it for us, the “us” meaning Canadians. I can say there is not a lot. What seems to be there for everyday Canadians is essentially taking our accountability mechanisms and outsourcing them, in this case to the World Bank.

I will end where I began. This is not the end of our country and giving up all our sovereignty, but it is a very disturbing thread that we have seen from the present government and the previous government. When we add it up with the SPP and some of these trade agreements, what it tells Canadians is that the government is on the side of multinational corporations, that it is there for them. We saw it with the government's budget and we see it with this bill.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I have a quick question for the record. I think the member mentioned that four countries were trying to get out of this agreement. Could he list those countries so we have it on the record?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, as of last April, Central America, South America, Nicaragua, Bolivia and Venezuela have given notice that they are trying to withdraw. There is one more and I apologize to my colleague, but I will get that to him.

As I said, this is not easy. We have concerns. Notwithstanding section 71 in the treaty, which says a country can withdraw, give notice, some of these countries and other commentators have suggested it is not only a matter of giving notice. They have to understand the implications and the blow back from corporations because they have invested so much in themselves to use as a mechanism. They could go after governments if they decided to pull out.

It is a matter of saying yes. Section 71 says countries can withdraw. I simply was noting that to say it was not as easy as just giving notice.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague. On the issue of the credibility of the World Bank, we are here to rubber stamp this forum, yet the World Bank has caused damage on the international stage by its use of backroom trade pressure to undermine legitimate decisions by national sovereign governments.

I point to 2005 when Ecuador had part of its $100 million loan held back by the World Bank in punishment because it had the audacity to spend some of its own money on health and education. The World Bank thought that was an egregious abuse of the rights of investors, of people who were looking for this global race to the bottom. The World Bank has been the bully boy. It has destroyed good attempts at development by national sovereign governments.

Suddenly we in the House are supposed to accept the principle that the World Bank will arbitrate in a fair and open manner. It will not be open because dispute mechanisms will only be made public if both parties agree. There will only be binding third party briefs if both parties agree and it will be completely separate from any appeal process.

Does my hon. colleague not think it is a bit rich that at this time in our history with, for example, Naomi Klein's book The Shock Doctrine and with the incredible disgrace of Paul Wolfowitz, a good friend of the Conservative Party that has already risen to his reputation, we are now being told the World Bank is somehow an august, credible body in terms of international trade and fairness?

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I thank my colleague from Timmins for his point which needs to be underlined. The question is, whose side is being represented here?

One of the things that I did not include in my comments is that the ICSID administrative council meets each year in the fall, which is at the same time as the World Bank gets together and the IMF has its annual meeting. The council is chaired by the president of the World Bank.

I watched the sad saga of Mr. Wolfowitz, the person who came in to say that he would clean up the corruption that was rampant in the World Bank. It was strange and bizarre to watch Mr. Wolfowitz trying to in some way explain himself and what he was doing when he hired one his friends and got her a contract. It was shameless.

Here we have a matter of being told to trust them. Why should Canadians put their trust in an institution like the World Bank which has had problems in deciding who is in charge? When someone was found to be corrupt, it had a hard time getting rid of him.

I would suggest that Canadians would be better served dealing with things here in our own jurisdiction and, until the World Bank can get its act together, that we do not go that route, that we keep things here as much as we can. We cannot always do it but in this case we are being offered that.

I have one final thing to mention which might be interesting to my friends from Alberta. Why is Alberta not signing on to this? Maybe Alberta has received some intelligence from Washington that this is not something it wants to get into because it might hurt the oil industry in some way if it were to submit its sovereignty to Washington. I do not know if that is the case but it would be interesting for my colleagues, if they have a chance, to answer the question of why Alberta is one of the provinces that does not want to sign on to this protocol.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Mr. Speaker, I appreciated listening to my colleague's comments on Bill C-9. He made an interesting point, which is that this bill on its own may not threaten Canadian sovereignty and may not lead to disaster but it is part of a pattern. The cumulative effect of these kinds of decisions is what is worrying Canadians and what is worrying other countries.

I want to ask the member specifically about the impact of this approach as we see in Bill C-9 on some third world countries, keeping in mind that this whole initiative is around helping developing nations, and specifically with respect to the role of the ICSID in challenging South Africa's affirmative action policies and the role of ICSID in the economies of Nicaragua, Bolivia and Venezuela, making them withdraw from the ICSID. We are talking about something bigger than has been suggested by the Conservatives, the Liberals and the Bloc, all of whom seem to support this approach. We are talking about some worrisome patterns. I would like the member to comment on that aspect.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, my colleague is right in saying there are problems with it in terms of those countries which are trying to withdraw. The irony is that initially this was to be an arrangement that was to benefit countries in the southern hemisphere. After World War II and Breton Woods, and the setting up of the IMF, the World Bank was supposed to do the same thing.

I do not want to leave people with the impression that the New Democratic Party does not support the idea of these institutions. The problem is what happened to these institutions. The problem is they are not working for people.

Fundamentally the difference we have with the other parties is we believe that these institutions, in fact government itself, should be working for people and not the other way around. Instead, what has happened over a period of time is that these institutions have been tailored not to help people, but they have put corporations ahead. It is very interesting in international law when we look at the rights of people versus the rights of corporations. Corporations are trumping people time and time again. The effects are devastating. They are anti-democratic.

Instead of saying we believe in these institutions and that we should reform these institutions so that we can have trade deals that are going to help people and be fair, we see people who are involved in the business of lobbying and international lawyers who look out for the best interests of corporations and certainly themselves being able to change how these institutions work. That is so very sad.

The House resumed from January 28 consideration of the motion that Bill C-9, An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), be read the third time and passed.

[Vivian Barbot, Bloc, Papineau, QC]

Mr. Speaker, on May 15, 2007, I had the opportunity here in the House to talk about why the Bloc Québécois supports Bill C-53, which is identical to Bill C-9, An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Today, therefore, I will talk about how international treaties are now typically drafted with no regard whatsoever for democracy.

I would like to begin by saying that the Bloc Québécois wants all treaties to go through the House of Commons. The current way of doing things completely disregards democracy. Bill S-5, which provides for the coming into force of tax conventions, shows how important international treaties are to our daily lives. These days, treaties are brought before Parliament only when they require enabling legislation.

In Canada, Parliament and parliamentarians play a minimal role in negotiating and ratifying international treaties. The federal executive controls all phases of the process. The executive is also responsible for what takes place in negotiations, which are, for the most part, secret. This secrecy is an important part of the federal government's negotiation strategy. Next to nothing, and sometimes nothing at all is disclosed before the parties sign an agreement in principle on the content and even the wording of the treaty. Even though the provinces are usually kept abreast of negotiations for trade agreements, they participate very little in the process and, with few exceptions, are totally excluded from the decision-making process.

Where international treaties are concerned, democracy is totally absent. There is no complete compilation of such treaties. Governments release them when and if they see fit, and people cannot be sure they are all being disclosed. The treaty section at the Department of Foreign Affairs does not even have a list of signed treaties to consult. The government is not required to table treaties in the House of Commons. It does not even have to inform the House or the public that it has signed or ratified treaties. The House does not get to approve treaties. The government can sign and ratify any treaty it wants without consulting the representatives of the people. At the very most, treaties requiring legislative changes are brought before Parliament before ratification.

In Quebec, since 2002, a vote in the National Assembly is required. Being in no way involved in the negotiation of treaties, the House of Commons cannot consult the public. It is therefore not surprising to see people increasingly expressing their opposition in the streets. In fact, there is no other place for them to be heard. The government is not required to consult the provinces either, even though it cannot implement treaties that concern areas of provincial jurisdiction and the provinces are not bound by the federal government's signature. It is totally absurd that no formal consultation mechanism is in place.

The government is preventing the provinces from being able to act internationally by controlling their international relations and by not allowing them to reach treaty-like agreements. This is unacceptable.

It used to be that international treaties governed relations between states and had little or no impact on how society functioned or on the lives and rights of citizens. At the time, it was acceptable for the government to unilaterally sign or ratify treaties.

Now, however, international treaties, especially trade agreements, affect the power of the state, the workings of society and the role of citizens. Furthermore, they often have an even greater impact than many bills. The Canadian treaty ratification process is not in line with this new reality. The people's representatives must be involved in decisions that affect the people they represent.

During the election campaign, the Conservatives promised to bring treaties before the House prior to ratifying them, but they still have not kept that promise. Recently, the government signed an investment protection agreement with Peru. This agreement is based on chapter 11 of NAFTA, which has been criticized by many. Yet the government concluded it without putting it to the House. When the House presses the government to honour its international commitments, as it has done in the case of the Kyoto protocol, the government does what it pleases, with no regard for the will of the people or the promise it made when it signed the treaty.

As was the case when Bill S-5 was passed, the fact that Bill C-9 will be passed quickly is an opportunity to show the government that democracy is not something to be feared when concluding fair treaties. The government must honour its promise to submit to the elected representatives any treaties that it intends to ratify, as it is forced to do here today with the three tax treaties. Once it has ratified them, it must honour them, as we hope it will honour the tax treaties we are discussing here today, and the Kyoto protocol, which the House is pressing it to honour.

This failure to involve the representatives of the people is an anachronism. It is impossible to tell from the division of legislative powers provided in the Constitution Act, 1867 which level of government, federal or provincial, has authority to sign a treaty with a foreign government. No provision is made in the Canadian Constitution for a jurisdiction anything like external relations or international relations. This is understandable, however, because when the Constitution Act, 1867 was passed by the British Parliament in London, Canada was still a colony of the British Empire. In 1867, the British Parliament reserved for the British Crown the power to represent the Dominion of Canada internationally and to enter into treaties with foreign countries on its behalf.

Under section 132 of the Constitution Act, 1867, however, the federal government was given responsibility for implementing, in Canada, treaties entered into by the British Crown, where these were applicable to this country.

In 1931, pursuant to the Statute of Westminster, Canada, as well as several other dominions of the British Empire, acquired full independence and, along with it, the authority to act with all the attributes of a sovereign state on the international scene. It was then that the federal government acquired jurisdiction over external affairs. Considered a royal prerogative when the Constitution was written, this authority was transferred to the government which, as the sovereign's representative, exercises it alone and without involving Parliament.

Once the governor in council approves an agreement reached between Canada and a foreign country, no matter who negotiated the treaty, that agreement becomes an international treaty. The representatives of the people do not have a say in it because the federal government has simply inherited a royal prerogative dating back to the British Empire.

Parliament only becomes involved when the ratification of a treaty requires an enabling statute. Canadian legislation may have to be amended because of the treaty. The legislative implementation of these treaties is the only occasion when Parliament has a say in the entry into force of a treaty in Canada.

It should be pointed out that many treaties requiring the Canadian state to adopt specific standards are not presented to Parliament for the adoption of enabling legislation. In such cases, the government believes that the Canadian legislation already conforms to the international obligations adopted or that the subject of the treaty does not require the adoption of new legislative provisions.

Consequently, no amendments are made to existing laws nor is a new law adopted by Parliament. For example, Parliament did not adopt legislation to implement or approve the ratification of the International Convention on the Rights of the Child. In such cases, the treaty never goes before Parliament.

In short, Canada is less democratic today that in was in the 20's. In June 1926, Prime Minister King introduced a resolution that was unanimously adopted by the House of Commons. It read as follows:

Before Her Majesty's Canadian ministers recommend ratification of a treaty or convention involving Canada, Parliament's approval must be obtained.

In 1941, Mackenzie King reiterated his commitment to this formula:

With the exception of treaties of lesser importance or in cases of extreme urgency, the Senate and the House of Commons are invited to approve treaties, conventions and formal agreements before ratification by or on behalf of Canada.

Over the years, approval by resolution has been sought less and less. During the cold war, the government dropped the convention of seeking Parliament's approval before signing treaties or engaging in military intervention on foreign soil.

The government even stopped tabling treaties in Parliament. Except for the Kyoto protocol, not one treaty has been approved by resolution since 1966—over 40 years ago—and that was the Auto Pact. As for Kyoto, the government has refused to honour it. So much for democracy.

Furthermore, Canada is less democratic than the rest of the industrialized world. Most other major industrialized democracies support greater involvement of their parliaments in ratifying treaties. For example, the constitutions of France, Germany, Denmark, Italy and the United States require legislative approval of some types of international agreements prior to ratification.

Some countries that share constitutional traditions with Canada have tried to enshrine their parliament's role in examining treaties.

In the United Kingdom, a convention established in the 1920s, the Ponsonby Rule, requires the tabling of international agreements in both Houses of Parliament at least 21 days before they are to be ratified. This gives parliamentarians the opportunity to debate them before the government ratifies them, even though these debates are not binding. This kind of thing does not exist in Canada.

More recently, in 1996, Australia changed its procedure for concluding treaties. Under this procedure, treaties must be tabled in parliament at least 15 sitting days before any binding decision is made by the executive branch; a national interest analysis of the expected impact of the treaty obligations must be done, for each treaty, and tabled in parliament; a standing joint committee on treaties must be established to examine potential treaties and report on them. There is nothing of the sort in Canada.

As usual, Canada trails Quebec.

In Canada, the provinces pass laws in their constitutional fields of jurisdiction. As the British Privy Council ruled in 1937 in the labour conventions case, the provinces' legislative authority also extends to the implementation of international treaties.

As soon as a treaty or part of a treaty involves a provincial jurisdiction, the provisions in question can be implemented only by the provinces. Since 1964, Quebec has concluded some 550 international agreements involving many fields of jurisdiction for which it has full or partial responsibility, such as culture, economic development, drivers' licences, international adoption, the environment, science and technology, and communication.

For a major agreement to be binding, the Government of Quebec must first submit it to the Quebec National Assembly for approval. Only then will Quebec be bound by an international agreement entered into by Canada and agree to pass legislation to implement the agreement. Furthermore, under the legislation, Quebec's Department of International Relations must list and publish all of Quebec's international agreements. There is nothing of the sort in Canada.

The Bloc Québécois has introduced three bills on treaties to modernize the entire process for concluding international treaties.

The Bloc Québécois bill on treaties was designed to build transparency and democracy into the process of negotiating and concluding international treaties. Since such treaties have an increasingly large impact on our lives, it was more important than ever to make such a change. Moreover, the bill required that the federal government respect the provinces' jurisdictions.

The bill provided for five changes: all treaties were to be put before the House of Commons, the House was to approve important treaties, a parliamentary committee was to consult civil society before Parliament voted on important treaties, treaties were to be published in the Canada Gazette and on the Department of Foreign Affairs website and the government was to consult with the provinces before negotiating a treaty in an area of provincial jurisdiction.

The treaty bill came to a vote only once, on September 28, 2005. All the federalist parties voted against it.

No strangers to contradiction, the Conservatives made two promises about international treaties during the last election campaign. They promised to put international treaties before the House prior to ratification and to give the provinces a role in concluding treaties pertaining to their jurisdictions. Both these promises were broken.

Since they were elected, the Conservatives have amended NAFTA. They have signed two investment protection agreements based on NAFTA chapter 11, one of which has been ratified. They have concluded a military cooperation agreement to authorize British soldiers to train in Canada. They have signed cooperation agreements on higher education, even though education does not come under Ottawa's jurisdiction. They have concluded an agreement to facilitate technology transfers from Canada to China. And they have amended the free trade agreement with Chile.

Aside from the amended NATO treaty, which was brought before the House at the last minute for a mini-debate and vote, none of these international treaties has come before the House.

And where is the nation of Quebec in all this? The federalist parties say they rejected the Bloc Québécois bill because of two clauses, 4 and 6.

First, clause 4 provided for a mechanism for consulting with the provinces:

Canada shall not, without consulting the government of each province in accordance with the agreements entered into under section 5, negotiate or conclude a treaty

(a) in an area under the legislative authority of the legislatures of the provinces; or

(b) in a field affecting an area under the legislative authority of the legislatures of the provinces.

As for clause 6, it recognized the validity of the Gérin-Lajoie doctrine:

Nothing in this Act in any manner limits or affects the royal prerogative of Her Majesty in right of a province with respect to the negotiation and conclusion of treaties in an area under the legislative authority of the legislatures of the provinces.

The clause on consulting Quebec and the provinces is nothing revolutionary. When the federal government discusses, in an international forum, the text of a treaty having an impact on the provinces, then it consults the provinces beforehand.

Under an agreement concluded in 1975—and still in effect—between the Trudeau government and the provinces, Ottawa consults the provinces at every stage of the negotiation of treaties involving human rights.

Every federalist party in Ottawa is more centralist than Pierre Elliott Trudeau on the issue of international relations.

It is not just a Bloc Québécois bill that the federalist parties have rejected, it is a Quebec law. Section 22.1 of the Act respecting the Ministère des Relations internationales requires the consent of the Government of Quebec with respect to the signing, ratification or adherence by the Government of Canada, before the latter acts internationally on any agreement concerning matters under Quebec's constitutional jurisdiction.

As far as the section recognizing the provinces' right to negotiate and conclude international treaties in their jurisdictions is concerned, it was simply a recognition of the Gérin-Lajoie doctrine which every Government of Quebec has been following since 1965.

The Gérin-Lajoie doctrine is closely linked to Quebec's independence: the provinces are completely sovereign within their jurisdictions and they must exercise their authority over the entirety of their jurisdictions, which includes signing and ratifying international treaties.

In closing, these are some of the arguments in favour of more involvement by parliamentarians in the negotiation and ratification of international treaties for the good of democracy.

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, as the member is probably aware, members of the NDP oppose the bill because of our concerns about it. The bill in and of itself, in terms of the process that it outlines for the settlement of investment disputes, is not so bad as far as it goes. However, we are very concerned about the larger context of the bill, its relationship to the World Bank and the involvement of multinational corporations.

One of the things we have raised in the debate on Bill C-9 is that the ICSID process does not allow for third party testimony except where there is consent from both parties in the arbitration, which is not necessarily easy to get. This has been held up as one of the serious concerns about this process. It makes the whole dispute mechanism, which is meant to be transparent, accountable and open, very inaccessible to local communities and third party stakeholders that may have a lot to say about representing a public interest in this process.

Could the member comment on that? Does she and members of her party also have concerns about that?

From our point of view, we think it will affect southern developing states most of all and will further marginalize developing countries in these transborder processes. It really eliminates the genuine and meaningful input of third party testimony of stakeholders and local communities, so the whole process becomes meaningless because they are in effect cut out.

Would the member comment on that?