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Canada-China FIPPA agreement may be unconstitutional, treaty law expert says October 25, 2012

Posted by rogerhollander in Uncategorized.
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The Canada-China Foreign Investment Promotion and Protection Act(FIPPA), Canada’s biggest foreign trade treaty since NAFTA, will come into effect at the end of October and bind both the federal and provincial governments of Canada to its clauses for the next 31 years until 2043. International investment law expert and Canadian citizen Gus Van Harten says provinces have a strong case for challenging the treaty on constitutional grounds.

Beth Hong
Posted: Oct 17th, 2012
Vancouver Observer

 

Prime Minister Stephen Harper shakes hands with Wen Jiabao, Premier of the People’s Republic of China, in the Great Hall of The People in Beijing, China. PMO photo by Jason Ransom.

With two weeks remaining before the controversial Canada-China Foreign Investment Promotion and Protection Act (FIPPA) is ratified, international investment law and treaty expert Gus Van Harten says BC has the option of delaying the treaty’s ratification through the courts.

“The province can call for an injunction in the BC Superior Court, requesting the courts to order the federal government not to ratify the treaty until the constitutional issues are resolved,” Van Harten told The Vancouver Observer.

The other option, Van Harten added, was an upswelling of public opinion against the treaty that will pressure elected officials in Parliament as well as provincial legislatures.

According to international law, a foreign investment protection agreement (FIPA) treaty binds the state regardless of changes in federal or provincial governments.

“It’s a done deal between the two countries—by signing a treaty, the Harper government can bind future governments and bind the Canadian electorate for 31 years,” Van Harten said.

Van Harten—who has a PhD in international law from the London School of Economics, and teaches law at Osgoode Law School—is one of five internationally recognized experts in Canada on international investment and treaty law and how they work on a practical basis. He said that he is an outlier for speaking out, based on his experience.

“The difference between me and many others is that a lot of academics work in the system as lawyers or arbitrators or experts, and they’re much more cautious about saying things that are critical of the system,” he said.

He noted that FIPPA is a good news for lawyers, who stand to profit off potentially multi-million dollar lawsuits.

“The lawyers who work in this field will like that—their business is to sue,” he said. “It’s not good for Canadian taxpayers.”

Any province with Chinese investors in natural assets over the next 31 years has right to challenge constitutionality of FIPPA

BC isn’t the only province that has a strong case in courts against the federal government over FIPPA because they face potentially serious fiscal risk if Chinese companies invest in major assets.
“It could be Ontario down the road, it could be the ring of fire—which is a strip of mineral rich land in Northern Ontario. In the north, there could be development of mines in northern Canada,” Van Harten said. “Same with Saskatchewan, with the mineral right there.”
“In Alberta, the Alberta economy is going to have a significant portion of Chinese ownership in its resource sector, and if Alberta was concerned for a long time about not having control over its resources vis-à-vis the federal government, how does it feel not having control over its resources vis-à-vis Chinese investors?”

The only provincial governments that shouldn’t be concerned about FIPPA are the ones which won’t expect to be getting any significant Chinese ownership of assets, Van Harten said.

“I don’t think any responsible government can assume that that’s going to be the case. In fact, they should be assuming the opposite and asking the questions now before the 31-year commitments are finalized on October 31 In fact, they should be assuming the opposite and asking the questions now before the 31 years kicks into effect on October 31.”

Van Harten’s concerns “speculative”: BC Environment Minister Terry Lake

Van Harten also sent letters to premiers of all across Canada, including BC Premier Christy Clark. He did this to help the provinces understand the scope of the fiscal risks this treaty will have on them and taxpayers.

Clark’s Press Secretary Michael Morton confirmed that Clark’s correspondence branch received the letter. Clark did not respond to questions from The Vancouver Observer about her reaction to any of the concerns it raised.

BC Minister of Environment Terry Lake responded to Van Harten’s letter to the Premier and concerns about FIPPA in a written statement, calling the letter “speculative”:

“We are intervenors in the hearing and examining  issues that are critical to our five conditions that must be met on all pipeline projects in BC. At the same time we are working with our federal counterparts on [Northern Gateway Proposal] related issues where BC’s interests are at stake.”

“As this is ongoing work and international treaties are the purview of the federal government I am not going to comment on speculative comments by Mr. Van Harten.”

No response from feds about concerns over FIPPA

FIPPA is the biggest foreign trade agreement since the North American Free Trade Agreement (NAFTA). FIPPA is an agreement with provisions to protect Chinese investors in Canada, and vice-versa. However, it also contains many clauses that have alarmed Van Harten and opposition MPs such as Green Party MP Elizabeth May. May requested an emergency debate on the treaty at the beginning of October to the House Speaker. Her request was denied.

Van Harten wrote a letter to Prime Minister Stephen Harper and Minister of International Trade Ed Fast last week outlining his concerns as a legal expert and Canadian citizen, but has yet to get any confirmation on whether his letter has been recieved.

A spokesperson for Minister Fast responded to questions from The Vancouver Observer  about Van Harten’s letter and concerns with the following written statement:

“With regards to investor-state dispute settlement, it is Canada’s long-standing policy to permit public access to such proceedings. Canada’s FIPA with China is no different. As we do with all other investor-to-state disputes, this FIPA allows Canada to make all documents submitted to an arbitral tribunal available to the public (subject to the redaction of confidential information).

It is also important to note that under this treaty, both Canada and China have the right to regulate in the public interest. Chinese investors in Canada must obey the laws and regulations of Canada just as any Canadian investor must.

We’ve been clear that Canada wants to continue to expand its relationship with China, but we want to see it expand in a way that produces clear benefits for both sides. By ensuring greater protection against discriminatory and arbitrary practices, and enhancing predictability of a market’s policy framework, this FIPA will allow Canadians to invest in China with greater confidence.”

Harper government rushing FIPPA, not allowing enough debate

However, Van Harten disagrees on with the Minister on various points.

“Why it is being concluded now in a form that is not advantageous to Canada is perhaps because the Harper government wants to pass it quickly while it has a majority in Parliament, and has been prepared to give away things that it would not have given away presumably as a minority government because it would not have been able to pass it through Parliament”

He added that the bulk of the responsibility for FIPPA lies at the majority Conservative government.

“To be honest, the provinces didn’t start this. It’s the federal government which has taken this reckless step,” he said.

NDP MP Don Davies proposed a motion in the Standing Committee on International Trade to debate, study, and recommend amendments to FIPPA on October 2.

After the majority Conservative committee voted for a confidential, in-camera meeting, the motion was removed from the Committee’s agenda.

International Trade committee member and Liberal MP Wayne Easter decried the killing of the motion, saying it was hindering Parliament from doing due diligence.

“We should be doing what Parliament is supposed to do and hold a consultation so that we know just exactly what is happening under the investment agreement, and so that we can look at the implications,” Easter said.

Two weeks won’t be enough time to fully debate and study the implications for all provinces, hence Van Harten’s recommendation for provinces to request a delay, and then the courts for an injunction based on constitutional grounds.

“I just want to emphasize to you the actor who is to blame at the moment is the federal government,” he said.

“The provinces would be to blame if they sat on their hands despite the implications of this treaty.”

On “Saving” Darfur … and Africa in general April 9, 2009

Posted by rogerhollander in Africa, Dafur/Sudan.
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By Anne Bartlett

www.sudantribune.com, Tuesday 7 April 2009 05:00.

April 6, 2009 — There is a dirty little secret that operates in the battle to “save” Darfur. It is the same dirty secret that has plagued Africa for years. Its name is colonialism and in Darfur, this impulse is alive and well. It exists in the guise of many of the large advocacy organizations who seem to feel that only white middle class people can “save” the people of the region by extracting money on their behalf. In the last few days, Jerry Fowler of Save Darfur tells me that where the situation in Darfur is concerned: “This cannot stand. We will not allow this. This cannot happen.” I am told that there are only hours left to reach the $200,000 target. If I donate $50 now, I can end the genocide in Darfur. Sadly however, nothing could be further from the truth.

The obnoxious reality is that there is a business to “saving” Africans in Darfur (and elsewhere for that matter). It is a business worth hundreds of millions of dollars. In this business Africans are portrayed as childlike, unable to save themselves, unable to advocate, unable to face up to their own problems or authoritarian leaders. This is indeed ironic in a country like Sudan where people have been jailed, tortured, murdered and abused since 1956 as they fought for their rights and to escape the dynamics created by authoritarian and colonial rule.

For the record, let’s examine the outcomes of some of these organizations. The largest, Save Darfur, is virtually unheard of in Darfur. Why? Because the money they’ve raised hasn’t been spent there. It has been spent on advocacy, marketing, entertaining, conferences, hotels and in fact, a whole variety of events that are of little consequence to those suffering on the ground. It has been spent to produce events that empower peripheral figures who have next to no chance of creating a sustainable program of change. Of course this situation is a source of confusion to the people of Darfur who can’t understand why their views aren’t important in producing a plan for their own survival. They’re not the only ones. Frankly, it’s also rather puzzling to me.

Despite endorsements from people like Alex de Waal, organizations like GI Net are also equally pointless. Besides engaging in advocacy, their claim to “intervene” in genocide has yet to be proven. To date, much of their money has been spent on AU or UNAMID forces – the very same forces that singularly failed to protect the people of the region. Looking at their website there seems to be a lot of information about the responsibility to protect and civilian protection. There seems to be rather less detailed information about precisely how they plan to accomplish this task, except, that is, by collecting more money.

Of course, if someone like me has the audacity to mention this fact we are told that such organizations only “do” advocacy. But what does this actually mean? Just to remind those involved, advocacy means the ability to support or speak in defense of another. With this role comes responsibility. In particular, it is impossible to advocate effectively for someone without engaging them first about what they want. Also, at the risk of stating the obvious here, there also has to be some assessment of how likely this is to succeed. It is not a matter of how many photo opportunities one has on the White House lawn, but rather a realistic assessment of the positions and interests of those involved.

One of the problems here is that there is an assumption that shouting louder will change the situation. Manifestly however, this is untrue. Foreign policy priorities of counties like the United States are mediated by a whole bunch of things that include, but are not limited to economics and other larger regional interests. It is hard to see how the US can take a really tough stance with Sudan when huge amounts of its national debt are held by China. If anything served to illustrate this fact it was Premier Wen Jiabao’s recent comments about the value of US Treasury Bonds which sent the Department of the Treasury into a tailspin. Then there was Secretary Clinton’s visit to the region when nothing was even mentioned about human rights. In the last few days, the US Special Envoy to Sudan, Scott Gration made the position abundantly clear by saying that “The United States and Sudan want to be partners and so we are looking for opportunities for us to build a stronger bilateral relationship” Diplomatic speak or not, the message is certainly not ambiguous.

Organizations who want to “save” Darfur might start with the basics like helping the people they purport to serve. To spell this out, they might help some of the organizations at the sharp end – such as The Sudan Social Development Organization (SUDO) or the Amel Center – who have served the people of Darfur for years. These organizations, who have had all of their belongings stolen by the egregious actions of the Sudanese state need help now. Moreover, since they are used to working in the incredibly politicized conditions of Darfur, they are far more effective in getting help to the people that need it. And to Mr. Gration, please dispense with the fiction that Sudanese government organizations will help local people. They won’t.

Alternatively, organizations who want to “save” Darfur might help facilitate the peace process. Over the years I have been working on this issue, I have seen honest, decent Darfuris become increasingly impoverished, depressed and often lose all hope for the future. Unable to even afford the cost of flights to have some sort of dialogue about how to make change happen on the ground, they are trapped in a spiral which can only take them further into desperation. This is evidenced in the dangerous trend of acquiescing around JEM’s position – a position backed by the resources and organizational ability of Chad. For those who are unfamiliar with JEM’s position, this development is extremely dangerous. Khalil Ibrahim was the architect of the policy of using one marginalized group to annihilate another in the North-South war. Many others within the movement are also from the Islamist ranks, irrespective of how well they articulate their cause to others. Besides sucking Darfur into a larger regional war, these dynamics will ultimately result in the installation of a group of people that were behind the Jihadist movement in the first place. This is not what the people of Darfur want or need. It will not bring peace to the region.

Finally, organizations who want to “save” Darfur should engage in fiscal responsibility first. This means publishing your accounts so that the people you claim to help can see where the money is going. In this new era of financial transparency, it seems only fair that you subject yourselves to the same rules that everybody else has to abide by. Perhaps you should also think about changing your name to one that has a bit less of a colonial valence. As I’ve often said elsewhere, Darfuris can save themselves if they receive even a fraction of the money collected in their name and on the backs of their suffering. Maybe the day has come for these organizations to work with local people to do just this.

Dr. Anne Bartlett is a Professor of Sociology at the University of San Francisco. She is also a Director of the Darfur Centre for Human Rights and Development based in London. She may be reached at albartlett@usfca.edu

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