Andrew Nikiforuk writes that, according to Gus Van Harten, the Foreign Investment Promotion and Protection Agreement -- which Stephen Harper signed without any public debate -- trumps both First Nations and provincial rights which, up to this point, have been enshrined in Canadian jurisprudence.
Van Harten has several concerns about the agreement:
It gives China unique Most Favoured Nation status and "obligates Canada, but not China, to open its economy to the other state's investors."
It allows Chinese investors, in general, to purchase assets in Canada that Canadian investors would not be able to purchase in China.
It limits Canada's ability to screen Chinese investments to review under the Investment Canada Act while preserving China's ability to screen Canadian investments at any level of government and without the limitations imposed on screening by the Investment Canada Act.
It allows foreign investors from either country to bring claims against the other, but it does not allow either government to bring claims against foreign investors -- a clear imbalance.
It omits a reservation designed to preserve aboriginal rights, something included in all of Canada's 25 other similar investment and trade agreements.
The treaty has a lifespan of 31 years -- a longevity greater than the great majority of similar treaties signed by Canada.
It gives a special status to foreign investors such as the China National Offshore Oil Corp. (CNOOC) or China Petrochemical Corp. (Sinopec) in the form of substantive legal protections not enjoyed by other private parties, including domestic competitors.
It allows investors such as Chinese state-owned corporations to bring claims against the government in secret. (Van Harten says the arbitration would have to be made public only when an award is issued.)
Furthermore the treaty's definition of investment is extremely broad.
It does not mean just land or buildings but includes resource concession rights, debt instruments (that is, portfolio investment), intellectual property rights and "any other tangible or intangible... property and related property rights acquired or used for business purposes."
The Harper line about these trade agreements is that they create jobs. But, obviously, their prime purpose is to protect investors -- at the cost of national sovereignty. You can bet that both the First Nations and the provinces will challenge the treaty in the courts -- all the way to the Supreme Court.
Three years ago, Harper insisted that he needed a majority government. He believed that, with a majority, he would be free of all restraints -- from parliamentary convention, from the Charter of Rights and Freedoms, and from the division of powers set out in the British North America Act.
Once again, the courts will have to remind Mr. Harper that he is a mere mortal.