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Canada-China FIPPA agreement may be unconstitutional, treaty law expert says

The Canada-China Foreign Investment Promotion and Protection Act (FIPPA), Canada's biggest foreign trade treaty since NAFTA, will come into effect at the end of October and bind both the federal and provincial governments of Canada to its clauses until 2043. International investment law expert and Canadian citizen Gus Van Harten says provinces have a strong case for challenging the treaty on constitutional grounds.

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Prime Minister Stephen Harper shakes hands with Wen Jiabao, Premier of the People's Republic of China, in the Great Hall of The People in Beijing, China. PMO photo by Jason Ransom.

With two weeks remaining before the controversial Canada-China Foreign Investment Promotion and Protection Act (FIPPA) is ratified, international investment law and treaty expert Gus Van Harten says BC has the option of delaying the treaty's ratification through the courts.

"The province can call for an injunction in the BC Superior Court, requesting the courts to order the federal government not to ratify the treaty until the constitutional issues are resolved," Van Harten told The Vancouver Observer.

The other option, Van Harten added, was an upswelling of public opinion against the treaty that would pressure elected officials in Parliament as well as provincial legislatures. 

According to international law, a foreign investment protection agreement (FIPA) treaty binds the state regardless of changes in federal or provincial governments.

"It's a done deal between the two countries—by signing a treaty, the Harper government can bind future governments and bind the Canadian electorate for 31 years," Van Harten said. 

Van Harten— who has a PhD in international law from the London School of Economics and teaches law at Osgoode Law School— is one of five internationally recognized experts in Canada on international investment and treaty law and how they work on a practical basis. He said that he is an outlier for speaking out, based on his experience.

"The difference between me and many others is that a lot of academics work in the system as lawyers or arbitrators or experts, and they're much more cautious about saying things that are critical of the system," he said.

He noted that FIPPA is good news for lawyers, who stand to profit from the potential multi-million dollar lawsuits.

"The lawyers who work in this field will like that—their business is to sue," he said. "It's not good for Canadian taxpayers."

Any province with Chinese investors in natural assets over the next 31 years has right to challenge constitutionality of FIPPA

BC isn't the only province that has a strong case in courts against the federal government over FIPPA because they face potentially serious fiscal risk if Chinese companies invest in major assets.
 
"It could be Ontario down the road, it could be the ring of fire— which is a strip of mineral rich land in Northern Ontario. In the north, there could be development of mines in northern Canada," Van Harten said. "Same with Saskatchewan, with the mineral right there."
 
"In Alberta, the Alberta economy is going to have a significant portion of Chinese ownership in its resource sector, and if Alberta was concerned for a long time about not having control over its resources vis-à-vis the federal government, how does it feel not having control over its resources vis-à-vis Chinese investors?"
 

The only provincial governments that shouldn't be concerned about FIPPA are the ones which won't expect to be getting any significant Chinese ownership of assets, Van Harten said. 

"I don't think any responsible government can assume that that's going to be the case. In fact, they should be assuming the opposite and asking the questions now before the 31-year commitments are finalized on October 31 In fact, they should be assuming the opposite and asking the questions now before the 31 years kicks into effect on October 31."
 

Van Harten's concerns "speculative": BC Environment Minister Terry Lake

Van Harten also sent letters to premiers of all across Canada, including BC Premier Christy Clark. He did this to help the provinces understand the scope of the fiscal risks this treaty will have on them and taxpayers.

Clark's Press Secretary Michael Morton confirmed that Clark's correspondence branch received the letter. Clark did not respond to questions from The Vancouver Observer about her reaction to any of the concerns it raised.

BC Minister of Environment Terry Lake responded to Van Harten's letter to the Premier and concerns about FIPPA in a written statement, calling the letter "speculative":

“We are intervenors in the hearing and examining issues that are critical to our five conditions that must be met on all pipeline projects in BC. At the same time we are working with our federal counterparts on [Northern Gateway Proposal] related issues where BC’s interests are at stake."

"As this is ongoing work and international treaties are the purview of the federal government I am not going to comment on speculative comments by Mr. Van Harten.”

(15) Comments

Red Mitten October 17th 2012 | 3:15 PM

Pls share & EMAIL BC Premier Christy Clark at premier@gov.bc.ca  Demand that she immediately have the superior court of BC stop the fed gov't from ratifying the China Canada #FIPPA deal/sellout until the constitutional issues have been resolved in court. Time is short so we need to get on this :D http://www.vancouverobserver.com/politics/canada-china-fippa-agreement-u...

Lorih2o October 18th 2012 | 6:18 PM

While I respect BC Minister of Environment Terry Lake's qualifications as a veterinarian, I hardly think it appropriate for him to be calling the comments of internationally respected international trade law expert Professor Van Harten's "speculative." Professor Van Harten is clearly trying to use his significant expertise as a legal expert in these trade agreements, to warn British Columbia and the other provinces and territories of the pitfalls of the agreement. Christy Clark, Terry Lake - take heed. Don't sit on your hands. Appreciate the legal analysis, do your due diligence, and act on behalf of British Columbians. Spare us the "speculative" comments when you clearly don't know whereof you speak.

Forward Thinker 2 October 19th 2012 | 10:10 AM

I do not believe the BC Liberals actually want to stop the pipeline. This would be the perfect mechanism to do so. It reinforces my belief that the demands from Lake and Clark are shuts show casing. FurtheI, I believe there are likely grounds for First Nations to challenge this Treaty, because it ham strings them from stopping development on their lands as well. I am surprised the union of BC Chiefs have not filed an injunction already.

Kevin Logan October 20th 2012 | 6:18 PM

Interesting work.

In June 2010 the BC Government signed an Equivalency Agreement which forfeited BC's right assess and decide on Enbridge and 3 other major gas infrasturcture projects.

Earlier in 2006 the same government did the TILMA agreement, which also removed all levels government from deciding on such projects or implementing policy deemed as obstalcles to their development.

BC ENGOs were not only silent but they were busy boosting the government responsible and worked hard to get them re elected in Campbells threepeat based on support for a failed regressive Carbion Tax.

So it is somewhat surprising to see such attention to this most recent trade agreement from this corner. Odds are that existing proposed projects like Enbridge will escape the FIPPA web. Which I guess explains why all the focus on this one and not on the Equivalency Agreement, TILMA and its successer the North West Partnership Agreement. 

Such bold work leaves a lot to be desired. Where were you when it mattered?

sue nim October 21st 2012 | 10:10 AM

China made no concessions for a take over and Canada is the same... one take over was by force, this through money...

Treason

1.the offense of acting to overthrow one's government or to harm or kill its sovereign.

 2.a violation of allegiance to one's sovereign or to one's state. if Harper signs away Canadian rights in any way, THAT is treason... if China can sue Canadians over CANADIAN resources then Canada no longer remains sovereign of its land. to give away that basic RIGHT is TREASON... Harper is guilty of treason.
(and considering it was all done in secret and there was NO VOTE in parliament, it was not done in a democratic way or represents Canadians in any way... how is this 'treaty' for Canadians??!!?)

 

Sleel October 21st 2012 | 1:13 PM

 All for a pipeline to the west coast. Not even remotely in support of selling ANY company to China. Seeing as any company they have is merely a front for the Chinese Gov I see no good reason to sell control of our resources to the Chinese Gov. They can buy at the pump like anyone else. Theirsovereignty ends at their border, NOT in ours.

  Not Withstanding Clause, anyone? This seems like a good time for it's first invocation.

Neb Radojkovic October 21st 2012 | 10:22 PM

God... We might have a terorist for a Prime Minister. Unless he is not developed enough to know what is good and what is bad for us, he might be doing this on purpose.

All the Canadian provinces and territories are interdependent and interconnected.  All of us depend on the environment, resources, jobs, monitors of the ozone, transparency in government and democracy!  Therefore ALL of Canada's provinces and territories SHOULD CARE

Furthermore other nations should care when the country that all the others depend on for ozone monitoring, Canada, is signing a deal with a nation that disregards the ozone for oil like an old holey sock.

dennis baker October 23rd 2012 | 8:08 AM

"Providing assistance in consultations under Article 1114 of the NAFTA where a Party considers that another Party is waving or derogating from, or offering to waive or otherwise derogate from an environmental measure as an encouragement to establish, acquire, expand or retain an investment of an investor with a view to avoiding any such encouragement."


I trust this is of assistance to you.dennis baker 
stephenisstalin October 23rd 2012 | 10:22 PM

FIPPA is awesome all the gun crazy rednecks that hated Nafta will surely hate knowing a bunch of chinks will own Canada lock stock an barrel... safe to say Steven willl be floating to China in a boat made of concrete before 2015 when all these stunned idiots that voted for him finally realise how much of a facist this Stalin Idolizing fool really is! 

Charmaine October 26th 2012 | 2:14 PM

Almost all Chinese companies in China are state run and all are heavily influenced and guided by the CCP. This is a regime that is conducting a Holocaust that is worse than Hitler's, the organ harvesting of Falun Gong practitioners, and it has the highest execution rate in the world. They never practice social and business justice and ethical practices and frequently encourage breaking their own laws. They lie and cheat and constantly abuse anyone around them, including those within their own ranks. The majority of the Chinese people want to throw them out. 

So, why does Harper want to bring them here and take away the rights of the people of Canada? Why does Harper want to literally destroy Canadian business, land, and democracy? 

Canadians have a right to open debate and forums before legislation is passed; it is in our Constitution and Charter of Rights and Freedoms. If I stood up against the atrocities the CCP and its companies do and they see it is a negative effect on their profits, Harper gives them the right to sue Canada and win behind closed doors! 

Check the ninecommentaries.com to find out what really is occurring in China and has been for decades and you will know what Chinese companies are like. You can also read Secret China. Remember led paint in baby food, poisoned dog food, tainted cheap building materials, and fake copies of everything, including confidential personal information! Remember Shi Tao and the Yahoo scandal! How about Google and Cisco? What about CISIS and Chen Yonglin's claim about the Chinese spies? This is what will take over Canada's oil sands, proposed pipelines, and companies and Canadians right to free speech and thought and democracy. Thanks Harper for your UnCanadian decision! Canadians, I urge you to stand up against this atrocity!

G.J.W. October 27th 2012 | 6:18 PM

We are far too late. Canada was gone the minute Harper won, his so called majority. His sell out to Communist China, has been on the books for a very long time.

Harper also lied and cheated his way out of, his robo-call cheat, and the riding disputes. Harper had to stall the riding disputes, until he was able to install his new Conservative judges. Harper's judge, overruled the other judge, that decided the Etobicoke election null and void.

All the jobs at the tar pits, are taken by Red China. The takeover of the tar sands by China, is already a done deal.

As we know, Campbell worked for Harper, and still does. Gordon Campbell has already sold BC's resources out to China. Christy just solidified her part, in the sell out of BC to Red China. She too works for Harper. She had Harper's man Boessenkool working for her. Chinese are going to work the BC mines. There are no jobs for BC citizens.

The new mines in the North, owned by the Americans, are bringing their own miners with them. The Americans get most of our contracts. They won the tear down of the old smelter, they are also building the new smelter. They brought their own people with them too.

If China owns any of those mines, they will bring their own workers.

Especially BC, will be overrun by the Chinese. We don't own our resources. We don't own the jobs. Not one opposition party in BC, spoke one word about our resources and jobs, taken away from us. Not even the NDP.

Elizabeth May, was the one and only politician and party, who spoke up about, China's take over of Canada. All the rest of them are in on this, sellout. I heard Mulcair some time back, was reneging on his first statement, regarding the Enbridge pipeline. Rumor has it. China owns the pipeline too.

Qute a long time ago I said.  BC should get the hell, out of Harper's Canada. It's even too late for that.

Raje Harwood October 29th 2012 | 2:02 AM

Time to act together, find commonality, so the true majority can have its voice heard.  There need to be huge rallies in all the major cities to show the existing government that we have no faith in their leadership.  Their decision to sign away our land to a foreign countrynwith abhorent record regarding human rights and natural disasters, and to do so without discussion in Parliament is certainly unconstitutional.  Let's act, and seeing as we do have a number of political parties, let's speak as one voice on this issue.  A coalition government could be formed as an interim measure to get Canada back on track, within our own borders and in regards to foreign policy.  In the past we have been known as peace keepers.  Let's speak, shout, sing, dance and demonstrate that we are at peace, with each other, with our friends in other nations, and with the creatures other than human whose territory must be protected.

kasia yechimowicz November 5th 2012 | 10:10 AM

We do not even have a legitimate government at present.  It's quite clear that the election was fraudulent, and many of those who comprise it's present body are criminals.  It's time to arrest the Conservative Party and put them where they belong: behind bars.

Why
Alex Sokolyk April 8th 2013 | 10:10 AM

Why are Canadian leaders giving away important parts of our country to the evil cancerous chinese? And to piss us off even more the chinese only employ their own kind. This makes me sick! If Canadas leaders keep this up the real Canadians will rebel and take matters into our own hands. Also, so they give away the oil sands does that include the animals because everyone knows what monsterous things the evil cancerous chinese will do with them. Fuck you china, you are the destroyer of this beautiful planet.