Evidence of meeting #30 for International Trade in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was labour.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jeff Vogt  Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)
Theresa McClenaghan  Executive Director and Counsel, Canadian Environmental Law Association
Charles Kernaghan  Director, Institute for Global Labour and Human Rights

11:35 a.m.

Conservative

Gerald Keddy Conservative South Shore—St. Margaret's, NS

Okay.

One of the other points you brought up in your last testimony was about the garment workers. In particular, in the garment industry, especially with the American agreement, our understanding is that conditions have improved.

11:35 a.m.

Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)

Jeff Vogt

Yes. I think they have improved over where they were in 2006. Again, I was one of the drafters of the complaints that the AFL-CIO filed against Jordan then. The other witness, who will be on later, was also involved in exposing those violations in the garment industry at the time.

Is it better? I would say yes. But is Jordan effectively enforcing its laws as is required under article 3 of the agreement? I'd say no, in a number of areas. Again, the ILO, just a couple of weeks ago—

11:35 a.m.

Conservative

The Chair Conservative Rob Merrifield

Could we have a very quick answer? Time is up.

March 29th, 2012 / 11:35 a.m.

Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)

Jeff Vogt

Again, the ILO found just a couple of weeks ago that in a number of important areas there are still the issues around forced labour, forced overtime, violations of freedom of association, horrendous dormitory—

11:35 a.m.

Conservative

The Chair Conservative Rob Merrifield

That's fine. Thank you very much for that answer.

We'll move now to Mr. Easter.

11:35 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

Chair, you will find it difficult to interrupt with new technology. It's the difference between having a witness here and on screen.

11:35 a.m.

Conservative

The Chair Conservative Rob Merrifield

I find it difficult to interrupt testimony when they're here too. Go ahead.

11:35 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

Thank you to both witnesses.

Mr. Vogt, we haven't had the opportunity to be on the ground in Jordan to see what working conditions are like there, so we've been going to a certain extent on what has been said. You said something along the lines that there are horrendous working conditions in, I think you called them, qualified work zones.

Can you just describe those horrendous working conditions? I think it would give us a better picture, so to speak, of what we're really dealing with. I hope as a committee we can travel and see what conditions are like, but in the event we can't, can you paint us a picture?

11:40 a.m.

Legal Advisor, Department of Human and Trade Union Rights, International Trade Union Confederation (ITUC)

Jeff Vogt

Certainly. Again, I think the third witness, who is coming up after the two of us, has visited these zones before and will present to you a lot of eyewitness testimony of his own.

I think a very authoritative source—and a very recent source—would be the most recent report of the ILO Better Work Jordan. I drew these examples from this report. There are workers working extremely long hours, who are not necessarily compensated for those hours of work, who live in dormitory conditions that are primitive at best, who are physically or verbally threatened by employers. You have a number—40%, according to the ILO—of people who are in such debt that they cannot freely leave employment, and there was the case of people being subject to retaliation for undertaking concerted trade union activity. The ILO notes, I think, that with its revised methodology on freedom of association, it expects to find more violations in the future, not fewer.

I think these are all very clear inconsistencies with what Canada is requiring Jordan to undertake under the labour cooperation agreement. So I would strongly encourage you to take a look at the Better Work—

11:40 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

I'd suggest, Mr. Chair, that we get a copy of the ILO Better Work Jordan report, if the researchers can get it. I think that would be helpful to us.

Thank you for that. I may come back to you if I have time, but I do want to turn to Ms. McClenaghan.

First, how would you rate the side agreement with Jordan on the environment at the moment? Second, you talked about some model environmental side agreements. You mentioned the CETA one and you also mentioned the United States-Australia agreement. What is, in your determination, the best model to give the best environmental protection for Canada, and for that matter for Jordan too?

11:40 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

If we use NAFTA as the benchmark, we do see some improvement in language in some of the bilateral agreements negotiated since. That was, of course, some time ago. As I say, we'll see how far those go in terms of improving the conditions.

What I like about the U.S.-Australia agreement is the fact that it doesn't allow those claims by foreign investors against Australia at all. It's up to the U.S. and Australia to negotiate between themselves if they think they have any disputes, but neither country's investors can directly make a claim under the agreement for compensation for some regulation having been passed. That's what I like about that one. So as long as the rest of the agreements don't do something like that, I think they still have a very fundamental failing by continuing to allow these kinds of claims.

The Canada-Europe agreement, the CETA, which is progressing—we've seen various rounds of language—is going to depend on where the parties land, in the end, on those environmental provisions that they have been negotiating. When I attended before the committee some months ago, we pointed to some places where we preferred the European Union language and some other places where we preferred the Canadian language.

If the best environmental language out of that agreement is chosen, and if they do away with the investor-state provisions, I think we have a really strong agreement. There are some very promising suggestions between the parties in that agreement.

So it's a very iterative thing where we're seeing language start to improve, and then of course we'll see how that plays out on the ground.

11:40 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

Do you—

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

But the Jordan agreement, I should say, just to answer your question, is more similar to the older agreements, and the language is still pretty boilerplate to those older agreements.

11:45 a.m.

Conservative

The Chair Conservative Rob Merrifield

I'll allow for just one very quick question and one quick answer.

11:45 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

You're saying it's necessary to do away with the investor-state protection. Why?

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

Well, not for direct expropriation, but to argue that environmental regulation is indirect expropriation is where the problem lies.

11:45 a.m.

Liberal

Wayne Easter Liberal Malpeque, PE

So—

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

Just because a government passes an environmental protection measure doesn't mean that somebody should be able to make a claim.

11:45 a.m.

Conservative

The Chair Conservative Rob Merrifield

Thank you very much.

Mr. Hiebert.

11:45 a.m.

Conservative

Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC

Thank you.

To Ms. McClenaghan, you spent a fair amount of your time in your opening statement talking about direct and indirect expropriation. I'm just wondering if you could elaborate again on what the side agreement on the environment actually states about that. Or is it the absence of comment on that issue that concerns you most?

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

No, it has a provision, and as I say, it is better than the NAFTA provision. The language is in itself, on that point, not too bad. It says:

Except in rare circumstances, such as when a measure or series of measures are so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.

That's not bad, on its face. It sounds pretty good. My concern is that the companies can still bring that claim—and we've seen that they do—and say, for example, well, it wasn't reasonable, it wasn't good faith; it wasn't really directed at health or safety or the environment. So it still leaves the door open for these kinds of attempts to derail the regulatory agenda, even before it happens, by saying, well, we'll bring this kind of claim. That's my concern.

I really don't like to see the Canadian government and its subnational governments have their regulatory-making powers in the area of the environment constrained by this.

11:45 a.m.

Conservative

Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC

I have some—

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

So it's better than the NAFTA, but it's.... We shouldn't even have the claims be possible.

11:45 a.m.

Conservative

Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC

Do you have examples of other similar language being used for that purpose, as you've described it, or is this more what you “expect” might happen?

11:45 a.m.

Executive Director and Counsel, Canadian Environmental Law Association

Theresa McClenaghan

In terms of what we expect might happen, we've had many claims brought against Canada, for example, under NAFTA. The Dow is the most recent. It ended up being resolved.

On the other hand, we have a good precedent in a case called Methanex, where the arbitral panel ruled against the applicant and said that this kind of regulation is not expropriation. The problem is that it's not binding on any of the subsequent arbitral panels. It says, right in this agreement, that it's case by case. The issues about reasonability, legitimacy, good faith, etc., would be up for argument every time.