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Lawrence Martin (Brigitte Bouvier For The Globe and Mail)

Lawrence Martin

(Brigitte Bouvier For The Globe and Mail)

LAWRENCE MARTIN

Why aren’t we debating the Canada-China investment pact? Add to ...

In one week’s time, unless something strange happens, a far-reaching Canada-China investment agreement will take effect. It’s one of the most important commercial agreements Canada has signed since NAFTA. But whereas NAFTA could be terminated on six months’ notice, this deal locks in the signatories for a minimum of 15 years.

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It’s tantamount, you might say, to a commercial bill of rights for China in this country – an economic meshing on our part with the authoritarian Asian giant, giving it potentially considerable weight in the pace and scale of our resource development.

The problem is, few know much about the deal. It’s being rammed through the parliamentary system without scrutiny, foisted on the business community, the opposition parties and the country with hardly a word of debate or a vote. Our role is to accept it on faith – to take the government’s word for it.

In fact, while opponents are up in arms, this deal may be a good thing. Canada gets better access to the world’s emerging economic mega-power. Our investors there get rights and protections they didn’t have before. We’ve been trying to get a China investment deal since the mid-1990s.

But how are we to know if the pluses outweigh the negatives without public examination? This agreement didn’t even make it into one of those democracy-shredding omnibus bills the Conservatives have become so fond of.

The debate in this country has been dominated by the proposed Chinese takeover of Calgary’s Nexen Inc. to the extent that few commentators have paid much heed to the investment deal (though Postmedia’s Michael Den Tandt has called the pact’s secrecy mind-boggling). Nexen is important. But it’s a tree. The investment deal is the forest.

So far, all we’ve had is a brief appearance by some trade officials before a parliamentary committee. The government has blocked all other avenues of debate, save to say the opposition parties could devote an opposition day to it. While it’s true that investment agreements are typically of long duration and don’t require parliamentary approval, this is China, not Denmark.

Opponents say the agreement is lopsided in China’s favour. Opposition is being led by Osgoode Hall professor Gus Van Harten, who is one of our very few authorities on the complexities of investment treaties and who has written a 14-point letter to the Prime Minister detailing its failings. The Green Party’s Elizabeth May, a long-time trade policy watcher, has been leading the House of Commons charge along with NDP trade critic Don Davies, who says his leader’s office has received 15,000 e-mails questioning the agreement.

One of the protestations is that national treatment clauses heavily favour Beijing. The Chinese have far more domestic barriers and restraints to trade than does Canada. Investors in China are required in many instances to use local suppliers and labour. Not so investors in Canada.

Another major sore point is the dispute settlement process. Unlike most other investment pacts, this one allows for settlements behind closed doors. As incredible as it sounds, Prof. Van Harten says, Chinese asset owners in Canada “will be able, at their option, to challenge Canadian legislative, executive or judicial decisions outside of the Canadian legal system and Canadian courts.”

In that Chinese investment in Canada far outweighs Canadian investment in China, critics say there’s no reciprocity in this deal. Usually, the capital-importing position under such treaties is occupied by a developing or transition economy. In this case, the capital importer being Canada, there are many vulnerabilities.

McGill University’s Armand de Mestral, also a specialist in investment deals, isn’t as worked up about the pact as Prof. Van Harten. But Ottawa’s handling of it, he says, is unwarranted. Other governments report regularly to their parliaments on their investment deals. The Harper Conservatives promised to open up the process, he notes, but have failed to do so.

So, you ask, what else is new? Not much.

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