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Control of Canada to the Chinese

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Control of Canada to the Chinese

Postby maple leaf » Oct 24th, 2012, 3:13 pm

Harper is selling out Canada to China.




Dear

If you think the proposed takeover of Nexen by China’s national offshore oil corporation (CNOOC)1 is controversial, you’re in for a shock – it’s just the tip of the iceberg.



Harper is about to sign a trade treaty with China that places foreign corporate profits above our own democratic laws and policies2. He plans to sign the treaty into law on November 1st with NO public or parliamentary debate. 
 


We can’t let this happen. Send a message to Conservative members of the International Trade Committee now! Tell them that you oppose enactment of the China Canada Foreign Investment Promotion and Protection Act (FIPA). Demand that they contact the Speaker of the House of Commons and request a debate on this treaty.

This trade deal is the most significant foreign investment pact since NAFTA and the Harper government quietly released it with a mere twenty-one days notice before enactment. It would give Chinese companies invested in Canada the right to sue us for making decisions that impact their profits - be they for labour, health, banking, human rights or environmental protection.

For example, if British Columbia says “no” to the Northern Gateway pipeline, then Chinese investors in Enbridge can sue Canada for limiting their profits—an amount that might well total hundreds of millions of dollars. Pulled out of our taxpayer pockets and without our knowledge.

How is that possible? Because any Chinese lawsuit filed won’t be brought before a Canadian court of law. Not under this treaty. Instead, a three person arbitration panel decides the outcome. Behind closed doors. Without any recourse to Canadian judicial review or appeal.

Please help me stop this outrageous treaty from becoming law on November 1st. Send a message to members of the International Trade Committee right now and tell them “NO DEAL”. Let them know they have a responsibility to protect Canada’s sovereignty and demand a full review and debate of this treaty.

Stay tuned for more updates.

Sincerely,





Clayton Ruby, C.M.
Board Chair, ForestEthics Advocacy
B.A., LL.B, LL.M., LL.D. (honoris causa)

P.S. I am investigating whether we can challenge this treaty on the grounds that it is unconstitutional. It will be tough to make that case. That’s why I need you to contact members of the International Trade Committee immediately and urge them to debate and suspend this deal.

1) Calgary Herald article: Hasty Nexen deal bad for Canada; Lack of debate in House, across nation

2) The Tyee article: China Investment Treaty: Expert Sounds Alarms in Letter to Harper
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Re: Control of Canada to the Chinese

Postby Sn0man » Oct 24th, 2012, 8:36 pm

Un-freaking believable.

Copied from the Tyee:

Oct. 12, 2012

Dear Prime Minister Harper and Minister Fast,

I am an expert in investment treaties. As a Canadian, I am deeply concerned about the implications for Canada of the Canada-China investment treaty. As I understand, the treaty is slated for ratification by your government on or about Oct. 31. I hope you will reconsider this course of action for these reasons.

1. The legal consequences of the treaty will be irreversible by any Canadian court, legislature or other decision-maker for 31 years after the treaty is given effect. The treaty has a 15-year minimum term, requires one year's notice prior to termination, and adds another 15-years of treaty coverage for assets that are Chinese-owned at the time of termination. By contrast, NAFTA for example can be terminated on six months notice.

2. Other investment treaties (aka FIPAs) signed by Canada have a similar duration and, in this respect, are exceptional among modern treaties. Yet none put Canada primarily in the capital-importing position. As such, the Canada-China treaty effectively concedes legislative and judicial elements of our sovereignty in a way that other FIPAs do not. 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.

3. To elaborate, the treaty will likely be largely de facto non-reciprocal due to anticipated in-flows of Chinese investment to Canada outstripping Canadian investment in China. The deal gives Cadillac legal status to Canadian investors in China and vice versa. Yet Canada will be much more exposed to claims and corresponding constraints as a result of the de facto non-reciprocity. Two awards of a billion dollars-plus, and many over $100 million, have been issued against countries to date under these treaties, with more likely on the way. The awards are immune from judicial review, largely or entirely, and are often extra-territorial, depending on how the investor's lawyers frame the claim.

4. Usually, the capital-importing position under these treaties is occupied by a developing or transition economy. Under the Canada-China treaty it is occupied by Canada. This poses a serious fiscal risk. Notably, to sue under the treaty, a Chinese company requires only a minority share in any Canadian enterprise or other asset in Canada. Based on interpretations by arbitrators in numerous cases, a Chinese investor could obtain, or may already have obtained, ownership in Canadian assets via a holding company in a secrecy jurisdiction such as the Cayman Islands, without losing its right to sue under the Canada-China treaty. What steps have you taken to ensure that there is not now and will not be in future Chinese-ownership of assets of which the government is unaware?

5. The only comparator for Canada in terms of fiscal risk is NAFTA. Canada has been sued about 30 times under NAFTA Chapter 11 although many cases were minor. Canada has paid out around $170 million in compensation in four cases to date. Other countries have been ordered to pay much more. Our biggest loss apparently came last May in a claim by Mobil Oil/ Murphy Oil involving R&D expenditure requirements in the Hibernia and Terra Nova projects. To my knowledge, a damages award has not yet been issued in that case although Canada was found by the arbitrators to have violated NAFTA. The decision reportedly undermined Canada's standard approach to reservations in investment treaties with potential implications for the Canada-China treaty. It is not possible to confirm this because your government has not released the Mobil/ Murphy award against Canada in spite of your commitment to openness in these arbitrations. Would you please send me a copy of this award?

6. This heightens my concern that you have, in the Canada-China treaty, retained the right of the federal government not to release documents filed in Chinese investor lawsuits against Canada under the treaty if the government deems it not "in the public interest" to do so. This is not consistent with longstanding Canadian government policy to make such documents, and the arbitration hearings, public as a matter of course. If you intend to release the documents in any event, then why have you retained the right not to do so in the treaty? Other Canadian FIPAs state very clearly that all of the documents will be made public.

7. In terms of the fiscal risks, the Canada-China treaty goes beyond NAFTA in important respects and probably increases Canada's exposure to lawsuits under NAFTA itself, on a non-reciprocal basis. Under NAFTA, the fiscal risk is contained by carve-outs of existing state and provincial measures from various NAFTA disciplines. The Canada-China treaty goes beyond NAFTA by extending a ban on performance requirements to existing provincial measures, including legislation. This ban will extend to Canadian provincial treatment of U.S.-owned, as well as Chinese-owned, assets due to the most-favoured-nation requirement under NAFTA. However, Canadian investors in the U.S. will not receive reciprocal treatment in relation to U.S. state measures. This will likely frustrate the ability of any federal or provincial government to ensure that value-added benefits of resource exploitation in Canada accrue reasonably to Canadians. Have you analyzed the risk-benefit comprehensively in light of all existing provincial measures?

8. Other legal protections that will be extended to Chinese investors under the treaty involve topics of expropriation and fair and equitable treatment, among others. These concepts sound straightforward but arbitrators in many cases have taken them in unanticipated and investor-friendly directions by requiring public compensation for foreign firms whose "legitimate expectations" were not met by a government or who were denied a "stable regulatory framework" over the lifespan of an investment. These arbitrator-made disciplines are far- reaching because they may preclude any changes to legislation that affect negatively a Chinese investor, without taxpayer compensation to the investor for its business losses. The possibility of the arbitrators reading such requirements into the Canada-China treaty adds to the fiscal risk and illustrates the concession of sovereignty under the treaty. So-called "stabilization clauses" are usually found in investment contracts signed with governments in developing countries, not treaties agreed by Canada.

9. The arbitration process itself is a long story. Briefly, it does a lot for the lawyers and arbitrators in the field, for investors from major capital-exporters (here, China or the U.S.), and for major multinationals able to entangle governments in never-ending legal contests of attrition, especially in the resource sector. Philip Morris has used these mechanisms to attack, for example, anti-tobacco measures in Australia and Uruguay. On the other hand, the arbitration process does little for, and may harm, anyone else. Above all, the process is not judicial in the manner of domestic or international courts and thus not reliably independent.

10. Canadian investors have never won compensation in any of their 16 known lawsuits against the U.S. and other countries under NAFTA and FIPAs. I have not heard this mentioned by Canadian lawyers and arbitrators who champion these treaties. It may be that Canadian companies have benefited by their ability to pressure governments to settle disputes in cases that are not public, but if so this reaffirms the danger that Chinese investors will pressure governments in Canada to back away from laws or regulations without public knowledge.

11. Because the arbitrators under the Canada-China treaty operate outside of the authority of the Canadian legal system and Canadian courts, the treaty appears to contravene the judicature provisions of the Constitution concerning the role of the superior courts. In various historical cases, the Supreme Court of Canada struck down legislation that contained broad privative clauses precluding review of tribunal decisions by the superior courts. The treaty's transfer of judicial authority to arbitrators is analogous and, arguably, more far-reaching. Notably, the arbitrators may make non-monetary orders against states as well as issue damages awards for potentially massive amounts.

12. The treaty clearly impacts on provincial powers on natural resources, taxation, land and property rights, and other matters. It applies to provincial legislation, regulations, or court or tribunal decisions that affect Chinese-owned assets, with limited exceptions. It does not contain a NAFTA-style carve-out for provincial performance requirements or any carve-outs for provincial measures regarding the treaty's expropriation and fair and equitable treatment provisions. Thus, there is a real possibility that, over the lifespan of the treaty, Canada will face billion dollar-plus awards due to provincial decisions that are not reviewable in Canadian courts. Does your government intend to assume the fiscal risk and have you obtained formal provincial consent for the proposed ratification of the treaty in light of its constitutional implications?

13. This quote by one of the arbitrators emphasizes the significance of a decision to ratify this treaty, including its arbitration mechanism:

"When I wake up at night and think about arbitration, it never ceases to amaze me that sovereign states have agreed to investment arbitration at all" ... "Three private individuals are entrusted with the power to review, without any restriction or appeal procedure, all actions of the government, all decisions of the courts, and all laws and regulations emanating from parliament." -- Juan Fernández-Armesto, arbitrator from Spain.

14. This treaty will have major implications for core elements of Canadian legislative and judicial sovereignty. It will tie the hands of all levels and branches of government in Canada in relation to any Chinese-owned asset in ways that many governments in Canada, I suspect, have not considered closely. The implications will be legally irreversible by any Canadian court or other decision-maker for at least 31 years.

I urge you please to reconsider your decision to proceed with ratification of this treaty, without provincial consent or a serious public debate, on or about Oct. 31. I request replies to the questions posed in paragraphs 4, 5, 6, 7, and 11 above.

Yours sincerely,

Gus Van Harten
Associate Professor, Osgoode Hall Law School

Open access to my publications here.

Open access to my research database here.
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Re: Control of Canada to the Chinese

Postby CorkSoaker » Oct 25th, 2012, 3:33 pm

Here is a link to all of the lawsuits filed under chapter 11 of NAFTA (up to 2010).

http://www.policyalternatives.ca/sites/default/files/uploads/publications/National%20Office/2010/11/NAFTA%20Dispute%20Table.pdf

Garbage clauses like this one and the one being proposed to the Chinese undermine any form of sovereignty; we are literally being sold down the river. Also any changes that the OP mentioned such as environmental protection don't actually have to hurt profits in order for a company or an individual to sue, they only have to threaten actual and potential profits.
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Re: Control of Canada to the Chinese

Postby Dave_1963 » Oct 26th, 2012, 3:45 am

Just read that story and signed a petition against this back-room deal. To this day I still have the political cartoon from the newspaper the day after Harper got his majority hanging on my fridge door. It shows Harper standing at his dresser searching his sock drawer whilst calling to his wife, "Laureen, have you seen my hidden agenda?". This guy is selling us out to the highest bidder,, at the cost of our Canadian standards. What ever happened to "transparency in government" as Harper touted? These deals that put Canada's future in jeopardy are a total joke. Seems like every policy change or deal Harper makes is behind closed doors. Sad state of affairs. This is not turning out to be the Canada that I had hoped for in my younger years.
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Re: Control of Canada to the Chinese

Postby GrooveTunes » Oct 26th, 2012, 8:39 am

Dave_1963 wrote:Just read that story and signed a petition against this back-room deal. To this day I still have the political cartoon from the newspaper the day after Harper got his majority hanging on my fridge door. It shows Harper standing at his dresser searching his sock drawer whilst calling to his wife, "Laureen, have you seen my hidden agenda?". This guy is selling us out to the highest bidder,, at the cost of our Canadian standards. What ever happened to "transparency in government" as Harper touted? These deals that put Canada's future in jeopardy are a total joke. Seems like every policy change or deal Harper makes is behind closed doors. Sad state of affairs. This is not turning out to be the Canada that I had hoped for in my younger years.


People should have paid attention in the last election when Harper said..."you won't recognize Canada when I'm done with it".
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Re: Control of Canada to the Chinese

Postby theyeti » Oct 26th, 2012, 9:27 am

they have several million ppl here already ... pretty easy for china to draw up a map showing vancouver as a chinese city not sure if canada could really do or even say much about it at this point
i wanna add that i was born overseas and have a south asian step mother dont play the race card on me
also does it surprise anyone that sweater vest wearing harp dog is selling it out from under ?? well to that i say some one voted for him it wasnt me i dont vote for just this reason then when they pull crap like this i can honestly say i knew better all along
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Re: Control of Canada to the Chinese

Postby CorkSoaker » Oct 26th, 2012, 10:40 am

theyeti wrote: well to that i say some one voted for him it wasnt me i dont vote for just this reason then when they pull crap like this i can honestly say i knew better all along


I as well knew better and that is why I DID vote.
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Re: Control of Canada to the Chinese

Postby maple leaf » Oct 26th, 2012, 11:32 am

People banding together and taking action for what one believes in can make a difference.We can't let Harper sell Canada out from under our noses.


Dear

Bravo my fellow Canadians! Your messages to Harper’s International Trade Committee MPs hit a nerve. Together with the Nexen uproar, Harper’s grand plan to put our natural resources and democratic laws on the Chinese corporate auction block is starting to crack. Wide open.

Despite his majority, Harper is vulnerable. And the Canada China Foreign Investment Promotion and Protection Act (FIPA)—let’s just call it Harper’s Sell-out Treaty—is likely to face resistance within Conservative party ranks. Just like the Nexen deal.1

We have less than one week to do whatever we can to expose and challenge FIPA. You’ve already spoken up to Parliament. Now, please sign our Open Letter to Harper. Let him know that our right, as Canadians, to make decisions that protect our natural resources and environment will not be held hostage to Chinese corporate profits.

I am demanding that this treaty be openly debated in public forums and in the House of Commons—and so should you. Harper’s attempts to quietly cede our sovereignty and constitutional rights to foreign corporate interests must be stopped.

Here’s my challenge to you: Help me get 30,000 signatures on our Open Letter to Harper in the next 72 hours. I promise to send that letter and your signatures to Harper on or before November 1st—the date he plans to sign this Treaty into law.

Sound impossible? Maybe it is. But the Canada I know and love is a Canada worth fighting for.

Join me. Sign our letter. Get your friends and family to sign our letter. Don’t let Harper betray all that Canada stands for: democracy, openness and a right to determine our own prosperous future.

Thank you!

Clayton Ruby, C.M.
Board Chair, ForestEthics Advocacy
B.A., LL.B, LL.M., LL.D. (honoris causa)


Sign an open letter petition here.
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Re: Control of Canada to the Chinese

Postby zzontar » Oct 26th, 2012, 2:04 pm

It would be foolish for China to take over Canada unless they had a strong foothold in the U.S. first.... heeeeey wait a minute...
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Re: Control of Canada to the Chinese

Postby grammafreddy » Oct 27th, 2012, 12:20 am

There's a lot of people in China who need to eat and they need to run their factories and their infrastructure and farms. The population of China is not declining. Buying up farm land and oil fields is just smart future planning. Putting their own people in to work their foreign enterprises is smart planning, too - especially if their workers can bring their families. Canada is not the only country China is buying into. In some countries the best farmland now belongs to China and all the crops produced go to China. They aren't dumb - they know they will someday outgrow their borders and what their citizens can produce to eat and they will need to have more land to move their people to. Looks to me like a good way to do it. And not even one shot was fired!
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Re: Control of Canada to the Chinese

Postby hobbyguy » Oct 27th, 2012, 10:18 am

It started with Brian (just put an envelope of cash in my pocket) Mulroney and continues on.

Every time the so called conservatives get into power they sell us down the river, this time they are throwing in not only the paddle but the canoe.

The GDP share of manufacturing in Canada pretty much stayed in the range of 20-25% of GDP from 1926 until the late 1970's. It dipped below that range during the 1980-81 recession, but was heading back up into that range before the "free traders" started their push. It now stands at about 13% of GDP and is declining in real terms. That figure is somewhat misleading as semi-finished products like lumber are "manufactured".

Unfortunately, all we get is spin and more back room deals to benefit the top few %.
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Re: Control of Canada to the Chinese

Postby keith1612 » Oct 28th, 2012, 5:25 pm

we sold Canada to the USA long ago, is China worse?
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Re: Control of Canada to the Chinese

Postby grammafreddy » Oct 28th, 2012, 6:48 pm

keith1612 wrote:we sold Canada to the USA long ago, is China worse?


Yes, it is.
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Re: Control of Canada to the Chinese

Postby Captain Awesome » Oct 28th, 2012, 10:10 pm

I'm somewhat curious to why would china buy control of Canadian farm land.
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Re: Control of Canada to the Chinese

Postby grammafreddy » Oct 29th, 2012, 1:30 am

Captain Awesome wrote:I'm somewhat curious to why would china buy control of Canadian farm land.


So they can ship the food to their country to feed themselves.

A country that can't feed itself is at the mercy of the world. We're getting there.
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