Thank you very much, Mr. Chairman and members of the committee.
My name is Garry Neil. I am the executive director of the Council of Canadians, Canada's largest social justice organization with roughly 75,000 supporters from coast to coast to coast. Since 1985 the Council of Canadians has brought Canadians together to act for social, economic, and environmental justice here in Canada and around the world.
The council supports more balanced global trade, freer movement of people, and more robust exchanges between world cultures. But we reject the trade and investment agreements that have been negotiated by Canada, both bilaterally and multilaterally, because they create arbitrary limits on government policies designed to create jobs, protect public health, lower greenhouse gas emissions, or otherwise protect the environment.
It's pretty hard to support these agreements when we see Ontario's Green Energy Act under threat from the WTO and when we've seen Canada pay out millions of dollars to corporations under the investor-state dispute settlement provisions of investment treaties arising from challenges to legitimate Canadian public policy decisions.
We would note that just last month the United Nations Conference on Trade and Development reported that Canada has attracted the sixth-largest number of such cases of investor-state dispute settlement. UNCTAD also pointed out that governments are now wary of regulating in certain fields out of fear of lawsuits. The UNCTAD report states that “...the [investor-state dispute-settlement] regime reaches far beyond its original intention.” And UNCTAD urges “policy makers around the globe...to bring the system back to its original role of promoting good governance and fostering the rule of law.”
Free trade agreements and the WTO have been enormously successful at removing public policy barriers to corporate profits. They have been less successful at distributing wealth equitably, integrating poorer countries into the global economy, improving labour standards, or encouraging truly sustainable development.
In the free trade era, economic inequality has grown in Canada. Average real incomes, after inflation, have been stagnant. And we continue to shed high-wage and innovative manufacturing jobs in favour of resource extraction and export. Canada's balance of trade has worsened with four of the five countries with which we have fully implemented free trade agreements—Mexico, Chile, Israel, and Costa Rica. Our balance of trade with the fifth, the United States, has improved only because we are racing to the bottom with them, and they are winning at the moment. Their balance of trade has been steadily declining for a long time.
Let me turn now to the specifics of the Canada-Jordan free trade agreement.
First, with respect to the agreement on environmental protection, the council supports the position put forward by the Canadian Environmental Law Association that the GATT exception for measures necessary to protect human, animal, or plant life or health should be amended to expand the scope to include measures relating to environmental or health objectives. There are a whole range of public policies that have an important impact on environmental or health objectives even if they are primarily addressing other issues. These should be covered by the exception.
Thus, with respect to the Canada-Jordan environmental side agreement, we believe it should not be limited only to those laws the primary purpose of which is environmental protection, but should include other laws that also relate in part to environmental protection. We also think the exclusion from that side agreement of laws relating to public health and worker health and safety is not reasonable.
On the Canada-Jordan Agreement on Labour Cooperation, I won't make many comments here, since we have Mr. Rowlinson with us. With respect to the Agreement on Labour Cooperation, we share the concerns expressed to you by a number of other witnesses. In particular, we note that Jeff Vogt, legal adviser to the Department of Human and Trade Union Rights at the International Trade Union Confederation recently made the case to the committee that Jordan is not in compliance with the requirements of article 1 of the agreement, given its ongoing violations of core ILO conventions.
We would like to see a human rights impact assessment of this agreement. We urge you to recommend that a human rights impact assessment be undertaken before the FTA is approved and on an annual basis when it is in force. One of the conditions this committee set on the passage of the free trade agreement with Colombia was the inclusion of a mandatory annual human rights impact assessment of economic impacts of the agreement. We suggest that you go one step further: we recommend that one be undertaken before the FTA is implemented.
While Jordan seems to be in transition from a monarchy to a democracy, there are serious human rights concerns. According to the Freedom in the World 2011 report, Jordan had a “not free” status. Concerns include: the limitations on the ability of citizens to change the government; inequality of women and minorities; limitations on free speech and free media; restricted labour rights; and cases of arbitrary detention, torture, and loss of life. The assessment should cover labour conditions and workers' rights as well, of course.
Over the past year, under a UN Human Rights Council mandate, the Special Rapporteur on the Right to Food has developed a set of guiding principles on human rights impact assessments of trade and investment agreements. The purpose of preparing such a document prior to signing free trade or investment deals is to ensure that they are not inconsistent with a country's pre-existing treaty obligations, including those to respect, protect, and fulfill human rights.
For example, the UN report says that certain human rights may preclude a country adopting certain measures, including lowering tariffs or strengthening intellectual property rights in a way that deprives people of their rights. Also, countries should not be blocked from controlling private actors “as a result of an excessively high level of protection of foreign investors established on their territory or because of a broad understanding of the prohibition of imposing performance requirements on such investors”.
Of particular concern with respect to Jordan, of course, would be the recently implemented human right to clean water and sanitation. Jordan is one of the 10 most water-scarce countries in the world. It is dependent on the Jordan and Yarmouk Rivers for its surface water, and most of these are taken by Israel and Syria. Jordan's groundwater resources are being over-exploited. What the FTA and FIPA will do is essentially lock in existing corporate expectations, which include water intake for mining and manufacturing.
I want to add a few words about an area that I feel particularly close to, which is culture. For close to 30 years, before I became the council's executive director, I worked as a cultural policy consultant, and I've written and spoken internationally about culture and trade issues. I want to use this opportunity to make a few comments about the cultural exception, which of course I am pleased to see in the Canada-Jordan agreement.
Unfortunately, we continue to use the definition of cultural industries as it was understood in the late 1980s, when we concluded the Canada-United States Free Trade Agreement and for the first time included the cultural exception. But as these agreements have evolved, the definition needs both to be updated—to include, for example, new media and video games—and to be expanded, to include visual arts, performing arts, and crafts.
I note that the expansion language in fact is contained in Canada's free trade agreement with Colombia, and it was introduced at the insistence of Colombia. Frankly, they're correct. It needs to be in these agreements.
It is also appropriate to adopt language for culture in the FTAs that is similar to article 1-5 of the Canada-Jordan free trade agreement, which covers the relationship of the free trade agreement to the multilateral environmental agreements. In case of inconsistencies between the FTA and the MEA, the obligations under the environmental agreement prevail. Bilateral and multilateral free trade and investment agreements should now begin to provide that obligations that parties may have to each other under multilateral cultural agreements should similarly prevail over those in the free trade and investment treaties.
Just as a brief conclusion, as I think my position is pretty clear, with all that said, Mr. Chairman, we really do not believe that it is good public policy for the government to be pursuing trade and investment agreements that are economically basically meaningless with volatile and undemocratic nations like Honduras, Colombia, and Jordan.
Thank you very much, Mr. Chairman, members of the committee. Thank you for having me.
My name is Mark Rowlinson. I'm the assistant to the Canadian national director of the United Steelworkers. I'm also a practising labour lawyer, and I'm on the International Affairs Committee of the Canadian Association of Labour Lawyers.
The United Steelworkers is an international trade union with approximately 220,000 members in Canada. Through our international work we have built strategic alliances and close working relationships with unions around the world. As a union we take a strong international perspective on the importance of workers' rights, and we are intimately familiar with the struggles of workers in the Americas and throughout the African continent. Through our ongoing work with global union federations and our own international union partnerships, we are actively involved in advancing workers' rights globally, and we are committed to ensuring that the benefits of trade are distributed to all workers. Our commitment to these issues is not merely abstract or rhetorical. Our union is involved in grassroots workers organizing around the world, and we have a deep understanding that our members' jobs here in Canada are linked to the rights and working conditions of workers outside of Canada.
Our union is also one of the few Canadian unions that has actively sought to use the labour side agreements to NAFTA to advance workers' rights. Specifically, our union was the lead petitioner in the first major case filed in Canada under the North American Agreement on Labour Cooperation in 1998, a case involving labour rights abuses in an auto parts plant in Mexico. We are also currently the lead Canadian submitter in a 2011 case under the North American Agreement on Labour Cooperation involving the plight of 44,000 members of the Mexican Electrical Workers Union. I have been involved as counsel on all those cases with which we've been involved.
We continue to be concerned that trade agreements are not written to improve labour standards, and there is little evidence that such agreements can become vehicles for the enforcement of labour rights. There is a consensus among the trade union movement in Canada that labour protections found in trade agreements thus far negotiated by the Canadian government have left a great deal to be desired. First, many of the current agreements focus exclusively on the enforcement of existing domestic labour statutes rather than on raising labour standards. Second, the enforcement mechanisms in the agreements are uniformly unsatisfactory.
The dispute resolution mechanisms are premised upon a model of political cooperation amongst the signatories, and hence the complaint process is not independent or transparent. Complaints are not investigated and evaluated by independent judicial or even quasi-judicial bodies, and further, complaints generally end with ministerial consultations. This stands, of course, in stark contrast to the investment chapters of current Canadian trade agreements, where parties are entitled to substantial, effective remedies imposed by independent quasi-judicial bodies.
As a result, the labour rights climate, for example in North America, has not improved for trade unions since the ratification of NAFTA. In Mexico in particular, where our union has been active in building relationships with our trade union colleagues, it is apparent to us that the labour rights situation is as dire as ever.
Now let me turn quickly to the labour rights situation in Jordan.
This committee has already heard from several witnesses on the labour situation in Jordan, most notably Jeff Vogt from the ITUC and Charles Kernaghan from the Institute for Global Labour and Human Rights. There's no need for me to repeat their testimony to this committee; however, I want to make a few notes regarding the labour issues at present in Jordan.
There are substantial barriers to the formation of unions in Jordan that violate ILO core labour standards. This is particularly the case with respect to migrant workers in Jordan, who are still prohibited from forming a union of their own choice. Specifically, migrant workers are not permitted under Jordanian law to participate in the establishment of a trade union or to participate in their union as leaders. Further, Jordanian law does not establish sufficient fines with respect to violations of key provisions of their labour code. There is a great deal of evidence...and you heard chilling testimony from Charles Kernaghan regarding excessive and unregulated hours of work, forced labour, terrible working conditions, and pervasive gender discrimination, particularly for migrant workers in the Jordanian garment sector.
Substantial portions of the Jordanian economy depend on a low-wage migrant workforce that works without the benefit of adequate legal protection or adequate terms and conditions of employment. The question this committee must consider, and that I wish to address, is whether the labour provisions of the Canada-Jordan FTA are sufficiently robust to meaningfully address these issues.
The Canada-Jordan FTA labour provisions follow the pattern of the most recent generation of Canadian hemispheric trade agreements, notably Canada-Peru, Canada-Colombia, and Canada-Panama FTAs.
The labour provisions of the trade agreement itself, found in chapter 11, contain very general provisions in which the parties reaffirm their obligations as members of the International Labour Organization and their commitments to the ILO Declaration on Fundamental Principles and Rights at Work.
However, the body of the trade agreement, chapter 11, only sets out general affirmations and objectives. These general statements do not, of course, provide the parties with enforceable rights. Rather, as with all previous Canadian trade agreements, the substance of the labour rights and obligations are set out in a separate labour cooperation agreement, or LCA, often called a labour side agreement.
Article 1 of the LCA affirms that each party—Canada and Jordan—shall ensure that its laws provide protection for the internationally recognized labour principles contained in the 1998 ILO declaration and the ILO's decent work agenda. These rights include freedom of association and the right to collective bargaining, the right to strike, the elimination of forced or compulsory labour, and, perhaps most significantly given the situation in Jordan, non-discrimination in respect of working conditions for migrant workers.
As such, this article does contain substantially greater labour rights than those found in, for example, the NAFTA labour agreement. Unlike NAFTA, the Canada-Jordan FTA requires the signatories to ensure that its statutes comply with ILO standards. As I said, this represents a significant improvement over the NAFTA labour side agreement. However, article 2 of the Canada-Jordan labour cooperation, the so-called non-derogation clause, only prohibits the violation of ILO standards where it can be demonstrated that this violation was done “as a means to encourage trade or investment”. This is, in our view, a significant limitation on the substantive obligations found in article 1.
The remaining obligations under the Canada-Jordan labour cooperation agreement are very similar to provisions found under, for example, the current NAFTA provisions, and largely focus on the enforcement of existing laws and the protection of procedural rights.
I want to now turn to a few observations about the enforcement mechanism under the labour side agreement.
Because labour rights are again relegated to a side agreement under this trade agreement, the enforcement of those labour rights is not subject to the same enforcement mechanism applied to all other rights in the agreement. Article 9 of the labour cooperation agreement provides for the submission, acceptance, and review of public communications. This is the only mechanism in the Canada-Jordan labour side agreement by which non-state organizations, such as unions or individuals, can file complaints under the agreement.
Under the Canada-Jordan labour side agreement, the primary complaint mechanism appears to in fact commence through ministerial consultations between the parties, which is found in article 11. In other words, the party that files a public communication has no right under the agreement to push a matter to a review panel if it is not satisfied with the ministerial consultation process.
Articles 12 and 13 provide for the review panel process, which concludes with the issuance of a further report, followed by the issuance of monetary assessments if a party refuses to comply with the report of the review panel.
It should be noted that this enforcement mechanism does contain certain significant advances over the existing NAFTA process. First, the process is less cumbersome. Second, the scope of the review panel is substantially broader.
However, many flaws remain. First, the Canada-Jordan labour side agreement is dependent upon the willingness of state signatories to pursue complaints. The complainants themselves cannot advance matters to a review panel.
Given the experience under the NAALC, in which, I would note, after 18 years no case has yet gone before an arbitration panel, it seems highly unlikely that any complaint under the Canada-Jordan labour cooperation agreement will ever get beyond the level of ministerial consultations. Again, under NAFTA, no case has ever gotten beyond the level of ministerial consultations.
Second, the Canada-Jordan labour side agreement provides every opportunity for the offending nation to negotiate a resolution to the complaint.
Finally, the penalties under the agreement are limited to relatively modest fines. There is no possibility for trade sanctions, trade tariffs, or the revocation of the trade agreement itself as a penalty for the repeated and systemic violation of the labour rights set out in the agreement.
The failure of the enforcement mechanisms stands in stark contrast to the investor-state arbitration procedures—for example, found in chapter 11 of NAFTA—that have been typically found in the free trade agreements negotiated by the Canadian government.
In conclusion, it's been our experience that labour protections found in existing trade agreements negotiated by the Canadian government have not provided real, enforceable rights for workers. Our review of the labour provisions found in the Canada-Jordan agreement reveals that while improvements have been made over the existing structure of NAFTA, the essential structure of the labour clauses found in previous agreements remains unchanged.
Given the magnitude of the labour rights issues in Jordan, we submit that simply issuing fines against the offending government is not an acceptable sanction. Moreover, it will provide little or no incentive for the Jordanian administration to meaningfully address the current issues.
In our view, the labour provisions in the Canada-Jordan FTA are not sufficiently robust to begin to address the serious labour and human rights violations that occur regularly in Jordan.
It is sometimes alleged that unions such as ours, and the Canadian labour movement in general, uniformly oppose all free trade agreements. The reality, however, is that our union understands that trade is essential to the Canadian economy. However, our experience has been that too often these trade agreements have pernicious effects on workers. Our view is that free trade agreements must raise the living standards for all who are covered by the agreements. Too often trade agreements provide great benefits to investors and corporate elites while at the same time creating downward pressure on wages and curtailing workers' rights. As such, so-called free trade agreements often lead to greater economic inequality and increasingly precarious employment for workers.
In our view, increased trade must improve the living standards for all working people who are covered by the agreement. This can only be done if trade agreements provide real, enforceable transnational rights for workers. Thus far, Canada's trade agreements have failed to provide these protections.
Thank you very much for the opportunity to address you. I look forward to your questions.