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Sounding the TTIP alarm across the European Union

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Stop the Trojan treaty – Brussels 04/02/15 Friends of the Earth Europe/Lode Saidane under a Creative Commons Licence

Canada is the most sued country in the ‘developed’ world, and that should be cause for grave concern, argues Maude Barlow.

Several weeks ago, hundreds of thousands of people across Europe and Britain marched to protest against the Trans-Atlantic Trade and Investment Partnership (TTIP), a massive planned new trade deal between Europe and the US. They were rightly sounding the alarm, as TTIP will greatly reduce the ability of local governments to spend public money for local development, impose new limits on the right of governments of all levels to regulate on behalf of their citizens and environment, endanger public services and jeopardize Europe’s higher standards on labour, food safety and social security.

TTIP also includes Investor State Dispute Settlement (ISDS), a provision that will allow US corporations to sue European governments for laws and practices that threaten their bottom line. There are now over 3,200 bilateral ISDS agreements in the world, and foreign corporations have used them to sue governments over health, safety and environmental laws.

Cigarette maker Phillip Morris used ISDS to challenge Australian rules around cigarette packaging intended to promote public health. A Swedish company, Vattenfall, is suing Germany for a reported $5.2 billion relating to Germany’s decision to phase out nuclear power. ISDS is profoundly anti-democratic and threatens the human rights of people everywhere.

But people in Britain and Europe should be paying attention to another deal that has had way less attention. CETA – the Comprehensive Economic and Trade Agreement between the EU and Canada – is equally disturbing and much further along in the process. I’m on a speaking tour of Britain to share a powerful story of Canada’s experience that is relevant for two reasons.

The first is that we Canadians have lived with ISDS for 20 years. It was first included in NAFTA, the North American Free Trade Agreement between Canada, the US and Mexico, and has been used extensively by the corporations of North America to get their way. As a result of NAFTA, Canada is now the most sued developed country in the world.

There have been 35 corporate ISDS challenges against Canada and we have already paid out over $149 million to US corporations. Foreign investors are seeking another $1.93 billion from the Canadian government in new cases and Canada has already spent over $49 million defending itself from NAFTA challenges. Two-thirds of the claims involve challenges to environmental protection or management of our own resources, issues that should reflect the democratic will of the people of Canada.

No surprise, the US has never lost a NAFTA case. In this game, the big guys generally win.

The other reason people of Britain and Europe should care about Canada is that the CETA is a ‘done deal’, meaning that, even though it has not been ratified politically, the negotiations are finished and they contain ISDS provisions. CETA could act as a ‘back room’ for US corporations whether TTIP is adopted or not.

There is a great deal of opposition to ISDS in TTIP; so much so, that many think either ISDS will have to come out of the deal or be radically modified, or it will be defeated in Europe. Already, the European Commission has proposed ISDS ‘reforms’ to TTIP that would set up a new European Investment Court that would be more transparent and accountable, although still unacceptable to most of us.

But all a US agriculture, energy or drug giant would have to do to take full advantage of ISDS is use its existing subsidiary in Canada, or set one up, and sue European governments through CETA. US corporations would have as much access to challenge Europe’s higher standards under CETA as if TTIP with a full ISDS had been signed.

There’s very little in these ‘trade’ deals that is actually about trade. They’re much more about handing over frightening new rights to corporations that fundamentally challenge the way that governments legislate on behalf of ordinary people. It’s no wonder that a UN expert on human rights recently referred to ISDS as ‘an attack on the very essence of sovereignty and self-determination, which are founding principles of the UN.’

People in Britain should learn from our experiences in Canada and understand that this new generation of trade deals poses a terrible threat to the health of their people, the resilience of their communities, the fate of their public services, and the protection of their natural resources.

Maude Barlow is on a speaker tour in Britain called ‘Stop the Transatlantic Trade Deals’ alongside Yash Tandon and Nick Dearden. From 1-9 November they will be appearing in Dundee, Leeds, Manchester, London, Oxford, Cardiff and Dublin. See here for more info. This article is cross posted from Global Justice Now.

Escape from Mordor

Maude Barlow is National Chair of the Council of Canadians. Andrea Harden-Donahue, Energy Campaigner, and Meera Karunananthan, Water Campaigner, both from the Council of Canadians, also contributed to this article.

Photo by orin langelle / global justice ecology project / global forest coalition

The Alberta tar sands are Canada’s Mordor. Like the fictional barren land, home to the evil Sauron in JRR Tolkien’s Middle Earth, the tar sands are vast, destructive and represent the real-life death of nature. The air is foul; water is being poisoned and drained. Large tracts of forest and wetlands are being torn from the earth, and in the gaping holes where life once thrived sit giant ponds of toxic waste.

Thanks to a government that has placed trade and foreign investment above environmental and social needs, Alberta has become one of the last playgrounds for Big Oil. It is here that Shell, Total and Exxon have made their home

Locked in by free trade

Exports to the lucrative US market are a driving force behind tar sands development. The North American Free Trade Agreement (NAFTA) provides the foundation for this destructive energy-trading relationship. Signed in 1994, NAFTA deregulated Canada’s oil and gas sector, removing restrictions on foreign ownership and undermining import and export restrictions.

Edward Ney, Canadian ambassador shortly before the agreement was signed, was very candid in explaining that US access to Canadian energy reserves was a primary motivation. In fact, NAFTA’s ‘proportional sharing clause’ obliges Canada to continue exporting energy to the US in the same proportion as the three previous years. This means that our Government could be challenged for cutting back on exports to the US – where the majority of tar sands crude is sent – unless Canadian markets faced proportional cuts. Taken alongside export restrictions, this undermines the ability of the Canadian Government to direct energy policy in the public interest and make the transition away from the tar sands.

At the same time as environmental and social protections have been severely weakened, the rights of corporations have been enhanced under this trade law. For example, the Alberta government’s ability to revoke water licences granted to tar sands corporations could be challenged as an ‘act of expropriation’ under NAFTA, which allows for corporations to sue member governments if they feel that their rights have been violated or the compensation they receive is not adequate.

Low carbon fuel fight

Post-9/11, political priority in the US was given to reducing reliance on ‘foreign oil’. Canada, and more specifically the tar sands, was increasingly framed as a ‘secure’ energy source. The election of President Obama, who spoke clearly about wanting to turn a new leaf in his country’s climate record, sparked hope for many on both sides of the border that change may be afoot.

But while the US now far outpaces Canada when it comes to investing in ‘green jobs’ and renewable energy, a US climate plan that could change the countries’ trading relationship remains elusive. Meanwhile, the Albertan and Canadian governments, backed by a strong fossil fuel lobby committed to ongoing tar sands production, have been fiercely lobbying in the US to ensure that this dynamic does not change. This has most visibly included opposing Low Carbon Fuel Standards (LCFS).

LCFS would, in practice, exclude carbon-intensive tar sands oil from the US market. California recently passed LCFS legislation to help it cut emissions from its transport by 10 per cent by 2020, and a number of other US states are currently reviewing similar standards.

Not surprisingly, Canadian government officials have responded with trade-based threats. Back when California was considering its legislation, our Natural Resources Minister issued a letter to Governor Schwarzenegger suggesting that any LCFS discrimination against tar sands would ‘threaten’ to be perceived as an ‘unfair trade barrier’. Now the legislation has been passed, it is subject to a legal challenge by the National Petrochemical & Refiners Association, which boasts every major corporate player in the tar sands amongst its members.

‘I also am a steward’

Despite all this, strong and effective campaigns challenging the tar sands have emerged on both sides of the border in recent years. The growing movement is diverse and includes indigenous, environmental, social justice and community-based organizations. 

The Council of Canadians is among many organizations calling for a tar sands-free future and stronger policies that would prevent profit interests from trumping social and environmental priorities. We are demanding a Canadian Energy Strategy which features meaningful regulatory limits on greenhouse gas emissions, a just transition to conservation, energy efficiency and the rapid expansion of public and community-owned renewable energy. Intimately linked to these efforts is our trade campaign, which challenges agreements, especially NAFTA, which stand in the way of progressive change.

In the words of Tolkien’s character Gandalf, facing the darkest of times against Mordor: ‘All worthy things that are in peril as the world now stands, those are my care. And for my part, I shall not wholly fail of my task if anything passes through this night that can still grow fair or bear fruit and flower again in the days to come. For I also am a steward.’ Just as the right and good prevails in the mythical land of Middle Earth, so the environmental stewards opposing Canada’s Mordor will overcome.

Maude Barlow (right) is National Chair of the Council of Canadians. Andrea Harden-Donahue, Energy Campaigner, and Meera Karunananthan, Water Campaigner, both from the Council of Canadians, also contributed to this article.