For sure.
I would argue that the definition is actually not unclear. The government announced and published, as part of the state-owned enterprise guidelines in the fall, an updated definition of what a state-owned enterprise is. It's contained in the bill and is spelled out very clearly. It reads:
“state-owned enterprise” means (a) the government of a foreign state, whether federal, state or local, or an agency of such a government; (b) an entity that is controlled or influenced, directly or indirectly, by a government or agency referred to in paragraph (a); or (c) an individual who is acting under the direction of a government or agency referred to in paragraph (a) or who is acting under the influence, directly or indirectly, of such a government or agency;
I would conjecture, and this is consistent with some of the other arguments brought forward by the legal community, their concern is that the concept of influence is not as precise as the concept of direct or indirect control. We can talk a bit about influence in the discussion today.
I would argue, first, it's clear that influence is not as certain as direct control or indirect control. There's a level of ministerial discretion.
I would also note that the act provides principally for ministerial discretion in making evaluations. You could argue that the net benefit factors similarly provide the minister with discretion. They're not as clear as many in the investment community would like.
I would argue as well that at the time when a new public policy is put in place, when powers have not been tried, have not been used, this is the time when you have maximum uncertainty. As cases are reviewed, as the minister makes determinations, there will be a body of evidence that will build up. This is the same practice, the same body of evidence that has built up around other unclear concepts that lawyers have identified in the past.
For example, in 2007, when the SOE guidelines came in, they indicated they were unclear, that there would be a lack of clarity. With time it became evident how the government was implementing them and uncertainty declined. The legal community doesn't have concerns about SOE guidelines anymore.
In 2009, when the national security provisions were brought into force, it was the same thing. There were concerns that with this increased uncertainty, we wouldn't know how the minister would apply the power. Now, after a number of years, the uncertainty is down quite a bit. In fact, you'll notice that in none of the legal briefs that have been written since the budget implementation bill was tabled do they raise any concern around national security provisions, even though there are changes in the budget implementation bill related to those.
With time, I think the clarity will be there.
Finally, I would note that we have an investment review group within Industry Canada. The investment review division engages often with lawyers, engages often with foreign investors. To the extent that they can help to provide certainty, that group can be called upon to consult with foreign investors.