A Note Of Thanks To The Europeans

When I think about him at all, and it is admittedly only rarely, I imagine that Stephen Harper is spending some angry days and nights, probably silently seething. Not only is much of his 'legacy' being systematically dismantled by the new Trudeau government, but it seems that some of his much-cherished beliefs and passions are under attack from an unlikely source, the European Union.

Stephen Harper, I suspect, never met a trade deal he didn't like; the extollment of the corporate agenda through trade deals was and is something very close to his heart, certainly much closer than any concerns about loss of national sovereignty through investment dispute settlement mechanisms. His enthusiastic embrace of CETA, the Comprehensive Economic and Trade Agreement, provides perhaps one of the best windows into his dark soul, inasmuch as it would further erode signatory countries' abilities to pass, for example, environmental legislation that would result in a loss of corporate profits.

Like his predecessor, Justin Trudeau seems to have a Pavlovian fondness for trade deals, evidenced by his enthusiastic support for CETA, even when he was in opposition. He cannot be looked to for national salvation. However, a ray of hope has emerged from European countries to be affected by CETA. Always seemingly more aware of, engaged in and vocal about democratic threats, critics on the Continent have forced a revision of the investment dispute settlement system:

CETA establishes a permanent Tribunal of fifteen Members which will be competent to hear claims for violation of the investment protection standards established in the agreement. The Members of the Tribunal competent to hear investment disputes will be appointed by the EU and Canada and will be highly qualified and beyond reproach in terms of ethics. Divisions of the Tribunal consisting of three Members will hear each particular case. The CETA text now follows the EU's new approach as set out in the recently concluded EU-Vietnam FTA and the EU’s TTIP proposal.

The above represents a departure from what had been originally intended. Writes Thomas Walkom that in Europe,

politicians and interest groups were horrified by the idea of a trade regime that would allow foreign companies to override domestic environmental, animal welfare or labour laws.

Under intense political pressure at home, the European side forced Canada to renegotiate a controversial part of the agreement that would allow private firms to challenge and ultimately strike down laws that might interfere with profit-making.

Under the renegotiated terms, companies would still have this right. But the adjudicators who heard such cases would not be chosen, as originally envisioned, by the disputants. Instead they would come from a 15-member permanent trade tribunal appointed by governments.

There would also be a right of appeal. As well, the renegotiated text gives more leeway to governments to regulate in the public interest.

While a definite improvement, it may be far less than the gold-plated trade deal claimed by International Trade Minister Chrystia Freeland, who proudly announced

that some amendments have been made to a controversial investment protection clause which had become a sticking point in negotiations between the two countries.

"I'm absolutely confident that Canadian investors and Canadian businesses will have their rights fully protected in this agreement," Freeland said.

What she fails to mention, of course, is that those same protections will be accorded to all the signatories, meaning that the often-litigious corporate world will still enjoy many field days either eroding our sovereign legislation or being paid billions in compensation.

Freeland's press conference, if you have four minutes to watch, seems, through my layman's eyes, to be an exercise in double-speak:



One, I believe, can honestly ask whether her claims of sovereignty protection and investor-rights protection aren't a tad contradictory.

It appears that Maude Barlow sees through this charade:

Not only do the proposed changes fail to address concerns about the investor-state provisions, they actually make them worse. The reforms enshrine extra rights for foreign investors that everyone else -- including domestic investors -- don't have. They allow foreign corporations to circumvent a country's own courts, giving them special status to challenge laws that apply equally to everyone through a court system exclusively for their use.

Even to call the new arbitrators "judges" is a misnomer, as these tribunals will not be taking into account environmental protection, human rights or other non-corporate considerations that a regular judge usually has to balance.

No doubt, our new government is counting on continued apathy and ignorance about this deal. A truly informed electorate, in my view, would never sanction it.