Investor-state dispute settlement interferes with policy-making in the public interest

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This article was published 26/01/2016 (3632 days ago), so information in it may no longer be current.

With all of their acronyms and abstract legal language, it is not always clear how trade agreements affect the average person. It can be difficult to connect to them.

Then the Trans-Pacific Partnership (TPP) rolled into town Friday. David Lametti, who is parliamentary secretary to the minister of international trade, was consulting communities about the deal as part of a cross-country tour.

As soon as we heard the consultations were passing through Winnipeg, we knew we had to be there. Why? Partly because of the TPP’s effects on people and the environment. We are particularly concerned the deal could disrespect First Nations.

The Liberal government says it hasn’t taken a position yet, wanting to weigh the costs and benefits of the TPP. Already there is one worrisome aspect of the deal: the terms were negotiated under the Harper government and finalized during the federal election.

We asked Lametti directly about how this deal could make it tougher to protect the environment. He responded there is a chapter in the TPP that addresses the environment.

Admittedly, he said, the chapter was negotiated before the Paris climate agreement. He argued countries signing onto it have an understanding of environmental issues.

An analysis of the TPP’s environmental chapter, however, shows the subject of climate change isn’t even mentioned. As well, the wording of the chapter is framed as aspirational, not binding standards that need to be met by countries.

And we still remained concerned about the fact, under the TPP, companies will be able to sue countries under investor-state dispute settlement (ISDS) provisions when governments enact a new environmental policy that affects investors’ profits. Corporations can sue not only for actual project costs but also for projected lost profits.

Maude Barlow pointed out in a recent article: “Policy-making in the public interest is curtailed by ISDS.” She illustrates this with TransCanada’s recent suit against the United States because the government chose to protect water and the environment by rejecting the Keystone XL pipeline.

As Canadians, we have been the targets of ISDS. According to Barlow: “Canada has been subject to 35 NAFTA claims, with 63 per cent of them challenging environmental protection or resource-management measures. As the most-sued developed country in the world under ISDS, Canada faces $2.6 billion in ISDS claims.”

This can be a real problem for First Nations who want to protect their land for current and future generations.

For example, this could affect the First Nations on Lelu Island, B.C. With its lush forests and blue Steller’s jays, it is a community. There, the battle is against Petronas, a company that wants to exploit liquefied natural gas. It’s not just the land and water but also the fishing economy at stake for future generations. Under the TPP, Petronas, a Malaysian company, could sue the Canadian government if it were to limit LNG exploitation on the island.

In this way, the TPP gives multinational corporations more power and grassroots land-defenders less. It takes power away from states and puts pressure on them to side with resource-development corporations, rather than land defenders, for fear of being sued.

We need to do the opposite. Instead of giving corporations more rights to profit from our environment, we should be celebrating governments and people who consciously choose to protect the planet. We need to defend our planet against climate change for current and future generations.

Brigette DePape is the Prairies regional organizer with the Council of Canadians. Jobb Arnold is an assistant professor at Menno Simons College.