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Foreign investors — including some of the world’s wealthiest and most powerful corporations — typically generate little public sympathy and aren’t usually lumped in with groups deemed worthy of special protections.
So the Trudeau government, which is in the process of granting wealthy foreign investors extraordinary legal protections and access to public money, is probably hoping the public isn’t paying much attention.
The special privileges for investors are a key part of CETA, the Canada-Europe trade deal, which Justin Trudeau is planning to sign in Brussels in October.
Opposition to the deal — particularly the investor protections — is raging across Europe, with almost 3.5 million Europeans signing a petition against CETA and a similar trade deal being negotiated with the United States.
Here in Canada, however, resistance has been fairly muted, particularly after the contentious investor protections were revised last February, in response to pressure from European social democratic parties.
Those revisions made some improvements in the deeply flawed process, but the special privileges for investors, known as Investor State Dispute Settlement (ISDS), remain essentially intact. Investors will still be able to bring lawsuits over government policies they don’t like, and their lawsuits will still be decided by special tribunals where they will enjoy stronger legal protections than are available to any other group in domestic or international law.
Thus, despite the revisions, CETA will undermine Canadian democracy, handing foreign corporations a powerful lever for pressuring our governments to, for instance, abandon environmental, health or financial regulations, while leaving Canadian taxpayers potentially on the hook to pay billions of dollars in compensation to some of the wealthiest interests on earth.
The ISDS privileges, which have become increasingly common in trade deals, including the North American Free Trade Deal (NAFTA), help explain why corporations have become so powerful in recent years.
It’s often lamented that corporations now rule the world — a development typically attributed to forces beyond our control, like globalization and computer technology.
But corporate giants stalk the earth not because of forces beyond our control, but because we’ve changed laws in ways that empower them and restrict the power of our governments to regulate them. The ISDS privileges are a prime example.
But here’s the key point: we could change the laws to empower ourselves. But it’s difficult to get politicians to stand up to corporate interests.
Canada is a case in point.
Stephen Harper’s right-wing government pushed to have ISDS protections included in CETA. But why is the Trudeau government going along with these corporate-friendly protections pushed by his unpopular predecessor?
Trudeau could join forces with European social democrats, particularly in Germany, France and the Netherlands, to push for really significant changes to the ISDS section of CETA.
For instance, along with the extensive set of rights foreign investors will receive, there could be a corresponding set of responsibilities, which would hold these foreign interests accountable if they flout international labour, environment or consumer standards, notes Osgoode Hall law professor Gus Van Harten, an expert in international investment laws.
But no such responsibilities have been added, including in the ISDS revisions.
Similarly, while the ISDS revisions give governments the “right to regulate,” they impose the burden of proof on governments to show that their regulations are “necessary” and aimed at achieving “legitimate” objectives.
But this means that the “right to regulate” is limited and open to interpretation. A report by four European environmental groups and the Canadian Centre for Policy Alternatives, released in April, examined five major ISDS lawsuits — including two involving Canada — and concluded that merely affirming the “right to regulate” wouldn’t have prevented any of them.
Rather than pussyfooting around with half-hearted revisions of Stephen Harper’s corporate-embracing policies, the Trudeau government should refuse to sign any trade deal with such sweeping privileges for foreign investors.
The absurdity of that special privilege is highlighted by Van Harten. He notes that, under CETA, a foreigner tortured by Canadian authorities wouldn’t be able to bring a lawsuit against Canada — unless he was also an investor with assets in Canada, and the torture negatively affected his assets.
Although Trudeau has shown no inclination to protect Canadian democracy from over-empowered investors, there’s hope yet — overseas. Resistance in Europe to CETA, particularly the ISDS provisions, could prevent the treaty’s ratification. In the Netherlands, there are already 175,000 signatures on a petition that could trigger a referendum.
After we helped liberate the Dutch in the Second World War, they might just return the favour.
Linda McQuaig is a journalist and author. Her most recent book (with Neil Brooks) is The Trouble with Billionaires: How the Super-Rich Hijacked the World and How We Can Take It Back. This column originally appeared in the Toronto Star.
Photo: PMO by Adam Scotti
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