Canada's New Investment Agreement With China Will Take Precedence Over Canadian Constitution for 31 Years

from the above-the-law dept

Here on Techdirt we've been covering the secrecy surrounding CETA, the trade agreement between the EU and Canada, and its problematic inclusion of a corporate sovereignty chapter. But while attention has been focused here, the Canadian government is sneaking through a bilateral investment treaty with China that is arguably worse in every respect -- at least for Canadians. Here's how the Council of Canadians described the move:
In the world of official government announcements, a two-paragraph media release sent out in the late afternoon on the Friday before Parliament resumes sitting is the best way for a government to admit, "We know this is really, really unpopular, but we're doing it anyway."

That's the way the Harper government, by way of a release quoting Trade Minister Ed Fast, announced that it had decided to ignore widespread public opposition, parliamentary opposition from the NDP, Greens and even lukewarm Liberal criticism, an ongoing First Nations legal challenge, and even division at its own cabinet table and grassroots membership and proceed with the ratification of the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA).
The key problem, as is increasingly the case with international agreements, is the inclusion of far-reaching investor-state dispute settlement (ISDS) measures that would allow China to sue the Canadian people. Here's what the treaty law expert Gus Van Harten told the Vancouver Observer:
"It is true that Chinese investors can sue Canada for any actions by the federal government or the [British Colombia] government (or legislature or courts) relating to Chinese assets connected to the [Enbridge] Northern Gateway pipeline," Van Harten said.
China's investment in Canada is huge: Chinese companies have invested over $30 billion in Canada's energy industry alone. That means there is plenty of scope for new regulations or laws to affect those investments, and to give rise to claims -- or for those regulations and laws to be dropped because of such a threat. The deep secrecy surrounding FIPA even extends to ISDS actions:
"there is no requirement in the treaty for the federal government to make public the fact of a Chinese investor's lawsuit against Canada until an award has been issued by a tribunal. This means that the federal government could settle the lawsuit, including by varying its conduct in a way that many Canadians would oppose, or by paying out public money before an award is issued, and we would never know."
As the Council of Canadians post mentioned, the Canadian government has ratified this agreement even though a major legal challenge against it is still pending -- effectively making the decision irrelevant. That's because of another astonishing aspect of the deal, explained by Van Harten as follows:
"Even if found unconstitutional by a court down the road...once the treaty has been ratified, none of the obligations assumed by Canada can be modified unless China agrees," he said.
In other words, the agreement, which runs until 2045, has given itself priority over Canada's constitution for the next 31 years. That abrogation of government power and the erosion of democracy it entails both emphasize how completely corporate sovereignty now trumps the old-fashioned, national kind.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: canada, ceta, china, corporate sovereignty, fipa, isds, sovereignty


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  • identicon
    Anonymous Coward, 19 Sep 2014 @ 11:25am

    Physical action against politicians may be the only option soon. Laws, courts, public opinion have no value to them.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 11:56am

      Re:

      Slow down sparky. No need to get that riled up. The problem is getting more and more attention and it looks like they may have to rethink the way ISDS works, if not scratch the concept. It is clear that the politicians feel a lot of pressure when they start the procedural hide and seek trickery.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2014 @ 8:42pm

        Re: Re:

        Slow down sparky.

        In Sino-Canada, sparky flint-lock slows revolutionary down. Break out the brass primers.
        No need to get that riled up.

        Need to get rifled up. I'm talkin' 'bout a revolution, oh yeah... Time to take back the world. Ya know, the Beetle song? It's about refreshing the tree of liberty with the blood of papers'-'n'-treaties' authors.

        reply to this | link to this | view in chronology ]

    • icon
      toyotabedzrock (profile), 20 Sep 2014 @ 8:28am

      Re:

      They did do away with gun registration of long guns in Canada.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 20 Sep 2014 @ 8:53am

      Re:

      "Though Scotland just voted to stay in Britain it seems secession as an idea still has some appeal. According to Reuters, 1 in 4 Americans are open to idea of their states seceding from the union."

      http://news.firedoglake.com/2014/09/19/1-in-4-americans-open-to-secession/

      But, once again, they ask the wrong question. Separate states make no sense to me, there is strength in the union. The question should have been about replacing the corpratocracy with a democracy, even if it is actually a democratic republic, that respects the rules (constitution) that they are required to play by instead of re-parsing everything in terms of what is good for their contributors (aka lobbyists...er...bribers).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Sep 2014 @ 9:30am

      Re:

      Not just politicians: corporations as well. Because these corporations are taking over the government by buying out the politicians (effectively making them "employees"), and forcing shit like this down our throats.

      I've been saying this for years: "welcome to the Corporate States of AmurrriKKKa"; now y'all can say it as well: "Corporate Nation of Canada, eh?"

      Ugh, this makes me sick...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2014 @ 10:16am

      Re:

      Citizens arrest.

      reply to this | link to this | view in chronology ]

  • icon
    Rikuo (profile), 19 Sep 2014 @ 11:26am

    So...is it accurate to call Canada a province of China now?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 11:31am

      Re:

      I think we'll need an amended name to reflect the corporations who now sponsor Canada.

      reply to this | link to this | view in chronology ]

    • identicon
      Matthew A. Sawtell, 19 Sep 2014 @ 3:42pm

      For Sake of "Harmony"...

      ... I do believe the powers to be in Beijing will take a quiet approach for a while, until it is necessary to 'remind' Canada of what the powers to be in Beijing define "Harmony" as. Never did think I would see the day that I would see a sitting Prime Minister of Canada would act like a third rate, third world 'strong man'.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 11:28am

    News just in the Canadian People vote to change all calendars and skip all the years between 2014 and 2046 , Tomorrow Is a new day for Canadians the the 2047 New Years celebration will start tonight at midnight.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 11:32am

    Even if found unconstitutional by a court down the road...once the treaty has been ratified, none of the obligations assumed by Canada can be modified unless China agrees

    Well I suggest they charge them with treason.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 1:05pm

      Re:

      True, but not true.
      Once the treaty has been ratified, it can still be broken. That just means that the Chinese don't have to hold up their side of the treaty either.

      The worst part about this treaty is that it is basically stating "If the Enbridge deal doesn't go through, we owe the Chinese investors the money anyway."

      And the Enbridge deal ISN'T going through. The Federal government KNOWS this. This is no more than the Feds using what they've got to try and force a lucrative (federally) short term deal at the long-term expense of the province most deeply involved in the deal.

      The sad part is that even if the Enbridge deal went through (Northern Gateway oil pipeline), the costs associated with proper running of the pipeline would ensure that all profits would be consumed by the investors, and the only profit the government would really see out of it is the short term job boom in building the thing. The government would also be saddled with all sorts of costly provisions and would be on the hook for monitoring, so the project would come out as pretty much a net loss for Canadians while being profitable for investors.

      This has already all been analyzed and explained, and pretty much everyone in British Columbia has figured this out... and yet Ottowa is still trying every dirty trick in the book to get this deal done, upping the ante with agreements like this which amount to "If you don't hit yourself in the head, I'm shooting us ALL in the foot! So there!"

      I think we really need to reform our approach to extrajudicial treaties -- a small group of people has no right to do this to a country.

      reply to this | link to this | view in chronology ]

  • identicon
    Blue Jay, 19 Sep 2014 @ 11:35am

    MORE IMPORTANT THINGS

    Now the Harper government can devote its full attention to more important things like building more jails for jaywalkers. And can there be a hole deep enough for the perverts caught jaywalking with children?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 11:45am

    Does the Canadian constitution provide for such language?

    Although reality seems not to follow my understanding lately, my understanding was that no government agreement can supersede that government's constitution, except to the extent that the constitution includes language permitting it. Constitutions are the ultimate defining document of the government they create, which is why laws are challenged on the basis of being unconstitutional, rather than on the basis that they are a bad idea. This treaty is a bad idea, but if it is inherently unconstitutional, then the government cannot lawfully agree to it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 12:00pm

      Re: Does the Canadian constitution provide for such language?

      "This treaty is a bad idea, but if it is inherently unconstitutional, then the government cannot lawfully agree to it."

      Who says? Might makes right and the government has firepower far superior to the citizenry.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2014 @ 1:36pm

        Re: Re: Does the Canadian constitution provide for such language?

        The real question is whether the people who sign their names to this treaty can be convicted of espionage or some similar criminal activity (not treason, as this isn't aiding an enemy, it's just intentionally harming constituents for a "greater good").

        reply to this | link to this | view in chronology ]

    • icon
      Rikuo (profile), 19 Sep 2014 @ 12:06pm

      Re: Does the Canadian constitution provide for such language?

      But that concept only works if the government itself agrees to enforce. Take for example the Democratic People's Republic of North Korea. Their constitution says they will respect the wishes of the people
      "Article 18: The law of the Democratic People’s Republic of Korea reflects the wishes and interests of the working people and is a basic instrument for State administration.
      Respect for the law and strict adherence to and execution of it is the duty of all institutions, enterprises, organizations and citizens."

      Does that happen? Nope.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Sep 2014 @ 9:09pm

        Re: Re: Does the Canadian constitution provide for such language?

        Kim il The-First-One spilled his Kim-chi and cognac all over it, and now the only parts of Article 18 that remain legible read: "The law of [...] Korea [...] is [...] basic [...] State [...] execution [...] of all [...] citizens."

        reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 19 Sep 2014 @ 1:10pm

      Re: Does the Canadian constitution provide for such language?

      "my understanding was that no government agreement can supersede that government's constitution, except to the extent that the constitution includes language permitting it"

      According to who? The constitution of a government is typically the ultimate law, but there's nothing that requires this to be true. It entirely depends on the legal structure of the nation in question.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 11:54am

    governments are doing these deals, underhandedly, just like the USA. what they mean is that the world is turning into one massive corporation, with just a few branches. what i'm waiting to see is what will happen when one of these deals goes sour and a country is then sued, but cant or wont pay, either before, during or after tribunal and continues that stance afterwards, not settling outside of tribunal either. are we to see WWIII start because the USA, for example, fails or refuses to pay the fine imposed to Mexico, again for example? the outcome could mean a whole country pushed into poverty, with no way out for tens of years!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 12:09pm

      Re:

      Argentina... Hrrmph

      There will definitely be a crisis of proportions. In the 90's europe and USA had a trade crisis. In the end international politics is about signals and empty words or actions. In case of actions when a trade dispute is started, there are ways to get revenge before hitting sanctions and ultimately war.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 12:33pm

    Is that even possible?

    Isn't the constitution the root of all laws for a country, all other laws being subordinate to it? If something is declared unconstitutional, it can have no effect.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Sep 2014 @ 1:54pm

      Re: Is that even possible?

      In most countries, international trade agreements trump the constitution. See SOPA/PIPA/ACTA/TTIP/Etc. Lately, governments have been attempting to use them to push corporate interests that they know would never get the acceptance of the people. This is obviously not what the trade exceptions are designed for, so hopefully their abuse in this manner will soon have some international law stomping down on such use.

      I for one am against my government intentionally using a loophole to put the entire Canadian people into a lose/lose situation unless they do exactly what a few corporate interests want.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Sep 2014 @ 4:34am

        Re: Re: Is that even possible?

        I just checked, and in my country, the constitution explicitly says that the judiciary can declare a treaty unconstitutional. International treaties are considered the same as ordinary law, thus below the constitution.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 1:02pm

    because of the money and power they have, governments are extremely quick to aid their 'brothers' in corporations, because of the rewards available. when doing this sort of thing, they are equally extremely quick to condemn ordinary citizens for something they have done/will do, brand the process illegal and give the people names like 'pirate'. but when you consider what this article is about and what the Canadian Government has done (without asking the people their opinions, or at least ignoring them), which is not only not in the best interests of Canadians or Canada and could (read probably will) lead to some real shit circumstances, yet they get away Scot free!! now why is that? they were after all, put into the positions held because they swore an oath to do the best they could for Canada and its people! dont seem much like it to me!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 2:13pm

    Treason

    Harper has come out as a double-agent, a whore, and a jackass who sold his own people out to the highest bidder. The same could be said of just about every other world leader these days.

    Once the bloated globalist system collapses under its own weight, no historian should ever say any kind words about people like Harper and omit any details over what little good they have done. They tried to destroy our future, so it's fitting that what's left of our future shall destroy their past.

    reply to this | link to this | view in chronology ]

  • identicon
    Kronomex, 19 Sep 2014 @ 3:46pm

    Oh great! I can just see the tools that run Australia allowing the same thing to happen here.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Sep 2014 @ 4:12pm

    When did the real world turn into a Shadowrun campaign?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Sep 2014 @ 10:37am

      Re:

      Shadowrun, third edition anyway has predicted so many things which are real or close to be real nowadays ('xcept we'll never get magic and metahumans, that was gonna happen in 2012), FASA Corp. were and are run by epic visionaries. Corporations> Countries.

      reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 19 Sep 2014 @ 10:04pm

    China's investment in Canada is huge: Chinese companies have invested over $30 billion in Canada's energy industry alone.

    Which absolutely proves that ISDS is necessary. Oh, wait...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2014 @ 9:08am

    we have never upheld a treaty yet ... so why worry.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Sep 2014 @ 9:27am

    Thus Harper goes from being an American lapdog to a Chinese one. He would sell out all of Canada if it benefited him.

    reply to this | link to this | view in chronology ]

  • icon
    GEMont (profile), 20 Sep 2014 @ 12:04pm

    There is one born every minute, and two in Canada.

    I bet the job Harper gets when he retires has something to do with the part of the Energy Industry that is owned by the Chinese.

    reply to this | link to this | view in chronology ]


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