Thursday, September 25, 2014

A Mere Mortal

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.


Kirby Evans said...

I don't believe anyone in their right mind thinks that this treaty will be upheld in a the court battle that is sure to ensue. The real nagging question is when are we going to see parliamentary reforms that force governments to debate and vote on such treaties as well as having some mechanism that vets such things in consideration of their constitutionality.

Owen Gray said...

Exactly, Kirby. Sunlight is Mr. Harper's enemy.

thwap said...

If harper doesn't steal the next election we should just tear the fucking thing up.

31 year obligations! What a joke. Anyone who believed in that treaty deserves their comeuppance.

Owen Gray said...

And that's exactly what the Supreme Court will deliver, thwap.

Anonymous said...

What the hell does Communist China care about Canadian Courts? What does Harper care of the, Canadian judicial system? Harper attacked our Chief Justice.

We are talking about Communist China that, mowed their students down with machine gun fire.

There is Robert Mugabe,the Red China Communist Army and China's blood

There is China exporting tools for torture.

China is provoking other countries. China sinks other countries boats and uses water cannon on them. Japan had to scramble their fighter jets because, China invaded Japans airspace. Communist China is provoking the Philippines and Vietnam.

Harper rips into Putin for his, annexing of the Crimea and the Ukraine. Harper says absolutely nothing of, Communist China doing the exact same damned thing.

That is only the tip of the iceberg of what, Communist China and Harper are going to do to this country.

Not that it matters, Canadians sleep through absolutely everything. Harper has his cabal, to do his dirty work for him.

The idea Harper and Communist China giving a damn regarding Canada's courts, is laughable.

Owen Gray said...

Harper may not care about Canadian courts, Anon. But that does not mean they can't cancel what he has done.

Anonymous said...

The West Wants OUT

FIPPA is all about supporting western separation from the rest of Canada.

Owen Gray said...

I hope that's not the case, Anon. I'd much prefer separating Stephen Harper from the rest of Canada.

Alison said...

"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."

With respect, FIPA is now a done deal and ratified international agreements fall beyond the purview of the Supreme Court of Canada.

As an international treaty, the only court rulings FIPA need abide by are international tribunals at which only the federal government will have a say. Even if Harper himself were to attempt to rescind the agreement in the next five days, China would not be under any obligation to oblige him.

It is possible that Chinese companies could individually agree to impact and benefits agreements to allow for specified advantages for First Nations, but again they are under no enforceable obligation to do so.

We can get rid of Harper; we cannot get rid of FIPA.

e.a.f. said...

Lets hope the court case gets rolling because it won't take long after 1 Oct. for the Chinese government to start making its moves/demands. The Comox Valley, in B.C. has 17 coal mine applications and some are around our water shed.

With labour from China a lot of damage can be done very quickly.

Some First Nations are not going to take this laying down or peacefully. There are many non First Nations who will see this as the first stand against China's occupation of Canada.

WE can only hope Quebec quickly gets its act together and leaves Canada. It will give Canadians a place to go for at least 15 yrs. plus one. I can learn French, no problem. The in roads China has made into B.C. is already enough and there are less and less places to go to avoid it. P.E.I. is starting to look good.

In the recent provincial government/BCTF dispute, China actually made its displeasure known. They have Chinese citizens attending B.C. public schools and their kids weren't getting what their parents in China had paid for. Some parents (Canadian residents)living in the Vancouver area complained to the Chinese consul in Vancouver about the labour dispute. Yes, he had a chat with the B.C. premier.

shortly after that, the provincial government went back to talking with the BCTF. Some think it maybe because the public was turning against the provincial government. Others have other opinions because the B.C. provincial government hasn't cared what people said or wanted. sort of a la harper and his herd.

Once the China trade agreement was announced a blogger in B.C. wrote about a scenario in 2025. Paraphrasing: The Americans having been cut off of Canadian oil and gas annexed Alberta and B.C. China and America both had their war ships sitting out in the waters waiting for international discussions. Part of the "story" did touch on harper and his herd being tossed out of office, but the new government could not get out of the trade agreement. China had "attached" Canadian assets in other countries and we would have been bankrupted. There was the small matter of the 30 some odd Canadians killed in a stand off over pipelines being built by China. it was an interesting story. Possible? Yes. probably, who knows.

Will the Supreme Court be able to say the trade agreement is in contravention of the Canadian Constitution. Yes, but it may wind up only applying to traditional territories held by First Nations.

Federal law has always taken precedence over provincial law, so it is doubtful the Supreme Court of Canada can rule the China trade agreement unconstitutional. So at this point our only hope is First Nations Land and Quebec.

Owen Gray said...

My hunch is that the court cases will begin immediately, e.a.f. Ontario and Quebec will see the agreement as a clear infringement on their constitutional territory.

FIPPA won't have a chance to get off the ground. That will make the Chinese even angrier.

Owen Gray said...

If that's the case, Alison, the situation is very bleak, indeed.

Hugh said...

I thought the China-FIPA ratification would go through Oct 1.

Also, apparently the CETA would need to be voted on in Parliament, but not China-FIPA?:

Owen Gray said...

Strange, isn't it, Hugh? Harper doesn't talk about what he doesn't want you to know.

CK said...

Owen, You should read this.

It offers a completely different theory as to Why Harper signed us on to Fipa. It's actually more diabolical. Harper, as we know, hasn't been too successful at stripping the constitution and Human Charter of Rights and Aboriginal Treaties as he so wanted to do-- he has hated them and no matter how hard he tries, he's been getting slammed by the courts.

Sounds off? Perhaps, but I had always said that Harper is a master tactician and everything he does is well calculated. I see that this is no exception. We underestimate Harper at our own peril.

So, can't skin the constitution without the courts slamming them down? Let's have China do our dirty work without impediment from the courts or the provinces.

The author of that article lays down the evidence that this was exactly Harper's intention with FIPA.

Among other things, Harper's path of destruction was not nearly complete. So, what does he do? He impedes any future gov't from trying to undo that path of destruction.

Yes, I'm afraid Alison is right. Which is why Harper is so ga ga now.

Owen Gray said...

I read Anderson's piece this morning, CK. And it's truly disturbing.

We have a prime minister who is a human wrecking ball, and it's taken us a long time to figure out what he's about.

The international community, on the other hand, has never had any illusions about Harper. That's why his speech to the UN last night was delivered to a nearly empty hall.