Colleagues, we're eating up the time of our witnesses, so I would like to get started.
This study is pursuant to the order of reference of Tuesday, October 3, 2017, Bill an act to amend the Export and Import Permits Act and the Criminal Code.
Before us today, from the Canadian Shooting Sports Association, is Steve Torino, president; and from the Ontario Federation of Anglers and Hunters, Greg Farrant, manager of government affairs and policy. Welcome to the committee.
I think everyone here knows the process, so I am going to quickly turn it over to our witnesses to do their presentations. Then we'll get right into Qs and As.
Without further ado, who is going to start?
Greg, according to Steve, you're starting. The floor is yours.
Good morning, Mr. Chair. Good morning, members of the committee.
On behalf of the Ontario Federation of Anglers and Hunters, our 100,000 members and our 740 member clubs across Ontario, thank you for affording us the opportunity to appear before you today to comment on Bill .
Clearly, most reasonable people do not object to increased oversight when it comes to the export of various types of what are referred to as conventional weapons in the Arms Trade Treaty and increased vigilance as to what countries these weapons are being sent to, where they might be used to engage in acts of war, terrorism, or subjugation of their own citizens. In fact, since a large part of the bill deals with the export of these types of weapons and not importation into Canada, we have no major objections in that regard. There are, however, two or three troubling aspects regarding the importation rules and the absence of certainty in the legislation that I want to comment on very briefly today.
During second reading debate, the stated:
||I would like to make it clear that Canada's accession to the Arms Trade Treaty does not and would not affect domestic ownership of firearms or Canada's domestic firearms laws and policies. The ATT would govern the import and export of conventional arms, not the trade in sporting and hunting firearms owned and used by law-abiding Canadian citizens.
||This government understands that this treaty will in no way affect domestic ownership of firearms.
In response to a question from the member for , he responded by saying:
||Let me make it clear that accession to the Arms Trade Treaty will in no way affect domestic gun ownership in this country. It will in no way put any restrictions on law-abiding Canadian citizens. It does not deal in the trade of sporting and hunting firearms.
Finally, in response to a question from one of his own colleagues, he stated:
||The ATT governs the import and export of conventional arms, not the trade in sporting and hunting firearms owned and used by law-abiding Canadian citizens.
This is an important point, reinforced by the fact that the parliamentary secretary to the minister repeated the government's position on this three times.
While the ATT does contain a measure of assurance in the preamble—not the treaty itself but in the preamble—that speaks to legitimate trade, lawful ownership, and use for several purposes, there is no language in the treaty itself or in the bill that provides similar comfort, what at least one member referred to as a “greater clarity” clause. The question is why not?
If the government believes that the treaty does not impinge upon domestic ownership or use of firearms, and in the words of the parliamentary secretary, “will in no way put any restrictions on law-abiding Canadian citizens”, why wouldn't the government include wording in the bill that would provide a level of certainty for legal, law-abiding firearms owners? I have every doubt that the nation-states that are party to the ATT are predisposed to amend the treaty itself to include such wording, so why is our government reluctant to at least provide some assurances in Bill that recognize what the parliamentary secretary has said and is reflective of language in the preamble to the ATT, whether that's wording that appears in the preamble or the top hat of the bill or elsewhere?
In our view, this is a missed opportunity for the government to demonstrate clearly their conviction that the treaty is not intended to impact negatively upon that group by reaffirming this in the legislation, and we would respectfully recommend that the committee rectify this oversight.
This becomes even more important in view of the fact that we believe the treaty contains language that may indeed pose a problem for legitimate firearms owners in Canada, and in fact could impinge upon Canada's domestic firearms laws and policies contrary to the government's assurances. I would refer you to article 2 of the treaty, which outlines eight categories of conventional weapons, the last of which is small arms and light weapons. Further to this, articles 3 and 4 clearly state that the treaty also applies to ammunition used by any of those eight categories, their parts and components.
Given that the ATT refers to both persons or individuals and organizations, how could that be interpreted as not impacting on firearms owners in Canada, who may on occasion order firearms, ammunition, or parts from the United States? This is lost on me, but I would appreciate any clarification on the matter if someone can provide it. If that is not possible, it would certainly appear that the treaty does in fact impinge on legal firearms owners, but there is no accounting for this in the bill through exemption or any other means.
The second issue I will speak to briefly this morning was a source of considerable rancour during debate, namely, the contention that requirements in the ATT require nation-states to collect information, which, ipso facto, has the appearance of a new and different firearms registry. I'm not a lawyer nor do I pretend to be one, but in reading article 12(3) of the ATT, its reference to record keeping and in particular the phrase “end-users”, it certainly appears that nation-states that sign on to the treaty are encouraged to create and maintain a version of some type of registry that, in our view, has some resemblance to what went before.
This government, and indeed the himself, have repeatedly assured the firearms community across Canada that they have no intention of bringing back a long- gun registry, and we have taken the government at face value. However, by signing on to the ATT, which includes the criteria suggested in article 12(3), it's hard to see how this is not a variant of the former model, which is cause for much concern and calls into question earlier comments I referred to which contained assurances that lawful firearms owners would not be impacted.
However, the keeping of and retention of records by importers, exporters, firearms dealers, and end-users for defined periods of time that is referred to in the bill, without being required to turn these records over to the government on demand, is something that most in the industry already do for insurance and other purposes. This, in itself, does not constitute a registry subject to future regulations. The problem occurs when the requirements under the ATT require nation-states to keep records where individuals or end-users could be identified, and they're shared, something the ATT seems to provide for. This is problematic in terms of privacy, and problematic in that it takes on the appearance of a pseudo registry, intentionally or otherwise.
Our final concern relates to the fact that so much of the substance of this bill remains unknown. As the member for Laurier—Sainte-Marie noted in the House, the meat of the bill will be in the regulations, which are yet to come. Any legislation, not just this bill, that proposes to govern activities substantially through regulations that are unknown and unseen during debate is always of concern because, as the expression goes, the devil is in the details.
We obviously can't comment on regulations that have yet to be created or seen, but we do want to express concern over the fact that legislation is debated in a public place while regulations, which will largely govern the government's actions going forward in this area and give force to the legislation, will not be subjected to the same level of scrutiny.
Once again, Mr. Chair and members of the committee, I wish to thank you for inviting us to be part of this discussion. Thank you.
Thank you, Mr. Chairman and members of this committee, for inviting me to comment on Bill , and to answer any questions I can in this regard. I would also like to present some relevant background information that may be pertinent to this bill.
I am president of the Canadian Shooting Sports Association, and I chaired the firearm advisory committee for the Liberal government from 1996 to 2006, and co-chaired the firearm advisory committee for the Conservative government from 2006 to 2014. I was also an adviser to the Canadian delegation to the United Nations on the Arms Trade Treaty and related programs from 2006 to 2014. Our association represents some 60,000 firearms owners and active target shooters.
The Arms Trade Treaty covers not only conventional arms used in conflicts, but civilian legal arms, ammunition and related parts and accessories as well. Since Bill contains amendments to the Export and Import Permits Act, allowing the accession to the Arms Trade Treaty, it should be stated that Canada is basically a nation of importers of these products, and that any amendments to current policies and practices can have an impact on this $5 billion per year industry and its clients, the end-user.
CSSA members are concerned with possible negative effects from the implementation of the Arms Trade Treaty and Bill , including a possible curtailment of exports to Canada of currently available civilian firearms, ammunition and related parts and accessories. Canada’s annual imports of civilian firearms, ammunition, parts, and accessories exceeds $400 million according to Statistics Canada. In addition, there is concern in the firearms community of a possible return to a firearm and ammunition registry, alluded to in article 12 of the treaty.
The inclusion of brokering in Bill appears to be a major amendment to the Export and Import Permits Act and the Criminal Code. To the best of our knowledge, there are no illegal brokers operating in Canada who would be affected by this amendment, and all legal brokers in our opinion are in compliance with Canadian standards. So the thought arises as to what events and subsequent consultations have occurred in this regard that would lead to this amendment.
Canada’s rules regarding the import and export of conventional arms and small arms and light weapons already exceed the ATT guidelines. Canada’s practices for export are well established. Canada’s import and export controls exceed UN treaty requirements, and are in line with those of our principal allies and partners in the major export controls regimes. It is our experience that Canada’s export controls officials are very involved in analyzing each proposed transfer.
Much of the balance of Bill seems to refer to codifying current policies and practices or creating modifications thereto.
Current world conflicts raise questions as to the efficacy of the controls in the Arms Trade Treaty, when a myriad of weapons appear in the hands of insurgents who are labelled as undesirable to peace in the affected regions. As well, the source of such weapons used in the present series of “terrorist” attacks worldwide pose similar queries.
The current Arms Trade Treaty was supposed to be passed by consensus. Yet when the consensus could not be reached in April 2013, it was passed by simple majority vote in the UN General Assembly.
In its current version, section 20 of the Arms Trade Treaty clearly states that any future changes to the treaty will be passed by a 75% majority of the states parties present for the vote. This simple majority vote by the states parties could change Canada’s current working policies, putting decisions in the hands of states parties, who, in some cases, have serious conflict issues of their own, and who could possibly interpret any proposed changes to the Arms Trade Treaty in the light of their own issues. This interpretation could, and possibly might, have some unintended and unwanted consequences for Canada, since our controls far exceed those of most states parties.
When Canada enters this treaty, and I gather it will, we would be subject to any changes made by other nations, without much say on our part in the final outcome. This can be viewed as not necessarily the best situation to maintain our decision-making abilities in a sovereign Canada.
It is our recommendation to include language in Bill that would remove the spectre of this legislation creating a future firearms registry, in keeping with the commitments of this government.
Thank you for your time and consideration.
Thank you very much, Mr. Chair.
Thank you, gentlemen, for outlining some of the concerns that members of both your groups have with Bill . I would describe them as very reasonable concerns, and I appreciate your expressing them in a little more detail today.
For your benefit, I will speak for a moment on where we've been so far in committee, and then I will have a few questions specific to your concerns.
First, we heard from government officials from the trade and export controls bureau that essentially Canada had one of the world's leading import and export regimes. I added to the testimony to say we've had that since the war.
They weren't able to give detail on any of the violations you were referring to, Mr. Torino. They said that they don't know of any violations in a brokering aspect or under the act as it currently stands, but they have undertaken to get that.
Ms. Gilmour who appeared said that we're already complying with 26 of the 28 elements of the ATT, and have done since long before the UN brought forward a treaty. In fact, the two elements—really there's just one, the brokering changes, and the second element is a change from policy to law. Policy has already been implemented, since the Mulroney government, and they are going to change from a policy direction into law. You could say there's really only one change being made by this legislation because there hasn't been a problem in Canada.
We recently heard from Amnesty International that they view this as not a step forward because the U.S. and mainly the large military equipment exporters around the world are not parties to this ATT.
That's why we're here today, and now we're hearing from those concerned.
Mr. Torino, you mentioned that you were involved as an adviser on the ATT from 2006 to 2014. Did Canada ask for an explicit carve-out, not in the preamble, but in the treaty itself? Did Canada advance that specific exemption for lawful firearm users, sport shooters, or hunters as part of the UN discussions on the treaty?
I do agree, and here I'm parsing a fine line. There was a lot of discussion during debate, and I believe the phrase that was used was “backdoor registry”. Do we believe that this is a backdoor registry? No.
What is absent to make it such is the wording that when it comes to inventory...and it talks about inspectors at all reasonable times being able to go in and look at inventories, etc., for compliance. What's missing from that, which would make it into something of a backdoor registry, is the wording that the minister may demand that the inventories in their entireties that are kept by these groups or individuals be turned over to the government. That would be something different.
The fact that article 12 refers to end-users, we interpret that—maybe correctly, perhaps not—as me, Mr. Torino, anybody who has firearms in this country being the end-user if they are the ones purchasing them, or the ammunition, or the components and parts and whatnot. That section 3 of article 12 starts to get very close to some of the language that used to be associated with Bill when the long-gun registry was still in effect in this country. That is a bit of a concern for us.
Does the bill create that? I have to say quite fairly, no. However, depending on what the regulatory attachments are to the bill, if there's any indication in those regulatory attachments that the government can at will, or on demand, require those records to be turned over, which includes not only perhaps inventory but sales, then we have more of an issue at that time.
Thank you very much, Mr. Chair.
Gentlemen, thank you for being here today.
If I remember correctly, we met before, in 2012. You appeared before the committee at an information session on negotiations for the Arms Trade Treaty. You were able to share your concerns, which you had an opportunity to present again when you accompanied the Canadian delegation to those negotiations.
I must admit that at the time the Liberal members and we, the members of the NDP, had a lot of trouble understanding why the Conservative government only brought your organizations to New York to take part in these negotiations, and avoided bringing other very well-known organizations such as Project Ploughshares, and others who worked on these issues for years and had acquired great expertise. It seems to us, and we continue to think, that this was not a very balanced representation of Canadian civil society.
Honestly, we have some concerns regarding this bill which are rather different from yours. These concerns are very well summarized in an analysis of the bill done by Michael Byers from the Rideau Institute. The subtitle of that study is interesting. It is “An Act to facilitate arms exports to countries which violate human rights?”
I want to take advantage of having the floor to say that it would be very interesting to have this document distributed to all of the members of this committee for information. I also had the opportunity of asking for it—
I'll speak to that if I may, Mr. Chair.
I think you've just pointed out the very concern that we have. I'll grant you that if those are already in place, I understand your question, but the problem is that without exemptions in this piece of legislation, and the exemption we're asking for is a very simple one, a very straightforward one, and one that echoes what the parliamentary secretary said in his remarks during debate repeatedly, all of the articles you've just cited now have the potential, and I stress “potential”, to become something else in this country, depending on what the regulatory regime attached to Bill becomes, and we don't know what that's going to be. I'll give you an example, if I may. This is hypothetical, obviously.
If the government, through regulation, included some sort of provision for the minister at his discretion to demand, request, or whatever, certain records, that in itself would start to veer towards constituting something that we had before and do not have right now. I recognize these three articles you quoted, and one we already talked about, article 12, has language in it that is of concern in terms of inventories, in terms of the information that it requires of individuals and organizations, or “persons and organizations” as they refer to it. We remain concerned about those articles themselves without some sort of clarification in our national legislation that would address it.
Thank you, Mr. Chair, and thank you to both witnesses for being here today.
Mr. Farrant, when I came in, you were quoting me. I believe I was quoted three times exhaustively, and quite accurately, if my memory serves me correctly. I truly appreciate that, because my good friends on the other side of the floor have the tendency from time to time to misquote me in the House of Commons. I certainly appreciate the diligence with which you undertook to ensure that I was properly quoted.
I've heard the concerns addressed here today around some of the language in article 12. I believe, and it's the firm view of the government, that there is no cause for concern around issues related to article 12, which requires each state party to maintain national records of exports, because this is not a new obligation for Canada. Mr. O'Toole has referenced the fact that it's a matter of compliance with our Export and Import Permits Act, that we've been doing so for decades, and that the obligations for exporters will not change.
I also note that the language inserted into the preamble of this convention was done so at the suggestion of Canada. Mr. Torino, maybe you can clarify for sure that was the case in 2012, which would have been under the guidance of the former government. They voted for this treaty at the time and then, for unknown reasons, chose not to come home and do the necessary things to ensure that Canada was in full compliance with the Arms Trade Treaty.
I think we all agree we are a leader when it comes to arms trade regulation in the world, and there are two simple matters that we need to undertake to be in full compliance with the Arms Trade Treaty. We have a significant leadership role to play in ensuring that for other countries in the world affected by conflict, coming out of conflict, or subject to occasions where women and girls are subjugated to horrific forms of violence, we have an important role to play in strengthening their arms control regimes.
Mr. Farrant, I heard you say, after quoting me extensively three times, that you take us at face value, and I appreciate hearing that.
Maybe I'll frame my question this way. Given that what's to come in regulation is effectively codifying the assessment criteria that Canada already undertakes to ensure the proper issuing of permits for the export of conventional arms, and does not in any way purport to change any of the elements of article 12, which we are already fully complying with and have been undertaking to comply with for decades, where is the concern here for gun owners?
Good afternoon. Thank you very much for the invitation. It's an honour.
The protection of civilians, the achievement of sustainable socio-economic development, and the reduction of humanitarian harm in conflict all necessitate preventing irresponsible arms transfers. This is why Oxfam supported the negotiation of the Arms Trade Treaty and now supports universalization and robust implementation of the treaty with a view to reducing human suffering.
For Oxfam, it is important that all states that have not yet done so should become party to the treaty and incorporate it into national legislation. We therefore welcome the Canadian commitment to accede to the treaty.
States parties must strictly comply with the Arms Trade Treaty, which can help protect civilians in even the most difficult situations by placing international humanitarian and human rights law at the centre of arms transfer decisions, giving only secondary concern to commercial considerations.
At the heart of the national implementation of the ATT are the criteria against which the risks associated with each arms transfer will be judged. For Oxfam, it is important that governments follow a process of thorough risk assessment and then explicit decision on whether or not to authorize transfer for all potential transfers, in line with treaty obligations. This can be done using a number of different instruments.
For example, within the EU, arms transfers are subject to the intra-community transfers directive, a lighter touch regulation, which takes account of the economic integration of the EU and the non-sensitive nature of most intra-EU arms trading.
For wider transfers, the U.K., for example, has a system of open licensing where, in cases where the combination of equipment and destination is considered less sensitive, multiple deliveries are permitted under a single licence. Companies using such licences are required to keep careful records and are subject to audit upon demand by government. While we do have concerns in some cases regarding what the U.K. government considers “less sensitive”, this does show that it is possible to provide for risk assessment and licensing of arms sent to all destinations, in accord with the obligations of the ATT. This is also vital with regard to transparency and reporting, essential components of ATT effectiveness.
Also important is that the scope of the criteria is broad enough for robust treaty implementation. Oxfam urges Canada to look to good models for criteria and to apply them widely. The EU criteria for risk assessment, detailed in the 2008 “common position on arms exports” and incorporated into U.K. law as the “consolidated criteria”, are a good starting point for effective implementation of the risk assessment before granting an arms export licence, as required by the ATT.
All 28 EU member states use this system for evaluating arms export risk—a quarter of current ATT states parties. The criteria considered whether the proposed export would: contravene the U.K.'s international commitments; be used for internal repression or where there is a risk of serious violations of IHL, international human rights law, including gender-based violence; provoke or prolong armed conflicts or aggravate existing tensions in the destination country; be used aggressively against another country; adversely affect the national security of the U.K. or allies; be diverted or re-exported under undesirable conditions; seriously undermine the economy; or seriously hamper the sustainable development of the recipient country.
Noteworthy in this regard is that Canada has in fact formally aligned itself to this EU common position, which means that in theory it should already be applying these criteria. It would be interesting to know what alignment means in practice for Canada at this point.
Even excellent language in national law and regulation is insufficient if a government lacks the political will to properly implement the treaty and is not held to account by Parliament and the courts. The U.K. is of interest here again, with the High Court recently endorsing parliamentary scrutiny as a vital part of an effective strategic exports control system.
Oversight of arms sales is a job for Parliament. This has been the case in the U.K. for the last 20 years or so.
The 1996 Scott report into the arms to Iraq scandal noted that a well-informed Parliament has a critical role to play in preventing executive excess. This was confirmed by the recent High Court decision in the judicial review brought by the Campaign Against Arms Trade on arms to Saudi Arabia, which, although subject to appeal, found in favour of the government, with the court extremely reluctant to overrule the government when it comes to licensing decisions, and that this is much better a job for the legislature in general and the Committees on Arms Export Controls in particular. They said:
||...the role of the Court can properly take into account that there is an expectation, consistent with democratic values, that a person charged with making assessments of this kind should be politically responsible for them.... [M]inisters have appeared before the Parliamentary Committees on Arms Export Controls and the All-Parliamentary Group on Yemen; ministers have also spoken in parliamentary debates on Yemen, made oral and written statements, responded to urgent questions, and answered a wide range of parliamentary questions and ministerial correspondence.
||The seriousness of the case of arms supplies to Saudi Arabia during the Yemen conflict underlines that parliamentary scrutiny is most necessary in the most difficult cases. Where UK-supplied arms are being used...by armed forces who lack the necessary training,... targeting capabilities [and self-analysis], the role of Parliament is vital.
Oxfam, therefore, recommends that the Canadian Parliament establish an appropriate committee structure for the scrutiny of government arms transfer policy and practice.
In conclusion, from Oxfam's perspective as an organization dealing with the human consequences of irresponsibly and illicitly traded arms, it is essential that Canada provide for transparent licensing of all arms exports in a robust manner, and for parliamentary scrutiny of that system.
Thank you very much.
Good afternoon. My name is Cesar Jaramillo. I am the executive director of Project Ploughshares. Thank you very much to all members of the committee for the kind invitation to address you.
I've given a title to my brief remarks, which is “Bill C-47: if left unchanged, Canada will not meet ATT obligations”.
For decades, efforts to better regulate illicit or irresponsible arms exports and to strengthen military export controls have been a key focus of the activities of Project Ploughshares. We were strong advocates of the landmark international Arms Trade Treaty long before its adoption and have since underscored the importance of full compliance as the ultimate measure of the treaty's effectiveness.
We were greatly encouraged by Canada's decision to join the Arms Trade Treaty after a highly conspicuous absence and we have engaged in a constructive spirit with colleagues at Global Affairs Canada on this important file. However, while our desire to see Canada become a fully compliant state party to the treaty has not changed, our expert assessment is that the proposed legislation, Bill , would not enable Canada to meet the requirements and expectations of the Arms Trade Treaty.
We have profound concerns about substantial shortcomings of the bill that make it impossible for us to recommend it before this committee. For absolute clarity, we cannot and we do not support Bill in its current form. This is a position that is shared by a host of Canadian groups from the disarmament, human rights, and development fields, some of which have testified before the committee on this very issue.
Before I address some of our major concerns about the bill, I would like to underscore the singular importance of this opportunity to review Canada's military export controls regime. It is a rare occurrence that may not happen again in years, if not decades. As such, we encourage all stakeholders, including members of this committee, to seek strong, effective legislation for Canadian arms exports that is truly in line with modern expectations of rigour, accountability, and transparency in the global arms trade, including, of course, full compliance with the Arms Trade Treaty.
A key concern about the proposed legislation is that it does not address the exemptions that have long been afforded to Canadian military exports to the United States. Under current practice, which has been left unchanged by Bill , Canadian military exports to the United States are exempted from licensing and reporting requirements applicable to every other destination. These exemptions are utterly incompatible with the letter and the spirit of the Arms Trade Treaty. Even though we have long considered such an arrangement with the United States to be problematic and contrary to the expectations of transparency around Canada's arms exports, this loophole has become especially egregious as Canada readies to accede to the Arms Trade Treaty. We are aware that the position of Global Affairs Canada is that the exceptions granted to U.S.-bound exports are consistent with the Arms Trade Treaty. For several reasons, we must express our disagreement with this view.
In its first article, the Arms Trade Treaty calls for the highest possible common international standards. To be sure, there are two interrelated and equally important elements to this requirement—highest possible international standards and common international standards—yet the arrangement with the United States neither constitutes the highest possible standard nor is it common to the standards applied to others. Likewise, article 2 of the ATT is explicit about its applicability to all military exports covered under the treaty. Article 5 calls for the treaty to be implemented in “a consistent, objective and non-discriminatory manner”. We find it hard to see how “all” could be interpreted to mean anything other than the totality of Canadian exports, including those destined for the United States. Further, the unique treatment afforded to the United States is out of line with the expectations of consistency, objectivity, and non-discrimination specified in article 5.
Such exemptions would be incompatible with Arms Trade Treaty obligations regardless of the recipient. In the case of the United States, they are especially suspect. The United States is the largest exporter of weapons and military equipment in the world, and as such, Canadian components to the U.S. can be incorporated into systems in the United States and then exported to third parties without requiring further authorization from Canada.
The United States is also the largest recipient of Canadian military goods by far. Project Ploughshares estimates that Canada exports military goods worth as much as $2 billion to the United States annually, typically more than half of all of our total military exports. Therefore, with Bill in its current form, the majority of Canadian military exports will neither be reported nor require export permits, even after Canada joins the Arms Trade Treaty.
Critically, the United States is not an Arms Trade Treaty state party and is not expected to become one in the foreseeable future. Canada, on the other hand, will soon be a state party and the expectation is that all its arms export regulations will be consistent with the provisions of the treaty, including those related to licensing and reporting obligations.
Further, a widely shared goal of state parties is the universalization of the Arms Trade Treaty. It is hard to see how Canada can contribute to that objective when it offers laxer conditions to a non-state party than it does to those states that have agreed to be bound by the treaty's obligations.
Another area of great concern relates to the way in which Bill addresses articles 6 and 7 of the treaty, which refer to prohibitions and risk assessment, respectively. In this regard, Global Affairs Canada has indicated that Canada's “current export permit considerations are consistent with all these elements as outlined in the ATT, but are established as a matter of policy, not law.” Also, Global Affairs Canada states, "The critical element was the need to create a legally binding obligation for the minister to take the ATT assessment considerations into account in deciding whether to issue an export permit."
This characterization leaves the impression that the only measure necessary for Canada to be in full compliance with articles 6 and 7 is to establish a legal obligation for the minister to take certain factors into account when assessing export permit authorizations. In reality, however, the Arms Trade Treaty establishes a higher standard than merely taking into account certain considerations when deciding on export permit authorizations.
The Arms Trade Treaty establishes categorical prohibitions on certain arms exports, depending on the outcome of an objective risk assessment process, and it includes unambiguous wording to this effect when referring to exports that a state shall not authorize. Canada's export controls regime lacks any such obligation or wording, whether in policy or in law.
The obligation for the minister to simply consider certain factors does not suffice to meet treaty standards, even if established as a matter of law. In the absence of language that explicitly requires the denial of certain export permits, the minister will have virtually unchecked discretion to authorize any and all military exports, however questionable the recipient or however damning the risk assessment, as long as he or she indicates that factors were taken into account.
We are further concerned that, under the current approach taken by Global Affairs Canada, the details related to these critical areas will be left to subsequent regulations, which are to be known only after the legislation is enacted. Of course, in principle, we do not oppose the notion that certain aspects of a bill can be and, in some contexts, have been, left to be addressed by subsequent regulations. What we find problematic is that aspects related to some of the most crucial dimensions of the Arms Trade Treaty, namely the prohibitions and risk assessment, would be a matter of regulations and not law.
Another area that the bill fails to address has to do with the lack of harmonization between the Department of National Defence and Global Affairs Canada vis-à-vis risk assessment processes for arms exports. While both departments will need to comply with the obligations of the Arms Trade Treaty once Canada becomes a state party, we are concerned that having two separate risk assessment procedures may lead to inconsistent standards and decisions concerning where Canadian military equipment may end up.
Earlier I pointed to the obligation contained in article 5 of the ATT to implement treaty provisions in a consistent manner in the context of the exemptions given to U.S.-bound exports. This requirement for consistency in the implementation of the treaty is also applicable to the dual risk assessment processes at the Department of National Defence and Global Affairs Canada.
To finish these remarks, let me reiterate that we remain very much supportive of Canada joining the treaty as a fully compliant state party. Unfortunately, however, Bill falls short of meeting the spirit, the objectives, and the specific provisions of the ATT, and thus we cannot support it in its current form.
Thank you very much for your attention. I would very much welcome your comments or questions related to these remarks.
Thank you very much for that very good question. I wasn't here for the first hour, so I'm not sure what concerns were raised by the earlier witnesses. I do know from our conversations with other colleagues and like-minded organizations in Canada who have testified before this committee that there are in fact several concerns about the bill.
One aspect, as you rightly point out, has to do with the wide discretion with which the minister would be in a position, as I said, to authorize any and all export permits as long as he or she says they considered the factors. We are greatly concerned that there is no such language, as is found in the Arms Trade Treaty, that refers to exports that shall not proceed, or that the minister cannot authorize. There is no categorical language.
Thus far, the closest Canada's export control regulations come to a categorical prohibition is two words: “closely controls”. That's really the closest we come to a categorical prohibition, “closely controls”. But even under that rubric of close control, right now, as you well know, we are in the early stages of a multi-billion dollar deal with one of the worst human rights violators in the world. That's Saudi Arabia. It is an undisputed fact that they are among the worst of the worst.
Evidence indicates that close control does not suffice and that there is a need for very specific categorical language that indicates, without room for ambiguity, that if certain triggers are met, certain exports quite simply cannot proceed. There is nothing to that effect in the current legislation, in the current regulations, or in the proposed changes in Bill .
That's a very good point. There are certainly major exporters outside the treaty; Russia and China would be two. The United States is sort of half in and half out, at the moment, although its domestic legislation is fully compliant with the treaty.
We at Oxfam view this as a long-term process. A lot of countries joined the treaty very quickly and over the past three years of its being in force have been learning how to operate it. Other countries will come in later. We see this happening more gradually now, but it's happening. Russia has stated an intention not to join the treaty. China, as we understand it, is slowly and quietly examining whether it is in its interest to join the treaty. Other countries will be doing the same thing.
In terms of this treaty, it's very interesting that, for example, as a large number of African countries join the treaty—and we are encouraging others, particularly in east Africa, to do the same—and as they operate the treaty and their arms imports are being reported, since they are complying with the terms of the treaty, a country like China, which exports a lot of arms to Africa, is brought some way into the treaty's ambit, just because arms it supplies, but might not report the supply of, will be reported by the African states that have bought them. The treaty gradually and slowly will build up to work more strongly and will spread across the world.
Certainly for us, the greatest guarantee of getting more countries into the treaty is that they see it working. They see it contribute to security and transparency in the arms trade, and they see it being in the interest of states to be part of it. That requires the robust implementation we talked about.