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Chinese companies can sue BC for changing course on Northern Gateway, says policy expert

The Canada-China Foreign Investment Promotion and Protection Act (FIPPA), which will come into effect at the end of October, is Canada's biggest foreign trade treaty since NAFTA. What are its implications for BC?

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Liberal MP and Committee on International Trade co-chair Wayne Easterwho has been a Member of Parliament representing Prince Edward Island since 1993, recalled the case of Ethyl Corporation vs. the Government of Canada in 1997. The Canadian government paid the Corporation $13 million after its ban on the import and interprovincial trade of the gasoline additive MMT— a suspected neurotoxin— was found to violate the investor corporation's rights under NAFTA. 

"Even though we were doing it for an environmental reason, under the investment rules it affected their future profit, and so the Government of Canada had to cut a check to Ethyl," Easter said.

"And that's what can happen when a government makes a decision in the public interest that affects a company's future profits of something they're selling into the marketplace. It really takes your ability of public policy out of public interest hands, being the government, and puts into private investor hands." 

Harper government muffling debate: opposition MPs

The majority Harper government is continuing a trend of muffling democratic debate in the House of Commons by ignoring calls to study, debate and clarify a major foreign investment agreement between Canada and China, say opposition MPs.

"There is no mechanism that the Conservatives have permitted in this case to allow stakeholder input and full discussion about FIPPA," said International Trade critic for the official opposition Don Davies.

Davies proposed a motion on October 2 in the Standing Committee for International Trade to gather expert opinions, clarify ambiguities, and debate contentious clauses in the wide-ranging agreement.

After the majority Conservative committee voted for a confidential, in-camera meeting, the motion was removed from the Committee's agenda.

Easter said that this was "typical" for the Conservatives when they don't want to engage in a critical debate.

"The problem is with this particular government is they typically go in-camera to defeat a motion," he said.

"We should be doing what Parliament is supposed to do and hold a consultation so that we know just exactly what is happening under the investment agreement, and so that we can look at the implications." 

One of the implications that Easter says he worries about is the investor-state arbitration clause, a controversial clause (Article 28) in the FIPPA that allows for a three-person tribunal to judge cases of investor-host country disputes in confidential hearings.

Policy watchers and opposition MPs have raised alarms about this clause, raising examples in the past where multinational corporate investors sued the government of Canada in secretive tribunals ratified under NAFTA.

Harper government's consultation with House "unprecedented": Minister of International Trade spokesperson

A spokesperson for the Minister of International Trade Ed Fast responded to questions directed at the Minister about consultation about FIPPA with the House through written responses to The Vancouver Observer.

"In the name of transparency, our government introduced an unprecedented process for putting international treaties before Parliamentarians in the House of Commons. The NDP have already had two opportunities to debate the FIPPA with China and have chosen not to."
 
However, critics of the government's handling of FIPPA say that this is not enough, calling for consultation from provinces and territories and committee hearings at the very least.
 

Scott Sinclair, a senior researcher and director of the Trade and Investment Research Project at the Centre for Policy Alternatives, said that the federal government should be consulting provinces and territories about such a wide-ranging agreement.

"There isn't nearly enough consultation, and the intenton of Parliament to not even going to have a vote raises some very important issues about right to regulate and the rule of law," he told The Vancouver Observer.

"I think there's a strong case that the federal government consult each and every territorial government before this treaty is ratified. At the very least, there should be Parliamentary committee hearings to look at this agreement from every angle."
 
LeadNow, a non-profit for progressive politics in Canada, has launched a
petition to stop FIPPA.  
 

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