Bill C-34

National Security Review of Investments Modernization Act

An Act to amend the Investment Canada Act

This enactment amends the Investment Canada Act to, among other things,
(a) require notice of certain investments to be given prior to their implementation;
(b) authorize the Minister of Industry, after consultation with the Minister of Public Safety and Emergency Preparedness, to impose interim conditions in respect of investments in order to prevent injury to national security that could arise during the review;
(c) require, in certain cases, the Minister of Industry to make an order for the further review of investments under Part IV.1;
(d) allow written undertakings to be submitted to the Minister of Industry to address risks of injury to national security and allow that Minister, with the concurrence of the Minister of Public Safety and Emergency Preparedness, to complete consideration of an investment because of the undertakings;
(e) introduce rules for the protection of information in the course of judicial review proceedings in relation to decisions and orders under Part IV.1;
(f) authorize the Minister of Industry to disclose information that is otherwise privileged under the Act to foreign states for the purposes of foreign investment reviews;
(g) establish a penalty not exceeding the greater of $500,000 and any prescribed amount, for failure to give notice of, or file applications with respect to, certain investments; and
(h) increase the penalty for other contraventions of the Act or the regulations to the greater of $25,000 and any prescribed amount for each day of the contravention.

National Security Review of Investments Modernization Act

[Chandra Arya, Liberal, Nepean, ON]

Madam Speaker, I will be sharing my time.

I am pleased to speak to Bill C-34, an act to amend the Investment Canada Act.

Canada has a long-standing reputation for welcoming foreign investments and a strong framework to promote trade while advancing Canadian interests. In fact, Canada has one of the earliest and most robust screening processes for foreign investments in the world.

The Investment Canada Act was enacted 38 years ago, in 1985, to encourage investment in Canada that contributes to economic growth and employment opportunities. The act allowed the government to review significant foreign investments to ensure these benefits exist. The act was updated in 2009 to include a framework for national security review of foreign direct investments.

Bill C-34 would implement a set of amendments to improve the national security review process of foreign investments and modernize the ICA. Collectively, these amendments represent the most significant legislative update of the ICA since 2009. These amendments would also ensure that Canada’s review process is consistent with our allies'.

However, in my view, there is another issue in foreign direct investment that should be looked into, and that is dealing with economic security. I believe this is not only an opportunity but also a necessity that we deal with foreign direct investment that results in economic stagnation of any sector of our economy, thus affecting our long-term economic security.

Let me explain this by first quoting a couple of sentences from the backgrounder that was published, which states, “The Act is designed to encourage investment, economic growth and employment”. The backgrounder also states, “The Government of Canada has committed to promoting economic security and combatting foreign interference by modernizing the ICA to strengthen the national security review process and better mitigate economic security threats arising from foreign investment.” For me, the keywords are “economic security”. There is no mention of the words “economic security” in the bill tabled by the government that we are debating today. Probably the thought is that “economic security” and “national security” are considered as synonyms.

I will now explain the importance of economic security. Canada is growing. Our population is growing. Our economy and GDP are growing, and we need our economic sectors to grow and contribute to economic growth and employment. If any economic or industrial sector does not grow and does not contribute to economic growth due to foreign direct investment, then in my view this is a threat to economic security. Any stagnation or complete lack of economic growth in a growing economy will directly affect our economic security in the medium to long term.

I will give two examples where foreign direct investment in Canada has resulted in stagnation of economic growth, which in turn is a threat to our economic security.

The two industrial sectors that are prime examples of this are the steel and aluminum industries in Canada. All steel and aluminum sector companies in Canada are foreign-owned. Due to our encouragement of foreign direct investment, today both of these sectors, with 100% foreign ownership, have been reduced to a branch office of multinational companies that are dominating aluminum and steel industry worldwide. Due to this 100% foreign ownership, there has been no increase in production capacity in both of these sectors in Canada for the last 20 years.

During the last 20 years, aluminum production has basically stagnated at about three million tonnes. While many new aluminum smelters are being set up in China and other countries, the installed capacity of the aluminum sector in Canada has stagnated. It is the same with the steel industry. During the last 20 years, the installed capacity has basically stagnated at about 15 million tonnes. Not only is there no growth in the production capacity of steel and aluminum, but due to 100% foreign ownership, Canada’s steel and aluminum exports are limited just to the U.S. and Mexico. There are hardly any Canadian steel and aluminum exports to Europe or the growing markets in Asia.

Canada has signed numerous free trade agreements across the world. We have free trade agreements with Europe and Asia-Pacific countries. In total, we have free trade agreements with over 50 countries, but has the aluminum and steel sectors taken advantage of these free trade agreements to increase Canadian exports? The answer is absolutely no.

Therefore, my question is this: If our welcoming foreign direct investment leads to 100% foreign ownership in any entire industrial sector and this results in growth stagnation of that sector, is it not a threat to our long-term economic security? If 100% foreign ownership prevents Canadian industry from taking advantage of our natural resources and our expertise to export Canadian goods across the world, is this not a threat to our long-term economic security?

We need all sectors in our industry to add value to our natural resources and contribute to Canada's economic growth by increasing their capacity to produce. We need all economic sectors to build on our many decades of knowledge and expertise to contribute to Canada's economic growth by increasing Canadian exports across the world. I again state that if any economic or industrial sector does not grow and does not contribute to economic growth due to foreign direct investment, then in my view this is a threat to economic security. Also, any stagnation or complete lack of economic growth in a growing economy will directly affect our economic security in the medium to long term.

I call upon the House to take this opportunity to address this shortcoming in the Investment Canada Act. Other than that, I completely agree with everything else that has been proposed in the bill. There was a need to update and streamline the administrative process in light of a shifting geopolitical environment and a need for alignment with international allies and for better coordination efforts with allies.

The world looks a lot different now than in 2009 when the act was last amended. The global market has rapidly changed with shifting geopolitical threats. Canada's interactions with the rest of the world are changing. The government has seen a rise in state-sponsored threat activities from hostile state and non-state actors. They are attracted by Canada's technologically advanced and open economy and world-class research community.

The level of sophistication of these threats has also increased. Hostile state and non-state actors are deliberately pursuing strategies to acquire goods, technologies and intellectual property through foreign investments that will damage Canada's economy and undermine national security while controlling the supply chain of critical goods. In fact, Canada has one of the earliest and most robust screening processes for foreign investments in the world.

The COVID-19 pandemic has accelerated this threat by creating vulnerabilities that could lead to opportunistic, harmful investment behaviour by foreign investors. They are looking to buy up vulnerable Canadian businesses. In response, the government has taken swift, concrete action to enhance scrutiny on inbound investments related to public health and critical goods and services.

The government again took action recently by enhancing scrutiny of investments involved in sensitive goods and technology, such as critical minerals, critical infrastructure and sensitive personal data. Through these amendments, the government is prepared to once again take action to strengthen the national security review while still allowing for positive foreign investments. Economic-based threats to national security are of increasing concern not just for Canada but for our allies as well.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Madam Speaker, this issue is really important to my colleague. I would like to know if there is anything else he thinks we should be also including in this bill to make sure this is as strong as it could be.

[Chandra Arya, Liberal, Nepean, ON]

Madam Speaker, in addition to the economic security issues I discussed, my colleagues brought forward others earlier in debate, like the purchase of intangible assets other than the company itself, and some issues that were brought forward by the member from Windsor on the lack of competition resulting in foreign direct investments. These are the kinds of things that need to be considered now. We know this act has not been looked at in, I think, the last 13 years. This is the first opportunity we have and we need to use this opportunity to consider all aspects that are directly related.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, I would like to ask the member for Nepean about state-owned enterprises from not-so-democratic countries, or hostile countries. It was recommendation number one of the industry committee's report from the last Parliament on this issue that the threshold for consideration as a national security or net benefit test under this act be reduced from the $415 million to zero dollars, so that every transaction in every type of industry by a state-owned enterprise from a nondemocratic country would be reviewed. That is not in this bill. Would the hon. member support it being amended that way?

[Chandra Arya, Liberal, Nepean, ON]

Madam Speaker, investment by state-owned enterprises from non-friendly countries obviously needs to be looked very deeply into. I am not sure whether we should have a minimum threshold, but as I said, every single investment by state-owned enterprises needs to be looked into.

At the same time, in addition to state-owned enterprises, I also want to highlight investment by global multinational companies in the steel and aluminum sector, as I mentioned, that have made direct investment. One hundred percent of the sector is foreign owned, which is leading to Canadian companies becoming the branch offices of these multinational companies and is curtailing the potential to grow Canadian exports around the world.

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Madam Speaker, we in the Bloc Québécois are still reeling from the sale of Rona to the American company Lowe's and all the negative consequences that followed.

In my hon. colleague's opinion, if Bill C-34 passes as is, will the interests of our economy be better protected with respect to potential transactions?

[Chandra Arya, Liberal, Nepean, ON]

Madam Speaker, everything that affects Canada's competitiveness, growth, economic security or national security needs to be looked into. Let me be very clear. I am for foreign direct investment. I am for free trade. However, all aspects that affect our national security and economic security need to be looked into.

[Bardish Chagger, Liberal, Waterloo, ON]

Madam Speaker, today I rise to speak to Bill C-34, an act to amend the Investment Canada Act.

Bill C-34 implements a set of amendments to improve the national security review process of foreign investments and modernize the Investment Canada Act. Collectively, these amendments represent the most significant legislative update of the ICA since 2009.

These amendments would also ensure that Canada's review process is consistent with those of our allies. This consistency is something that business owners and stakeholders within the riding of Waterloo have also spoken to me about. It is something that is important to them, as Canada is a trading nation and being aligned with our allies is something of importance.

Canada has a long-standing reputation for welcoming foreign investments and a strong framework to promote trade, while advancing Canadian interests. In fact, Canada has one of the earliest and most robust screening processes for foreign investments in the world.

For some history, the Investment Canada Act was enacted 38 years ago in 1985, to encourage investment in Canada that contributes to economic growth and employment opportunities. The act allows the government to review significant foreign investments to ensure that these benefits exist. The act was updated in 2009 to include a framework for a national security review of foreign direct investments. Since then, and for the longest time, the ICA has been one of the only pieces of legislation in the world that provides a reviewing mechanism for the net benefit and national security threats of foreign direct investments.

It is clear that the federal government has long played a leadership role in setting a framework for investment review that attracts needed positive foreign direct investments without compromising on national security. However, the world looks a lot different now than it did in 2009. The global market has rapidly changed along with shifting geopolitical threats. Canada is growing and our interactions with the rest of the world are changing.

The government has seen a rise in state-sponsored threat activities from hostile state and non-state actors. They are attracted by Canada's technologically advanced open economy and world-class research community. This is something we know very well in the riding and region of Waterloo.

The level of sophistication of these threats has also increased. Hostile state and non-state actors are deliberately pursuing strategies to acquire goods, technologies and intellectual property through foreign investments that could damage Canada's economy and undermine national security while possibly controlling the supply chains of critical goods. These concerns are real and are why debating and advancing legislation is necessary.

The COVID-19 pandemic has created additional vulnerabilities that could lead to opportunistic and potentially harmful investment behaviour by foreign investors. In response, the government has taken swift, concrete action to enhance scrutiny on inbound investments related to public health and critical goods and services. The government has again taken action recently by enhancing scrutiny on investments involved in sensitive goods and technology, such as critical minerals, critical infrastructure and sensitive personal data.

Through these investments, the government is prepared to once again take action to strengthen the national security review, while allowing for positive foreign investments. Canada is a trading nation and we work with international allies. The reality is that economic-based threats to national security are an area of increasing concern, not just for Canada but for our allies as well.

Other jurisdictions internationally are moving in response to the shifting geopolitical threats either by amending or by putting in place new investment screening regimes. Our action is needed to bring Canada into greater alignment with our international partners and allies. For example, I understand that Australia has updated its laws on foreign direct investment. It made a prominent change by introducing authorities to protect national security in January 2021. These include fresh powers for the Australian government to require mandatory notification for transactions involving a national security business before the transactions are closed.

Additionally, the United Kingdom introduced a new stand-alone regime on national security and investment in January 2021. The act creates, for the first time in the U.K., a mandatory obligation to secure clearance for transactions that acquire control of a business in around 17 specified and sensitive sectors before they are completed.

The U.K. has also introduced legislation that allows the government to impose interim orders while the review is being conducted, preventing foreign investors from obtaining confidential information or accessing sensitive sites or assets until the review is complete.

Our cousin to the south, the United States of America, overhauled its foreign direct investment laws in 2018. The amendments added new types of transactions subject to government review and, for the first time ever, mandated notification of transactions involved in critical technologies, certain critical infrastructures or sensitive personal data of American citizens. New regulations fully implementing the act took effect in February 2020.

The proposed amendments in Bill C-34 would address the concerns we have heard from Canadians and which have been echoed by our allies. The proposed amendments in Bill C-34 would address these concerns by introducing new preimplementation filing requirements for specified investments, as well as the power to implement interim conditions during national security review of the investment.

This would provide Canada with the new governance capacity to address the increasingly complex threat landscape. Bill C-34 would also ensure that Canada's foreign direct investments screening regime remains world-leading.

As I have shared, Canada and our allies share similar national and economic security concerns. They are concerned with threat actors acting and operating in multiple jurisdictions to secure a monopoly in critical assets and technology.

It is becoming increasingly important to share information with allies and support national security assessments to prevent these threats from happening.

Previously, the minister had limited capacity to share case-specific information with international allies. Bill C-34 would introduce the authority for more threat information sharing by the minister with international counterparts for national security reviews.

This could help both Canada and our partners defend against an investor who may be active simultaneously in several jurisdictions and be seeking same sensitive technology or critical assets.

For example, the amendment would allow the minister to reach out to a foreign partner and disclose information about the investor to gain additional information and to support Canada's own national security assessment. That said, Canada would not be obligated to share such information where there are confidentiality or other concerns.

There is never a shortage of critics, but this legislation is about making sure that Canada welcomes foreign investment and trade that encourages economic growth, innovation and employment opportunities in Canada for Canadians.

I believe that this approach is pragmatic and principled, and provides a coherent and solid framework to address evolving geopolitical threats while allowing Canada's review regime to be more aligned with our international allies. If there are ways to make this legislation better, I believe we have the opportunity now to work together to make that happen.

We are currently at second reading. This legislation is being debated in the House. To see it go to committee where it can be further scrutinized, where witnesses can attend and appear and amendments can be made, would really allow for this legislation to work for more of the Canadian economy.

With Bill C-34, Canada would continue to encourage positive investments without compromising national security. I think it is really good that this legislation is being debated as a stand-alone piece of legislation, where we actually can get into the details of what would work better, because it is important we have legislation that promotes and supports foreign investment but also makes sure we do not compromise national security.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, I know that the hon. member has been a cabinet minister, so I would like to ask her this question in the context of her time in cabinet.

This bill would remove the minister's responsibility to go to cabinet to actually seek agreement to do a national security review and would remove them from having to report back to cabinet on that, unless they deem it to be a national security review.

Do you think that removing cabinet from the process of determining that will help, because in the past, this government, which I think you were in the cabinet for—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

I was not anywhere. I thank the member for correcting himself. That is just a reminder.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Madam Speaker, the government for which the member was in cabinet actually approved two acquisitions. One was Hytera acquiring Norsat, and the other was a Chinese state-owned enterprise acquiring a mining entity that has 65% of Canada's lithium production. The government approved those without a national security review. There is nothing in this bill that would change that, especially if the minister does not have to go to cabinet.

I would like the member's views on that.

[Bardish Chagger, Liberal, Waterloo, ON]

Madam Speaker, I think in my comments that I shared today I did state there will never be a shortage of critics, and it is important that we debate and that we make sure this legislation right. This is about the economic and national security of Canada. Foreign investments and trade are necessary for Canada's economic growth and employment opportunities, but need to be done while protecting Canada's national interests. I think that is why looking at this legislation is really about making sure the way we move forward is better for Canadians, for Canada's economy and for ensuring our national security. I think the member knows very well that we do have a process, and that this is the time for providing feedback that is going to improve this legislation. That is why the member was elected. He was not elected only to oppose, but also to debate how we make legislation work better for his constituents, my constituents, our constituents and our country, and this is the time to do it.

[Xavier Barsalou-Duval, Bloc, Pierre-Boucher—Les Patriotes—Verchères, QC]

Madam Speaker, I want to commend the speech given by the member opposite in support of Bill C‑34, which gives the Minister of Innovation, Science and Industry a little bit more power to review foreign investments. That in itself will be good for national security. However, I do not think we should limit ourselves to national security, but rather, I think other criteria should be added for reviewing an investment.

On the subject of investment review, my colleague across the aisle used to be a cabinet minister in this government, and I remember one particular case at that time, the sale of Rona, that required a government review. Before authorizing the sale, the net benefit had to be reviewed. It was not a matter of national security, but the net benefit still had to be reviewed.

We submitted an access to information request to find out the contents of that mysterious net benefit review. The response that came back was that there was no documentation that corresponded to our request.

I cannot help but wonder whether this government's reviews really are all that rigorous, or are they done based on the weather forecast or a coin toss.

[Bardish Chagger, Liberal, Waterloo, ON]

Madam Speaker, I think it is time that we actually debated this bill. We need to make sure that there are solutions and processes in place that will work for more Canadians.

I would say that, yes, we can always look at what has taken place in the past. We can also ask how we go about it to make sure we have systems in place so these concerns the member is raising are addressed and to make sure information is available, and then that we move forward in that way. I think that is why this legislation today is a stand-alone piece of legislation. It is not within a budget bill. It is not within something else. It is one piece of legislation we are debating because of the importance of the topic. I think everything the member has to contribute is important, and I think that once this legislation gets to committee, we can ensure that any of the concerns he is raising are addressed. I am sure the government looks forward to working with him.

[Brian Masse, NDP, Windsor West, ON]

Madam Speaker, I want to get a perception of where the Liberals might be open for amendments on this. I remember coming to this place and watching Paul Martin sell off Petro-Canada, an example of foreign investment and not having any types of concerns. In fact, this issue was first raised with China Minmetals. We brought that to committee, because it was actually buying up part of the Canadian oil sands. Subsequently, we watched iconic companies like Nortel disappear. We have watched Future Shop, Zellers and Rona, for example.

I would like to ask the member whether or not the government now has at least a perception or thought that consumer, and also market, issues in Canada are part of national security when we actually block Canadians from having competition and also subsequently lose products because we allow these takeovers to take into the market of consumerism.