Letter to the Speaker of House of Commons asking for an emergency debate on FIPA

Dear Mr. Speaker,

Please accept this letter as further background to the letter I submitted on Friday, October 26, 2012 requesting an Emergency Debate on the investment treaty between the Peoples’ Republic of China and the Government of Canada, signed September 9, 2012, and tabled before this House on September 26, 2012.

In that letter I briefly set out the accepted tests set out in Standing Order 52, submitting that the matter is indeed within the “administrative responsibilities of government,” is a specific matter of obvious and acute national importance to Canada, and is an urgent matter.

I recognize that it is traditional for a Speaker to rule on such requests without giving reasons, and further that on such matters, you are not bound by precedent.  Looking through recent emergency debates, we have had debates on food safety and on drug shortages. In 2009, there was an emergency debate on the Ottawa bus strike, while going further back, in 2003 there was an emergency debate on the approaching war in Iraq, and still further back, in 1989 the House debated the slaughter in Tiananmen Square.  This short review is only to suggest that the matter constituting an emergency is not confined to any one suite of issues.  They can be national, or global; concerned with public health, or local labour concerns.

As my last letter confirms, I will move adjournment later today on the same matter a second time. In doing so, I am inferring that your reasons for rejecting my request October 1st could be related to this portion of the rule: “and the Speaker shall also have regard to the probability of the matter being brought before the House within reasonable time by other means.”

I submit that the situation has changed between October 1 and October 29, 2012.  As noted, all Opposition Days available to the Official Opposition and the Liberal Party have now been used on other issues.

No doubt, the Minister of Trade is likely to take the same position that he has in response to my questions, and those of other Opposition MPs, in Question Period that if the treaty is to be debated, the option for debate is solely in the hands of the Opposition Parties, or rather with the two out of four Opposition Parties in the House with the right to utilize Opposition Days.

To take aim at this presumption, let me first review the nature of this treaty and of the approval process.

As a matter of international treaty making, and in the absence of any necessity for implementing legislation (as is the case with this treaty), it is true that it is possible to ratify the treaty with no debate or vote in the House.  However, this strict interpretation of what is legally possible runs against a tradition of respect for Parliament in the implementation of treaties.

Professor Peter Hogg pointed out in Constitutional Law of Canada:

Despite the absence of any constitutional obligation to obtain parliamentary approval, it has been the practice of Canadian governments to obtain parliamentary approval of the most important treaties in the interval between signing and ratification.

(Toronto, Carswell and Company, 1977, p.184)

In this case, the interval between signing and ratification, is September 9 until (at the earliest) November 2, 2012.  Following the convention described by Professor Hogg in 1977, the current administration put in place a requirement to table the treaties with the House between signing and ratification for 21 sitting days.  For minor treaties, the tabling process is adequate, but the tabling process should not replace the convention that on important treaties, parliamentary approval is appropriate.

What can be the purpose of a rule that requires the treaty be placed before the House for 21 sitting days, if there is to be no opportunity for review prior to ratification?

Given the precedent in constitutional law described by Professor Hogg, it is clear the onus to allow Parliamentary review for significant treaties is that of the Privy Council Officers, not of the opposition parties.    Nevertheless, even if the proposition that the onus rests with the larger Opposition Parties, it certainly deprives members of the two recognized parliamentary parties with less than twelve members, as well as the two recognized Independent MPs of any opportunity to debate the issue, if the emergency provision is unavailable.

Returning to Professor Hogg’s rule, would we consider the Canada-China Investment Treaty to qualify as one that is “most important”?

If ratified on November 2, Friday of this week, as the Privy Council is entitled to do, Canada will be bound by its terms for a minimum of 15 years to 31 years.  Exiting the treaty is far more difficult than withdrawing from NAFTA (which went to a vote in the House) or the Kyoto Protocol (which is the same class of treaty as this one, and which went to a vote.)  To exit the China-Canada Investment Treaty one year written notice is required and any existing investments from China in Canada at the time of withdrawal are covered by the agreement a further 15 years.

The scope of the agreement is massive.  The Peoples’ Republic of China is entitled to make claims for damages against the Government of Canada for decisions at sub-national levels of government for any decision China regards as “arbitrary.”  The decisions that give rise to multi-billion dollar complaints can be those of municipal, provincial , territorial or federal governments, or from decisions of our courts. The nature of the complaint is not limited.  It need only be claimed as “arbitrary.”

It is clearly an important treaty and the Prime Minister and Privy Council should have made provisions for a parliamentary review and vote.  Failing that, the tabling of the treaty for 21 sitting days becomes a ritualistic denial of democracy.

As noted, no Opposition Day debate took place on this topic of the four available since September 26, 2012.  As well, efforts by Opposition members of the Trade Committee to hold hearings on the treaty were unsuccessful.  Only one hour was made available in committee to hear from technical experts.

In sum, whereas on October 1, there remained a hypothetical potential for a debate on this treaty to take place, on October 29th, there is none.  I cannot imagine greater urgency than being four days from the ratification of a treaty that will bind us for decades with the potential to undermine our domestic laws.    

Please allow this one chance for the House of Commons to probe the implications and exchange views on a major investment treaty with the world’s emerging superpower.

Yours sincerely,

 

Elizabeth May, O.C.
Member of Parliament