Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada's "Made in Canada Act" is a Privte Members Bill to Watch

A Canadian New Democratic Member of Parliament tabled in Canada’s House of Commons  Bill C-312 “an Act respecting the use of government procurements and transfers to promote economic development” (“Made in Canada Act”) as a private members bill on February 10, 2009.

 

A private members bill is a motion or bill (proposed law) that is sponsored and introduced by a backbencher or a Member of Parliament of a party that is not the majority.  Most bills are introduced by Ministers who hold are in the governing party and hold a Cabinet-level position.  Only a small number of private members bills are enacted.  However, when the governing party holds a minority government, there is the potential for more private members bills to be passed by the majority in opposition.  Canada currently is governed by a minority Conservative government.

 

The purpose of this enactment is to promote employment and economic development in Canada by ensuring that the Government of Canada, while complying with its international obligations, gives preference to Canadian products in transfers to provinces, municipalities and private parties and in the procurement of its goods.  Section 3 provides that “[w]hen the Government of Canada procures a product, it shall, where similar products are available, give preference to a Canadian product over a non-Canadian product, except where the total value of the Canadian product exceeds by more than 6% the price of the non-Canadian product.”  The term “Canadian product” is defined to mean “any product that is part of, or incidental to, a procurement contract or a transfer (a) of which more than 50% of the total value is manufactured, produced or assembled in Canada and, in the case of an assembled product, where final assembly is done in Canada; and (b) in the case of a natural resource, of which more than 50% of the total value originates in Canada.” Section 4 provides that “[t]he Government of Canada may, where similar products are available, fix conditions on access to a transfer to give preference to a Canadian product over a non-Canadian product, except where the total value of the Canadian product exceeds by more than 6% the price of the non-Canadian product.  There are limited exceptions.

 

The most significant exceptions relate to compliance with Canada’s international obligations.  Section 6 provides that “[a]s regards a country that is a party to the North American Free Trade Agreement (NAFTA), this Act does not apply to procurements or transfers in respect of which NAFTA requires that Canada accord to the suppliers of another NAFTA country a treatment no less favourable than the most favourable treatment that Canada accords to its own suppliers. “ Section 7 provides that “[a]s regards countries that are parties to the Agreement on Government Procurement of the World Trade Organization and with which Canada has negotiated mutually acceptable commitments, this Act does not apply to procurements or transfers subject to that Agreement in respect of which Canada has made specific commitments.”  Section 7 does not apply to services where reciprocal treatment has not been afforded to Canada by the signatory to the Agreement on Government Procurement.

 

As at April 23, 2009, Bill C-306 has not moved beyond first reading in the House of Commons.  This means that the Bill does not have sufficient support of the Members of Parliament to pass first reading.  That being said, should the United States implement protectionist measures against Canada or if Canada feels that protectionism is occurring elsewhere, Bill C-306 could get support from the NDP Members, the BQ Members and others to pass first reading and proceed through Canada’s legislative process.  This Bill is one to watch.

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