Sunday, 28 December 2014

There's more than one booby trap in CETA-land

Published in The Telegram, Dec. 27th, 2014

For the past two years, local groups like Citizens against CETA and the Council of Canadians have been sending letters to politicians informing them of the many different traps buried in both the CETA treaty and the negotiating process. Most MHAs have ignored our warnings. They preferred to believe that everything was perfect in CETA-Land.

Now we have this huge misunderstanding between the federal and provincial governments over the $280 million federal fund linked to our giving up minimum processing requirements.  That appears to be bad news. On the other hand, this drama has finally put CETA on people’s radar. Let’s consider what else might be open to misinterpretation in this trade agreement.

There are two issues with respect to the legal language of the treaty that raise alarm bells. 

First, are we really sure that both the federal and provincial language in the agreement can protect our traditional rights over the fishery? Licencing restrictions have, up until now  prevented foreign corporations that care nothing about the welfare of Newfoundlanders and Labradorians from controlling our fisheries.   Could CETA’s wording be sufficiently wobbly to allow legal challenges to that intent? 

That’s not a frivolous question. Since NAFTA there have been around 600 corporate lawsuits worldwide mounted against governments in multilateral and bilateral trade agreements. Presumably, all of these governments thought that they were adequately protecting their interests when they wrote their agreements. 

Then there is the question of whether or not the federal government would even bother to defend Newfoundland and Labrador’s interests if there was a legal challenge. Let’s not forget that, in spite of requests from the Williams government, the Harper government refused to defend our position in the NAFTA lawsuit by Abitibi-Bowater.  They settled out of court.

Corporate lawsuits are the booby-traps at the heart of CETA and they are booby-traps that have the potential to cause us enormous financial damage. To date, a $2.3 billion judgement against Ecuador in its dispute with Occidental Petroleum  is the highest known damages awarded. Suing governments has become a very lucrative business.

However there’s something at work here even more insidious than the financial costs.

 When governments start looking at all new legislation through the prism of whether it might possibly provoke a lawsuit, democracy suffers. "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. ......  Virtually all of the new initiatives were targeted and most of them never saw the light of day." So said one former Canadian official about the mere threat of NAFTA lawsuits(quoted in an article by William Greider for The Nation)

The use of lawsuits and the threat of lawsuits is a subversive assault on the right of governments to make decisions in the interest of the public or the environment.  And because CETA is so much more accommodating to corporate interests than NAFTA ever was, that menace will threaten different levels of government right down to the level of school boards all across the country. 

Lawsuits by transnational governments also strike a huge blow to that other branch of government, our court system. How? If they are investors in the Canadian economy, foreign corporations can choose to bypass the Canadian court system and pursue their grievance with government in offshore tribunals where Canadian law counts for nothing.

 Take the example of Exxon-Mobil and Murphy Oil.  In 2012, they won their offshore NAFta lawsuit against new research and development regulations put in place by Newfoundland and Labrador after our government determined the companies were not living up to their commitment under the Atlantic Accord. Three levels of Canadian courts had previously rejected arguments that the companies were being unfairly treated. The offshore tribunal came to a different conclusion. Damages have not yet been assigned but the corporations were asking for $65 million.

The Canadian government will pay those damages, just as they paid the $122 million in the Abitibi-Bowater dispute. However, the federal government has made it clear that in future they will find ways to reclaim these costs from the provinces.

Think about all this.  

First:, we will soon be bound by a trade agreement which, according to independent research studies, will actually lead to a decrease in Canadian GDP and will cause job losses, particularly in the secondary or processing sector.  Yet we’re told it’s a fantastic deal.

Second, CETA is a huge contract which will act as a kind of supranational constitution overriding our own. Future governments will only be able to initiate new laws and regulations if they do not conflict with what has been written down in CETA. Anything governments have failed to adequately protect in writing will be susceptible to lawsuits if they try to make changes that interfere with corporate profits.

Third, these lawsuits will take place in offshore tribunals that are themselves riddled with corporate bias. There is no Appeals Court if a  government doesn’t like the decision.

 Anybody who believes that the very limited economic benefits that CETA will bring to our province justifies all of the above is apparently oblivious to what has been going on in the rest of the world. Trade agreements have allowed transnational corporations to strait jacket the democratic will of people and block protection of jobs and the environment in all sorts of unexpected ways.  Third World countries were the first and the hardest hit. Now that so many of them are squeezed dry it’s our turn.

Prime Minister Harper has been the ideal leader to inflict that squeeze on us.  Don’t be surprised if, once the damage is done, he and his obedient followers in parliament simply walk off into the sunset, into well paid board rooms positions in the big corporations of the world.  

Am I that cynical about our provincial politicians? No, but I do wonder about their ability, when it comes to important decision making, to think outside a narrow neoliberal interpretation of how the world works. Of the three political parties elected in this province, to my knowledge, only the NDP has endeavored to alert the public to the underbelly of CETA.

Now that Premier Davis has suggested that the province might withdraw its support for CETA
I have no doubt that the corporate lobbyists and Harper appointees are all out in full force. They’ll be using a variety of tactics to get the government back on board with CETA.

Let’s hope that government doesn’t make the same mistake as before and rush into a decision without a thorough analysis and discussion of what’s at stake with CETA. So, here’s a suggestion, Premier Davis.  How about appointing an all-party committee to set up public hearings across the province?    Explore the pros and cons of CETA with us.  Don’t shut us out of the decision making again.