Thank you, Chair. I appreciate very much the opportunity to speak with you today.
I'd like to focus on a somewhat narrower issue, although it's related to some of the things Mr. Grenier has said. It concerns how Canada and the United States settle their disputes.
Obviously, you have disputes or differences with the United States all the time. Sometimes they're resolved privately. Sometimes they're resolved with a great deal of public fanfare. And sometimes they're submitted to dispute settlement processes. The question I want to look at is whether dispute settlement processes have been useful and whether there is an opportunity to expand them, or perhaps not.
I'll start with a little bit of history. Before Canada became responsible for its own external foreign relations, the United States and Great Britain did use arbitration on a number of occasions in an attempt to settle boundary and water differences on both the east and west coasts, including the infamous Alaska boundary dispute in 1903. Maybe because of that dispute, after 1903 we stopped. We didn't, in fact, have any other dispute settlement process with the United States, really, until 1984, when we went to the International Court of Justice on the Gulf of Maine maritime boundary dispute. Of course, at that time, there was a lot of concern about whether this was a good idea. What would be the political fallout from Canada litigating an issue it had with the United States? Would the United States retaliate if it lost? In fact, I think what the Gulf of Maine case showed was that we could litigate a case with the United States and we could win, and the political relationship would not be damaged by it.
The major change in dispute settlement between Canada and the United States really occurred with the Canada-United States Free Trade Agreement, NAFTA, and the WTO. NAFTA has three different dispute settlement processes that are referred to often: chapter 20, which is disputes between Canada and the United States, state to state--it's only been used once, in fact; chapter 19, which Mr. Grenier referred to, which is intended to deal with anti-dumping and countervailing duty disputes and which has come into disrepute as a result of the softwood lumber debacle, as one might call it; and chapter 11, which allows investors to bring claims against one of the NAFTA state governments.
The World Trade Organization has just one broad dispute settlement process. Disagreements over the interpretation of WTO agreements go to a panel. It has also the useful addition of having decisions of the panel potentially reviewed by appellate bodies. The process is compulsory, it has set time limits, and it's generally regarded as successful. There have been a number of Canada-United States cases before the WTO dispute settlement process.
So in the area of trade disputes there has been considerable experience in Canada and the United States with the use of dispute settlement processes. In other areas, there has been practically no experience. I mentioned the Gulf of Maine case, but it stands out as the one example, really, of the use of a formal dispute settlement process.
What have we learned from this? I think one thing we can say we've learned is that Canada is not necessarily disadvantaged by this process. The idea that the United States will always win and that we'll always lose is simply not correct. If you look at the trade disputes, it's probably rather balanced in terms of wins and losses at the WTO and in NAFTA.
Second, the idea that the United States will not comply with any ruling I don't think is borne out by the facts, if you look at the range of cases at the WTO and in NAFTA. Softwood lumber stands out, but it really is the exception rather than the rule. I won't dwell on softwood lumber.
The third point is that not every dispute is susceptible to being sent to arbitration or to a court. Sometimes that is not the best way to deal with a dispute. I would illustrate this by reference to the Pacific salmon dispute I was involved with in the late 1990s. There, it seemed, in the mid-1990s, that Pacific salmon was completely intractable. We couldn't agree on catch allocations. Passions ran high on the west coast. There was a blockading of an Alaskan ferry in Prince Rupert. At that time, it was argued that we should submit the dispute to arbitration. The United States was not prepared to accept arbitration, and we had no way of forcing them to arbitration, as we could have under a trade agreement if it had been a trade dispute, or at least under the WTO.
Even if we had forced the United States to arbitration on that issue and had won, I'm not convinced that the United States would have complied. I'm not saying that because I think the United States does not comply with its international obligations. I think it really relates to the nature of the dispute. That was a very complex dispute involving competing interests in the domestic fishery in the United States, competing interests between Alaska and the State of Washington, and the tribal fishery. They were interests that the United States federal government simply was unable to reconcile. Therefore, it was unable to get itself into a position in which it could accommodate the potential outcome of any kind of arbitration.
So I think in many respects we can draw a parallel between Pacific salmon and the softwood lumber dispute. Both sides had quite different interpretations of any relevant rules in the area, and they represented fundamentally different perceptions about what the rules were trying to do in that area. There were also powerful domestic constituencies, I would say, on both sides of the border, which the federal governments had to deal with and which Mr. Grenier has referred to. Ultimately, as we saw, softwood lumber was resolved through an agreement. Ultimately, the Pacific salmon dispute was resolved through an agreement. I'll come back later on to a few things we might learn from that, but I think we do learn that not every dispute should be sent to a third-party process. Not all are susceptible to third-party settlement.
I think there are three conditions that we want to think about if we're thinking about procedures to settle disputes. One is that clear and agreed upon rules between the parties have to be determined, rules that can be interpreted through processes of legal interpretation and that would have some legitimacy. The result would have some legitimacy within the processes of interpretation.
Second, I think you have to be sure that the other side will have a good chance of being able to implement any decision of the court or tribunal.
And third, which I think is related, is that both sides have to be able to handle the domestic consequences of an outcome of any dispute-settlement process. In other words, to put it simply, you have to be ready to lose if you go before a court or an arbitral tribunal.
In light of this, one wonders whether dispute-settlement processes should be extended into areas beyond the trade area, and, I should say, the investment area as well. In the past there have been proposals for broader-ranging mechanisms for dispute settlement between Canada and the United States. I think there are some disputes that could be resolved that way. An obvious example is the Beaufort Sea boundary dispute between Alaska and Yukon, in which there's a clear set of maritime boundary limitation rules. Tribunals have had experience in this, and it could be done. Both Canada and the United States have experience in this as well.
But apart from those kinds of disputes, I would suggest there ought to be some caution about adopting arbitration or dispute settlement processes for other areas of Canada-U.S. relations. I think trade disputes are, to some extent, a bit unique. Trade agreements have fairly precise rules that can be interpreted. They're not always precise--that's one of the criticisms of WTO agreements--but they are capable of interpretation. I think in other areas the nature of the dispute is that you do not always have clear rules, and you often have disagreement about the relevant rules.
What can we say generally about the process? In respect of trade disputes, we really have to ask, in the context of Canada and the U.S., whether we really want to use WTO or NAFTA. I think the WTO has been the mechanism. It has a better dispute settlement mechanism. It has an appellate process. It has a system for dealing with non-compliance. The NAFTA does not have many of those things. Though chapter 20 of NAFTA is really the alternative, there are reasons the parties really haven't used that.
Outside the trade area, instead of looking for new dispute settlement mechanisms, I think we might be able to build on some of the existing mechanisms. We do have, in the International Boundary Waters Treaty Act, for the International Joint Commission a process of arbitration. But the parties have never used it. It's there. The commission could arbitrate a dispute between Canada and the United States, but neither party has been prepared to send a dispute to that process.
We have processes under the NAFTA side agreements that could be developed, whereby complaints could be brought against the NAFTA parties for failing to enforce their own environmental laws. The governments have been very reluctant to allow complaints to be brought, and have narrowed the scope of the complaints, and narrowed the scope of the conclusion of a factual record, which is the outcome of that dispute. I think that's an area that deserves strengthening.
But if we also want to strengthen dispute settlement, we have to focus on something we learned from softwood lumber, which is that the ultimate test of any process is implementation. A decision of a court or a panel or a tribunal is of little use if one party is free to ignore it. I think that has implications for how we go about implementation. It means that dispute settlement decisions have to be binding within the domestic law of the two parties.
In the European Union we talk about this as direct effect. The decisions of the European court automatically are binding. If one is moving in the direction of more dispute settlement processes, I think we have to have those processes integrated into the domestic laws of the two countries. That means closer integration between the two countries, and I know that raises a whole range of other questions and concerns about the extent to which we'd be prepared to accept that kind of integration. But if we want to have dispute settlement, I think it's the only way to go.
The reality is that most disputes between Canada and the United States are going to be negotiated. We're not going to have a Court of North America. I'd go back briefly to the Pacific salmon negotiations of the 1990s to see what we learned there. I think we learned that power imbalance does not necessarily mean you end up with a bad agreement. There are many agreements Canada has entered into with the United States that would not be regarded as lopsided bargains.
Second, it shows that negotiating with the United States is not simply state to state. Canada cannot sit across the table from the United States and assume the United States federal government is the correct interlocutor on any dispute. We saw that back in the 1970s, when we negotiated the east coast fisheries agreement with high-level officials and the support of the White House, and Congress said no to the agreement.
With the Pacific salmon dispute, we negotiated with the State of Washington. We negotiated with Alaska. We negotiated with the tribal fishers. Instead of thinking we are simply negotiating with the United States, we have to get behind the United States and deal with the domestic interests.
The reality of many disputes that Canada has with the United States is they are multiple and varied in that way. You cannot simply expect that the United States federal government is the correct interlocutor and that it will be in a position to implement what can be agreed across the table.
Thank you.