Law Times

www.lawtimesnews.com Law Times / march 17/24, 2008 Page 7 Have Clinton, Obama done their homework? D uring the final Dem- ocrat candidates' de- bate in Ohio, Senator Hillary Clinton said she would demand new environmental and labour provisions in NAFTA, as well as a new dispute-resolution mechanism. In addition, she stated that she would eliminate the right of foreign firms to sue Washington for enacting measures to protect its work- ers. She further indicated that, if elected, she would opt out of NAFTA within six months of winning the White House. Senator Barack Obama agreed without reservation that the U.S. would force their closest trading partners under the longest-standing free trade agreement (to which the United States is a party) to renegotiate in four key areas: environmental pro- visions, labour provisions, investment provisions, and dispute settlement. We must ask whether Clin- ton and Obama had reviewed NAFTA and its side agree- ments before making their statements in Ohio. If they had, they would have seen they did not have to threaten to opt out of the agreement. In fact, the mechanisms to make trade improvements in these areas are already in NAFTA. Clinton and Obama may have missed the key environ- mental and labour provisions because not all of them are contained within the text of NAFTA, but in its side agree- ments. The key provisions are found in the North American Agreement on Environmental Cooperation, and the North American Agreement on La- bor Cooperation. Section 48 of the NAAEC and s. 52 of the NAALC allow the parties to make amend- ments to their environmental and labour agreements without having to opt out of NAFTA or its side agreements. There- fore, the mechanism for posi- tive change already exists. Both s. 48 of the NAAEC and s. 52 of the NAALC provide: 1. "The parties may agree on any modification of or ad- dition to this Agreement. 2. "When so agreed, and ap- proved in accordance with the applicable legal proce- dures of each party, a mod- ification or addition shall constitute and integral part of this agreement." Why opt out of NAFTA when the NAAEC allows the United States to discuss the topic of potential additions in friendly and reasonable terms? The environment ministers of Canada, Mexico, and the U.S. meet on a regular basis under the NAAEC to discuss envi- ronmental concerns. Similar- ly, the labour ministers of the three countries meet on a reg- ular basis under the NAALC to discuss labour concerns. NAFTA's side agreements al- low for positive evolution if it is deemed necessary. This is a discussion that must be had before a good trading relation- ship is harmed or, even worse, destroyed. The irony is the NAAEC and NAALC contain more extensive provisions that pro- vide greater protection to U.S. manufacturing interests than the short environmental and labour provisions that have been inserted by the U.S. in more recent free trade agree- ments with Korea, Peru, Co- lumbia, Panama, and the Central American countries. In addition, there is no need for establishing a new dispute- settlement mechanism. The NAAEC and the NAALC both contain such mechanisms. Section 6 of the NAAEC es- tablishes a dispute-settlement procedure for private parties to bring claims against Cana- da and Mexico (and the U.S.) relating to alleged breaches of domestic environmental laws and regulations. Section 4 of the NAALC requires the par- ties "ensure that persons with a legally recognized interest under its law in a particular matter have access to adminis- trative, quasi-judicial, judicial, or labor tribunals for the en- forcement of the party's labor laws." The Commission for Envi- ronmental Cooperation is an international organization cre- ated by Canada, Mexico, and the U.S. under the NAAEC to address regional environ- mental concerns, help prevent potential trade and environ- mental conflicts, and promote the effective enforcement of environmental law. There have been many cases (called "citizen submissions on en- forcement matters") brought by interested parties (often non-governmental organi- zations and environmental watchdogs) under s. 6 of the NAAEC where private parties have felt it warranted to raise economic concerns. This pro- cess has created a forum that has been in existence for over 14 years. The Commission for La- bor Cooperation is an interna- tional organization created by the three countries under the NAALC to address regional labour concerns, help prevent potential trade and labour conflicts, and promote the effective enforcement of la- bour laws. As of March 2004, there have been two cases (called "public consultations") brought under the NAALC against Canada, both of which were filed by the U.S.; 10 cases against the U.S., two filed by Canada and the rest by Mexico; and 17 cases filed against Mexico, two by Canada and the rest by the U.S. As a result, any prob- lems that arose in the past could have been dealt with by the interested parties. It is possible that some concerns in specific situations were remedied using existing dispute-settlement provisions. It is interesting that Clinton and Obama would indicate the need to change dispute- settlement procedures when those that currently exist have not been widely criticized by the usual stakeholders. With respect to any con- cerns Clinton and Obama have regarding the investments provisions, history again tells us that there is no need to opt out of NAFTA. Chapter 11 deals with issues concern- ing investment and contains an investor-to-state dispute- settlement mechanism that allows investors to sue a NAF- TA party if it does not live up to certain obligations. There have been occasions in the past where clarifications have been required and the minis- ter of international trade from Canada and the U.S. trade representative have jointly worked on statements to clari- fy the rules under Chapter 11. For example, in July 2001, the ministers of the NAFTA par- ties issued a joint statement clarifying the meaning of the concept "fair and equitable treatment." That clarification has been used by the U.S. as a precedent in its new invest- ment chapters in free trade agreements and trade prefer- ence agreements. The investment chapter in NAFTA has permitted and continues to permit positive dialogue to enhance govern- ments' protection against frivolous lawsuits for alleged regulatory takings. Again, there is no need to opt out of NAFTA to address the con- cerns voiced by Clinton and Obama in Ohio. Finally, if the underlying concern is the loss of manu- facturing jobs, the complaint of Clinton and Obama must be the elimination of tariffs on goods. It cannot be NAFTA's rules of origin or customs pro- cedures, because those rules have been used as the prec- edent in subsequent free trade agreements and trade prefer- ence agreements the U.S. has entered. If one reads the NAF- TA provisions carefully, one would have to conclude that the tariff reductions on goods Speaker's Corner Breath of fresh air A ttorney General Chris Bentley's recent speech to the University of Toronto Faculty of Law on the criminal justice system didn't really get the attention it deserved. The content was important, but even more intriguing was the difference in tone from so much of the past Liberal rhetoric surrounding justice. Here's an example of the Liberal style as recently as last month: When asked how and why Crown attorneys decided to seek detention orders in most cases involving firearms-related offences, the following response was received from the attorney general's office: "The province's chief prosecutor issued this practice memorandum on Jan. 23, 2006, to provide specific direction to Crowns in the exercise of their prosecutorial discretion. "Such practice memoranda are always issued by the chief prosecutor. We support the policy behind this practice direction." This suggests the employees made the policy and the government concurred. It follows the pattern this Liberal administration has perfected of ducking every opportunity to be accountable for the administration of justice, despite it being the government's constitutional responsibility. The implication of Liberal rhetoric up to now has been that the judiciary, the police, the Crown attorneys, legal aid, and so on, are all autonomous bodies not to be interfered with by government through dictation in policy or fiscal matters. (We are not talking here of day-to-day operations but the broad strokes and strategies from which day-to-day operations flow.) In another example, the Liberals a year ago were denouncing in the harshest terms the collection and publicizing of statistics about the justice system as being a threat to its "independence." Now along comes Bentley's speech, which is not only chock full of statistics, but in which he explicitly accepts responsibility for being more than a "co-ordinator" for justice matters. "I am prepared to set an ambitious, measurable target that the public can measure our progress by." And elsewhere, in a somewhat different but very similar context, he said, "I'll be making whatever changes or improvements are necessary to strengthen the system that we all cherish." No dodging accountability. No kicking it down to lower levels. What a change. In his speech, Bentley said in the criminal justice system the number of appearances an accused will make in court, and the time required for disposition of cases, have both roughly doubled since 1992. At that time, suspects made an average of 4.3 court appearances, including bail hearings, first appearances, setting court dates, pretrial and preliminary hearings, adjournments, and trials before disposition of charge. The number now is 9.2 appearances, of which over six are adjournments, with the average time involved rising from 115 days in 1992 to 206 last year. These statistics are a useful base. They would be even more useful in generating policy if they were expanded in the manner recommended by the Progressive Conservative Opposition a year ago — and which the Liberals condemned. These would include the number of crimes committed while folks are on bail, on probation, conditional release, or while subject to a criminal deportation order. Equally, let's learn the number of remands per case by court location and categorized by Criminal Code or provincial offences, and pre- or post-trial date. And most especially, let's find out whether an adjournment was requested by the Crown, the defence, or the judge. Answers to these questions would help determine where the molasses is being poured into the justice wheel. And although Bentley didn't say so — because the matters are still before the courts and, more importantly, are embarrassing to the Liberals — the backdrop to this new-found interest in taking charge is likely linked to the Richard Wills and police corruption cases. In the Wills matter, the ministry abdicated to Legal Aid Ontario the budget oversight function in a $1.3-million leeching of taxpayer's money by a wealthy man. The repair was a hasty new protocol between the ministry and LAO that Ombudsman André Marin rejected as merely an "expression of wishes" rather than the "legally binding document" required. In the more directly related case of the stay of corruption-related charges against six Toronto police officers by Justice Ian Nordheimer because of unconscionable delays, the ministry reaction was a non- sequitur. Bentley set up an internal review to look at "systemic" problems in the prosecution of "complex" cases, even knowing full well that the judge had specifically ruled that this wasn't the problem in the police corruption case. Yet Bentley's speech admitting the government is actually in charge of the justice system offers some hope the era of dodging responsibility may be nearing an end. Not totally, of course. The Liberals for partisan and philosophical reasons will do nothing about aboriginal law-breaking, and Bentley makes ritual bows to the obvious: that no one justice "partner" can act in isolation. But a sense that there is finally someone paying attention is a breath of fresh air. Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@rogers.com BY CYNDEE TODGHAM CHERNIAK For Law Times COMMENT See Opting, page 8 Inside Queen's Park By Derek Nelson LT

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