Mr. Speaker, at the outset, I will clarify for the members of the House that this motion put forward by the official opposition today has nothing to do with whether one is for or against foreign investment. On this side of the House, we have been very clear that we are for foreign investment, but what we need is governance and protection of sovereignty. That is the responsibility of those on the other side of the House who were elected to govern.
Our motion today mirrors calls by the Calgary Chamber of Commerce following another motion by the New Democrat opposition. Two years ago, on November 4, the former NDP leader, the late Jack Layton, moved a motion, which received the unanimous support of all the parties in this House that called for immediate steps to amend the Investment Canada Act to ensure the views of those most directly affected by takeovers would be considered; that any decision that a takeover bid delivers, a net benefit to Canada would be made transparent; to make public hearings a mandatory part of the review; to make the hearings open to all directly affected; that all conditions be made public and transparent and that there be improved monitoring and enforcement with stiff penalties; and to clarify the goals of foreign takeover reviews and that it does not merely allow the control of a Canadian asset .
When he tabled his motion, the late Jack Layton said:
The NDP is not opposed to foreign investment, but it wants to ensure that it is good investment, investment that creates jobs in innovative areas, that promotes sustainable practices and that produces other benefits that Canadians are looking for. When it comes to selling major Canadian companies, we believe that Canadians need to know how the sale will benefit them. But that will not happen as long as the Investment Canada Act is not amended. Right now, decisions are made behind closed doors. Government does not have to tell us. We are just supposed to take its word for it when it approves these takeovers, and frankly, Canadians are left in the dark when it comes to the future of their natural resources, their jobs and key industries in our economy.
I actually took the time to read the legislation that is before us today. I always feel it is very important that we actually know the context within which the government is making its decisions: Are there actually some problems with the legislation or is it a problem in the way that the legislation is being interpreted and applied? What I discovered in reviewing the legislation was that it was rather vague in its reference. Surprisingly, however, there are a number of discretionary powers granted to the ministers under the legislation that they could actually exercise to make this process more fair, open and transparent. Therefore, it may not necessarily be a problem with the legislation but a problem with the mindset and attitude of the Conservatives who simply do not believe that anybody but the two parties at the table have a right to participate in the sale of Canadian assets, how that sale should proceed, what kind of conditions will be imposed and how they will be enforced.
What actions did the government take to improve the regime after it voted unanimously for the late Jack Layton's motion? It introduced a number of measures which, as business lawyers have pointed out to us, are not adequate. It varied the thresholds for net benefit from $330 million into the future to $1 billion per enterprise value. Legal experts are saying that is really not clear and that we do not know what enterprise values are. The April omnibus budget bill managed to sneak in new powers for the minister for security payments but the lawyers say that the mechanisms are limited and that there is no penalty for non-compliance unless there is a court hearing.
The government has also introduced the idea of mediation. It has done this by guideline. What I found most interesting when reviewing the legislation was that in this very critical regime, not only in a foreign takeover but a foreign takeover by another sovereign body, most of the decision making by the government is by guidelines. There is no review in this place or by the public, and those guidelines are not legally binding. Therefore, there is no consequence if they are not followed.
It is also very important that, when conditions are imposed, individuals cannot even go to court until they first try to resolve the issue through various other means. It sounds like they can circumvent that and go by mediation. It is not clear then that this is enforceable.
The critical aspects of foreign takeovers yet to be reformed include, for example, the processes for approving or rejecting takeovers is still behind closed doors. The detailed reasons are not revealed. As some of my colleagues have stated, the government has suggested we contact China if we want to find out the details.
The second issue is the net benefit to Canadians criteria. The effect on the employee is not defined or clarified. It is not clear if that includes the necessity to reveal if the foreign national intends to import labour or to rely on temporary foreign workers.
The aspect of the effect on resource processing does not specifically require a commitment for value-added upgrades or for additional employment in Canada. Additional factors have not been added whatsoever despite undertakings two years ago.
There is no requirement to consider the compliance record of the entity trying to take over Canadian corporations. There has been a lot of concern expressed by Canadians about the compliance record of some of these companies that are bidding.
There is no requirement to consider human rights and labour. There have been many concerns raised by both Amnesty International and, most recently, by the Canadian Coalition on Human Rights. They have stated that even the revised guidelines for investments by state-owned enterprises announced today failed to incorporate human rights considerations. Also, as has been raised by many in the House, including the Calgary Chamber of Commerce and a lot of the oil and gas sector, there is no reciprocity for Canadian investment in the foreign national that is bidding.
What about the record on enforcement? As I mentioned, the minister actually has a number of powers to enforce these conditions. As my colleague, who spoke before me, was sharing, this is one example where the government has allowed a foreign takeover, presumably with conditions. No action has been taken to actually enforce those conditions. We have had case after case in this country where conditions have been imposed and the government has failed to assert its responsibility to enforce those conditions.
What about the national security trigger? It was much to my surprise to discover that in the legislation, even when the minister has reasonable grounds to believe that there might be a concern with the national security, he or she has complete discretion to look into whether there might be an issue for national security. Surely this is another issue that needs to be considered openly with the public and with the House on how to make this a much better regulatory regime to provide governance for foreign takeovers.
Regarding transparency, the law currently provides an array of powers for the minister to disclose more information. In his discretion, he is deciding not to. Is there more clarity in the takeover rules? No. With the government's decision to approve the Nexen-CNOOC takeover, neither Canadian investors nor Canadians generally are left with greater clarity of the rules. Worse is when a bid will be allowed and when not.
Many constituents, including resource lawyers and members of oil and gas companies based in Alberta, have raised concerns with me over the past few months. One lawyer, who is the vice-president of a pipeline company, stated that she had seven serious concerns dealing with reciprocity, no dealing with human rights and no evidence the takeover would create Canadian jobs.
This motion calls for a comprehensive review of the Investment Canada Act, the need for clarification of net benefit rules, improved transparency, greater consideration as to reciprocity and conditions to protect Canada against foreign government interference. These are exactly the measures that the Calgary Chamber of Commerce called for at the finance committee.
I would concur with a number of speakers this morning. What are exceptional circumstances? We have absolutely no clarity. We are no further ahead except that we now have a foreign national that which will own some of our resources in the north of Alberta. As the Prime Minister said, “this is not the beginning of a trend, but the end of a trend.” In the words of Andrew Coyne, “What trend?”