For the past two weeks, farmers have protested against the loss of agricultural quotas, which might be jeopardized by the signature of the Trans-Pacific Partnership agreement. In fact, the stakes are much more important than that. Just like in the lawsuit of $250 million by Lone Pine Resources, the ISDS clauses (Investor State Dispute Settlement) are giving foreign investors a de facto veto power over any laws and regulations put forward by an elected and legitimate government that wants to protect the interests of its citizens.
A quick recall. In June 2011, the government of Premier Charest voted Bill 18, which forbade drilling and fracturing in the bed of the St-Lawrence River. One of the claims of Lone Pine was situated in the St Lawrence, east of Trois-Rivières. This company sued Canada (Since a province is not represented in NAFTA) under chapter 11 of NAFTA claiming that it could conceivably have earned $250 million if it had discovered a commercially viable gas deposit, if it had invested in drilling and fracturing, if the price of gas was high, and a half dozen other "ifs."
The logic of Lone Pine would appear to be that of a man who has purchased a one dollar lottery ticket, then who claims the $250M grand prize. Let's remember that the Charest government was very favourable to the shale gas industry. But it gave minimal lip service to scientific evidence and to the lack of social consensus when it forbade drilling in the St Lawrence.
According to Lone Pine Resources, the protection of the health and safety of the citizens, the economic interest of the population and the will of the people defended by a duly elected government are "...capricious and arbitrary..."!
On October 4, the Dutch equivalent of the CBC, VPRO produced "Tegenlicht," a public affairs program which examined ISDS clauses that protect foreign investors. Prof. Van Harten from the Osgoode Law School is quoted as saying that Canada is the industrialized nation which has given up the most of its sovereignty. to ISDS clauses. For the past 20 years, Canada has been the most exposed industrialized nation to lawsuits like Lone Pine. Such legal procedures are really SLAPP (strategic lawsuits against public participation) applied to governments. Because our leaders did not have the backbone to negotiate properly, we have the dubious honor of being forced to defend ourselves against such frivolous lawsuits.
Commerce is a desirable economic activity, but it should never force us to renounce our fundamental values. In the above-quoted public affairs program, Economist Ha-Joon Chang makes an interesting parallel with an economic argument often used during the 19th century: the abolition of slavery is economically unrealistic. Democracy and due process of law, based on humanistic values are way above the dollar sign. Thousands of Canadian soldiers fought and died for those principles. Just as in the case of slavery, the legal basis of the lawsuit of Lone Pine are incompatible with the principles of a free democratic society.
In the mist of this election, the Harper government just announced a trade agreement with twelve countries bordering the Pacific Ocean. It is not the free trade agreement which we should refuse. It is the clauses protecting foreign investors which would hamstring our democratic institutions. Any lawyer will tell you that you have to be on the lookout for the "fine print" of any contract. During this morning's press conference, Mr Harper claimed that Canada has entered this agreement "...sous ses propres conditions..." i.e. under its own conditions.
«Under its own conditions»? Or under the conditions of foreign investors? Even if it is not perfect, our democracy should not be sold out to foreign investors. The sacrifices of our soldiers who fought for freedom should not be in vain.
 RDI, conférence de presse de M. Harper, 5 octobre vers 10h30.
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