Evidence of meeting #20 for International Trade in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
NDP
Liberal
The Vice-Chair Liberal John Cannis
It's nice to be here. Don't take advantage of my kindness or I'll call my friend Larry.
The floor is yours.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Well, thank you, Mr. Chair. I'd asked a question to the witnesses. I think they're preparing a response.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
This is a standard article of construction in FTA-implementing legislation. It says essentially that nothing affects Parliament's legislative authority to implement the FTA and the related agreements.
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
Is the definition of this clause intended to show that Parliament remains sovereign in relation to all the clauses which may or may not be in this bill? Is that really what this clause means? Mr. Kronby, you were saying that this clause appears in every bill dealing with free trade agreements. Is that what you said?
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
Yes. It's a provision that just clarifies that nothing that's contained in this act or that is omitted from this act is to be understood as affecting Parliament's ability, Parliament's legislative authority, to implement any provision of the free trade agreement or the related agreement, or to give effect to the obligations that Canada has undertaken under those agreements.
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
Are there identical clauses in other free trade agreements that Canada has signed with other countries? That is my question. Is this a standard clause that appears in every free trade agreement that Canada signs with other countries? Or, depending on the agreement with the other country, are there special provisions that apply, so that a clause like this, which is sort of standard, might be worded differently because things are added?
The question I asked originally was whether this means—yes or no—that Parliament remains sovereign in implementing the free trade agreement.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I don't think the clause speaks to the scope of Parliament's authority so much as it speaks to how this act is to be constructed. We're not talking about a provision that's found in the FTAs themselves, in our other FTAs. They're found in Canada's other FTA-implementing legislation. It's a provision just to make clear that where this act speaks and where it doesn't speak, it doesn't interfere with the ability of Parliament to take action to give effect to Canada's obligations under the free trade agreement or the related agreements. It's just a clarifying provision of construction.
Bloc
Jean-Yves Laforest Bloc Saint-Maurice—Champlain, QC
In this part, it says: “For greater certainty, nothing in this Act, by specific mention or omission [...]”. I understand that. Basically, no clause can interfere with the powers of Parliament. When it says “by specific [...] omission”, that is very broad. That means even with respect to something that is not included in the legislation.
Do you have any examples of an omission that could have an impact on a decision by Parliament? Under other agreements, has this question arisen in the past because of omissions in the bill?
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I'm not aware of any. My understanding is that this provision is simply there to provide certainty as to how this legislation is to be constructed, rather than to deal with any specific problems that have arisen under previous FTA-implementing legislation.
Does that answer your question?
Bloc
Claude Guimond Bloc Rimouski-Neigette—Témiscouata—Les Basques, QC
Thank you, Mr. Chairman.
I need further clarification. On line 24, it says: “[...] fulfill any of the obligations of the Government of Canada [...]”. What is an obligation of the Government of Canada? Give me an example, Mr. Kronby.
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I don't think this provision was drafted with specific examples in mind, but the free trade agreement is full of obligations, including, for example, Canada's obligations to reduce or phase out tariffs over time. That is one of the obligations Canada has taken on under the free trade agreement. That would be an example, but I don't want to leave the impression that this provision was inserted to deal with any problem related to that. As I think I've said several times now, it is a provision of “construction” for certainty. It's just to be clear that when the act speaks or doesn't speak, it doesn't interfere with Parliament's ability to enact legislation, to give effect to those obligations, or to otherwise fulfill any of the obligations.
Conservative
The Acting Chair Conservative Larry Miller
We'll call the question on clause 5.
Mr. Julian, do you want a recorded vote?
NDP
NDP
Peter Julian NDP Burnaby—New Westminster, BC
The questions by Mr. Laforest and Mr. Guimond were extremely interesting and provoked other questions. It's good when members of Parliament actually engage in a clause-by-clause examination, Mr. Chair. As I'm sure you know, part of why we're paid to be here is to ensure that we actually ask the relevant questions clause by clause, and not simply rubber stamp bills, which would be completely inappropriate.
Conservative
The Acting Chair Conservative Larry Miller
Of course, and listening intently with amazement is very good.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Well, I know you are, Mr. Chair, and I appreciate that.
So the issue is that “nothing in this Act...is to be construed to affect in any manner the right of Parliament to enact legislation” or to fulfill the government's obligations under the agreement. But if we come back to the issue that's arisen around the investor-state provisions, which is a matter of some real concern, it would not cover the right of Parliament to enact legislation, which would still be subject to provisions such as the investor-state provisions. Is that not correct?
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I'm not quite sure I follow the question. When you say the right of Parliament to enact legislation is subject to the investor-state provisions, could you maybe be a little more specific?
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Well, for example, the right of Parliament to legislate against neurotoxins was, in a sense, affected by NAFTA provisions. In the investor-state lawsuit that was launched then, what we ended up seeing were individuals, the taxpayers of Canada, having to cough up money to this company, Ethyl Corporation, that was challenging the right of the Government of Canada and Parliament to make those rules.
So what I'm saying is that the right of Parliament to enact legislation or the right of the government to make a decision is circumscribed to a certain extent by investor-state provisions. Is that not true?
Director General, Trade Law Bureau, Department of Foreign Affairs and International Trade
I'd just like to focus on this provision, if I may. This provision says that nothing in this act prevents Parliament from implementing a provision of the agreement or fulfilling obligations of the government under the agreement. I don't want to get into a debate about your characterization of the case you mentioned, and without accepting that characterization, this provision does not say that the government, by virtue of this act or by mention or omission in this act, is entitled to breach obligations in the free trade agreement. If the breach of those obligations were to give rise to a claim under your example of investor-state provisions, that's the way it is. That's what happens when you take on obligations. This provision doesn't address that, though.