International Trade Committee on Sept. 20th, 2018

[The Clerk of the Committee, Mr. Olivier Champagne]

We have more than 50 clauses and 13 schedules.

[The Chair, Liberal, Mark Eyking]

Okay.

Usually we take the first clause and park her down at the end, so pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

We'll go right to clause 2.

[Randy Hoback, Conservative, Prince Albert, SK]

Chair, there are no amendments. Can we not group all the clauses?

[The Chair, Liberal, Mark Eyking]

We can if it's the will of the committee.

[Tracey Ramsey, NDP, Essex, ON]

I do some have some questions about some of the clauses.

[The Chair, Liberal, Mark Eyking]

Yes, are there are a couple that....

I can go in fives, let's say. I'll start off with four and then we'll take it by fives. We'll see how it goes. How's that? Is everybody good? Okay.

Shall clauses 2, 3, 4, and 5 carry?

[Tracey Ramsey, NDP, Essex, ON]

No. I have a question on clause 4.

[The Chair, Liberal, Mark Eyking]

Okay.

[Tracey Ramsey, NDP, Essex, ON]

To the officials, I'm looking at clause 4, “Non-application of Act and Agreement to water”. I wonder if you can explain this clause and how it might offer protection to Canadian surface and ground water. A lot of Canadians are worried about the possibility of bulk water exports from Canada. Would this clause protect against that?

[Kendal Hembroff]

The intent of this clause is just to make it clear that for greater certainty, natural surface and ground water is not subject to the CPTPP.

[Tracey Ramsey, NDP, Essex, ON]

There's nothing in there that would protect us against the possibility of bulk water exports, then.

[Kendal Hembroff]

There's nothing specific in terms of this bill that would make that clear, but there's nothing in the CPTPP that allows for the export of bulk water either.

[Tracey Ramsey, NDP, Essex, ON]

It says “the Agreement applies” to all of this. I'm asking how that will offer protection to Canadian surface and ground water.

[Hugh Cheetham, General Counsel, Market Access and Trade Remedies Law Division, Department of Foreign Affairs, Trade and Development]

It just makes it clear that water in its natural state we don't consider subject to the agreement. I think that's been in every free trade agreement bill we've implemented since NAFTA.

[Tracey Ramsey, NDP, Essex, ON]

Okay. Thank you.

[The Chair, Liberal, Mark Eyking]

I know there was a thought that we could group them, but I'm going to go one by one. We'll just go that way.

Should clauses 2, 3, and 4 carry?

(Clauses 2 to 4 inclusive agreed to)

(Clauses 5 and 6 agreed to on division)

(Clause 7 agreed to)

(On clause 8)

[The Chair, Liberal, Mark Eyking]

We have an amendment from Ms. May. Everybody should have it in front of them.

When we're talking about this amendment, it has implications for PV-2, PV-3, and PV-4, so all of those amendments will be dealt with right now, really. That's how they're grouped together.

Do you want to talk on your amendment?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, I do, Mr. Chair.

First, I have to put on the record a protest. I'm only here because of a motion passed by this committee at the beginning of its work in 2015. I objected to this motion at the time. It was one invented under the previous government to deny me my rights at report stage.

It's a clever piece of work to claim that since committees are the masters of their own process.... When every committee passes an identical motion that affects any member of Parliament who is not in a recognized party to say that they will be invited to committee, the effect of that is to eliminate my rights, which exist under our Standing Orders, to present my amendments at report stage. Now that I have the opportunity to present them at committee, I no longer have the right to present substantive amendments at report stage.

My protest on the record is this. The motion you passed said that I must have 48 hours' notice, that I will be given 48 hours' notice to prepare amendments before clause-by-clause study. In this instance, we received the notice on Tuesday at 2 p.m. to have amendments prepared and submitted by Wednesday at 5 p.m., which is substantially less than 48 hours.

I mention this because since I'm not a member of the committee, all my amendments are deemed to have been submitted. I'm not allowed to vote on them. I am allowed to speak to them briefly, and I'm bearing that in mind. I just want to explain that I may try in report stage to submit additional amendments because the time of the notice was insufficient, even by the onerous provisions—and they are onerous, to me—of the motion by this committee and every other committee. It's astonishing when you consider that each individual committee is the master of its own process. The synchronicity of identical amendments is astonishing.

However, I'll pass over that and just say that I wanted to make it clear on the record that I did not have adequate notice to propose more than the four amendments I bring to you now.

[The Chair, Liberal, Mark Eyking]

I'm not going to get into a debate about procedure, but my understanding is that it comes down to two sleeps. I think we're in order.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, there's no way that less than 30 hours equals 48. The time it takes an individual member of Parliament to present amendments that are substantive and to go through the proper process with the apparatus of Parliament and have them translated is 48 hours in terms of your committee motion.

[The Chair, Liberal, Mark Eyking]

Okay, your comments are well noted.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I am prepared to proceed. Thanks, Mr. Chair.

I will group all four because they all go to the same point. All four of my amendments, which I hope will be considered seriously, are to removing the ISDS provisions. They are all found, as you know, in chapter 9 of the CPTPP and they are more specifically found in chapter 9, part B.

I want to draw to your attention as a committee that it's not necessary for purposes of achieving all the tariff benefits, the trade benefits, with the countries within the TPP. We can argue about the benefits and the irregularity, depending on what sector you're looking at, but for the moment let's just say the trade benefits found in CPTPP are unchanged in Canada's application of that provision if ISDS is removed.

As a precedent I want to suggest to you that Canada has proceeded to ratify the comprehensive economic and trade agreement with the European Union, CETA, knowing full well that several European Union nations want to opt out of the investment chapter of that agreement.

Furthermore, recently Japan has negotiated a new trade agreement with the European Union, and they decided in the course of negotiations to leave out any investment chapter. Although it's become a dogma to expect an investment chapter in the context of a trade treaty, in the essence of trade agreements—which is liberation and open access to markets—investment treaties are not necessary for that, and again in the CETA, European nations have said they don't want to accept those provisions as they give increased rights, superior rights, to foreign corporations that are not available to domestic corporations.

In evidence to this committee—and it was a while ago, so I went back and reviewed the work of this committee and its excellent report in April 2017—you heard from a number of witnesses. Just to refresh your memory, my amendments today would meet the concerns of the Trade Justice Network, the Manitoba Federation of Labour, the Canadian Environmental Law Association, the NGO group Open Media, the Quebec Association for the Taxation of Financial Transactions for the Aid of Citizens, the Canadian Association of Physicians for the Environment, and the Canadian Cancer Society, and speaking as independent legal experts, York University law professor Gus Van Harten and University of Toronto law professor David Schneiderman. These are the people who spoke to the committee and expressed numerous concerns about the investor state dispute resolution.

You might be wondering why the amendment says “PV”.

It stands for “Green Party”. It may be because under Mr. Harper, someone thought that “G” could be taken to stand for “government”. So “PV” means “Green Party”.

We have amendments PV-1 to PV-4.

The amendments are all to the same effect: to remove the investment sections of the CPTPP. You can ask the officials again, but it will not affect the portions that you're most concerned about, the ones about getting in early and being able to start getting the tariff benefits for various sectors of the Canadian economy. This would just mean that in the future, a Malaysian corporation, for example, couldn't bring an investor dispute arbitration against Canada.

As you heard, and it's in your report in evidence, we are the most sued country in the developed world under the investment treaty of chapter 11 of NAFTA. We have lost many of those cases, and it was not because we were not following proper trade regimes because we have not.... For instance, in the S.D. Myers or Ethyl Corporation or Bilcon cases, none of them were about Canadian government decision-making to advantage domestic corporations and prejudice foreign corporations. In other words, the animus isn't trade-related. They were acts taken by the Parliament of Canada or ministers of Canada, such as Environment Minister John Baird. They were decisions taken that were appropriate within our laws as a democracy, and later we find we owe millions of dollars to foreign corporations that don't deserve a dime.

Therefore, I beg you to seriously consider having a full debate on whether we should include an investment chapter when we don't have to.

Thank you.

[The Chair, Liberal, Mark Eyking]

Thank you, Ms. May. Is there any more debate?

Go ahead, Mr. Hoback.

[Randy Hoback, Conservative, Prince Albert, SK]

Mr. Christie, this is a major change to the agreement. If we were to proceed down this path and remove it, would it not involve your having to go back and renegotiate the agreement?

[Bruce Christie]

Absolutely. Three countries have ratified this treaty already. Any proposed amendments in the area of ISDS, which is a provision and a part of the investment chapter, is strongly supported by several of the CPTPP countries, so this proposed amendment would effectively make the ISDS provisions of the agreement inoperable.