Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
Since the 1960s, public consultation has emerged as an important democratic tool, allowing governments to inform, debate, and learn from the general public. Since the 1980s, international trade agreements have wielded significant influence over domestic law making, as an ever more ‘comprehensive’ set of topics is regulated via treaty. In Canada, these two trends have yet to meet. Neither the public nor Parliament is involved in trade policy making, raising concerns about the democratic legitimacy of expansive trade agreements. Through the lens of the recent Canada and European Union (EU) Comprehensive Economic and Trade Agreement (CETA), this article examines whether trade law’s consultation practices can be aligned with those of other federal government departments. We identify five key values that make consultations successful—diversity, education, commitment, accountability, and transparency—and consider the viability of their inclusion in trade consultations.
Depuis les années 1960, les consultations publiques sont devenues un important outil de démocratie, permettant aux gouvernements de débattre d’enjeux, d’informer le public et de s’informer eux-mêmes auprès du public. Depuis les années 1980, les accords commerciaux internationaux ont infléchi les processus législatifs nationaux, alors que les sujets couverts par ces accords deviennent toujours plus nombreux et divers. Au Canada, ces deux tendances n’ont toujours pas convergé. Ni le public ni le Parlement ne participent au façonnement des politiques commerciales, mettant en doute la légitimité démocratique des accords commerciaux pourtant vastes. Par l’entremise du récent accord Canada-Union Européenne (UE) (l’Accord économique et commercial global, ou AECG), l’article examine si les pratiques de consultation adoptées par les ministères peuvent s’appliquer au droit commercial. L’on cerne cinq conditions du succès des consultations – diversité, information, engagement, reddition de comptes, transparence – et l’on étudie leur aptitude à être intégrées aux consultations commerciales.
1 Canada, Royal Commission on the Future of Health Care in Canada. Building on Values: The Future of Health Care in Canada [Romanow Commission] (November 2002), http://www.collectionscanada.gc.ca/webarchives/20071115025623/http://www.hc-sc.gc.ca/english/care/romanow/hcc0086.html. Unless otherwise stated, all URLs were last accessed 20 August 2014.
2 Canadian Policy Research Networks and Ascentum Inc., Trends in Public Consultation in Canada (for the Parliamentary Centre’s Canada-China Legislative Cooperative Project, 2005), 14–15, http://www.cprn.org/documents/38835_en.pdf.
3 Romanow Commission, 259–70, 271–99. Forty pages of individual and organizational participants bespeak a successful consultation effort.
4 See House of Commons, Standing Committee on International Trade, Canada–European Union Comprehensive Economic and Trade Agreement [CETA report], (June 2014), 31–36.
5 In a recent interview, MP Don Davies revealed that, “when I ask witnesses, it doesn’t take me long to burrow into any particular witness and get an answer that they can’t really tell because they’re waiting for the details. They can’t really tell because they need the text.” Don Davies (Member of Parliament, Official Opposition Critic for International Trade and Vice-Chair of the Standing Committee on International Trade), in discussion with Delaney Greig, December 18, 2013.
6 “John Masswohl, Director of Government and International Relations, Canadian Cattlemen’s Association, said that his association was ‘consulted closely on every one of [the] decisions during the negotiations.’” CETA report, 2.
7 Apparently, BC at least was quite robustly consulted in the latter half of the negotiation process: Andrew MacLeod, “BC Secretly Rolling Over on Euro Trade Pact: Dix,” The Tyee (Vancouver, BC), 26 October 2011, http://thetyee.ca/News/2011/10/26/BC-Euro-Trade-Pact/. Since these consultations are not a matter of public record, however, neither civil society nor Parliament knows exactly how extensive the consultations were.
8 Steve Verheul, Canada’s Chief Trade Negotiator, describes “briefing sessions with the provinces before every negotiating session so that they could understand what would be expected and what our strategy was”—a relationship that seems less close than that described by the Cattlemen’s Association. CETA report, 3.
9 Commissions of Inquiry enjoy extensive mandates to consult with the public, to conduct and review research, and, in large part, to set the terms of their own investigations: see Inquiries Act, RSC 1985, c I-11. In contrast, Parliamentary or Senate committees have neither the mandate nor the resources to engage in consultations and research of similar scope; the committee phase is but one of many in the passage of a bill or the drafting of a regulation or policy instrument. Nevertheless, we argue that consultations of any scale should be guided by the values we set out in Part 3 of this article—though indeed it may be easier for a Royal Commission than for more resource-pressed committees to craft and implement value-driven consultations. We thank one of our anonymous reviewers for prompting us to elaborate on the connection between scale and values.
10 Examples of consultations in immigration and environmental protection will be discussed in Part 3, below; however, consultations between the government and First Nations, Métis, and Inuit communities fall outside the scope of this article. For a summary of the Crown’s duties toward these groups as well as relevant criticisms of one common type of Crown–Aboriginal cooperative body, see McClurg Michael, “The Nunavut Wildlife Management Board and the Duty to Operationalize Consultation,” Indigenous Law Journal 9 (2010): 77.
11 The last Royal Commission on trade, the MacDonald commission, was published in 1985: Canada, Royal Commission on the Economic Union and Development Prospects for Canada, Report (Ottawa: Minister of Supply and Services Canada, 1985), http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/mcdonald1985-eng/mcdonald1985-eng.htm. Carried out before NAFTA’s negotiations began, the MacDonald commission was the last time all Canadians were invited to participate in trade policy making on a large scale.
12 Witness, for instance, the mass public movement precipitated by ACTA. When citizens learned of the agreement, they initiated a campaign of civil disobedience, producing petitions, street marches, and electronic attacks against the websites of supportive governments. Academics wrote, and newspapers published, critical editorials while the Rapporteur to the European Parliament on ACTA resigned in protest at the freezing out of the public, actions which combined to produce, for the first time in its history, a European parliamentary vote against a trade agreement endorsed by the European Commission.
13 Compas for the Privy Council Office, Public Consultations on Canada’s Democratic Institutions and Practices (2007), http://www.democraticreform.gc.ca/eng/content/public-consultations-canadas-democratic-institutions-and-practices.
14 Post Robert, “Democracy and Equality,” Law, Culture and the Humanities 1 (2005): 144.
15 Fraser Nancy, “Reframing Justice in a Globalizing World,” New Left Review 36 (2005): 69. See Part 4, below, for more on Fraser’s misrepresentation.
16 For similar definitions, see Gramberger Marc, Citizens as Partners: OECD Handbook on Information, Consultation and Public Participation in Policy-Making (Paris: OECD Publications Service, 2001), 16, http://www.oecd-ilibrary.org/docserver/download/4201141e.pdf?expires=1384019007&id=id&accname=ocid195496&checksum=FB02538AA7B1E095661050A727CFDC9D; Rowe Gene and Frewer Lynn J., “Public Participation Methods: A Framework for Evaluation,” Science, Technology & Human Values 25, no. 1 (2000): 6; Rowe Gene and Frewer Lynn J., “A Typology of Public Engagement Mechanisms,” Science, Technology & Human Values 30, no. 2 (2005): 253.
17 A recent poll shows, however, that a majority of Canadians are uninformed about the nature of committee work: Compas, Public Consultations, 5.
18 An important difference with trade consultations is that the use of an electronic strategy conceals the recipients of the submissions, for no information is provided as to who actually reads them. The consultations on trade are currently housed at DFAIT, http://international.gc.ca/trade-agreements-accords-commerciaux/consultations/index.aspx?lang=eng.
19 See Muldoon Paulet al., An Introduction to Environmental Law and Policy in Canada (Toronto: Emond Montgomery, 2009), 12. For a US comparison, see Irvin Renée A. and Stansbury John, “Citizen Participation in Decision Making: Is It Worth the Effort?” Public Administration Review 64, no. 1 (2004): 55–57.
20 Environmental Bill of Rights, 1993, SO 1993, c 28 [OEBR]; Canadian Environmental Protection Act, 1999, SC 1999, c 33, Part II.
21 Recently, there have been some important critiques of public participation exercises as symptom of and remedy for neoliberal governance itself: see Abram S., “Participatory Depoliticisation: The Bleeding Heart of Neo-Liberalism,” in Cultures et pratiques participatives : Perspectives comparatives, ed. Neveu C. (Paris: L’Harmattan, 2007), 113; Clarke John, “In Search of Ordinary People: The Problematic Politics of Popular Participation” ,Communication, Culture, and Critique 6 (2013): 208.
22 For historical statistics on the sizes and borders of Canadian electoral districts, see Parliament of Canada, “Electoral Results by Party,” http://www.parl.gc.ca/parlinfo/compilations/electionsandridings/ResultsParty.aspx. Some were much larger than others: among the largest were Hamilton, with 20,378, (http://www.parl.gc.ca/About/Parliament/FederalRidingsHistory/hfer.asp?Language=E&Search=Det&Include=Y&rid=268) and West Toronto, with 24,471.
23 And this is just people who vote: the populations of today’s ridings are around 100,000, with some as many as 170,000: 2003 Representation Order, http://www.elections.ca/content.aspx?section=res&dir=cir/list&document=index&lang=e#list.
24 Compas, Public Consultations.
25 Ibid., 16.
27 CETA report, 2.
28 Davies, in discussion with Greig.
29 Michael Hart (Simon Reisman chair in trade policy at the Norman Paterson School of International Affairs at Carleton University in Ottawa, former official in Canada’s Department of Foreign Affairs and International Trade), in discussion with Delaney Greig, November 13, 2013.
31 House of Commons, Standing Committee on International Trade, 41st Parl., 1st Sess., No. 13 (November 22, 2011), 1240 (Ron Cannan).
32 Davies, in discussion with Greig.
33 Trew, in discussion with Lillian Boctor, November 5, 2013.
34 Davies, in discussion with Greig.
35 Paul Waldie, “Canada-EU unveil ‘historic’ free-trade agreement,” The Globe and Mail (Toronto), 18 October 2013, http://www.theglobeandmail.com/news/politics/eu-harper/article14924915/.
36 Mike Blanchfield and Julian Beltrame, “CETA to give European Exporters Bigger Duty Savings than Canadians,” The Globe and Mail (Toronto), October 29, 2013, http://www.theglobeandmail.com/news/politics/ceta-to-give-european-exporters-bigger-duty-savings-than-canadians/article15147441/.
37 See Dryzek John S. and Tucker Aviezer, “Deliberative Innovation to Different Effect: Consensus Conferences in Denmark, France, and the United States,” Public Administration Review 68, no. 5 (2008): 868.
38 “But the point I was making at the outset, it starts with Canadian productivity, Canadian jobs, the growth of the Canadian economy, what would promote those things?” Robert Wolfe (Professor of Political Studies at Queen’s University, Canada), in discussion with Lillian Boctor, 6 February 2014.
39 Irvin and Stansbury, “Citizen Participation,” 62. More on this in Part 4, below.
40 Wolfe, in discussion with Boctor.
41 Wolfe, in discussion with Boctor.
42 Hart, in discussion with Greig.
43 Ibid. Compare Hart’s rationale with Sherry Arnstein’s description of the lowest form of citizen participation—manipulation: “Instead of genuine citizen participation, the bottom rung of the ladder signifies the distortion of participation into a public relations vehicle by powerholders.” Arnstein Sherry, “A Ladder of Citizen Participation,” Journal of the American Institute of Planners 35, no. 4 (1969): 216.
44 See Harrington Joanna, “Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament,” McGill Law Journal 50 (2005): 465.
45 Davies, in discussion with Greig, provides an elucidative view as to the drive underpinning trade negotiations: “What I’ve observed is their trade policy is driven first and foremost from an ideological vantage point, not from an evidentiary-based one or from a consultative process. … This government makes trade policy by deciding that, number one, trade is a key political issue … then they determine that the way that they want to spin that policy is by signing trade agreements, as many as they can. So they tend to measure the political value by the volume of trade agreements that they can conclude.”
46 ISDS provisions first entered the Canadian structure via an early Foreign Investment Promotion and Protection Agreement, though they came to the public eye—and to public notoriety—with NAFTA, mostly because the expanded provision heightened Canadian economic vulnerability (US ownership of its economy was widespread, increasing the likelihood of challenges). As a result, the first ISDS claims against Canada were made under NAFTA. ISDS provisions were also included in CETA and are under consideration in the TPPA.
47 ISDS provisions were developed in the 1960s in response to the economic imbalances between First and Third World economies. First World states argued that foreign direct investment would flow more freely into the Third World if investors could rely on third party ex-situ dispute resolution mechanisms. Their application between advanced economies emerged during the neoliberal era as investors successfully lobbied governments to accept a form of private justice and elevated state liability toward private actors. See Howard Mann, “How Money Calls the Shots in CETA,” iPolitics, December 13, 2013, http://www.ipolitics.ca/2013/12/13/how-money-calls-the-shots-in-ceta/; Antonius Rickson Hippolyte, “Third World Perspectives on International Economic Governance: A Theoretical Elucidation of the ‘Regime Bias’ Model in Investor-State Arbitration and its Negative Impact on the Economies of Third World States,” (10 June 2012), http://ssrn.com/abstract=2080958.
48 EU consultations are reputed for being more involved. In preparing their Sustainability Impact Assessments (SIAs) for new agreements, they include meetings with civil society groups. This is commendable but inadequate: we observe from the minutes similar shortcomings to the Canadian process, including over-representation of industry associations. As the minutes and the SIAs are publically available, the public can examine the value awarded to civil society-based interventions. European Commission, “Online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP)”, http://trade.ec.europa.eu/consultations/index.cfm?consul_id=179.
49 Many submissions conveyed broad concerns about the democratic implications of the TTIP, prompting the commission to dismiss them for going beyond the scope of the consultation. Of those that were on point, concerns can be grouped into four research topics: protecting the right to regulate; exploring the functioning of arbitral tribunals; evaluating the relationship between domestic judicial systems and ISDS; and an appellate mechanism for ISDS. The commission has committed to consulting EU stakeholders on these topics with a view to elaborating an enhanced approach toward ISDS. The report is available online: EC, Commission Staff Working Document: Report on online public consultation on investment protection and investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership Agreement (TTIP) (2015), http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153044.pdf.
50 The record number of responses was recorded despite several important flaws in the consultative tool, flaws that curbed its accessibility. First, while available in all official languages, the questions alone spanned twenty-three pages and involved a high number of sophisticated queries. Second, the document was littered with “elite knowledge,” requiring participants to possess advanced understanding of trade law, economics, and international relations to meaningfully answer the questions posed. Third, at no point did the commission provide any details regarding its intentions for the data gathered, simply declaring that it was “consulting the public.” Despite the myriad shortcomings, the commission is still (presumably) sifting through a record number of submissions.
51 See al Attar Mohsen and Barrera Enrique Boone, “Trade Negotiation and the Constitution of Tiered Citizenship,” McGill Law Journal 61 (forthcoming).
52 See “Canada-EU Free Trade Deal to be Rejected by Germany, Says Report,” CBC News, 26 July 2014, http://www.cbc.ca/news/world/canada-eu-free-trade-deal-to-be-rejected-by-germany-says-report-1.2718981.
53 See Barrie McKenna, “Germany Won’t Block Canada-Europe Trade Deal Despite Investor-State Clause,” The Globe and Mail (Toronto), 29 November 2014, http://www.theglobeandmail.com/report-on-business/germany-wont-block-ceta-despite-investor-state-clause/article21835893/.
54 MP Peter Julian argues that the lack of consultation in trade lawmaking has also resulted in poor domestic trade policy: “We have a record for trade deficit and it’s in large part due to the fact that trade policy is not done in any sort of thoughtful or comprehensive or profound way. … [T]he reason why our trade policy is so weak is because there isn’t really any sense of, of checks and balances, perhaps parliamentary input, committee input, it’s really all done from the top on down.” Peter Julian (Member of Parliament), in discussion with Lillian Boctor, 20 December 2013.
55 We were inspired by Miriam Wyman, David Shulman, and Laurie Ham, “Learning to Engage: Experiences with Civic Engagement in Canada,” http://www.cprn.org/doc.cfm?doc=86&l=en; Rowe and Frewer, “Public Participation Methods”; Compas, Public Consultations; Arnstein, “Ladder”; Bryson John M.et al., “Designing Public Participation Processes” Public Administration Review 73, no. 1 (2012): 23.
56 Rural and Northern residents are especially vulnerable to exclusion from policy-making circles: see Compas, Public Consultations, 13; Bryson et al., “Designing.”
57 Julian, in discussion with Boctor.
58 Davies, in discussion with Greig.
59 Wyman et al., “Learning to Engage,” 20.
60 Ibid., 22.
61 CPRN, Trends, 14–15.
62 Wyman et al., “Learning to Engage,” 27.
63 Ibid., 29.
64 Ibid., 16, 28. Immigration policy was revised again in 1998 and in 2002, but the exact policy outcomes of consultations were difficult to determine.
65 Trew, in discussion with Boctor.
66 Wyman et al., “Learning to Engage,” 51. Note that British Columbia also conducted legislative committee meetings on the MAI in 1998 and 1999 in which they heard from citizens: See British Columbia, Legislative Assembly, Special Committee on Multilateral Agreement on Investment, Second Report (June 1999) (Chair: Joan Smallwood), https://www.leg.bc.ca/cmt/36thParl/mai/1999/2report/index.htm.
67 See e.g. ibid., 27–29; Dryzek and Tucker, “Deliberative Innovation”; Bryson et al., “Designing.”
68 “Apart from the recurring theme of better, more respectful consultation, another recurring theme was better education.” Compas, Public Consultations, 16.
69 The OEBR even “sets out minimum levels of public participation that must be met before the Government of Ontario makes decisions on certain kinds of environmentally significant proposals.” OEBR, s 3(1)).
70 Muldoon et al., Introduction to Environmental Law, 211–2.
71 Romanow Commission, 247.
72 Trew, in discussion with Boctor.
73 Ibid., (on municipalities); Davies, in discussion with Greig (on dairy farmers).
74 “[T]he total amount that was set aside for the Romanow Commission was approximately $15 million.” House of Commons Debates, 37th Parl., 2nd Sess., No. 101 (13 May 2003), 2050 (Hon. Anne McLellan).
75 Irvin and Stansbury, “Citizen Participation,” 58–60.
76 Romanow Commission, 259–70, 271–99.
77 Ibid., xix, 311–3.
78 Macdonald Roderick A., “Call-Centre Government: For the Rule of Law, Press #,” University of Toronto Law Journal 55 (2005): 459–60.
79 Rowe and Frewer argue that it is easier to involve the public when values, rather than knowledge, are at stake: “Public Participation,” 6.
80 Arnstein’s ladder is informative though not absolute: we do not expect every participatory exercise to fall on the highest rung. The large-scale trade policy consultations that are our second recommendation should aim for one of the top three rungs, where genuine citizen power can be found.
81 Irvin and Stansbury, “Citizen Participation,” 62.
82 The Sydney Tar Ponds Joint Action Group, for example: Wyman et al., “Learning to Engage,” 32–37.
83 Fraser, “Reframing Justice,” 75.
84 Ibid., 72.
85 Ibid., 73.
87 Ibid., 77.
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