House of Commons Hansard #86 of the 40th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was colombia.


Immigration and Refugee Protection ActRoutine Proceedings

10:05 a.m.


Bill Siksay NDP Burnaby—Douglas, BC

moved for leave to introduce Bill C-445, An Act to amend the Immigration and Refugee Protection Act (security certificates and special advocates).

Mr. Speaker, I am pleased to table a private member's bill that would repeal all sections of the Immigration and Refugee Protection Act dealing with security certificates. I would like to thank the member for Thunder Bay—Rainy River for seconding this bill.

This legislation is consistent with the long-standing commitment by the New Democratic Party on this issue. Security certificates have turned into one of the worst violations of civil liberties in Canada. Detaining individuals without charge, without trial and without conviction for seven and eight years should not be possible in a country that has confidence in its justice system and that values fairness and due process.

Security certificates were never intended to make it possible to imprison someone indefinitely. They were intended to be a mechanism for expedited deportation from Canada. Today that is not how they are being used, and that is why I believe this legislation must be repealed.

Security certificates should never have been allowed to replace basic police and intelligence work and the full engagement of our justice system, which should have resulted, if warranted, in charges under the Criminal Code, a fair trial and a decision by a judge or jury given the facts of the case.

(Motions deemed adopted, bill read the first time and printed)

International TradeCommittees of the HouseRoutine Proceedings

10:05 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

moved that the second report of the Standing Committee on International Trade, presented on Wednesday, April 1, 2009 be concurred in.

Mr. Speaker, I am pleased on behalf of the New Democratic Party to move concurrence in the second report of the Standing Committee on International Trade today in the House.

As the House knows, we have been discussing trade policy for the last few months, and we have seen some of the more egregious aspects of the current government's trade policy.

I am happy to say that despite some disagreements we have had in the past on certain aspects of trade policy, the Standing Committee on International Trade was able to actually have discussion on the report last March. This report deals with the provisions of chapter 11 and investor-state provisions that exist in the North American Free Trade Agreement.

The second report states very simply this:

Pursuant to Standing Order 108(2) and the motion adopted by the Committee on Tuesday, March 31, 2009, your Committee recommends: that the Government vigorously defend Quebec's Pesticides Management Code in the case opposing Dow Agroscience and the Government of Canada in order to safeguard Quebec's right to enact legislation and make regulations in the public interest.

That report was a report that essentially demanded of our national government that it vigorously defend the right of Quebec to make regulations in the public interest, in this case the banning of a chemical that very clearly has negative environmental impacts and negative health impacts and that is 2,4-D.

However, there are much broader implications for this particular report and this particular provision of NAFTA. The broader implications are the implications that it has, through the chapter 11 provisions, on any government. Whether we are talking about the Quebec government or the Government of British Columbia, Newfoundland and Labrador, Ontario, Alberta, Saskatchewan, Manitoba, any province, any territory or any municipality in Canada, it is essentially impacted by the provisions of chapter 11.

This is an important discussion we need to have and an important report that we hope Parliament will endorse. It comes out of the Standing Committee on International Trade in light of the concerns about Dow Chemical Company's attack on Quebec's right to make this regulation in the public interest. It could be Quebec today and it could well be British Columbia tomorrow.

As democratic representatives in the House of Commons, we have to very clearly take the stand that when powerful international companies attack democratic entities and attack the rights of those entities to make safety regulations, health regulations and environmental regulations in the public interest, Parliament has to clearly take a stand.

I am pleased to say at the outset that this report stemmed from hearings the NDP was able to obtain at the Standing Committee on International Trade on 2,4-D pesticides and on the attack by Dow AgroSciences against Quebec's right to make this legislation in the public interest.

We pushed for that at the beginning of March. I am pleased to say that we had the support of the majority of members of the Standing Committee on International Trade. We had those hearings, and subsequent to those hearings we brought forward the report with the support of the Bloc Québécois and the Liberal Party as well. We brought forward the report, it was adopted and it has now been brought forward to Parliament for discussion.

The information sessions and witness testimony that the NDP was able to bring before the Standing Committee on International Trade were what was most important. I will talk about some of the statements we heard in committee about this attack by Dow AgroSciences on the Government of Quebec.

Once again, Quebec is not the only one affected by the provisions of chapter 11 of NAFTA, which the NDP has long opposed. All the provinces, all the territories, all the municipalities in Canada could be affected by the provisions of chapter 11.

A number of witnesses appeared before the committee. Their testimonies were very helpful in the report we are discussing today. We first heard from Steven Shrybman, the legal counsel for the Council of Canadians. This is the largest citizens' organization in Canada, with more than 100,000 members nation wide. Mr. Shrybman said:

Under chapter 11 of NAFTA, private parties-—investors and companies—from the other NAFTA jurisdictions, namely the United States and Mexico, can make a claim for damages arising from an alleged breach. We're going to take the case of a claim against Canada--a Canadian government, be it a federal government, provincial government, or municipal government--because of something the government has done that the private investor or the U.S. company, for example, argues is in breach of the broadly worded and ill-defined constraints of chapter 11.

That is the problem. These private investors, such as Dow AgroSciences, have the right to attack regulations made in the public interest, and that is why the Committee on International Trade decided to strongly urge the government to protect the interests of Quebec and all of the other provinces from the use of chapter 11 to attack these regulations.

Hugo Séguin, public affairs coordinator with Équiterre, a well-known Quebec organization, had this to say about the dispute with Dow AgroSciences, or rather, Dow AgroSciences' attack on Quebec's right to pass legislation in the best interest of Quebeckers in areas under its jurisdiction:

The Quebec Pesticide Management Code has been in effect since 2003. The ban on 20 active ingredients in pesticides has been in effect since 2006. For example, the Pesticide Management Code applies to turfed areas, including areas used frequently by children. Public health studies seem to show that children are exposed to even greater health risks when they play in parks, schoolyards or day care yards.

Mr. Séguin went on to say that Quebec has justified its actions on the grounds of the risk to public health. He added that Quebec is not the only jurisdiction in the world to ban 2,4-D or other pesticides. This is also the case in Norway, Denmark, Sweden and Ontario, where some pesticides, including 2,4-D, have been banned.

That is the problem. Quebec took responsibility. The Government of Quebec decided that it had to protect children by prohibiting the use of 2,4-D. Quebec is not the only jurisdiction in the world to prohibit 2,4-D. Several other jurisdictions are doing so, including Ontario. Even though Ontario is behind Quebec on this issue, it is heading in the same direction as Quebec. So Dow AgroSciences could choose to attack the Government of Ontario for its decisions, just as it has attacked the Government of Quebec's decisions. However, countries like Norway, Denmark and Sweden have also decided to prohibit the use of 2,4-D.

These countries are not governed by the chapter 11 provisions. So companies do not have the same grounds for attacking decisions made in the public interest by democratically elected governments.

That is the problem, and that is why there is a motion to concur in this report today. This affects municipalities, Quebec, Ontario and other provinces that want to bring in legislation to prohibit products like 2,4-D.

That is the fundamental problem. Essentially, there are chapter 11 provisions that can be used by any company to attack any democratic decision that is taken by a democratic government in the interests of the people it represents.

It is important to note that when the discussions were held around NAFTA, the provisions of chapter 11 that provide this super chèque en blanc, as is said in French, this blank cheque to the corporate sector to challenge government initiatives were something which, immediately upon signing NAFTA, the United States immediately retreated away from.

There was a very clear unease in the United States and other jurisdictions about the provisions of investor state and what it could mean in the long term. It is interesting to note, and this comes down to a fundamental question, that the chapter 11 provisions have not been reproduced by the United States in any other trade agreement it has signed since NAFTA. The provisions of chapter 11, the blank cheque given to the corporate sector to challenge the health and safety regulations put in place in the public interest, are something the United States, since that time, has moderated in all its trade agreements. There is no longer a blank cheque in any other American trade agreement.

The United States took that step back from the brink. It said that these provisions are far too widespread, that they give too much power and control to the corporate sector. In place of them, the United States, in any provisions around investor state, has made it very clear that environmental regulations, health and safety regulations, decisions that are made by democratic bodies in the public interest cannot be challenged under chapter 11 or investor state provisions. The United States retreated immediately from that.

Canada is the only country in the world where every single comprehensive trade agreement that we have signed since NAFTA has included these blank cheque investor state provisions. I will repeat that because this is of fundamental importance. Whereas other countries have retreated from the brink, we have gone right over. Agreements that have been brought to this House have all included the chapter 11 provisions that give a blank cheque to corporate CEOs to challenge decisions made in the public interest.

Only one party in the House of Commons has defended the public's right to make regulations in the public interest through its democratically elected representatives. Only one party consistently has said that these investor state provisions, rejected by the United States since NAFTA and by every other country on the planet, are a negative, unsustainable and irresponsible provision of trade agreements that Canada has signed.

That is why New Democrats have stood in the House consistently over the past two decades, since the signing of NAFTA and the putting into place of the Canada-U.S. trade agreement, and opposed those chapter 11 provisions. We have done that for one very simple reason, that when we give investor state provisions, when we allow this blank cheque to the corporate sector, it is understandable there is going to be a very clear attack on some democratically elected government's right to put in place that legislation.

What is more important is the effect it has on legislation even before it is brought forward. We have heard in discussions at the municipal and provincial levels on the possible implications of chapter 11, that sometimes governments step back from taking action in the public domain because they are concerned about whether or not investor state provisions could be applied by companies that feel that their right to make a profit may be infringed upon.

That brings me back to the issue of 2,4-D, an issue that, I will repeat, was supported, that we must vigorously defend Quebec's right to put forward this legislation in the public interest to protect children. As I have mentioned, witnesses were very clear on this. As a trade committee, and I am hoping to get the approval of Parliament, we are saying that the Canadian government has to vigorously defend the right of provincial legislatures, the right of the national assembly, the right of municipalities, the right of democratically elected bodies to put in place legislation in the public interest.

It is important to mention some of the chapter 11 cases that have been brought forward, because these indicate the impact of chapter 11 and why the NDP believes, like Barack Obama, that NAFTA needs to be renegotiated. The chapter 11 provisions need to be strongly curtailed because they simply were not appropriate at the time, are not appropriate today and are not a mechanism that allows for the kind of public policy Canadians want to see.

As soon as NAFTA was put into place, Ethyl Corporation, a U.S. chemical company, challenged a Canadian ban on the gasoline additive MMT. MMT is a neurotoxin. No one objects to the very clear health impacts of that ingredient, but the fact that the government moved to ban MMT led to the use of chapter 11 provisions. Canadian taxpayers across the country from coast to coast to coast had to cough up $13 million for an out-of-court settlement. This was for a product that is a known neurotoxin. It was banned by the Canadian government in a responsible way to ensure that the product could not have the negative health impacts, but because of the chapter 11 provisions, Canadian taxpayers had to compensate the company for producing a product that has known health impacts.

What is wrong with that picture? Embedded in NAFTA are provisions that force taxpayers to compensate bad companies for producing a product that is a health risk. What is wrong with this? It is rewarding bad behaviour. It is like saying to somebody who has murdered somebody, “We are going to give you compensation because we are going to have to put you in jail”. This is absolutely absurd.

That is why the NDP has been saying consistently over the last number of years when these investor state provisions come forward that NAFTA has to be renegotiated and that we have to fundamentally rejig our approach on trade policy, including removing the chapter 11 provisions from the trade policy template that is put forward for all of our comprehensive trade agreements.

That is a fundamental problem. It is a problem in Quebec when it tries to legislate and ban a toxic product, 2,4-D, and it is challenged by the company. It is a problem for other provincial governments that may choose to do the same thing. It is a challenge for our federal government.

The NAFTA chapter 11 provisions have a negative impact on public policy. The NDP believes that NAFTA must be renegotiated. We will agree with Barack Obama on this. We believe that investor state needs to be removed from the provisions of NAFTA.

International TradeCommittees of the HouseRoutine Proceedings

10:25 a.m.


Dean Allison Conservative Niagara West—Glanbrook, ON

Mr. Speaker, I would remind my friends on the other side of the House that just because they say it, it does not necessarily make it so. It has been my experience, in listening to the NDP, that it has never seen a trade agreement it could ever support regardless of what is in the agreement.

I want to set the record straight. I sit on the international trade committee as well, and we have made these comments in the trade committee. I also want to state for the record today three points on which we on this side of the House want to be very clear.

Certainly, as the Government of Canada, we are currently assessing the claim and we are consulting with the government of Quebec. The fact that a notice of arbitration has been filed does not establish the merits of the challenge. Once again I remind my colleague across the way that just because he says something, it does not necessarily make it so.

The second point I want to make is that should this claim proceed, the Government of Canada will continue to work with the government of Quebec to vigorously defend our interests, including the pesticide management code.

The third point I would like to leave with the House is that NAFTA preserves a state's ability to regulate in the public interest, including issues concerning the environment and conservation.

I will end with those comments.

International TradeCommittees of the HouseRoutine Proceedings

10:25 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, my hon. colleague must admit that the Standing Committee on International Trade disagreed with the government's stand that somehow it was standing up for the interests of Quebec and the public. As he well knows, the reason this report is before the House is that a majority of the members on the Standing Committee on International Trade said that the government was not vigorously defending. That is the fundamental problem.

The other issue is very clear. The member is essentially saying that chapter 11 provisions are not a problem. Well, most honest taxpayers would disagree with him on that. The idea that we need to reward a company for bad behaviour and pay compensation when it produces a toxic product and that somehow it gets money out of it because of the perverse provisions of chapter 11, I think most Canadian taxpayers would fundamentally disagree with that.

I know the member and his riding well. I know that if he went door to door and asked if people would be willing to contribute $13 million for this toxic product because of chapter 11, most people in his riding would say “you must be kidding, you need to stand up for Canadians”. That is what we are saying the government should do.

International TradeCommittees of the HouseRoutine Proceedings

10:25 a.m.


Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, there seems to be a precedence and a pattern within the government and the previous Liberal government's negotiations, particularly with the United States, but on all trade agreements. The pattern suggests that policy and legislation made within Canada's own jurisdiction, whether it is at the federal level or the provincial level, is always subject to someone else's interests ultimately, which is a confounding notion to Canadians who go to the polls, elect people to speak on their behalf, come to a place like this to negotiate and debate, come to some resolution over what the policy should be in Canada's own interest, and then have those very same governments, our own governments, subject to a foreign interest, whether it be a commercial or foreign government's interests. I am thinking of the softwood lumber dispute that we went through recently where we are witnessing Canadian lumber policy being made by a foreign national government. The federal Government of Canada does not even have that power and yet the federal Government of the United States somehow was given that power in a trade agreement that Canada signed onto.

Now we have a case with pesticide management where Quebec seeks to protect its own interests, the interests of its citizens, and somehow finds that subject to a foreign company's interests.

Does this have any sort of a chilling effect on Canadian legislators and policy-makers when we are setting up our own regulations knowing there is this 800 pound gorilla out there that can actually subvert and destroy Canada's own actions, whether at the federal or provincial level?

International TradeCommittees of the HouseRoutine Proceedings

10:30 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I admire the member for Skeena—Bulkley Valley because he is one of the most knowledgeable members in the House on environmental issues. He comes from one of the most beautiful parts of the country. He is absolutely right. This is not only an attack on existing legislation, such as the Quebec ban on 2,4-D, but the chill effect on any other legislation that comes forward for health and safety and the environmental health of Canadians.

We are often criticized in the House by the Liberals and Conservative for having opposed the softwood sellout and the shipbuilding sellout, but for simple reasons. We actually read the agreements and we knew the impacts so we were able to oppose knowing what the impacts of those trade deals would be.

The member referenced the softwood sellout. Tens of thousands of jobs were lost across this country and dozens of mills closed. There is no doubt that it was one of the most irresponsible bits of public policy ever brought forward by the government. Supported by the Liberals, the Conservatives brought in the softwood sellout and softwood communities across the country continue to pay the price.

We are very proud that we stood up in the House. Our responsibility is to read through and understand the impacts, to do our due diligence, to do our homework, as we always do, and to push back when bad policy is being introduced. In this case, we have the support of the majority on the Standing Committee on International Trade and we hope to have the support of a majority of the House of Commons on this.

International TradeCommittees of the HouseRoutine Proceedings

10:30 a.m.


Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, 18 months ago, there was a case in which Canadian pesticide regulation on the fruits and vegetables that were produced and sold to Canadians in-house were achieving a certain level of stringency so that fewer and fewer pesticides were being used and fewer chemicals were coming into the Canadian food system and yet we received a challenge from the U.S.

The U.S. was saying that it wanted higher levels and, in some cases, it was 10 times the rate that Canadians were experiencing. What was Canada's reaction? It might be somewhat in connection to these trade policies but Canada relented and then allowed our chemical levels that were permitted on fruits and vegetables to be increased and, in some cases, tenfold.

It is perverse and bizarre. Folks back home assume that the power to set health and safety regulations and standards must rest with either the provincial or federal government. Therefore, when the government imposed this on fruits and vegetables saying that it would like there to be fewer chemicals because it knew from the studies this was harmful to Canadians, particularly to vulnerable populations such as seniors and young children, Canada did not have that power anymore.

How could we have possibly eroded such a fundamental principle in our democratic system?

International TradeCommittees of the HouseRoutine Proceedings

10:30 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, the member for Skeena—Bulkley Valley has put his finger on the exact problem of not only our existing trade policy but our policy in general over the past few years under the previous government and under the current government.

What we are seeing is the public interest being undermined. We need to ask to what end. The idea to increase the pesticide residue in Canadian food is absolutely ridiculous when people sense, as I do and as most of us across the country should, that Canadians actually want a higher standard of food safety. They want a better, cleaner food product available and better water quality. Canadians want higher standards not lower standards but what we are seeing, which is a perverse result of the investor state provisions, is the exact opposite.

If I had more time I could have read into the record pages and pages of the chapter 11 challenges against legislation that has been introduced in Canada at various levels opposed by some corporate CEOs using the chapter 11 provisions. It is not just the Ethyl Corporation, the $13 million Canadians have to pay out, or the 2,4-D ban in Quebec being attacked by Dow AgroSciences. It is a myriad of challenges and that is a fundamental problem.

When public policy is being challenged, not on the basis of whether it is good for the public or good for a certain corporate executive, then the public interest is being neglected.

International TradeCommittees of the HouseRoutine Proceedings

10:35 a.m.


Scott Brison Liberal Kings—Hants, NS

Mr. Speaker, I am pleased to speak today to this motion. We did have a debate at the trade committee on the issue of chapter 11. We heard from some witnesses on the issue of chapter 11 and some of the potential chapter 11 cases involving Newfoundland and Labrador and Quebec.

A provincial government has taken a position on a regulatory matter in terms of pesticides within its jurisdiction. We stand, and I believe and I certainly hope the government stands, in support of that provincial government on this issue.

We had a fairly short session at committee on chapter 11 but we need a longer study. I remember that day I spoke at committee urging it to at some point have a longer study of chapter 11.

The principle behind chapter 11 is that of national treatment, which is a reasonable principle. In fact, it is core to trade agreements. It is essential that we have some level of protection of national treatment to ensure that Canadian companies, which are investing abroad in other countries with which we have trade agreements, are not discriminated against by those governments. That could be in areas of procurement in some cases or it could be in areas of regulations in other cases.

We know now and we see what is going on in the U.S. around buy American and some of these other provisions what a pernicious impact protectionist measures can have on Canada and on Canadian companies. We clearly need provisions to protect Canadian companies, workers, investors and pensioners whose retirement savings and income depend on their investments being protected for Canadian companies doing business abroad.

I think most Canadians and most members of the House would agree that national treatment is a reasonable principle. We need to ensure that Canadian investors, companies and workers' interests are protected in the countries with which we enter trade agreements.

At the same time, for us to protect our workers, our companies and our investors in those countries, we need to ensure we provide equal levels of protection to their companies doing business in Canada. So there is a compromise there and a trade-off but it is a principle that we believe in.

The question about chapter 11 and the investor state provisions specifically within chapter 11 are important questions. Whether or not chapter 11 in its design is working in Canada's interests is also an important one. What are the other approaches to national treatment that other countries in their trade agreements are pursuing? Those are important questions that we need to study.

I have talked to some of the people involved in the negotiation of NAFTA, people who believe very strongly in NAFTA and strongly believe in the principles of free trade but who also believe that there are issues around chapter 11.

How do we deal with those in NAFTA? How do we reopen a discussion on chapter 11 and should we reopen NAFTA at a time of deepening and strengthening American protectionism? Those are important questions for us to ask in the House. Even with whatever flaws that may exist in chapter 11, I think most Canadians would agree that the NAFTA and the FTA have, by and large, benefited Canadians, have created jobs for Canadians and have increased competitiveness for Canadians.

The question is how we deal with investor state provisions, with the principle of national treatment and with chapter 11 of NAFTA.

It is an important study, not just in terms of our current agreements, our North American Free Trade Agreement, but in terms of future trade agreements and how we deal with the principle of national treatment. It is distinct from whether or not we open up chapter 11, potentially opening up NAFTA at a time when we see heightened American protectionism. It is quite possible that there are areas for future trade agreements where we may consider a different approach to national treatment and that there are ways to better protect Canadian interests and strengthen our capacity to defend the right of Canadian sub-national or national governments to put in place policies, environmental or otherwise, to protect our citizens and at the same time enter into and expand our trade relationships. I think those are important discussions.

We have not had, in my opinion, as much success as we should have had on some of these challenges. Is that because of flaws within chapter 11, or is that because the federal government has not provided enough resources or support to the challengers? Are we not providing enough support for chapter 11 challenges from within Canada? I have heard the case made by trade experts that the Department of Justice is not provided with enough resources, that it does not provide enough support to sub-national governments when they issue a challenge under chapter 11. That is important. It is one of the reasons we are seeing these disproportionate failures. We are not doing a good job at the federal level to help sub-national governments defend their interests and their capacity to protect their citizens.

In some cases legislation has been crafted that has not been chapter 11 compliant, that has been sloppy in its design. It was designed for a pre-NAFTA era, but then it failed when exposed to post-NAFTA rigour under chapter 11. We need to make sure that when we draft legislation, both at the federal and the sub-national government level, whether municipal or provincial, that the federal Department of Justice and the department of international trade work with other departments on the federal side that may be issuing a challenge, and/or they work with sub-national governments to ensure they are in fact compliant with NAFTA and chapter 11, and that it is tenable under NAFTA.

The whole approach of how we deal with this has to be looked at from the beginning. If a provincial or municipal level government intends to introduce a piece of legislation, say on the environment, we should make certain that those governments have access to federal expertise in the Department of Justice and the department of international trade to ensure they design the legislation in such a way that it can withstand NAFTA or chapter 11 challenges. The design of these initiatives is critically important.

Second, if the legislation has in fact been implemented in a way that ought to be chapter 11 resilient, then we should offer the provincial or municipal governments full support from the federal lawyers in the Department of Justice and the department of international trade.

Number one, are we doing our utmost at the federal level to support other levels of government in ensuring that they design legislation and regulations that are consistent with and tenable under chapter 11? Second, are we helping them enough, when there is a challenge, to succeed in fighting those challenges?

I would say that on both counts the federal government is not doing enough. We need to reach out. This is a federal government that has simply not engaged provincial governments effectively on some of these matters. For instance, with respect to the whole buy American issue, after seven months of buy American provisions, attacking Canadian jobs and exports at a time when we are seeing unprecedented job losses in Canada, the only leadership we have seen has come from provincial level governments in Canada.

I commend the provincial governments for filling the vacuum, rising to the occasion and taking leadership on that file. However, the fact is that it takes federal leadership and cooperation. I am certain that many of my colleagues opposite would agree that the Conservative Prime Minister has not built strong relations with provincial premiers and governments.

Frankly, at a time of global financial crisis and rising American and international protectionism, it has never been more important that we have a prime minister and a government that reaches out, strategizes, cooperates and collaborates with provincial and municipal governments. I think part of the issue is that the federal Conservative government does not understand the importance of close collaboration with provincial governments on these issues.

I alluded to the second issue earlier. We have to ask how we deal with the current chapter 11 provisions in NAFTA. I believe that the international trade committee should study chapter 11 thoroughly. I think we should put a significant amount of time into the study of chapter 11 so that we understand it.

The question that comes after is that when we have a more granular understanding of what we might do differently if we were negotiating a NAFTA again, would it then be in Canada's national interest to open up the NAFTA during protectionist times? I would assert that the bar had better be pretty high in terms of the gains to us if we were to propose to open up NAFTA during these times, because otherwise the risk would be very significant.

The third question is how we can better inform ourselves and our negotiators for future trade agreements. Clearly, national treatment is central to any trade agreement. We simply have to ensure that our companies are protected against discriminatory practices by foreign governments. That is important for Canadian workers, investors and union members whose retirements savings depend on Canadian equities that are invested in companies around the world.

We have to make sure that Canadian investments are protected. The only way to ensure that is to provide reciprocal protection to those investments. I do not think that anybody who understands the importance of trade would disagree with the principal of national treatment. The question is what the best vehicle and the best approaches are.

I would propose that when we have this study at committee that we bring in some of the people who were involved in the NAFTA discussions. We should bring in people like Gordon Ritchie, who was involved in the NAFTA discussions and who may have some views as to what could be done differently in terms of investor protection, investor state provisions and national treatment for other trade agreements going forward.

I think we should have a discussion at the trade committee about other issues as well, not just about investor state provisions. We should have a good discussion on the whole issue of chapter treatment versus side agreements on issues like the environment and labour.

It is not accurate to say that side agreements are meaningless, because they are not. In fact they can be very substantive and may have certain advantages over full chapter treatment, depending on what is written in the full chapter agreement and what is written in the labour and side agreements.

However, the point is whether we should be looking at what some other countries are doing. Some other countries are moving toward a full chapter treatment approach to some of those issues. Is that more substantive than side agreements with teeth and meaningful provisions to ensure enforcement?

Some trade experts I have talked with have argued that it depends on the specific agreement; it depends on the side agreements and the full chapter treatment. These are the kinds of issues we should have at committee. However, it is only possible if we are able to put our ideological weapons down.

When asked, there are people who simply say that they are pro free trade, because they are from the ideological right. And there are people who say that they are against free trade, because they are on the ideological left.

I think that the 20th century belonged to rigid ideologues and that in the 21st century the issues are far more complex, the challenges and opportunities facing Canada are greater, more frightening in some ways but more exciting in some ways, and it really takes an important debate that is less ideological than some of the ones we have had in this place in the past. That means we have to be prepared to look at these issues, not in terms of being a New Democrat and thus opposed to free trade agreements or being a Conservative and thus in favour of free trade agreements, but in a more mature sophisticated way, to actually study these issues and ensure we believe in trade.

But how can we strengthen our trade agreements to ensure we build a better global governance around issues of human rights? How can we strengthen our trade agreements so that we build stronger global and multilateral governance on issues of the environment? How can we ensure national treatment and protection of our Canadian companies as they invest and diversify their interests geographically outside the U.S.? How can we ensure they are protected and at the same time protect the rights of Canadian governments, national and sub-national, to implement legislation to protect its citizens?

Those are all important questions, and they are the types of questions that I hope the trade committee and this House could discuss and debate in a more open-minded, constructive way and less ideological and divisive way, because these are important issues for the future of the country.

Canada has the first trade deficit it has had in 30 years. As a small, open economy that depends on external trade for our standard of living and quality of life, we are now buying more than we are selling. That is ominous.

These trade agreements are important. There is a need to diversify our trade relationships outside of the U.S., outside of North America. There is a need to deepen our trade relationships with the EU, with India and China. China is growing by over 8% this year, and it is projected to grow by 8.5% next year, with massive investments in infrastructure, high-speed rail, clean technology, environmental sciences, clean energy and commodities, all of which are areas where Canada can lead and excel. We need to deepen our relationships with China.

The current Prime Minister has shown contempt for China and neglect for India.

We, the Liberal Party, believe in deepening our trade relationships with places like China and India, diversifying our trade relationships and building on multiculturalism, not just as a social policy, but as a successful economic strategy to build natural bridges in the fastest growing economies in the world.

These are important debates. We are committed, in the Liberal Party, to dealing with these constructively, to defend Canadian jobs and interests right here and to extend our influence on the world.

International TradeCommittees of the HouseRoutine Proceedings

10:55 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I greatly appreciated the remarks made by the hon. member for Kings—Hants, especially when he talked about a longer study of chapter 11. I would definitely be willing to support a longer study of those provisions in committee, if he were to propose it. I think this is an important aspect.

Of course, we have not always agreed, especially when it comes to the trade agreement with Colombia, which is still being debated in this House. We think it would be completely irresponsible to sign this special agreement with that regime, which has had so many problems in the area of human rights and has ties to paramilitary groups. That said, we do agree on some points at least, and a longer study of chapter 11 is one of them.

This government's lack of coherence and its lax attitude when it comes to defending Quebec's right to legislate on the introduction of 2,4-D is another aspect that must be noted.

Would my colleague agree that the government's actions in this file have been deficient so far?

International TradeCommittees of the HouseRoutine Proceedings

10:55 a.m.


Scott Brison Liberal Kings—Hants, NS

Mr. Speaker, I agree with the hon. member. The government must do more to defend our international interests. It must support provincial and municipal governments, and their efforts to preserve the legislation and bills meant to protect their citizens.

As I have already said, working with provincial and municipal governments has always been a Liberal priority, for we see the importance of defending their environmental efforts, for example.

At the same time, the government can do more, but in terms of the current cases, it would be very simple to have the Department of Justice and the Department of International Trade, and I would posit that we should have ministers, before committee. We should have the Minister of Justice and we should have the Minister of International Trade to actually discuss whether or not the resources are being provided adequately. We have to have the resources there.

There will be discussion on Bill C-23 and I look forward to having that discussion. I hope that it will be a truthful discussion in which the member presents the facts and not his hallucinations about the situation in Colombia.

International TradeCommittees of the HouseRoutine Proceedings

10:55 a.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, with regard to the Dow AgroSciences LLC case against the government, and this came up I believe on August 25, 2008, I had a look at one of the articles by Meg Sears, who is an investigator for the Children's Hospital of Eastern Ontario. I thought it would be interesting to have the member's comment on her conclusion with regard to the matter now before the House in this report. She says:

The Dow challenge to the regulation of 2,4-D by Quebec directly challenges Canadians' ability to take precautionary measures to protect health and the environment. Trade agreement should bring signatories to higher levels of protection, not the opposite--

She goes on, but I think we can get the gist of her concern here. She concludes by saying:

I urge the Government of Canada to defend the rights of all levels of government to enact precautionary measures to protect health and the environment, and to ensure that NAFTA puts Canadians' health before multinational corporate profits.

For the layperson, I think that really capsulizes the issues now before us, and it does not surprise me that the majority of the Standing Committee on International Trade wants to defend the rights of Quebec in this matter.

What does concern me, however, is that the government does not support protecting the health rights before corporate profit. This is very disturbing to me. I am sure it is very disturbing to Canadians and I would hope that the member could maybe try to explain why the government has taken a position contrary to the majority of the committee.

International TradeCommittees of the HouseRoutine Proceedings

11 a.m.


Scott Brison Liberal Kings—Hants, NS

Mr. Speaker, I know Premier Charest. I know him very well as a premier, as somebody who is very rigorous in his approach. Let us be clear. Premier Charest is a free trader. Premier Charest believes very strongly in trade. He is also somebody who has a strong history of environmental policy and strength. He was a former federal minister of the environment who earned a great reputation internationally as a minister of the environment.

Therefore, I believe that the Government of Quebec under Premier Charest's leadership would have subjected this legislation to great rigour prior to its implementation with the full understanding that it could be challenged through chapter 11.

I have every expectation that the legislation was designed rigorously and merits the support of the federal government. We have the Premier of Quebec, the Government of Quebec, take a strong position to ban a particular pesticide to protect its citizens and the federal government does not do anything. No wonder we are losing these cases, if the federal government does not do anything to help sub-national governments win them.

International TradeCommittees of the HouseRoutine Proceedings

11 a.m.


Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, in the past, in the member's different incarnations in one party and then another, there has been a consistency of support for these types of trade agreements.

My question is around the notion of anticipation. An international agreement contract is a signature of some sort of hope or desire for the future, no different than any other business contract, marriage agreement or international trade. It is the same thing. It is the coming together to agree on a more hopeful future.

Yet, did the member not, in endorsing this, campaigning for it and praising its glories to the Canadian people, anticipate that written into this agreement in chapter 11 was an element that would subject Canadian legislators to some sort of punitive action from foreign companies?

It is as black and white as can be and this was one of the concerns raised with the NAFTA at the time of its creation and its negotiation, that Canada would be subjected to this, in negotiating this piece in particular, aside from the ideological support of trade agreements, whatever it may be, by some in the House, and regardless of the conditions and terms that exist within the trade agreements. That is insane.

Did he and the folks that he worked with, on whatever side of the House he was working on at the time, not anticipate this very result? Provincial and federal governments would be subjected to foreign interests and affect the very laws that we hope to create, the very regulations we hope to promote, such as the pesticide one that we are talking about today, softwood lumber and others that have gone on, and Canadian interests would be, in fact, be hurt by agreements that he endorsed at the time and continues to endorse today.

International TradeCommittees of the HouseRoutine Proceedings

11 a.m.


Scott Brison Liberal Kings—Hants, NS

Mr. Speaker, the fact that I have said I want to see this studied at committee is to ensure that the principle of national treatment, which I support and believe in, is defended effectively on a go forward basis when we sign these agreements.

I actually said earlier today in the House and at committee that I believe, and I have spoken with some of the people who were involved in the negotiations of NAFTA, that there may be better ways than the current approach with chapter 11 to defend national treatment and at the same time protect Canadian interests.

I have actually said that which shows the capacity, when presented with facts, to change an opinion. Whereas the NDP has been against free trade agreements consistently when they have created a tremendous amount of wealth, prosperity, improved standard of living and quality of life for Canadians. In fact, I am willing to embrace change and willing to look at the facts on an ongoing basis. That is our job as legislators.

I am not ideologically blinded like the NDP which is against every free trade agreement despite the overwhelming burden of evidence that free trade is good for Canada.

International TradeCommittees of the HouseRoutine Proceedings

11:05 a.m.


Serge Cardin Bloc Sherbrooke, QC

Mr. Speaker, an American company, Dow AgroSciences, sued under chapter 11 of NAFTA for $2 million in compensation, claiming that Quebec's pesticide management code violated its right to sell 2,4-D in Quebec.

Quebec's pesticide management code, which was adopted in 2003, is the only one of its kind in Canada. It sets standards governing the use and sale of pesticides in Quebec. The code prohibits the sale of the herbicide 2,4-D for public health reasons. Quebec chose to ban this product because it considers 2,4-D harmful to human health and the environment. In case of doubt, the precautionary principle must apply.

Members will also recall that the Bloc Québécois member for Rosemont—La Petite-Patrie questioned the Minister of the Environment to make sure the government was committed to defending Quebec's pesticide management code. The government is talking out of both sides of its mouth, however. While the Minister of International Trade is saying he wants to defend Quebec's position on this issue, the Minister of the Environment is telling the United States that Canada must harmonize its policies with the American government's. According to my Bloc colleague, the member for Rosemont—La Petite-Patrie, the actions by the Minister of the Environment, in addition to undermining my efforts as the Bloc's international trade critic in this House at the time, were watering down environmental requirements and favouring the Dow Chemical Company at Quebec's expense.

We know that Équiterre, Ecojustice and the David Suzuki Foundation, along with other environmental groups, prepared an online petition that concerned citizens could sign to express their support for the code. Clearly, the response was in favour of protecting the code.

Moreover, this was the purpose of the motion the Standing Committee on International Trade adopted on March 31, 2009, a motion I had put forward. This motion said that the committee:

...recommends: that the Government vigorously defend Quebec’s Pesticides Management Code in the case opposing Dow Agroscience and the Government of Canada in order to safeguard Quebec’s right to enact legislation and make regulations in the public interest.

Two key elements stand out in all of this. First, there is chapter 11 of NAFTA and second, there is the right to protect public health and the environment. These two elements are obviously at loggerheads. This brings to mind the many, often heated discussions held on what was known as the SPP, the security and prosperity partnership of North America. The purpose of all these discussions was essentially to lower the bar for regulations in just about every governmental sphere of activity so that they would be comparable to those of the United States. There have been a number of examples or attempts in that sense.

As for chapter 11 of NAFTA, it was drafted and agreed to by Canada's negotiators. It is well known that Canada's negotiators have a very good reputation. I am not blaming them for all this. However, it is the government that tells them what it wants and thus they give direction to the negotiations.

We will always wonder why chapter 11 was included in NAFTA at the time if not primarily to protect corporate investments.

In the case of the United States, it was to protect the investments of their companies in Canada. In the case of Canada, it was to protect its investments in the United States. And look what happened. We began to see an increase in challenges, based essentially on the definition or interpretation of expropriation. We know it is not necessarily easy to draw a clear line in every case.

In Quebec and in Canada, in the wake of regulatory changes, a Canadian company does not have the same power to sue that a foreign company operating in Canada does. It is quite something to give foreign companies additional rights or the freedom to impose their views and to interfere in how Quebec or Canada operates. We know that the Government of Quebec has banned the use of this pesticide because it was being used in more domestic settings and was more likely to pose a threat to the public. When such a pesticide is used on big fields with close to zero population density, it is not the same. However, when the Government of Quebec legislated on this, it was to protect the environment and public health.

We can talk at length about chapter 11 on investments. I will come back to that. The real goal of the United States is to lower standards that restrict their trade. They are then free to sue Canada and in this instance Quebec.

We know this. It is all fine and well to talk about free trade, but the freedom to trade, as the lawyers say, goes something like this: when laws are passed, the freedom of some ends where the freedom of others begins. The freedom to trade, therefore, should also end where the freedom to health and a safe environment begin. Where is the balance? There are people who want to make money, who are prepared to sell all sorts of things. By all accounts, they do not think that way.

In this case, I believe, I am convinced, that the Government of Quebec is correct, and has the right to legislate and impose higher standards. I think that people in general feel that standards must be respected from one country to the next. For example, we heard from representatives of the European Union at the Committee on International Trade. They told us that the European Union had banned certain laundry detergent products. Naturally, the other countries made threats and even wanted to take legal action. The European Union stood its ground. When a sovereign country decides to establish quality standards based on its values and interests—I am talking about the health of its people and its environment—nothing should interfere with that decision. I said sovereign, and that makes me think that if Quebec were a sovereign country, it would likely establish standards and would demand that they be respected in its free trade agreements. That is one of the items discussed while the countries are negotiating.

The negotiating style of many countries makes it clear from the very beginning that some issues are non-negotiable. When a population respects its own priorities—which Quebec would do if it were sovereign—some issues are simply non-negotiable. Of course I support free trade, but not at just any price. We need limits and standards.

With respect to chapter 11, we know that Canada often signs bad agreements. Such agreements are part of a negative trend.They enable multinationals to sue governments directly over the policies they adopt. These companies believe that any measure—social, environmental or whatever—that cuts into their profits constitutes expropriation and requires compensation. These agreements also enable companies to sue for such astronomical amounts that they can prevent the government from working for the common good.

The Conservative government, which wants to give foreign investors complete freedom and does not want to regulate them, is involved in all kinds of bilateral negotiations to sign bad agreements modelled on chapter 11 of NAFTA and the Multilateral Agreement on Investment, the MAI, which everyone deplores.

Investment protection agreements do not have to be that bad. Of all the countries in the world, only Canada and the United States sign these kinds of agreements. The Bloc Québécois believes that Quebec would not copy the Canada-U.S. model, so we are asking the government to change its policy. Multinational corporations, like any other citizen, must submit to the authority of the state.

There can be no doubt that we support investment protection. It makes sense. A company looking to do business in a foreign country must be assured of a minimum level of respect and protection before dedicating assets, money and often human resources to set up shop in that country. However, that must not be at the expense of the country itself, its people or its environment.

Of course, in some countries, laws and regulations are too weak to protect people and the environment. That often happens with Canadian mining companies that are actually foreign-owned. They set up shop in Canada because they can take advantage of the Canadian government's unlimited protection for what they plan to do in foreign countries. These companies take action against labour rights and even the environment, but they are not punished for actions that would be unacceptable in Canada and Quebec.

We are in favour of foreign investment protection. We are in favour of protecting our companies' investments, and by the same token, we are in favour of investment protection in general, because a company can be expropriated for any reason.

For me, the word expropriation has a much broader meaning than to simply say that the company can no longer hope to bring in the same amount of profit as it had hoped when it was first established. As we know, things change. The expropriation we often see in municipalities, both in terms of property as well as measures taken by a municipal government, involves telling someone that he or she must physically change locations for some reason. Of course compensation is given, but not the same level of compensation that foreign companies think they should get, companies that come and set up in a country and then claim they have been divested, not of the assets they actually have and can exploit, but rather of their future, probable and expected profits.

Even the companies in each country cannot do it this way. There are three things wrong with NAFTA's chapter 11.

First of all, the definition of expropriation is so vague that any government measure, except for a general tax measure, can be challenged by foreign investors if it diminishes the profits generated by their investments. Indeed, a Kyoto implementation plan, which would have large polluters such as oil companies pay dearly, could be challenged under chapter 11 and result in government compensation. American companies hold majority interests in Alberta oil companies. Chapter 11 opens the door to the most abusive challenges.

Second, the definition of investor is so broad that it includes any shareholder.

And third, we have the definition of investment, which I will not explain, since I was just told that I do not have much time left.

What is important to take away from this is that any self-respecting nation, like Quebec if it were sovereign, would have high standards to protect its population and its environment, and those standards would be non-negotiable in a free trade agreement that is intelligently prepared and concluded.

I am convinced that protecting public health must be at the top of our priorities because the health of individuals is at stake. Usage must be legislated by those governments closest to their citizens, the municipalities, among others, supported in this case by Quebec.

Investment protection should be adjusted to a greater extent in the agreements the government enters into in the future and in those currently being negotiated, because Canada's existing agreements are bad agreements. We believe that there should be some protection for investments but not to the detriment of public health and the environment.

To conclude, in this agreement, unfortunately, we see the influence of what was once highly touted by the principal negotiators for Canada and the United States, this partnership for security and prosperity. We had to lower our standards to adjust to those of the United States in order to achieve prosperity. But they have been hard hit and that is not what we want in Quebec. We want to protect the health of the public and of the environment. When there is doubt, the precautionary principle must apply. That is what all environmental groups are saying. It is up to us to decide what is good for us and what we should defend in spite of chapter 11, which allows for bad agreements.

International TradeCommittees of the HouseRoutine Proceedings

11:20 a.m.


Peter Julian NDP Burnaby—New Westminster, BC

Mr. Speaker, I was very interested in what the member for Sherbrooke had to say. He is one of the most knowledgeable members of the House when it comes to international trade. We agree that the Conservatives have proposed a number of harmful measures in this area.

I have two questions for the hon. member. We are debating the agreement between Canada and Colombia. I know that the Bloc shares the NDP's view that it is completely irresponsible to sign such an agreement. We agree on this, but we would like to make a proposal: the Standing Committee on International Trade could look more closely at all the issues around chapter 11 and its impact on democratic governments like the Government of Quebec, which is under attack because of the provisions of chapter 11.

Does the member agree that NAFTA must be renegotiated in order to eliminate this aspect of chapter 11, which is so harmful to democratic governments?

International TradeCommittees of the HouseRoutine Proceedings

11:25 a.m.


Serge Cardin Bloc Sherbrooke, QC

Mr. Speaker, the member for Burnaby—New Westminster is reversing our roles: it is the NDP that is supporting the Bloc Québécois against the agreement with Colombia.

Clearly, when a country has a bad agreement, it must work on it and add clarification, such as the member for Kings—Hants described earlier. It all comes down to the negotiations and how to negotiate, but this chapter must be re-evaluated to avoid outrageous situations like what is happening with the Dow Chemical Company.

Agreements must be clear. Some things are acceptable, and others are non-negotiable. Health and the environment should never be negotiable.

I suggest that countries that want to trade with each other are mature enough to include major social measures in trade agreements, even at the WTO. These measures can pertain to labour rights or the environment. There have to be minimum standards so that countries like Canada do not hurry to sign bilateral free trade agreements just to exploit countries like Colombia.

At present, we are exploiting the anti-democratic policies that exist there when it comes to protecting people, health and the environment. There is exploitation, so there have to be standards. We have to move toward multilateralism.

International TradeCommittees of the HouseRoutine Proceedings

11:25 a.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, when I looked at some of the briefing notes, one area caught my attention, and maybe the member could enlighten the House.

It says when the proposed ban was announced by Quebec, Quebec's own internal documents actually indicated the absence of a scientific basis for the ban. That is a pretty strong assessment for why there should not be a ban.

The province stated that the ban was based on a precautionary approach, which I had indicated earlier in a question, pending the outcome of reassessments on the safety of 2,4-D. The assessments were conducted, and they found that 2,4-D did not pose a significant health risk.

Most people would say that if there is no evidence and the assessment shows no particular health risk, then carrying on simply because we believe doing so is precautionary does raise some interesting questions.

Almost none of the NAFTA chapter 11 disputes have been successful. Now I understand that other Canadian cities like Toronto and Halifax have implemented pesticide bans on 2,4-D.

First of all, if there is no health assessment that says there is a posed risk, why has no chapter 11 case been filed against the bans that have been made in other cities? There is something wrong here. I do not understand.

Maybe the member could enlighten the House as to the basis for the conclusion of the committee's majority report.

Second, why has a chapter 11 case not been launched against Toronto and Halifax?

International TradeCommittees of the HouseRoutine Proceedings

11:30 a.m.


Serge Cardin Bloc Sherbrooke, QC

Mr. Speaker, of course there is scientific evidence. For example, we know very well that there are some countries that have banned specific products on the basis of certain studies and analyses whereas others accept them on the basis of other studies. We find ourselves in a system where the assessment of certain products many not necessarily be identical. It is often a function of peoples' concern for health. “When in doubt, don't” is a an often used saying.

However, some organizations have clearly stated that there is a risk to health and that it increases with the proximity of the product to the individual. In fact, you could spend a whole day beside a sealed container of 2,4-D with no problem at all. The application of 2,4-D on fields by farmers who respect the recommended standards, where people are not nearby, is altogether different than its cosmetic use on lawns, parks and gardens, where people use the product and remain in the parks and gardens.

Therefore, in this matter, the precautionary principle does apply because, I will reiterate, when in doubt, don't. Nevertheless, other scientists also say that there is a danger to health.

International TradeCommittees of the HouseRoutine Proceedings

11:30 a.m.


Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, my question is really a follow-up to the previous questions asked of the member for Sherbrooke.

If there are shortcomings with respect to both bilateral and multilateral applications of chapter 11 along the lines that the member is concerned about with respect to opening the door to pollution and the kinds of pesticides that have been cited and so on, what would he suggest we do in terms of applications of international rule of law?

Also, if that cannot be found and that is a problem, is he suggesting that there should be no free trade agreements, that we should have a moratorium in a global economy and not take any initiatives with respect to trying to find these kinds of fiscally balanced relationships that will add value to both national economies and international economies?

International TradeCommittees of the HouseRoutine Proceedings

11:30 a.m.


Serge Cardin Bloc Sherbrooke, QC

Mr. Speaker, I believe that in my speech earlier I said that the Bloc Québécois is fundamentally in favour of free trade. Indeed, we have to trade with other countries. Indeed, we can invest in other countries, just as other countries can invest here. Nonetheless, certain situations show that poor negotiations result in bad agreements.

We have known that for years. During the first few years after this agreement was signed with the United States, things were dead calm; there were no lawsuits. Consider chapter 11 for a moment. There are always experts who see certain opportunities and we know that the United States of America is renowned for its litigious nature. Even the American public likes to sue. If you were a weather forecaster and you promised good weather tomorrow and the weather ended up being lousy, you could get sued for that. They are well versed in lawsuits.

As soon as this flaw in chapter 11 was noticed, an immediate attempt should have been made to correct it. And why was this flaw repeated in all the bilateral agreements signed by the government? Investment agreements have been copied from chapter 11 and open the door to foreign companies to sue Canada and Quebec.

We should adjust our standards, as other countries have done, and our agreements should be signed based on standards that we respect.

International TradeCommittees of the HouseRoutine Proceedings

11:35 a.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, the first item on today's projected order of business was Bill C-23, which is the Colombia free trade agreement. I know it is of significant interest to the House and to many Canadians, particularly those who are concerned about human rights abuses in Colombia and the propriety of getting into a trade deal.

For those who may have tuned in to try to understand what is going on here, I thought I should briefly explain that the members of standing committees do report to the House. In its second report, the Standing Committee on International Trade reported with regard to a pesticide dispute under chapter 11 of NAFTA. Their majority recommendation was that the government vigorously defend Quebec's pesticides management code in the case opposing Dow AgroSciences and the Government of Canada in order to safeguard Quebec's right to enact legislation and make regulations in the public interest.

That is the recommendation to the House. It is a recommendation to the government to express the view of the majority of the committee. I repeat that it is a majority, because the government members of the committee did not support this report. The opposition parties were the ones who made this recommendation. It probably hearkens back to the history of talking about NAFTA issues here. I know it has come up a couple of times in debate with regard to the softwood lumber dispute and in the debates that went on in this place for a substantial period of time.

The debate during that period really demonstrated to Canadians how rigorous this process of dispute-settlement resolution can be, how nasty it can get, how there are different pieces that can take place, how the moneys were going back and forth, and how the arguments were very nuanced and difficult. Again, it was a situation where the majority of the House opposed the deal, but the government was supportive of the resolution.

There is certainly a pattern here that raises some concern. In any case, we are debating this report, which is a recommendation of the standing committee. This debate will go on until no members rise or until three hours have passed and there is a vote on the motion. It is always nice to make reports to the House, the government and the minister, but if we do not want to have the response of the government and we just want make our point and throw it out into all of the reports that are tabled in this place, there is no onus on the government to respond to this recommendation formally.

The government members at committee made their positions known, and unless one reads the transcripts of those committees and looks at the questions in all of the details, most members will not know. This is very complicated material and the issues are very important. When we see these reports, it is interesting to know that if members do not ask for a government response within 120 days it means that they do not want a response. That means that we are just going to throw this into the pool, and whenever members come up to routine proceedings on motions, people can just say, “I would like to move concurrence on that report. Let us talk about that report”.

That is where we are right now. I wish that there had been a request for a government response on this thing, because it was the government members who opposed the majority position of the committee. We are going to be debating this. We will get on to Colombia. There are some excellent speakers on Colombia free trade who are going to be speaking on that bill, so hopefully we will get back to it quickly.

I want to share with members some of the aspects we have been talking about. There has been a lot of talk about chapter 11 and about expropriation and so on. How does all of this tie together? The best thing for me to do is to refer to an assessment on this matter done by a researcher, Meg Sears. She has a Ph.D. and is the adjunct investigator for the Children's Hospital of Eastern Ontario. She wrote a very interesting paper which frames the issue that is before the House and which the committee considered. She is a scientist and a medical writer and she wanted to assist the committee in its study. She has examined Canada's pesticide assessment process by the Pest Management Regulatory Agency, the PMRA as other members have referred to it, and the assessment of the herbicide 2,4-D which is the pesticide which Quebec has banned.

There has been a challenge by Dow. She concluded that Dow's notice of challenge of Quebec's restrictions on the use of 2,4-D shows how Canada's sovereignty to protect citizens from toxic exposures is compromised by NAFTA chapter 11. That is a very significant statement. Our sovereignty to protect Canadians is challenged by NAFTA chapter 11. There is substantial information which I would be happy to provide to members if they are interested, but I would like to go immediately to her conclusion in regard to this matter. She said:

The Dow challenge to the regulation of 2,4-D by Québec directly challenges Canadians' ability to take precautionary measures to protect health and the environment. Trade agreements should bring signatories to higher levels of protection, not the opposite, compelling governments to expose their citizens unwillingly to toxic chemicals in their homes and neighbourhoods. Although it is beyond the scope of the present committee, one must also wonder about the extent of PMRA complicity, as 2,4-D was re-registered with incomplete, sub-standard data and misinterpretation of important information.

I urge the Government of Canada to defend the rights of all levels of government to enact precautionary measures to protect health and the environment, and to ensure that NAFTA puts Canadians' health before multinational corporate profits.

That is very, very significant. I commend the assessment done by Meg Sears. It shows the importance of this matter and the fact that it was just a report from a committee should not be taken lightly and we should protect Quebec's rights to do this.

I mentioned earlier when asking a couple of questions that there have been similar bans in Toronto and Halifax, but they have not been challenged. If there is an existing challenge under NAFTA chapter 11 with respect to Quebec's ban, we have to ask why that challenge would not automatically be extended. Maybe the mechanics of it is that if one can be won, maybe subsequent challenges could be fast-tracked to bans in other jurisdictions.

I also want to comment on NAFTA chapter 11. We in this place will probably have NAFTA on our agenda as long as there is a free trade deal with the United States. Members have already mentioned their concerns about protectionist measures in the U.S. precipitated by the global economic climate.

We can understand that countries want to do whatever they can to recover in their own economic sphere, but they also understand that we are inextricably linked with our trade relationships and we have existing deals. When there is this aggressiveness that we want to protect and enhance domestic trade, we put pressure on areas such as bilateral trade that occur in some of the aspects that fall under the purview of the North American Free Trade Agreement.

The purpose of chapter 11 is to facilitate the flow of investment within North America. That is what it really gets down to. This is very complicated. It does so by establishing a framework of rules and disciplines that provide investors from NAFTA countries with a predictable rules-based investment climate. These are the kinds of things that happen generically.

When I looked at the rest of the briefing notes, I realized that this is a complex maze of push-pulls and it takes full-time work to really understand. I commend committee members for being able to wrap their minds and their attention around such an important matter when it is fluid and constantly evolving. Like most laws and even our Constitution it is almost like a living document. Every time there is another challenge, another precedent is set. These are the kinds of things that affect the decisions that are taken by Canada and by the provinces.

Chapter 11 also establishes a mechanism for the settlement of disputes that might arise from potential discriminatory charges. In this way chapter 11 effectively prevents governments from taking measures that amount to discriminatory nationalization or expropriation of a foreign investment without paying compensation to the investor. That is the essence of what we are talking about in terms of the current challenge with regard to 2,4-D.

People should know a little bit about the elements of chapter 11 which come up in debate. Chapter 11 is broken down into two sections, sections A and B. Section A has the main provisions.

Article 1102 refers to national treatment and it states that each NAFTA party will treat investors and investments from other NAFTA parties no less favourably than it treats its own investors and investments, in like circumstances, with respect to such matters as the establishment, acquisition, operation and sale of investments.

Article 1103 will come up. It deals with most favoured nation treatment. It states that a NAFTA party may not treat an investor or investment from a non-NAFTA country more favourably than an investor or investment from a NAFTA country.

There is also the minimum standard of treatment in article 1105 which assures a minimum absolute standard of treatment of investments of NAFTA investors based on long-standing principles of customary international law.

Article 1110 has to do with expropriation and is specifically related to the matter before the House in this report. Article 1110 states that a NAFTA party cannot directly or indirectly nationalize or expropriate an investment of an investor of another NAFTA party except one, for a public purpose, two, on a non-discriminatory basis, three, in accordance with due process of law, and four, on payment of compensation equivalent to fair market value.

Most committee members probably had to spend a fair bit of time to understand the meaning of the provisions. I think that is why we have had such hot debates in this place with regard to NAFTA challenges and particularly matters where dispute settlement resolution has not seemed to work.

The key issue in article 1110 is the meaning of the term “tantamount to expropriation”. This is where it gets down to the subtleties. It is well established in international law that the term “expropriation” need not refer to the transfer of title of property. A country can be considered to have expropriated property if its actions have the effect of significantly diminishing the owner's right to extract economic benefit, including profits from that property.

Members will understand that when we are talking about the expropriation issues here, we are not talking about taking away anything. In fact, it is affecting the rights that flow from this matter, to the extent that if Quebec bans the use of a particular pesticide, another NAFTA country is going to be impacted by not being able to either export to Canada products that use that pesticide or something similar to that. That is the subtlety and that is why the term “expropriation” is being used, but not maybe in the traditional sense that members would understand.

Section B of chapter 11 outlines the dispute settlement provisions. These provisions allow the investors of one NAFTA party to directly make claims against the government of another NAFTA party through the arbitration process. NAFTA outlines certain general procedures regarding the arbitration but stipulates that such arbitration must be conducted in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, referred to as the ICSID convention, and facility rules of the ICSID or the arbitration rules of the United Nations Commission on International Trade Law.

The mechanism of chapter 11 dispute settlement is not without controversy, as we know. The process has been criticized for its lack of legitimacy and transparency. It also has a limited form of review and no recourse of appeal. That is a challenge. It means that we need to be very careful how we address these matters because when one is in that situation, without recourse for appeal, decisions are full and final and it does get a bit sloppy.

It is also important to note that NAFTA stipulates that no chapter 11 tribunal decision can be used as a precedent in subsequent chapter 11 cases. I referred to the Halifax and Toronto bans on this pesticide, and although there may not be the applicability of a precedent on the disposition of the Quebec issue on the same matter, certainly the arguments and the evidence would be available, although the decision may not be binding. In other words, no body of jurisprudence can be built up over time. Each case is considered to be a unique event.

I thank the members who brought this particular debate to the House for doing the work to take a position. It does raise the question though of why the government does not support the majority decision of the committee. That is very troubling to me and it should be troubling to all members. That is why I am a little disappointed the committee did not ask for a formal government response. The government must be accountable to the House. It must respond. We have missed that opportunity. Maybe the members are satisfied that they heard substantively the government arguments at committee and I hope that they are going to share them on some specific basis.

I had also raised the fact that when Quebec made the ban, it did not have a scientific basis for the ban, but as I indicated earlier and I will conclude with this, the report of Meg Sears states that the Government of Canada should defend the rights of all levels of government to enact precautionary measures to protect the health and the environment of its citizens.

That is the essence of the argument and why the committee took this position. I hope that the government will now respond to the committee report.

International TradeCommittees of the HouseRoutine Proceedings

11:50 a.m.


Alan Tonks Liberal York South—Weston, ON

Mr. Speaker, as usual my colleague has provided a pretty exhaustive overview with respect to the principles of application of a chapter 11. He has argued that the precautionary principle should be incorporated into a chapter 11 framework, such that it provides for, within the rule of law and the principles of chapter 11 and NAFTA, protection as well as the opportunity for a national interest to be protected.

The member has indicated that committee did not have the opportunity or did not seek further opportunity to pursue that line of thought, and I am sure the House would be interested in this. What would the member suggest would be the next step? I do not think he has suggested that the free trade agreement with Colombia, or any free trade agreement, should not go forward. However, what would he suggest would be the process for the House to develop the protection through the precautionary principle but would not violate the essence of a chapter 11 application that the WTO obviously applies? There have been successful and unsuccessful hearings. What is the process that the House can initiate and continue and where would the member see that would take us with respect to protecting national interests?

International TradeCommittees of the HouseRoutine Proceedings

11:55 a.m.


Paul Szabo Liberal Mississauga South, ON

Mr. Speaker, I thank the member for his kind words.

First, on Colombia, I have already spoken on the bill and I am on the record as saying that I understand the benefits of trade. However, I have also heard from my constituents and many people from across the country who are concerned about the human rights issue in Colombia and would like to have an independent assessment done. Unfortunately, I understand that even Amnesty International has refused to participate in an independent assessment, so that is much more complicated.

Getting back to the substance of the member's question, I found in all the things we have done that there is very little black and white in trade agreements. There seems to be an ability to shape arguments and to use certain things, even to the extent that every case on a matter is dealt with as a unique case where there is no precedents. If we were to be an efficient dispute settlement resolution system, we would think that all of the work one had done in the past on same or similar matters would be relevant to the decision. We certainly understand that no two disputes may be identical in all regards, but certainly the core and the essence of the dispute and the evidence that is there must be relevant and must be used.

I have great difficulty with the mechanics. There has always been this issue of dispute settlement recognition, which never seems to have worked in Canada's favour. We always seem to be one step behind and the outcomes have not been very favourable to us.