I should preface what I'm going to say, in light of what my colleague has said, by emphasizing that this set of suggestions should be viewed with the understanding that we do not actually have a draft text of the agreement. For this reason, we cannot review it and provide you with our opinion on what is good or bad about it. I'll be coming back to this later.
I begin with the recommendation that if you're going to make these rights concrete, and if you're going to take these rights seriously, then you have to at least insert within the agreement the fundamental labour rights recently proclaimed by the ILO.
Allow me to list these rights. First, there is the freedom of association, which would allow workers to organize trade unions, together with the right to engage in collective bargaining, which would allow workers to better their situation. Second, workers should have the right to be free of forced or compulsory labour. Third, children must have the right to be exempted from labour. Fourth, workers must be able to perform their jobs in an atmosphere free of discrimination.
With a core set of labour rights inserted into this trade agreement, we could begin to see that substantive labour rights are actually being treated seriously. Our trade regime would be tempered by a basic approach that allows workers in these countries to organize, express their interests freely, and bargain collectively with their employers.
The enforcement of substantive labour rights is important. As my colleague noted, the NAALC kind of approach has emphasized that each country should enforce its own labour law regime. The problem is that these things aren't necessarily being enforced in each country. Not providing for enforcement of substantive labour rights in each country, or a universal norm, creates a perverse incentive to sign on to NAALC-like agreements and ignore labour laws. This allows some to gain a competitive advantage in the marketplace. If you're going to take labour rights seriously, you need to have an enforceable regime of labour rights that applies to all of the countries involved in the agreement.
There's an issue of whether you should have a side agreement in and of itself. Our experience is that it is ineffective to treat labour rights, or rights of any kind, separately from the rest of the treaty. In our view, you need to incorporate fundamental labour rights into the text of the trade agreement. We've seen that the United States has begun, in a very embryonic way, to do this in its relations in CAFTA and the U.S.-Chile agreements. We would urge you to do the same thing, and we would hope that we could equal or exceed that approach.
Our next suggestion is that labour rights need to be treated the same as any other rights in a trade agreement. Rights for labour and commercial rights for profit organizations ought to receive equal recognition.
Under NAFTA, corporate persons, or legal persons, have substantive and enforceable rights that could also be characterized as human rights. This allows legal persons, corporate persons, to enjoy, through the particular guarantees provided in NAFTA, rights of good faith, due process, and free expression. Traditionally, we associate these rights with human persons rather than legal ones.
If you're going to be approaching the issue from a substantive point of view, you have to be able to treat those rights in the same way as you would treat commercial rights. And while this is a new notion, it's not unheard of. In our brief, we point out that labour issues have been, in a very restricted way, incorporated in free trade agreements worldwide and in the NAFTA.
Currently the NAFTA has a prohibition against replacement workers coming in from another country when there is a domestic labour dispute. The GATT agreement regulates the treatment of products produced by prison labour. So there is some precedent for actually incorporating these rights into these agreements, and we would suggest that this be expanded upon and pursued more vigorously by the Government of Canada in its negotiations of the CA4.
The commercial rights I just referred to have involved the independent right of the organization itself to sue a government that transgresses these rights. In international trade law, that has been a right provided to very few organizations, and so far it has been extended to corporations rather than trade unions. What we say is that if governments aren't going to be necessarily enforcing these rights in some of the countries involved in these agreements, you have to give the private or not-for-profit organization of the trade union the right to enforce whatever labour rights you actually insert into this agreement.
To date there have been a number of suits under chapter 11 that allow corporations to enforce the property rights they have attained in NAFTA. If you're going to insert labour rights into a trade agreement like the one we're discussing, you ought to allow trade unions to pursue these rights at all times, especially when their governments are not pursuing these rights.
The interesting thing about NAFTA is that it provides those commercial entities with property rights and a true enforcement mechanism. That enforcement mechanism is an independent arbitration process. Domestically in Canada, labour lawyers are very familiar with that process. In the federal jurisdiction and the various provincial jurisdictions, we all enforce our rights though an independent arbitration means. However, the NAALC has not provided an independent means to truly enforce those rights. If you're going to have substantive labour rights, though, you have to have an efficient and independent arbitration body with the real power to remedy whatever violations are alleged.
The other thing that would be useful in promoting labour rights is to have effective state-to-state enforcement mechanisms that allow for public participation of the workers affected, along with their representative organizations. What that allows is for the governments to continue to have a dialogue about promoting and increasing the labour rights protections that they have, and to have a dialogue about any problems that they have between the states engaged in trade agreement. It also incorporates the ability of the private organizations or the non-governmental organizations to be a part of that process and to involve themselves in a consultative process to improve these.
Finally, I'd like to add that the difficulty for labour organizations in Central America, Latin America, and elsewhere in the developing world has been that their states themselves have had difficulty enforcing rights because they don't have the capacity, in their institutions, to enforce these rights. We believe Canada should help to promote an institutional capacity to develop the necessary infrastructure to enforce these labour rights. We would hope Canada pursues that.
I want to close on a last note, and I hope I'm not over my time. If I am, I'm sure the chair will let me know shortly.
There is a real need here for transparency. To date, we are addressing this committee without any direct knowledge of the text that's being negotiated. As representatives of worker organizations, professional organizations, and employees themselves, we have a real interest in understanding what the Government of Canada has or is intending for the future. We need to incorporate civil society in a discussion of how we go forward in our trading relationships with Central American countries and with others.
We would therefore call on you to immediately release the draft text of what has been an ongoing negotiation for the past five years. In that way we can inform ourselves on what's going on, and be useful to parliamentary committees like this one by providing our opinions and our technical expertise, entering the democratic discussion of where we go in the future.
We would also urge the Government of Canada to engage in meaningful consultations with civil society groups, trade unions, and the public at large. Although with NAFTA we had a great public debate and discussion, the free trade agreements that have come after this have been dealt with in a much more circumspect manner with respect to public consultation. We believe this issue is important enough that we need to talk about this in a public way, and the Government of Canada has to pursue a much more vigorous consultative process.
We submit that at the end of the process, if the government is going to engage in a treaty with other Central American countries, we need to have a binding vote in Parliament, after having that democratic discussion between us and in the House of Commons, so that Canadians are fully informed about the agreement itself and the various views involved. The House votes on whether or not we actually engage, and binds the executive to a decision.
Those are our submissions for today, subject to your questions. We're very interested in any questions you may have.
Thank you very much, Mr. Chairman.
