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.
