Mulcair was the only one to reply.

Thank you for taking the time to share your concerns over the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA) as well as your opposition to the Nexen takeover by China National Offshore Oil Corporation (CNOOC).

Please know that the New Democrats are actively opposing both of these deals.

On Nexen , we regret that our call for a thorough, transparent, and public review of this $15.1 billion transaction is being ignored. Now that there has been a 30-day extension, we believe that the Conservatives must use this time to consult with Canadians.

It’s also unclear how Canada’s environmental standards will be enforced. “There are still many unanswered questions and it’s the Conservatives’ job to respond to these questions before selling out our resources to the highest bidder,” said NDP Energy and Natural Resources critic Peter Julian.

Once again the governing Conservatives are putting the interests of investors before the legitimate concerns of our citizens, experts, and business people. Further, the recent allegations of insider trading raised by the U.S. Security and Exchange Commission (SEC) highlights the importance of public scrutiny.

“I would hope that the Industry Minister uses these additional days to consult with experts, business people and workers who are concerned about the impacts of this
transaction,” said Industry critic Hélène LeBlanc. “This is a critical sector of our economy and Canadians have the right to know what they’re getting into.”

You can read more by following these links:
http://www.ndp.ca/news/government-must-reject-nexens-foreign-takeover
http://www.ndp.ca/news/conservatives-must-use-extension-nexen-takeover-decision-to-consult-canadians
http://www.ndp.ca/press/nexen-deal-needs-more-scrutiny-in-wake-allegations

Further, the Canada-China FIPA provides an excellent example of why the NDP has long fought for fair trade. It lacks the level of transparency and openness that Canadians deserve. And, once again, the Harper government has signed an agreement against the best interests of Canadians: it exposes taxpayers to costly legal challenges via unaccountable tribunals that do not reflect acceptable standards of the rule of law; and, it does not guarantee Canadian investors the reciprocity with the rights that Chinese investors have secured.

That is why we have called for a public debate on this matter: http://www.dondavies.ca/new-democrats-want-public-debate-on-canada-china-deal/.

NDP International Trade Critic Don Davies is taking the lead in challenging the Conservative government on the FIPA deal. The following video features Don asking the Minister of International Trade why his government has failed Canadians: http://www.dondavies.ca/don-davies-highlights-conservative-incompetance-on-the-china-fipa/

New Democrats remain strong in our commitment to fight for fair trade deals as shown by this adopted resolution:

“BE IT RESOLVED THAT the NDP continue advocating the renegotiation of NAFTA to remove Chapter 11, which enables foreign investors to directly sue governments over public policies.

BE IT FURTHER RESOLVED THAT the NDP advocate amending trade deals to ensure that labour rights are subject to an enforcement mechanism at least as strong as investor rights.

BE IT FURTHER RESOLVED THAT the NDP call for the application of countervailing import tariffs equal to the cost advantage gained by a foreign producer through violations of labour rights and/or environmental standards.” (NDP Federal Council Motion-adopted Oct. 2, 2010)

Going forward, we will continue to speak out against any trade deal that is unfair, negotiated in secret, and would contain grave conditions relating to labour standards, human rights and the environment.

Again, I appreciate hearing from you.

All the best,

Thomas Mulcair, M.P. (Outremont)
Leader of the Official Opposition
New Democratic Party of Canada

Thank you for copying my office your email to Prime Minister Harper regarding Nexen and FIPA.

A review was initiated in August, on whether the Nexen proposed investment is to the net benefit of Canada, according to six criteria as set out in the Investment Canada Act. The $15.1-billion CNOOC-Nexen deal — which has been approved by shareholders — represents a net benefit to the country at large. Your government has extended its review of the deal until mid-November while it assesses the benefit to Canada and determines whether the company, which is publicly traded in Hong Kong and New York, operates as a commercial entity. At the same time, Prime Minister Harper has promised to release a new “framework” that will explain the government’s rationale for its decision on the Nexen deal and serve as a guide to other state-owned companies.

On October 18th the Hon. Christian Paradis, Minister of Industry stated:

“One thing is certain: every foreign investment made in Canada has to create a net benefit for Canada and every decision has to be made in the best interests of Canada.
There are factors clearly set out in section 20 of the Investment Canada Act. Again, I repeat: there are guidelines relating to foreign state-owned corporations. In addition, new provisions regarding national security have been put in place. That said, the transaction is being carefully studied as we speak.”

My view is that the government needs to follow the review process as outlined by the Investment Canada Act. I would like to take this opportunity to outline the federal government’s position and responsibility when it comes to assessing the takeover of a Canadian company by a foreign company.

The Minister of Industry is conducting a review of the proposed investment, and his approval is required prior to implementation. The Minister approves applications where he is satisfied that a proposed investment is likely to be of net benefit to Canada. The definition of “net benefit” will be very broad in terms of Canada’s overall interest in this transaction.

In making his determination, the Minister carefully considers the plans, undertakings and other information submitted by the investor (CNOOC) in light of the net benefit factors listed in section 20 of the Investment Canada Act.

The six factors listed in the Act are:

- the effect of the investment on the level and nature of economic activity in Canada, including the effect on employment, on resource
processing and on the utilization of parts, components and services produced in Canada;
- the degree and significance of participation by Canadians in the Canadian business;
- the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada;
- the effect of the investment on competition within any industry or industries in Canada;
- the compatibility of the investment with national industrial, economic and cultural policies; and,
- the contribution of the investment to Canada’s ability to compete in world markets.

As CNOOC is a Chinese state-owned enterprise, the Guidelines–Investments by State Owned Enterprises–Net Benefit Assessment published under the Act apply to this proposed investment.

The Guidelines clarify that in the review under the ICA, as part of the assessment of the enumerated factors, the Minister will examine:
- the corporate governance and reporting structure of the non-Canadian;
- how and the extent to which the non-Canadian is owned or controlled by a state, and;
- whether the Canadian business to be acquired will continue to have the ability to operate on a commercial basis.

I can assure you that this transaction will be scrutinized very closely. It is incumbent upon the Chinese to indicate, as the relationship goes forward, their willingness to play by the same rules as Canada.

I would only add that our government has made targeted amendments to the Investment Canada Act to provide greater transparency to the public, more flexibility in enforcement and an alternative to costly and time-consuming litigation.

FIPA with China provides important benefits for Canadian investors. For businesses looking to set up in China, China cannot treat a Canadian company less favourably than they would any other foreign company looking to do the same. Fundamentally, this investment treaty will help protect the interests of Canadians.

Creating a secure, predictable environment for Canadian investors is why, since 2006, we have concluded or brought into force FIPAs with 14 countries, and are actively negotiating with 12 others. The Canada-China FIPA is very similar to the other FIPAs that Canada is a party to. It contains all of the core substantive obligations that are standard in our other FIPAs.

We have introduced an unprecedented process for putting Canadian international treaties to the scrutiny of the House of Commons. In 2008, our Government announced that treaties between Canada and other states or entities, and which are considered to be governed by public international law, will be tabled in the House of Commons. Accordingly, the Canada-China FIPA was tabled in the House of Commons on September 26, 2012. This reflects our government’s commitment to transparency and accountability.

With regards to investor-state dispute settlement, it is Canada’s long-standing policy to permit public access to such proceedings. Canada’s FIPA with China is no different. As we do with all other investor-to-state disputes, this FIPA allows Canada to make all documents submitted to an arbitral tribunal available to the public. All decisions of the tribunal will be made public. Ultimately, access to international arbitration will provide Canadian investors with the confidence that comes from recourse to an independent, international body to adjudicate any disputes. It is also important to note that under this treaty, both Canada and China have the right to regulate in the public interest. Chinese investors in Canada must obey the laws and regulations of Canada just as any Canadian investor must.
At the same time, Chinese investment in Canada will continue to be subject to the Investment Canada Act for both the net benefit test for acquisitions above the applicable threshold and for national security concerns with respect to any investment. Decisions by Canada under the Investment Canada Act are excluded from challenge under the provisions of the FIPA.

We’ve been clear that Canada wants to continue to expand its relationship with China, but we want to see it expand in a way that produces clear benefits for both sides. By ensuring greater protection against discriminatory and arbitrary practices, and enhancing predictability of a market’s policy framework, this FIPA will allow Canadians to invest in China with greater confidence.

Once again, thank you for bringing your concerns regarding Nexen and FIPA to my attention.

Sincerely,

MP Colin Mayes