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CETA: It's the new Constitution, stupid

Current media coverage of the negotiations to establish a Comprehensive Economic and Trade Agreement ("CETA") with the European Union ("EU") has focused on whether it makes sense for Canada to adopt greater patent protection rules (read: more money to large pharma corps -- much more) for greater putative access to EU markets for Canadian pork and beef producers (and no, the EU won't accept genetically modified food, no matter what CETA provides). But the media and others have missed the boat -- trade agreements haven't primarily been about trade in goods for years, and that is certainly the case for CETA.

In fact, CETA represents a dramatic expansion of the application of international rules to spheres of provincial and local governance that have never before been subject to the constraints imposed by free trade agreements. While CETA rules are similar to those of NAFTA and the WTO, they would have far broader application because Canada proposes to abandon most of the reservations (exceptions or safeguards) that have until now sheltered sub-national governments from the full application of such international rules. Because provincial governments have primary jurisdiction under section 92 of the Constitution Act, 1867 to regulate investment in and the provision of public services -- from the treatment of drinking water to the delivery of health care -- by imposing broad constraints on policy and law relating to investment and services, CETA would curtail provincial powers as surely as would a formal amendment to the Constitution.

But the most astonishing feature of this 'constitutional' project is that, under CETA, each province is to have different powers. This is because the provinces have nominated their own unique wish lists for carve-outs under the proposed regime -- some seek to preserve their right to promote renewable power, maintain supply management for agricultural commodities, or establish water conservation measures -- but others do not. Doling out such disparate constitutional powers would be preposterous in any other context, but cloak the project in the mystique and obscurity of free trade negotiations, and well… anything is possible.

If CETA negotiations succeed, the result will fragment Canada's constitutional landscape by creating 'have' and 'have-not' provinces where the scarce resource will be the capacity to govern.

For more detailed analyses on the impact of CETA, click here, here and here.

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