International Trade Committee on June 3rd, 2013

[Dr. Michael Geist]

It's a fair point. I think the best reference, especially on the intellectual property provisions in this, is the Anti-Counterfeiting Trade Agreement, ACTA, wherein the U.S., as they do with the TPP, maintains quite explicitly through the Office of the U.S. Trade Representative, the USTR, special groups that do have access. They're not shy about making that clear.

That created some real contention with the Europeans and some others who felt that if we're going to keep this confidential, we're going to keep it confidential. Privileging some over others created a significant problem. But more broadly what happened within ACTA was that some of the leaks were inevitable. Some of the concerns about starting to create that two-tier approach become inevitable if in fact that's what happens. What it ultimately does is to undermine public confidence in an agreement.

I'm not here to tell you that I think Canada should go out there and say, here's the TPP for all to see. It's quite clear that we undertook not to do that. In fact, these same documents that I obtained under the Access to Information Act make it clear that the department takes those obligations very seriously in not making it widely available to the public. The problem is that if we are going to be a participant in this and at the same time hold values around accountability and transparency at the level I think we do, then it behooves us, together with as many of the TPP participants as possible, to push for more transparency, more public access, sooner.

That's actually what ultimately did happen within ACTA, as Canada and a number of other countries began to push for greater transparency. Ultimately those standing in the way relented and said, “Here are some draft agreements.”

We're pretty far along the way in these negotiations with still no draft text.

[Ed Holder, Conservative, London West, ON]

My guess is that the reason there is no draft text is that we're not that far along at this stage, and yet I would suggest to you, from what you've said—I'm just trying to think this through a little bit—is that other countries aren't doing this as well. They're not negotiating in public.

Your next questioner might talk about secrecy when the member opposite starts talking about these things, but I recall that when his party was in power and his government signed trade agreements, these weren't negotiated in public. That has not been our practice.

I'm mindful that when you want to garner some information a confidentiality agreement would make some sense. Here I'll be candid that I don't know the impact of the back and forth dialogue between our government and those specific groups, but it suggests to me that if we're trying to garner more information to assist us, such an agreement would indeed make some sense. Do you not think so?

[Dr. Michael Geist]

I can totally understand why that happens, and I can equally understand why, in the context of many of the prior trade agreements, the approach would be to say that this is happening behind closed doors. A distinction between some of those prior agreements and what we see today is that where you're negotiating tariffs on certain things, that's just basic commercial negotiation, and I can understand there that you would want to keep your cards close to the vest as part of the negotiations.

Where we're talking about copyright notice and takedown, or term of extension, or a range of these kinds of cultural policy issues, these have rarely, if ever, been part of these bilateral TPP-style negotiations. Instead, they have been in broad, open, public fora, and that's where we're out of step with what has long been the conventional approach when we're talking about intellectual property.

[Ed Holder, Conservative, London West, ON]

I guess, to be fair, it's not clear at this stage all of what is in that agreement.

Ms. Des Chênes, I sense that you like the direction we are going in with TPP, and I'm not trying to be flippant as I say that. I looked at a press release that came out—and I share this with my colleague from Malpeque because this is actually very good news—where you talked about the export of forest products from Canada now being worth $26.4 billion and how Canada has a trade surplus in forest products of $17.2 billion. That's pretty serious.

This is my question for you. While the world did not start in 2006, it is a point to which I will make reference. Since the Conservatives came to power in 2006, have there been any trade deals—and here I don't know the answer to this; it is not a set-up question—that have not been to the advantage of the Forest Products Association of Canada, or that have hurt you at least, where we have been involved? Have you supported our trade deals to this point?

[Isabelle Des Chênes]

Yes, we have for the most part. That's because in particular areas we did have some opportunities to expand our forest products exports. In some other areas, take Panama for instance, that was a small deal but it really impacted a single mill, and that single mill impacts the community and supports a broader community.

[Ed Holder, Conservative, London West, ON]

Pulling that back to Mr. Geist, I'm not trying to isolate you down a road here, but I'll just come back to the world starting in 2006 for this purpose. Since the Conservatives took power, have there been any trade deals within the focus of our discussion that you have supported?

[Dr. Michael Geist]

I'm not aware of any trade deals that have included significant intellectual property provisions. The only agreement that I know we've negotiated and completed to date that have them is the Anti-Counterfeiting Trade Agreement. I was against it, but I was in good company, given that the European Parliament voted against it, and which all members of the European Union now, quite clearly, won't be ratifying.

[Ed Holder, Conservative, London West, ON]

Thank you both for your testimony.

[The Chair, Conservative, Rob Merrifield]

Thanks very much.

Mr. Easter, the floor is yours, seven minutes.

[Wayne Easter, Liberal, Malpeque, PE]

Thank you, Mr. Chair.

And thank you, folks, for your presentations.

No, Ed, I'm not going to take the bait. The fact is that under this government, we do have—

[Voices]

Oh, oh!

[Wayne Easter, Liberal, Malpeque, PE]

—a fairly substantial trade deficit, and for some reason, people do not want to look at the real reasons behind that merchandise trade deficit. Those are the things we should be looking at. We support trade, but we need to find ways to ensure that we're gaining value in Canada.

Mr. Geist, you're not the first one who's come before this committee on this whole “lack of transparency” business. I submit that you are absolutely correct. This is not just a negotiation on trade in commodities and on tariffs. It's a much broader agreement that can have implications for—you named copyright, intellectual property—a whole range of other areas. In fact, previous governments did provide texts to groups that held that information confidential. So those groups could actually see the text and comment on it, and were not just given a briefing on it, which might either have been accurate or just somebody's opinion. Previous governments did have a much more.... It wasn't open to the public, no, but it was open to a cross-section of representatives of the public, who could actually deal with it. That's not happening any more, and I think that's a problem.

How would you suggest going about ensuring that transparency, in terms of a good cross-section of the public, and still maintaining confidentiality, which we have to do?

[Dr. Michael Geist]

Right. Well, I guess there are two issues here. There's the issue of the relationships we have with other TPP partners, and concerns they would have about having a single country just simply taking the text, and, let's say, throwing it up on the Internet, which we assume, quite rightly, is a non-starter.

We joined this TPP late, and as has been widely reported, we were forced to accept a number of conditions as part of that. Perhaps one of them was the level of secrecy that's associated with this agreement. But I would submit that Canada ought to be publicly on the record pushing the various other partners. I suspect, at least from my experience within ACTA,that there are some other TPP members that were similarly supportive of greater transparency, pushing to make the text, officially and in a draft version, available as quickly as possible, and I think that's in the interests of all negotiating parties.

In terms of what takes place domestically in the establishment of essentially a two-tiered approach, from my perspective that has to stop. That's not to say that you can't have discussions with various industry groups. Certainly, where it's a conversation, where the industry group is providing them with information about their concerns, that doesn't necessitate the need for confidentiality or an NDA. You need a confidentiality or non-disclosure agreement only when you're providing information back to those groups. If they're providing that level of information back to those groups, frankly, I would submit that that information ought to be made publicly available to all.

[Wayne Easter, Liberal, Malpeque, PE]

We're not sure on this one where the provinces are at, whether they're at the table or not. I don't know if they're provided with copies of the text either. But in terms of the industry groups that are given access at the moment, do you have any information on how broad or how narrow that might be?

[Dr. Michael Geist]

I don't, and it's difficult. If I look, for example, at this first page that I received under the Access to Information Act, large amounts of it are redacted. There are clearly many stakeholders there, with contact names. Some are included, some are not. Even in terms of the list of those that signed NDAs and made that available, some of it's confidential, some of it's made public. Then, of course, these are private consultations. We don't know what happened.

As an example, the telecom industry is an area that I focus on a lot. It's quite possible that a discussion with telecommunications companies would have implicated some of the issues that I just talked about. Notice and take down, for example, or notice and notice, the role that an intermediary plays where there's an allegation of infringement on their network, is something that is presumably of direct concern to a telecommunications company. Was that discussed at the November 2012 meeting? Did they gain information as to what Canada's position is, what other countries' positions are? I don't know. They're not talking. In fact, they can't talk, because they've signed these NDAs that preclude them from doing so.

[Wayne Easter, Liberal, Malpeque, PE]

From our the last meeting on May 27, I just tried to get the exact quote from Richard Doyle, who was with the Dairy Farmers of Canada.

He said basically the same thing, that they don't have a copy of text, and it's a problem. From my point of view, if you're advising the government and you don't have the text, then the consultations are a farce because you're dealing with somebody's interpretation of what they saw in the text. Other people might see different things.

To the Forest Products Association, where are you in these open discussions? Do you think they should be broadly based? Albeit they shouldn't be public, but if the government is using an advisory group, shouldn't civil society be represented in those discussions as well, because we're not dealing just with forest products: lumber and trees. We are dealing with international property, copyright, etc.

[Isabelle Des Chênes]

We do recognize the need for the government to be able to negotiate in a manner that serves Canada's interests, particularly given such a large negotiating group that they're focused on at this point.

We've signed an NDA, as I said earlier. We've done so with every agreement: the Canada-Japan, Canada-India, softwood lumber agreements—in all of those areas. We're provided with briefings on a regular basis in terms of—

[Wayne Easter, Liberal, Malpeque, PE]

But you weren't entitled to the text either.

[Isabelle Des Chênes]

We haven't seen text. We haven't seen text for CETA either. It's one of those areas where we would like to see the text, but we've been given some strong assurances by our negotiators and we're pretty confident in the fact that they're seized with our issues.

[The Chair, Conservative, Rob Merrifield]

Thank you very much. Your time is gone.

We'll now move to Mr. Hiebert.

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

Thank you.

To pick up where my colleague left off, Ms. Des Chênes, it sounds as if it's a standard operating procedure for the department to provide briefings, not text, and use NDAs as a way of keeping the information in-house? Is that what you'd say?

[Isabelle Des Chênes]

I'll admit I've been on the trade file since last fall. I don't know how far back that goes, but that has been my experience. I'm given as much access as I need to government officials, but I haven't seen text, I have to admit.

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

One of the things you asked us to consider was something relating to the U.S. Lumber Coalition and chapter 19. Could you elaborate on that briefly? I didn't catch all of that.

[Isabelle Des Chênes]

Chapter 19 is the dispute resolution chapter of the NAFTA, and certainly the U.S. Lumber Coalition has been very active and creative in finding opportunities to raise their concerns with the U.S. federal government around softwood lumber access. Certainly this was another opportunity for them to make a pitch to change the dispute resolution mechanism in NAFTA. Our understanding is that given the timeframe within which this agreement is expected to be negotiated, opening up NAFTA is a non-starter. So we're very comfortable with that and we continue to urge the government to stand firm on that.

The dispute resolution mechanism, to be fair, has been quite good for Canada in recent softwood lumber disagreements. Their position is that this could be modified to create a more favourable opportunity for them.

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

Mr. Geist, in your testimony you highlighted the need for Canada to maintain the line on statutory damages and digital lock agreements. Could you elaborate on those two, which I presume are your primary concerns?