Could it be that Harper signed the FIPA because it was such a terrible deal? Let me explain. Harper's abiding preoccupation during his tenure has been scaling up resource exports, particularly Alberta's bitumen by pipeline to the B.C. coast. To that end, the Harper government has gutted Canadian environmental laws and made National Energy Board rulings subject to cabinet approval.
The most significant obstacle to this and other Harper initiatives has been the Charter of Rights and Freedoms, our constitutional document signed into law by Pierre Trudeau. First Nations have enjoyed a string of Charter challenge victories at the Supreme Court of Canada, most recently by the Tsilhqot'in National Government that articulates the meaning of aboriginal title.
This decision and others could have game-changing impacts on resource use on unceded territories, including the contentious Northern Gateway pipeline. It's as if Trudeau the Elder has been reaching from the grave to undo the agenda of our prime minister.
What to do? Reopening the Charter is a practical impossibility. Any Charter amendment requires the consent of at least seven provinces, and Harper has demonstrated essentially no interest in provincial confabs. He has not met with all the premiers at once in five years, and in any case the Charter enjoys public support by more than 80 per cent of Canadians.
There is more than one way to skin a constitution, however. What if the real rationale for signing the FIPA was to effectively gut those Charter protections so apparently hated by Harper? Seen through this lens, the FIPA is less an investment treaty than a poison pill swallowed to thwart further Charter challenges to the Harper agenda.
Puzzling evidence
While this seems far-fetched, there is puzzling evidence to support this grim hypothesis.
1. Harper's needless spat with Beverley McLaughlin, chief justice of the Supreme Court. So reckless was this maneuver that even Brian Mulroney felt the need to publicly admonish Harper for it. Why would Harper, the consummate tactician, want to make an enemy of the most powerful jurist in the country? If certain Charter challenges were effectively cauterized by the FIPA with China, then such an important relationship could be more gratuitously cast aside.
2. The PMO's open conflict with the judiciary. This summer, the past president of the Canadian Bar Association delivered a scathing speech critical of the Harper government's commitment to protect the Canadian constitution. "We appear to have reached a place where... the executive branch not only sees the judiciary as an obstacle to progress but portrays it so."
3. Harper's open disdain for the Charter. Heritage Canada planned to commemorate the 30th anniversary of the Charter in 2012, but the modest event was axed when the plan hit the desk of then minister James Moore. The former General Counsel for the federal department of Justice is currently suing the Harper government for failing to evaluate whether new legislation is consistent with the Charter -- a constitutional duty of the executive branch.
4. The deal is needlessly generous to China. Why would the Harper government lock in Canada to such a one-sided agreement that cannot be revisited for 31 years? NAFTA has a six-month exit clause. Even avowed free trader Diane Frances of the National Post decried the deal, stating, "There is not a single gain for Canada here whatsoever: No market access, no reciprocity, zero rights for our investors there. China Inc. gets everything."
Fails aboriginal rights
Perhaps most importantly, the deal fails to protect aboriginal rights under the Constitution. The implications of this omission are profound. While our federal government has a duty to consult First Nations, Chinese state-owned companies can sue Canada through a secret international arbitration panel for any such accommodation that impacts their economic interests.
This would essentially fetter the Crown, which could be successfully sued by either Chinese interests or First Nations depending on whether they respect aboriginal title or not. Put another way, while the FIPA does not specifically override First Nations Charter protections, it could make providing those protections prohibitively expensive. The Hupacasath First Nation on Vancouver Island challenged the FIPA in court based on exactly these concerns and their decision at the Federal Court of Appeal is expected any day.
The Harper government obviously did not want to wait to for this ruling and approved the FIPA last week. "I'm shocked that the government would do this. We weren't expecting this at all," Hupacasath spokesperson Brenda Sayers told Indian Country Today Media Network. "Stephen Harper took it upon himself to make this decision instead of leaving it for the court to decide. This decision is an injustice and shows no respect for the judicial process."
Locking in a legacy
With the prospect of a change in government in 2015, many Canadians are hoping for a period of rebuilding public institutions. The FIPA, however, could lock in Harper's draconian cuts to federal environmental laws for almost eight electoral cycles -- effectively an eternity by political standards.
Future governments could revisit the legislative changes by the Harper government, but if they impact Chinese interests in comparison to what is on the books now, we have to pay. How much? According to the terms just agreed to by Ottawa, the sky's the limit.
Harper famously proclaimed, "You won't recognize Canada when I'm through with it." He has made surprising progress on that dubious goal, and like most politicians I'm sure would like to keep it that way long after he has left office.
This trade deal will persist for as long as we've had the Charter. But unlike the Charter, which was the result of months of good faith negotiations between opposing political parties, the FIPA seems instead an undemocratic and underhanded endgame to lock in our prime minister's ideological legacy.
Is Harper on crack? Of course not. Would he undermine Canada's constitution in cahoots with a foreign power to implement his agenda? It's remarkable that such a question can be seriously asked.
Original Article
Source: thetyee.ca/
Author: Mitchell Anderson
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