International Trade Committee on May 26th, 2009

[The Chair, Conservative, Lee Richardson]

We're all on the same question.

But I'll go to Mr. Cannis, then.

[John Cannis, Liberal, Scarborough Centre, ON]

But there is an obligation, if I understood correctly. There is an obligation there—

[Matthew Kronby]

There is an obligation on the Attorney General of Canada to consent to any cause of action of the sort described in subclause (1). That's already in the bill. That's in other FTA implementing legislation as well. What isn't there is an obligation, or at least an express obligation, for the Attorney General to explain in writing why he or she is giving such consent, if he or she were to give that consent.

[Scott Brison, Liberal, Kings—Hants, NS]

Does it have the capacity to politicize these decisions? It does put the decision and the public accountability for the decision in the hands of the Attorney General, politician. I'm not saying that's wrong, but is there a risk of politicization of these decisions?

[Matthew Kronby]

I don't really know. I can't really comment on whether it would risk politicization. It may well be that the Attorney General would, in any event, want to explain any consent. I don't know. This is not something that has generally arisen under the equivalent subclause in the existing FTAs. So it's hard to really say what the concrete effects of this amendment might be.

I can say only that it's really a procedural amendment. It doesn't affect the substance of the underlying FTA.

[Scott Brison, Liberal, Kings—Hants, NS]

I would just like to ask Mr. Julian—

[The Chair, Conservative, Lee Richardson]

I wonder if we might just stay with the speakers list.

We have Mr. Cannis and then Mr. Julian.

[John Cannis, Liberal, Scarborough Centre, ON]

The only thing that differs here, if I understood correctly, Mr. Kronby, with this response is that it obligates that it be done in writing. That's all I'm picking up here. If the Attorney General makes a statement, I mean, he's on record. What this does, if I now get it and I think I do, is request it in writing. That's what I sense. That's what I'm hearing.

Is that right?

[Matthew Kronby]

You might put that question to Mr. Julian.

From what I read, yes, it's that the Attorney General would have to be on record as to why the consent was being given. That's all I see there.

[The Chair, Conservative, Lee Richardson]

Mr. Julian, can you enlighten us about the change?

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you, Mr. Chair.

It democratizes that provision of the bill and allows for an extra measure of public accountability in the implementation act. It is not a substantive change; I completely agree with Mr. Kronby on that.

[The Chair, Conservative, Lee Richardson]

I think that's clear.

Monsieur Cardin, do you want to comment before we go to the question?

[Serge Cardin, Bloc, Sherbrooke, QC]

I could ask Mr. Kronby if this provision is found in other free trade agreements. If that is the case, has the Attorney General ever consented to this kind of cause of action? If so, what action was in fact taken? I'm curious as to whether this would be a precedent or not.

[Matthew Kronby]

I wasn't clear on the question. Could you repeat it, please?

[Serge Cardin, Bloc, Sherbrooke, QC]

Do other free trade agreements contain a similar provision? If so, has the Attorney General ever consented to this kind of cause of action, and if so, what action was taken?

[Matthew Kronby]

I'm not aware that the Attorney General has ever consented to this kind of cause of action. There's already a provision in the FTA precluding one party giving cause of action to its nationals from bringing a claim against the other party for its failure to do something related to the agreement. I believe that's in article 2117 in this agreement. There are equivalent provisions in all our FTAs.

It would be a case of a Canadian suing in a Canadian court to enforce an alleged right or obligation arising under part 1. If you look at part 1, there's not a whole lot in it that would likely give rise to a cause of action. As far as I know, this hasn't arisen before, hence my hesitation in describing what it would do.

[Serge Cardin, Bloc, Sherbrooke, QC]

So then, it would be a good idea to include the words “with reason“.

[The Chair, Conservative, Lee Richardson]

I think we have had sufficient debate.

(Amendment agreed to)

[The Chair, Conservative, Lee Richardson]

Thank you, and thank you to our witnesses. That was useful.

We shall have a recorded vote on clause 8.

(Clause 8 as amended agreed to)

[The Chair, Conservative, Lee Richardson]

Having gone through the bill previously, I would like to suggest to the committee that we group clauses 9 through 56 as proposed. We don't have any other amendments. It is the bill as discussed. That would leave clause 56.1 to be dealt with following that.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

I move that we group clauses 9 through 56 together.

[The Chair, Conservative, Lee Richardson]

There you go. It is proposed by Mr. Julian that we group clauses 9 through 56. It can only be done with unanimous consent.

Do I have unanimous consent of the committee to do that? I think so. Okay, then we will proceed on that basis.

(Clauses 9 to 56 inclusive agreed to)

[The Chair, Conservative, Lee Richardson]

That brings us to new clause 56.1, which is amendment NDP-2.

[Ed Holder, Conservative, London West, ON]

Didn't we just pass clause 56?

[The Chair, Conservative, Lee Richardson]

We did, but we have a new clause, clause 56.1.