Monday, 27 January 2014

#CETA and the great unknown

January 27, 2014, Letter to the Editor Via The Telegram

Federal minister Rob Moore swept into town in mid-January to talk about the Comprehensive Economic and Trade Agreement (CETA), but not to ordinary citizens or our elected representatives.

He lunched with Board of Trade members, followed by closed door meetings with specific business, labour and post-secondary representatives. Throughout, the minister repeated government’s mantra that the trade deal will create tens of thousands of jobs in Canada and give Canada a competitive edge.

What I’m pretty sure Minister Moore didn’t talk about was the corporate assault on Canadian sovereignty at the heart of CETA.

We now know that that assault is much deeper than groups like Citizens Against CETA and the Council of Canadians have been trying to detail.

That’s thanks to a December presentation to the parliamentary trade committee by Howard Mann, senior international law adviser for the International Institute for Sustainable Development.

Mr. Mann talked about three “boxes” in the CETA treaty.

In the first box is a defined list of areas government wishes to protect, like, for example, public health care programs.

The second box defines the legitimate expectations of corporate investors. Both boxes existed in past treaties, like NAFTA.

But CETA proposes a third box, which refers to any breaches of “Fair and Equitable Treatment” as found elsewhere in international law customs. The problem is that this area is undefined.

According to Mr. Mann, this is “an open invitation for arbitration lawyers, investors and tribunals to figure it out, with high risks for governments.”

CETA is also unique in that it allows the provisions of prior treaties to be adopted by EU investors in the case of disputes.

So even though our governments, both provincial and federal, may have included clauses to protect the regulatory and lawmaking ability of governments, investors could use provisions and language from older treaties that were not as carefully drafted to get around those clauses.

Under the terms of CETA’s Investor-state Dispute Settlement mechanism, these challenges to our traditional democratic rights will take place in offshore tribunals.

There, conflict of interest and corporate bias rule; Canadian law counts for nothing; and the right to appeal is non-existent. Originally, an EU Commission study recommended not including an Investor-state Dispute Settlement system, arguing that both Canada and Europe have respected judicial systems that can deal fairly with disputes.

Canada’s position, which prevailed, was that offshore tribunals were necessary to encourage corporations to invest in Europe and Canada. Except that, according to Mr. Mann, there is no empirical evidence to link increased corporate investment with investor-state treaties.

Our government’s claim is fabricated.

Hardly surprising, given that our government’s other claim that CETA will create tens of thousands of new jobs is also a fabrication, justified by a simulation study with multiple design flaws.

Even the corporate sector (the Royal Bank and Capital Economics) have acknowledged that the gains will be modest to very small.

CETA is a treaty characterized not just by misinformation but by extreme secrecy.
Howard Mann was invited to speak to the parliamentary committee because of his international reputation. However, even he was not allowed to see a copy of the agreement.

His analysis had to be based on material he managed to garner from leaked documents, some of which he received just days before his presentation.

My point is that his revelations may well be just the tip of an iceberg. What else is hidden?
There has to be a reason for the unprecedented lack of transparency in these negotiations. I think that it’s to conceal from Canadians the subversion of our traditional democratic rights by powerful corporate interests and the people behind them.

That we have a federal government in power that would do this is unpardonable. Some might call it treachery.

That we have provincial MHAs who have enthusiastically signed on to CETA without having seen and studied the details of the document is incomprehensible. At the very least this is wilful neglect.

Marilyn Reid