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FIPA update: How to respond to Conservative letters about the China investment treaty

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No one has done as much as Osgoode Hall law professor Gus Van Harten to educate Canadians about Harper's investment treaty with China. I’d call it a true public service. If it hadn't been for Van Harten's early articles in The Tyee, the Globe and Mail and other newspapers, it's doubtful there would have been as much of a political backlash to the unnecessary and highly dangerous corporate pact, or Foreign Investment Promotion and Protection Agreement with China, that Harper could ratify, without debate, at any moment.

Van Harten's latest article in The Tyee will be useful to anyone (and there are tens of thousands of you) who has sent a letter opposing the China treaty to their Conservative Member of Parliament and already received a response. I got a form letter about the FIPA this week from David Sweet, a Conservative MP from nearby Ancaster, Ontario (I live in Hamilton). It contains many misleading and even false assertions about Canada's FIPA regime, in particular about the threat to environmental and other regulations.

For example, Sweet says "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." But as Van Harten explains in The Tyee, the Harper government is not in a position to guarantee this since it's up to paid arbitrators, not impartial judges or governments, to decide the interpretation of the FIPA.

Sweet's comments also ignore that in two recent omnibudgets, the Harper government has created a new (lower) floor for environmental protection that new foreign investors in Canadian mining, energy and infrastructure projects (from China or elsewhere) will expect to apply indefinitely. Should any federal or provincial government insist on stronger environmental protections, these measures would be easy prey to corporations and opportunistic investment lawyers who will claim that a "regulatory expropriation" or violation of "minimum standards of treatment" had occurred.

"Further," writes Van Harten, "a government may face intense pressure not to exercise its right to regulate, due to the power of foreign investors to threaten lawsuits for hundreds of millions or billions of dollars. Even if the government thought it had a strong defence in a case, it would run the risk of being ordered to pay massive compensation to an investor."

Van Harten is clearly responding to the same letter I received from Sweet, so his article offers valuable counter-arguments for anyone who wants to challenge their MP in a follow-up letter. Read it by clicking here. You can also refer to the section on investor-state dispute settlement in our recent report, The CETA Deception, for more on how these FIPAs and investment protections in Canada's trade deals undermine democracy.

We still have time to stop the FIPA, which was not ratified on November 2 as many had suspected it would be. If you haven't yet written to MPs asking them to tear up the FIPA with China and immediately stop negotiating excessive corporate protections into any of Canada's trade and investment deals, click here.

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