Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



The Brison Amendment to the Canada-Colombia FTA Will Put Canadian Companies in Colombia Under A Microscope

On March 24, 2010, an opposition MP, Liberal Scott Brison, spoke in Canada's House of Commons about an amendment to the Canada-Colombian Free Trade Agreement (or Side Agreements on Labour and Environment) that he had negotiated and signed on November 21, 2008. Taken from the March 24, 2010 Official Hansard debates, we understand that during the scheduled debate concerning Bill C-2 "An Act to implement the Free Trade Agreement between Canada and the Republic of Colombia, the Agreement on the Environment between Canada and the Republic of Colombia and the Agreement on Labour Cooperation between Canada and the Republic of Colombia", Mr. Brison took his turn to speak in the House of Commons and said:

Mr. Speaker, to help ensure and measure progress in the area of human rights, the Liberal official opposition asked for and received agreement from the Colombian government to the following.

First, there must be a prior written agreement between the governments of Canada and Colombia, where each country provides annual reports to their respective parliaments on the impact of this FTA on human rights in both Canada and Colombia.

Second, Bill C-2 must be amended at committee by adding, “The Minister shall cause to be laid before each House of Parliament by March 31 of each year or, if that House is not then sitting, on any of the thirty days next thereafter that it is sitting, a report of operations for the previous calendar year, containing a general summary of all actions taken under the authority of this Act, and an analysis of the impact of these actions on human rights in Canada and Colombia.

Will the minister now confirm his government's unequivocal agreement to this course of action?

Canada's Trade Minister Van Loan responded:

Mr. Speaker, our government has never been reluctant to talk about human rights and advance human rights, even as we advance the trade agenda. The agreement has beside it parallel agreements dealing with labour and securing individual human rights with regard to collective bargaining in an assortment of labour areas. It also has a parallel agreement on environment to protect the rights of Colombian citizens.

In the spirit of not being afraid to advance human rights interests, we would certainly be amenable to an amendment of the type suggested by the hon. member.

The discussion continued and is a fascinating read - please go to -http://www2.parl.gc.ca/HousePublications/Publication.aspx?Pub=Hansard&Doc=16&Language=E&Mode=1&Parl=40&Ses=3#Int-3057660

While cooperation between the Canadian Conservative Government and Liberal opposition MPs (let's call in that for now), and the issue of international human rights are very important, it is questionable whether human rights should be part of a free trade agreement or whether there are better forums for human rights issues. Someone needs to ask this unpopular question and to be allowed to ask the question without being unfairly labelled.

This compromise allows Bill C-2 to move through Second reading in the House of Commons to Committee discussion. The amendments require reports to be prepared by each government and that those reports be provided to their respective parliaments (Canada provides a report in the Canadian House of Commons and the Colombians take a similar step).

The debate on this issue will continue into the future. One important thing will come from the reports, the positive effects of Canada-Colombia trade will be documented. In the recent global recession, we heard a lot about the negative effects of free trade agreements. Looking for positive effects will be an evolution in information gathering.

What will be embarrassing to Canada is any negative behaviour of Canadian companies operating in Colombia because rest assured, such negative activities will be highlighted in the Colombian report. The Colombians will likely watch the Canadian companies under a microscope and tattle on any questionable activities that occur in Colombia. Anti-free trade groups in Colombia that wish to make Canada look badly (or retaliate for reports in the Canadian press), may cause problems for Canadian companies so that the Colombian report can be a negative one. If the evidence is there, they can then demand that it be contained in the Colombian report.

Now, the same principles will hold true for Canada; however, it is unlikely that there will be as many Colombian companies coming to Canada as Canadian companies going to Colombia. As a result, the Canadian report will likely have a different focus.

If the amendment is added to the Canada-Colombia Free Trade Agreement (as opposed to inserted only in the Canada-Colombia Agreement on Labour Cooperation), the dispute settlement chapter may apply if the reports are not tabled. This would mean that Canada could make a request for consultations and ultimately request a panel of arbitrators to determine whether the Canada-Colombia Free Trade Agreement has been breached if Colombia does not prepare and table its report. Canada could find that the amendment creates significant dilemmas for Canada in the future and does not improve human rights in Colombia in the process.

Cyndee Todgham Cherniak can be reached at 416-307-4168. Cyndee is an international trade lawyer with Lang Michener LLP and an adjunct law professor at Case Western Reserve University School of Law and teaches a course of NAFTA and bilateral trade agreements. She has reviewed over 100 free trade agreements and written a 900 page report of the Asian Development Bank. She has testified before House of Commons and Senate Committees about international trade matters.

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