Canada’s Reputation: From the tar sands to the dropping of water protections coast to coast, there is little evidence to show that Canada is helping with some of the major crises of the times – climate and water security. This is not the desire of all Canadians. Nor do I imagine the majority. But most Canadians do not yet understand how instrumental policy on water, energy, and in fact trade, is to their families’ well-being, and to all generations.
Ending Environmental Protections with NAFTA: Canada has been in violation of NAFTA for close to twenty years. Sounds terrible to violate terms with other nations, right? But the people of Mexico and the United States are not upset with Canadians for this; their policies are also in violation of NAFTA. It’s the corporations that are taking action. Using special courts, Investor State Dispute System (ISDS), big business is suing nations when environmental policy (or other public protections) interferes with expected profit from a trade deal. They are winning about 60% of the time! By signing new generation deals, national governments agreed to unconditional prior consent of ISDS. Under NAFTA, Canadians have been sued 35 times so far. Countries shape themselves to the standards of their uppermost legal authority, and in North America, that is NAFTA courts.
NAFTA’s Legacy: Canada is dropping environmental safeguards to align with NAFTA. This regulatory chill is probable for countries and provinces signing the CETA—TTIP. Nations involved in these NAFTA extension deals might want to track this aspect of the Canadian environmental story. Canada’s first case was lost to Ethyl Corporation over a gasoline additive banned by Canada for health reasons. Ethyl successfully sued Canada for 16$ million in damages to profit, and Canada withdrew the ban. Canada’s second lost case for 20$ million was paid to SD Myers over the export of toxic PCB waste. Lone Pine Corporation, another example, is presently suing for Quebec’s moratorium on fracking. Canada is the most Investor-sued developed nation on the planet. Canadian corporations are also doing their own suing under NAFTA and other trade and investment treaties.
The CETA-TTIP Future: CETA – TTIP appears to have the same style of corporate court system as NAFTA; the difference is that more categories of assets are planned for private foreign management. Possible investor-suits launched by North American-based corporations could be over an EU country not allowing tar sands oil, hormone-treated beef or Genetically Modified Organisms (GMOs). This method of corporate profit-seeking is on the rise. In the first five decades of ISDS, 50 suits were launched, but the last three years of ISDS has seen an average of 50 cases per year.
What about Community Protections? ISDS has a legal framework that prosecutes communities on behalf of corporations, never the opposite. These courts have no terms to argue a case for the protection of any ecosystem. In contrast, there is an emerging legal framework to protect such community concerns. The Rights of Mother Earth, championed by global leaders like Vandana Shiva, Maude Barlow, and Wendell Berry, would give ecosystems protection under the law. By expanding the definition of human rights to also include broader nature rights, communities would have legal grounds to keep their water, air, and food accessible and healthy when challenged by corporations. At present, there is no mechanism for protecting the most common human right violation across the planet – the destruction of community resources for corporate profit. Trade law that cared for community well-being, would arbitrate for the Rights of Mother Earth. What the earth provides is not an externality – it is the basis of every trade interaction: the substance of every good and the support system for every service. Because earth provides all that we use, and the natural world is under great duress, now is the time to give legal status to ecosystems. Trade in its present incarnation is doing too good of a job in seeing that corporations can make profits. For more of a trade balance, we must make earth rights legal.
“There’s no such thing as human rights if we don’t protect the Earth that gives us life.” Maude Barlow