|By Connie Fogal|
with an Agreement on Internal Trade between provinces and our federal
government, and due to the federal government's promises via international
treaties, there is an unhealthy expectation and attitude swallowing the
administrative arm of all levels of government. That attitude is that
Canada's historic successful practice of public responsibility for certain
essentials, such as our water protection, must be ended and handed over
to private control and ownership.
The tragic deaths from contaminated water in Walkerton, Ontario, we now know had everything to do with the cessation of public control of the water protection, i.e., deregulation and privatization.
The Greater Vancouver Regional District (GVRD) is well advanced in its plan to privatize the operation of water systems in the lower mainland (the Seymour Watershed). It has been under public control and protection since the 1930s. The final decision appears to be set for July 2001.
A recent Ipsos Reid Poll shows that 91 per cent of people in the lower mainland are unaware of the GVRD's plans. And of those who did know, 64 per cent were opposed.
Existing international treaties like NAFTA, the GATS and the WTO already do impact municipal authority. The companies shortlisted to design, build, and operate the Seymour project are all transnational -- that is, foreign. They are sophisticated players familiar with the international rules.
Already they have had great advantage in other countries in overwhelming the local authorities. Their work to design, build and operate the Seymour project will be considered an "investment" under NAFTA. They are "investors" under NAFTA, able to invoke Chapter 11 discipline of NAFTA for compensation to them of any municipal action or decision that diminishes their profitability. This puts them into a privileged position via NAFTA and disadvantages the authority of the municipalities. Any step to ensure safe drinking water standards, any remedial orders of health officials, any effort by the municipalities to provide local economic benefits, are all subject to damage awards in millions of dollars, if not billions, by a NAFTA tribunal for loss of profit. Even a decision to terminate the contract for sound public interest reasons can result in an outrageous compensation package in the millions or billions, due to the NAFTA tribunal rulings in definition of expropriation as applied under NAFTA.
What this means is that once the privatization occurs, staff will ring out NAFTA warnings and concerns which will cause you to shy away from doing the public interest duty you were elected to preserve because you will fear bringing down a horrendous damage award on the federal government. Or if you do exercise your sovereign right to decide in the interest of the citizenry, and if a NAFTA tribunal decides your decision interfered with the "investor's" profits, the damage award will ensue.
So, you will be caught between a rock and a hard place.
What the GVRD does now will create a precedent that will lock in all other Canadian municipalities to the rigours of NAFTA challenges for any municipal decision you make in future -- even to whether or not you ever can again choose solely a public sector undertaking rather than privatization.
The only way to avoid the risks of a NAFTA or WTO challenge is to ensure the Seymour Water project remains a full public sector undertaking. The only other alternative will be for Canada to invoke the six-month cancellation clause in NAFTA which would not likely save any municipal acts already caught by NAFTA.
The Mexico vs Metalclad NAFTA tribunal ruling, the appeal of which was recently heard in Vancouver, is proof positive of NAFTA's existing impact on municipal and provincial government decisions. There Mexico had to pay US$16 million damages to a transnational hazardous waste company because both the province and the municipality took steps to protect the environment and to do the will of the people. (See my summary of that decision beginning on page 7 of this issue of D&D.)
There is also a legal opinion by Steven Shrybman on the impact of NAFTA re this Seymour watershed plan. I urge you to read both my analysis of the Mexico vs Metalclad decision and the Shrybman legal opinion (on the CUPE website). I urge you to demand the GVRD put this whole issue through a stringent lengthy and full consultation process involving all B.C. municipalities and all B.C. citizens. I urge you to demand the GVRD release to you and make public all its documents re the efficiency of the current system, and to confirm whether or not the citizens would continue to pay the cost of the plant, but profits would go to the "Investor". I urge you to demand to see any legal opinions the GVRD has and to make those public so that full argument can be presented for your own understanding.
It is important to realize that even if the plant technically would remain public as a public/private enterprise, under NAFTA, the Investor would gain his rights because of the definition of him as an investor due to NAFTA definition for him designing, building and operating the plant.
The GVRD municipalities in particular, and all other Canadian municipalities by association, are sitting on a political watershed via the Seymour watershed. What you do right now, here in British Columbia will seal the fate of all municipalities in Canada and doom the citizenry to the loss of control over our water.
Without safe water, we have no life. You municipal councillors are the front line defenders against the conquest of our water. Please take the time to fully appreciate the significance of your role and duty to all of us.
Fogal is Director of the Defence of Canadian Liberty Committee. As a
lawyer, she fights in the interests of all Canadians from her home base
THE DEFENSE OF CANADIAN LIBERTY COMMITTEE solicits your contributions to help in legal challenges on behalf of Canadian citizens. Please mail them to #401-207 West Hastings Street, Vancouver, BC V6B 1H7