Open letter to MP Ryan Leef:
Recently you wrote to Yukoners about your support of the China-Canada trade agreement, and particularly how this will be of great benefit for the Yukon.
Despite your assurances in the letter, I found that you did not fully explain several articles within the pending legislation, and it is my thought that your office is at the very least required to supply all the facts in this matter, so that the people can determine if this is in their interest.
To facilitate this, I have several questions.
Protection of Yukon laws is, I am sure, on the minds of many here. Despite your assurances, the Yukon, like all other jurisdictions in Canada, is in fact not protected. This is explained in articles 5 and 6 as well as article 23. Can you please explain the following?
Articles 5 and 6 require non-discriminatory treatment of each country’s investors. However, the treaty exempts “existing non-conforming” measures from this obligation. Question: if China does not have equivalent labour or environmental laws, is it possible that they can get an exemption to following Yukon law? Trade case law suggests that is likely.
Under Article 10, Chinese investors can demand public compensation if the “value or expected value” of their assets or investments is reduced by the laws of Canada. This being the case, how is the Yukon different than all other jurisdictions of Canada, including the federal government? How, as stated in your letter, do you intend to protect the Yukon from fallout from the act, when all other jurisdictions, including First Nations, cannot be protected under the agreement?
Simply stated, if a Yukon law – or a First Nation agreement – is preventing the full realization of profit from a Chinese company, then the company can petition for compensation for unrealized profit. The taxpayer, and our own laws, will cover the fine paid to the company.
How do intend to protect the Yukon laws under Article 23? Under it, Chinese companies are to be granted “enclave legal status.”
This means, in effect, that they will have more rights than Yukon-based companies, as any disputes will be handled by an outside arbitrator to rule on the legal proceeding.
Case in point: if a Chinese mine is charged for a labour violation, it could appeal to the arbitrator and request a ruling. If the arbitrator rules in favour of the company, then the Yukon shall pay restitution to the company for the loss of potential income.
Article 23 grants the arbitrator, which is a trade body outside Canada, the capability of overruling sovereign law. How will you ensure that Yukon businesses and citizens do not suffer unduly under this article? With similar treaties, arbitrators have in the majority of cases ruled in favour of the company and not the sovereign laws of the country.
The Yukon awaits your reply.