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China deal overrules future and existing Canadian law

China deal overrules future and existing Canadian law In his Nov. 23 Nordicity column, Al Pope pointed out how costly pseudo-trade agreements have become.

In his Nov. 23 Nordicity column, Al Pope pointed out how costly pseudo-trade agreements have become. Unfortunately, in an otherwise good story, he diminishes the full impact of how the Canada-China investment treaty threatens the Yukon.

Recently the Calgary-based gas-fracking company Lone Pine Resources, through a U.S. office front, launched a NAFTA Chapter 11 claim for $250 million in compensation against Canada. The alleged basis is a ban against hydraulic fracturing in Quebec.

As ridiculous as it sounds, frivolous litigation against democratic legislation and institutions is not only allowed and encouraged in NAFTA’s Chapter 11, it’s given teeth. I might add in 2010 the federal government gave a $130-million Chapter 11 settlement to the American pulp and paper outfit Abitibi Bowater because the Danny Williams government had refused them bulk water ownership in Newfoundland.

The Chinese investment deal has the same destructive scope and that is where Al Pope overlooks the important power of the agreement to overrule by penalty regime existing legislation and not just future legislation.

Referring to our MP Ryan Leef’s public letter justifying the deal with China,

Pope writes: “Leef, or whoever, had this to say:’ In Yukon, (the agreement) does not detract from legislation that already exists.’ Very true. But then nobody said it does.”

Well, I said it does and I will say it because the power to overrule existing Canadian law is stated in Article 17.2: “Each contracting party shall ensure that its laws, regulations and policies ... are administered in a manner that enables investors of the other contracting party to become acquainted with them.”

Legal interpretations are often based on casework, so let’s look at an example. The provision in Article 17 restricts the rule of Canadian law over Chinese corporations to the extent to which they understand it or choose to understand it. And the obligation for the process of understanding of Canadian law rests with Canada and not with those who would violate it.

It’s a fascinating innovation that Al Pope and others have overlooked. A Chinese company that, for example, might pollute the Yukon River or have a union organizer assassinated would be able to decide whether they had been presented sufficiently, speedily or otherwise adequately enough with presentations and explanations on Canadian laws. Other than words like “should,” the word “shall” carries the weight of legal determination based on which responsibility for action under a law exists or not.

The agreement has been signed into law, so I would like to try its Article 17 precedent in a low-key way. Say, I were caught with an expired parking meter, should I now attempt to escape a ticket by claiming that it was not speedily handled or that I was not educated in a linguistically adequate manner as to what a parking meter is about?

Peter Becker


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