Letter to the Editor

Corporate shock and awe Reading up on the so-called Trade, Investment and Labour Mobility Agreement, my mind considered its massive and explosive…

Corporate shock and awe

Reading up on the so-called Trade, Investment and Labour Mobility Agreement, my mind considered its massive and explosive ramifications.

The likes of Gordon Campbell are still on their long march towards a bureaucratic aristocracy.

TILMA’s purpose is to shock the wits out of a population, to weaken and to ready the communities for radical changes.

Municipalities and First Nations, with their less deep pockets, may become early victims of TILMA’s irrational and anarchic penalty regime.

The following are a few more findings of general interest and some points of a refined analysis that is also meant to offer leads to local policy analysts.

1) What is TILMA?

Without ratification, discussion or consultation, the BC and Alberta governments have signed and implemented TILMA, an interprovincial agreement that has sweeping powers.

The Yukon government intends to sign on. In a legal context, the term government “measure” describes absolutely everything a government does.

Governments have been and are already dealing with administrative barriers in all of the areas that are claimed by the fraudulent TILMA labels as the need arises.

This happens partly within the Agreement on Internal Trade.

The Conference Board of Canada, with the Canada West Foundation trailing, was the lead lobbyist, but also consultant on behalf of the BC and Alberta governments. It doesn’t give any substance in terms of trade, labour mobility or investment.

TILMA obviously attempts a micro implementation of NAFTA and other international ‘trade’ agreements, and has two main elements with astounding and absurd overreach.

First, in extraordinary ways, all levels of government are formally redefined as a subsidiary not even of a market economy, but of select private interests that appear to be guided by an anti democratic dogma.

Secondly, the TILMA drumhead trials, after up to one month of dispute resolution, employ a sweeping and unheard of private enforcement regime in the form of panel decisions on a provincial Supreme Court level with zero appeal options.

The private applicants can bag $5 million each without even having to prepare a proper case.

From NAFTA to TILMA, the burden of proof shifted from the applicant party with a ‘trade’ complaint against government-caused ‘trade impediments’ to the ‘defending’ government party.

In the spirit of the agreement, provincial governments are likely to appoint arbitrators who side with the applicant to begin with.

This does duplicate the perversion of drumhead courts in dictatorships.

It means, in case of a TILMA panel, the prosecuting and defending sides, as well as the power of decision, are all collaborating in unison to crush the real defendant in absence, the citizenry.

It shouldn’t happen in Canada: a fundamental violation of the right to independent justice, the active breeding of treason and corruption in the position of public trust.

All exceptions will remain under review and Article 22 provides the direction, which is to abandon them.

The last word on the exceptions is held by the panel members appointed by governments who initiated TILMA.

Health care and social services as well as ecological requirements have no exception status under TILMA.

In these areas, a well-meaning government would then have to argue under Article 6, 1. a). that “the purpose of the measure is to achieve a legitimate objective;” etc, and that every single policy and delivery detail is necessary.

A look at the track record of governments challenged internationally with identical arguments in “trade” disputes trying to prove legitimacy for equivalent measures indicates the following.

Under TILMA, a recognizable future of public medical care, social services and ecologically responsible government, in fact of democratic government, will be nonexistent in the Yukon.

There is awareness of the shaky legal ground.

According to a trade law office in Toronto a federal Supreme Court decision from 1930 says that the interprovincial implementation of international agreements violates federalism.

The private enforcement regime in TILMA appears to be an awkward attempt to work around that.

A ‘good cop, bad cop’ routine is supposed to become helpful at election time.

Cruel ‘market’ forces and their protagonists can be blamed for the well-orchestrated butchering of civil society.

Market fundamentalism and market economy are very different things.

2) How does TILMA work?

“Article 2: Scope and Coverage

1. This agreement applies to measures of the parties and government entities …”

Government activities affect, in some way, anything happens in a society. How would commerce move if governments wouldn’t build roads?

There is a deceptive banality and vagueness in the TILMA language.

Absolutely every public institution is a TILMA target, every single law and policy is superseded by TILMA.

Every exception for local governments or services like WCB or public libraries or whatever else is transitional or otherwise temporary.

Commercial activities are specific in their nature, in contrast TILMA has ideological goals, has political goals. TILMA does not convincingly invite commercial disputes but ideologically based claims with up to $5 million awards promised for each.

With the signing of TILMA, municipalities and indigenous authorities in BC are immediately bound by TILMA in terms of restrictions on new business.

The agreement would overrule existing bylaws.

A particular Whitehorse zoning bylaw does not allow buildings more than four storeys high. But that could be hammered dozens of times — there is no set limit — until it disappears.

The same can happen to Yukon programs, like health-care delivery or to correctional services.

Its important to note that the TILMA panel members are not independent like any court would be. They are appointed by the parties, but the rulings have the power of provincial supreme court decisions.

It might even become difficult to assemble enough dispute resolution capacity in order to process claims within one month.

Then the claim moves automatically and irrevocably into the phase of awarding damages of up to $5 million for each claim.

Talking about fiscal responsibility, TILMA is the invention of the government turbo cash cow.

According to a Toronto trade lawyer the UNCITRAL, arbitration rules that are employed for the TILMA dispute resolution have been designed for certain international negotiations only and will be dysfunctional in interprovincial matters.

This problem would add to a lack of transparency and objectivity in the TILMA panel appointments.

TILMA surrounds itself with an air of intimidation and incompetence, over some time, responsible governments on all levels are supposed to be replaced systematically with corrupt governments.

3) Early TILMA effects

While much of the agreement is going to be visible, a lot of it will also be secret.

Apparently emboldened by TILMA, the BC government has enacted new meat inspection legislation, effective September 30, 2007.

The BC Food Processors Association admits to have had a hand in the new rules for the small producers and has government enforcing them.

This will make it next to impossible for the small ranchers and farmers in British Columbia to sell their meat and keep using small, sanitary slaughter operations.

The BC government has decreed them out of business, knowing that it is unacceptable for ethical meat producers to send clean, healthy animals into a handful of giant meat packing hellholes.

The organic producers do not have the support of big media, of powerful lobby groups, of legal departments when people die from contaminated meat.

They cannot afford to compromise product quality, to void their organic certification and to break the rules of producer associations and overseeing bodies.

The organic meat producers don’t get government subsidies and are more ‘free-market enterprises’ than most of modern agriculture.

The organic meat producers are part of organic agriculture and are consistently the strongest growth industry in food production today.

Now, apparently, the BC agribusiness lobby has used the government to shut down the competitive small meat producers.

Yukon farmers, ranchers and gardeners, watch out for TILMA.

Peter Becker

Whitehorse