01 November 2012

The Canada-China investment treaty—why?

Having read the investment treaty that Prime Minister Harper negotiated with China last September, my concerns about it have not been alleviated. (Honestly, I actually did read it!)

To begin with, I have problems with the process that created it. Negotiated in secret, it was then tabled in Parliament where it sat for 21 days while the government, as they have a right to do, denied debate. It can now be signed into law. This backroom process may be fine in an autocratic and secretive system such as China's, but it isn't acceptable where transparency and open discussion are valued. Under the treaty, China can sue for decisions made by provincial or municipal governments, yet these levels of government have been largely absent in the making of the treaty.

Disputes under the agreement are to be heard not by Canadian (or Chinese) courts but by private tribunals. The treaty states that tribunal hearings and their decisions are to be made public, but "subject to the redaction of confidential information" and "the Tribunal may hold portions of hearings in camera." What is or isn't confidential information will apparently be up to the tribunal. Furthermore, it says "a Contracting Party should endeavour to apply its law on access to information so as to protect information designated confidential by the Tribunal."

If Canadians are to foot the bill for awards against our government by the tribunals, as indeed we will, then such awards damn well ought to be under our laws. One wonders if it is constitutional to hold us accountable otherwise. Our laws are to be taken into consideration, but only "where relevant and as appropriate." As the tribunals may hold hearings in camera, presumably they will decide when "relevant" and "appropriate" apply.

The lack of democracy in all this is disturbing.

But quite aside from the treaty itself, why are such agreements necessary at all? Canada is a stable country of great wealth governed by the rule of law and possessing one of the world's finest court systems. Foreign investors are fortunate to be offered the opportunity to invest here. Surely it is not asking too much to insist they invest under our laws and policies. Indeed, what does it say about us when we feel it necessary to guarantee foreign investors they will be protected from Canadian rules? Government encouraging foreign investment is fine, serving as corporate minders is not.

If our government's concern is less about encouraging investment here and more about protecting Canadian corporations investing abroad, this does not justify eroding our democratic processes. Nor does it justify eroding the power of citizens in other countries. Corporations operating overseas should be prepared to take the risks involved investing in unstable or corrupt regimes or insure themselves against such risks. And we might want to think twice about protecting our corporations in countries where they are not behaving in the best interests of the people of those countries.

If you wish to torture yourself with legal jargon and read the treaty yourself, it can be found here.

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