Gus Van Harten

Thu, 2012-12-13 14:05Carol Linnitt
Carol Linnitt's picture

China Investment Corporation Eyes BC Forests, Spells FIPA Danger

The China Investment Corporation (CIC), one of the world's largest sovereign wealth funds, is set to become a powerful landowner in British Columbia if a $100 million deal with Island Timberlands, the second-largest owner of private forests in the province, goes through. The Ancient Forest Alliance (AFA) is concerned that closure of the deal, especially in light of Canada's pending ratification of the Foreign Investment Protection and Promotion Agreement (FIPA), could have negative consequences for protection of BC's treasured old-growth forests, forestry jobs, and the rights of First Nations, according to an AFA press release.

“The Communist Party of China is about to become one of the biggest landowners in British Columbia if this deal goes through,” said Ken Wu, executive director of the AFA
 
“In light of the proposed Canada-China investment treaty, this could be at the expense of BC’s environment, forestry workers and First Nations,” said Wu, adding, “Chairman Mao’s spirit is seemingly being channelled by Chairman Harper these days, as it’s hard to see how this proposed agreement will be a net benefit to Canadians.”
 
Chinese investment in Canadian resources has taken on a new significance since the Harper government announced the possibility of entering into a strict trade agreement with China. The deal, an investment treaty with a 31 year lifespan, would strongly dissuade municipal, provincial and federal governments from making any decisions that might affect the profit margin of Chinese investors.
 
“The China-Canada FIPA would allow Chinese investors in Canada to sue the federal government for lost profits due to new regulations, taxes, and environmental laws enacted federally or provincially. This would undercut the ability of future federal and provincial governments to enact new regulations or policies that might result in a lawsuit by Chinese companies which are accountable to the Chinese government,” says the press release.
 
Thu, 2012-12-13 11:05Carol Linnitt
Carol Linnitt's picture

Van Harten: Canada "Recklessly" Entering Trans-Pacific Partnership, FIPA

Last week Foreign Affairs and International Trade Canada announced Canada had “officially joined the latest round of Trans-Pacific Partnership (TPP) trade negotiations” after more than two and a half years of talks by previously engaged nations. The 15th round of talks, involving Australia, Brunei, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the U.S. and Vietnam, wrapped up yesterday in Auckland. 

The TPP has already been the cause of significant concern in the U.S. where citizen groups and elected leaders have argued the agreement is shrouded in secrecy, leaving the American public to speculate about its consequences. This summer, after members of Congress complained corporate access to the trade documents superseded their own, leaked portions of the agreement began to circulate online. 
 
At the time Lori Wallach, director of Public Citizen's Global Trade Watch, said, “the outrageous stuff in this leaked text may well be why U.S. trade officials have been so extremely secretive about these past two years of [trade] negotiations.”
 
During those two years, while Canada was vying for a seat at the TPP table, America made arguments that seemed to anticipate the furor Canadians would soon feel after the announcement of the Canada-China Foreign Investment Protection and Promotion Agreement, or FIPA
 
Much like FIPA, the TPP grants unprecedented power to corporate entities with access to international tribunals that have the authority to overrule Canadian decisions regarding domestic policies that may apply to environmental regulation or reform, finance and labour policies and First Nations rights.
 
International investment lawyer and trade agreement expert, Gus Van Harten told DeSmog that Canada is currently on track to become “the most locked in developed country in the world in investor-state arbitration.” He added, Canada is “proceeding recklessly” into this enfeebling agreement which will give “almost all foreign corporations in the country exceptional leverage to pressure governments behind closed doors.”
 
The Harper government is selling out Canada's long term sovereignty and prosperity in what appears as a thoughtless gamble, without so much as a financial risk assessment. As Van Harten puts it below, “We do not intend to slip on the sidewalk in winter, but we still check for ice.”
 
I asked Professor Van Harten 5 questions about the TPP and its relation to the politically-contentious FIPA
Fri, 2012-12-07 17:21Carol Linnitt
Carol Linnitt's picture

Harper Government Approves Foreign Acquisition of Nexen, Progress Energy, Affirms FIPA Concerns

Today Prime Minister Stephen Harper announced the approval of two major acquisitions of Canadian energy companies by foreign state-owned enterprises. The Chinese National Offshore Oil Company (CNOOC) will commence the $15.1 billion takeover of Nexen Inc., a Canadian company with major holdings in the Alberta tar sands. Malaysia's Petronas will proceed with the purchase of Progress Energy Resources Corp., a Calgary company with considerable shale gas plays in British Columbia, for $5.2 billion. Petronas has plans to construct an $11 billion liquified natural gas plant in Prince Rupert to prepare gas exports for Asia. 

Prime Minister Harper announced the takeovers, which are steeped in controversy, in tandem with new takeover guidelines intended to address growing concerns of foreign ownership of Canada's resources by energy-hungry nations. He remained silent on the significance of the approval for FIPA, the Foreign Investment Protection and Promotion Agreement, also known as the China-Canada Investment Treaty.
 
“Canadians generally and investors specifically should understand that these decisions are not the beginning of a trend but rather the end of a trend,” said Mr. Harper. The full meaning of that statement, however, remains to be seen. The Harper government's decision to ratify FIPA may mean deals done with China, like today's deal with CNOOC, will carry a new significance.
 
The government previously raised the threshold for official review of foreign takeovers from $330 million to $1 billion, signaling open arms to potential foreign investors with an eye on mega projects like the Alberta tar sands. However, today that threshold was returned to $330 million for state-owned enterprises.
 
“To be blunt, Canadians have not spent years reducing ownership of sectors of the economy by our own governments only to see them bought and controlled by foreign governments instead,” Mr. Harper said
Fri, 2012-10-26 17:20Franke James

The Scary Canada-China Trade Deal That Will Haunt Us for 31 Years

Illustration FIPA Harper by Franke James

hat's the scariest thing happening just after Halloween? Is it the stomachaches our children will have from eating too many sweet treats? No, it’s the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA), which will automatically come into force on November 2nd, binding Canada for 31 years to come.

Shockingly, the most significant trade agreement since NAFTA is set to automatically go into effect – without a single debate or vote in Parliament. Our political representatives have not even had the chance to say “Boo”.
 
The deal was signed in secret by the Harper Government on September 9th, and quietly tabled in the House of Commons on Sept.26th. No press release to the Canadian media. No briefing to our MPs to announce the details. Just a clock ticking off the 21 sitting days until FIPA comes into force on Nov.2.
 
But surely the Harper Government has protected Canada’s interests? Unfortunately, no.
 
Thu, 2012-10-25 14:56Carol Linnitt
Carol Linnitt's picture

The Rush to Ratify: BC Rejected International Investment Deal in '98 and Should Do So Again

This past weekend trade investment lawyer, Gus Van Harten, spent his time in his basement, rifling through old files. He knew that somewhere, buried in piles of international investment and legal trade documents, there was the answer to this one nagging question he couldn't shake: hadn't British Columbia already refused an investor-state treaty like the China-Canada Investment Deal once before? And wasn't that rejection because the trade deal was 'unconstitutional?'

And there the answer to his question lay: in a 1998 special legislative report BC published on the OCED's then-proposed Multilateral Agreement on Investment (MAI). In this document, a BC Special Committee outlines why an investor-state mechanism like MAI - which is essentially the same as the proposed China-Canada Investment Deal - is dangerous for provinces determined to protect their jurisdictional rights when it comes to governmental sovereignty, natural resources, First Nations, environmental protection and human and labour rights. 
 
The legislative committee recommended that “when negotiating the MAI or any future investment treaty, the federal government must ensure that the agreement does not apply to matters within provincial jurisdiction, including local government measures, without the express consent of the Legislative Assembly of British Columbia…If the federal government fails to provide for such consent, then the provincial government should explore all means, including legal action, to defend vigorously its own jurisdictional rights and those of local governments to represent the interests of British Columbians.”
 
According to this logic, British Columbians and all of our elected provincial officials should be up in arms over the proposed China deal. 
Tue, 2012-10-23 20:00Guest
Guest's picture

Suzuki: Short-Term Thinking On Display in Canada-China Deal and Budget

By David Suzuki
 
Why, when so many people oppose the Enbridge Northern Gateway pipeline project, would government and industry resort to such extreme measures to push it through?
 
The problems with the plan to run pipelines from the Alberta tar sands across northern B.C. to load unrefined, diluted bitumen onto supertankers for export to China and elsewhere are well-known: threats to streams, rivers, lakes and land from pipeline leaks; the danger of contaminated ocean ecosystems from tanker spills; rapid expansion of the tar sands; and the climate change implications of continued wasteful use of fossil fuels.
 
The benefits aren’t as apparent. Some short-term and fewer long-term jobs, possibly for foreign workers, and increased profits for the oil industry – including state-owned Chinese companies – are all we’re being offered in exchange for giving up our resources, interests and future, putting ecosystems at risk, and forfeiting due democratic process.

Thu, 2012-10-18 10:34Carol Linnitt
Carol Linnitt's picture

China-Canada Investment "Straitjacket:" Interview with Gus Van Harten Part 2

This post is second in a series on the Canada-China Investment “Straitjacket:” Exclusive Interview with Gus Van Harten. You can read Part 1 here and Part 3 here.

Right now Canadians stare down the barrel of a 31-year long legal trade agreement with the Chinese government that did not become public knowledge until September 26, 2012.

The trade treaty, known as the Foreign Investment Protection Agreement or FIPA, has garnered notable opposition in the past three weeks, with NDP trade critic Don Davies calling for public hearings, Green Party MP Elizabeth May calling for an emergency Parliamentary debate, and campaign organizations Leadnow.ca and SumofUs.org gathering over 39,300 opposition signatures (and counting) to deliver in person to Ottawa.

Yesterday, the Canadian Press reported the Harper government's refusal to host public hearings. Elizabeth May's October 1 request was also denied on the grounds that FIPA does not meet the test of emergency.

The trade agreement, or treaty, as it is called, is slated for ratification at the end of this month. The Commons trade committee will be briefed on the document in a one hour hearing.

With a trade deal that threatens Canadian sovereignty looming on the horizon and a government committed to expediting its approval, DeSmog caught up with trade investment lawyer and Osgoode professor Gus Van Harten to talk through some of the details.

Wed, 2012-10-17 14:23Carol Linnitt
Carol Linnitt's picture

China Investment Treaty "a Straitjacket" for Canada: Exclusive Interview with Trade Investment Expert Gus Van Harten

This post is the first of a series on the Canada-China Investment “Straitjacket:” Exclusive Interview with Gus Van Harten. You can access Part 2 here and Part 3 here.

I recently picked up a copy of Francis Fukuyama's 2011 book, The Origins of Political Order. Sitting on the bedside table at the house I was staying at, the book made for some 'light' bedtime reading. I heaved the enormous tome onto my lap and, opening it to a random page, read this alarming passage: 

There is no rule of law in China today: the Chinese Communist Party does not accept the authority of any other institution in China as superior to it or able to overturn its decisions. Although the People's Republic of China has a constitution, the party makes the constitution rather than the reverse. If the current Chinese government wanted to nationalize all existing foreign investments, or renationalize the holdings of private individuals and return the country to Maoism, there is no legal framework preventing it from doing so (Pg 248)

My concerns with China's treatment of foreign investments arose in light of China's recent bid for Nexen, a Canadian company with large holdings in the Alberta tar sands. Since Canada is having trouble with the management of the tar sands now, what would it look like if we had Chinese state-owned enterprises like the Chinese National Offshore Oil Company (CNOOC) in the mix?

It turns out the problem is of magnitudes greater than I had originally conceived, and concerns not only Canada's management of its resources, but its sovereignty, its democracy, and the protection of the rights and values of its citizens.

Perhaps most strikingly, Canada is embracing this threat, showing telltale signs the real culprit in this dangerous deal isn't China at all.

In order to untangle the web of an international trade deal as complex as the China-Canada Investment Treaty, which establishes the terms of the Nexen deal - the biggest overseas takeover by a Chinese company -  I spoke with Professor Gus Van Harten of Osgoode Law School, an expert on foreign investment deals of this sort.

Below is Part 1 of our interview:

Thu, 2012-10-11 10:45Carol Linnitt
Carol Linnitt's picture

Foreign Funding? So Glad You Asked: Enbridge Renews Attack Against Canadian Environmental Groups

Enbridge recently launched a renewed attack on Canadian environmental organizations, demanding the panel overseeing the Northern Gateway Pipeline hearing squeeze funding information from the project's critics.

In early 2012, a campaign - coordinated by the conservative government, the oil industry and the astroturf Ethical Oil Institute - sought to undermine the credibility of groups opposing the pipeline by suggesting they are “foreign interest groups” that “threaten to hijack our regulatory system to achieve their radical ideological agenda” as Natural Resource Minister Joe Oliver so forcefully put it.

Now Enbridge is renewing that egregious attack by requesting the panel investigate funding granted to Canadian environmental groups from a number of prominent American foundations renowned for their work in social and environmental equity, including poverty reduction, aboriginal issues, conservation, resource management, international development, and children and peace initiatives.

But Enbridge's ploy to redirect public attention away from tar sands, pipeline and oil spill issues toward the meddling of foreign interests in Canadian affairs is misguided, to say the least. The lion's share of foreign funding that guides the Canadian resource economy does not come in the form of conservation or environmental efforts: it comes through foreign investment in the resource sector.

And in the instance of the tar sands and related pipelines, foreign investments can be a politically, environmentally and socially dangerous affair.

Subscribe to Gus Van Harten