Alice-Mary Higgins (Independent) | Oireachtas source

I move:

That Seanad Éireann:

being concerned:- that the European Commission proposal that EU member states should sign or support, in the coming weeks, an agreement allowing "provisional application" of the Comprehensive Economic Trade Agreement, CETA, between Canada and the EU;

notes:

- that the CETA is one of a "new generation" of trade agreements which includes the Transatlantic Trade and Investment Partnership, TTIP, and that the EU Trade Commissioner has described the CETA as a "milestone" and the "most ambitious Trade Agreement the EU has ever concluded";

- that the CETA would introduce, for the first time in Ireland, an investor court system which could place significant charges on public funds;

- that there has been a lack of clear public communication as to the exact or agreed scope of "provisional application" in relation to the CETA;

- that an important case is currently being taken at the European Court of Justice, ECJ, regarding the EU-Singapore Free Trade Agreement and whether member state ratification is required for its implementation - a ruling is expected in 2017;

- that the Irish Government has acknowledged that "the outcome of this case will have an impact on the scope of provisional application" of the CETA;

- that, given this anticipated change in the scope of provisional application, the Irish Government is not in a position to fully assure the public that provisional application will not open Ireland up to potential investor court system procedures;

- that according to Article 30.8.4 of the CETA, should either the EU or Canada terminate provisional application of the CETA, companies would still have three years during which they could use investor court system mechanisms to sue member states, including Ireland;

- that there has not as yet been appropriate impact assessment as to the potential implications of the CETA across a number of key areas, including public procurement; and

- that although the precautionary principle is an important aspect of EU regulatory practice, the term "precautionary principle" does not appear anywhere in the CETA;recognises:- that strong public concern has been expressed within Ireland and across Europe in relation to the CETA and similar "new generation" trade agreements such as the TTIP: this includes serious concerns raised by health organisations and those working in the food sector, growing community activism and firm opposition to the CETA from environmental groups and unions, including the Irish Congress of Trade Unions;

- that there is strong opposition to the CETA among local authorities across the EU, and in Ireland a growing number of local authorities, including Clare County Council and Dublin City Council, have declared themselves "CETA/TTIP free zones";

andcalls on the Government:- to neither agree to sign up nor authorise "provisional application" of the Comprehensive Economic Trade Agreement, CETA, or any associated invocation of Article 218.5 of the Treaty on the Functioning of the EU; and

- to uphold Article 29.5.2^oof the Constitution which states “The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann”.

I call on the Government not to agree, sign or authorise provisional application of the Comprehensive Economic Trade Agreement, CETA, between the European Union and Canada. I welcome the support from the Labour Party, Sinn Féin and many Independents who have co-signed the motion. It is a sign of the seriousness with which the issue is taken that we have such unity across many parties and groupings of the left. There has also been wide public concern about this issue. The Irish Congress of Trade Unions has expressed its concerns; environmental groups have been strong advocates and community groups such as Uplift have also campaigned very strongly on the issue. They are part of a wide movement of concern across the European Union and in Canada. I welcome some of those interested in this issue to the Visitors Gallery and also acknowledge those from the food industry and small businesses who are concerned about the potential impact of the agreement.

I will shortly deal with the motion which relates to the specific question of provisional application. First, however, I want to pull back a little to focus on what is the CETA. It is known colloquially as the Canadian TTIP, partly because of its similarity with that agreement, the controversial Transatlantic Trade and Investment Partnership which has caused huge protests around the world and now seems likely to fail owing to the concerns expressed. It is called the Canadian TTIP partly because of this similarity but also because it may serve as a back door for over 40,000 US companies that are registered in Canada and which would be able to avail of the provisions of the agreement. Effectively, if we implement the CETA, we will be bringing through the majority of the provisions of the TTIP.

It is interesting that the concerns expressed have been echoed at local level in councils. For example, Dublin City Council, Cork City Council, Clare County Council and a growing number of other local authorities have been expressing their concerns, yet, while it seems shocking, this is the very first debate we have had on the CETA in the Oireachtas. It is taking place almost at the last minute, just before the Government signs to give provisional application on 19 October, yet it is I who have had to call for this debate. The Government has not facilitated any meaningful debate whatsoever in the Oireachtas on the issue.

To return to the provisions of the CETA and the TTIP, both agreements are part of a new generation of trade deals. It is important to state from the outset that the motion is not in opposition to trade deals. Many of us are very strongly in favour of trade deals. The opposition is to the new generation of trade deals which offer unique and new protections and advantages to investments and corporations in areas of public policy and regulation.

The first point is that it is not business as usual because the CETA goes further than any other trade agreement we have signed. The EU Trade Commissioner, Cecilia Malmström, said:

The agreement reached with Canada is a milestone in European trade policy. It is the most ambitious trade agreement that the EU has ever concluded...

This is not business as usual. One unique and very important feature of the CETA is that it is based on a negative rather than a positive list approach. Taking a positive list approach, the norm in international trade, means that both partners set on the table the issues they wish to discuss. They indicate the trade sectors, areas, industries, services and products on which they wish to engage. The negative list process, on the other hand, means that everything not explicitly taken off the table can be assumed to be covered by the treaty.

What has been taken off the table is notable. Germany submitted 25 pages of exclusions, while Ireland submitted a meagre five. Canada has made a point of protecting areas of culture, health and education, as have Germany and many other countries. Some Nordic countries, for example, have made a point of protecting the control of pipelines and other resources. Ireland has protected the Kings Inns, the Law Society of Ireland, flour milling, intercity bus routes and a small handful of other areas.

Turning to concerns about regulation, the regulatory measures will be affected because either party, the European Union or Canada, can request a review of any regulatory initiative at member state level. That is a new hoop. Even as we talk about taking away bureaucracy, it is new hoop for governments to jump through as they seek to improve regulations in areas such as employment, the environment, equality issues and so on.

There are also concerns about the language used. While the right to regulate appears within the text, there are questions about the regulation involved. The phrase "precautionary principle", a core element of EU regulation - the idea that we should do no harm - is not mentioned.That language does not appear anywhere in the 1,500 pages of the CETA text.

Moreover, there is the chilling effect, in regard to regulation - it comes to our key, most common and largest concern - of the investor court system. Replacing the investor dispute settlement mechanism, ISDS, we have with the investor court system that will allow corporations to sue states not only for loss of profit but also for loss of future expected profit. Therefore, the expectations of companies of how they would like things to go will trump the expectations, demands, desires and expressions of concern of voters and citizens across Europe. Elected representatives will have to consider not only the demands of citizens but also what a company is expecting. How will that translate into action in ISDS cases? There are hundreds of cases; I will not enumerate them, as I imagine others will touch on them, but I will mention just two because this is about giving a blank cheque.

The Ecuadorian Government decided not to renew a contract with the Occidental Petroleum Corporation and the fine placed on it was $2.3 billion. It did not renew the contract because of findings made in regard to oil spills and severe health and safety breaches, yet when the Occidental Petroleum Corporation took an ISDS case, it was awarded $2.3 billion from one of the most poorest countries in South America. The TransCanada Corporation is engaging the United States in a dispute mechanism because it believes President Obama's decision which was based on climate change concerns to discontinue the Keystone pipeline is overly burdensome on its companies and expected profits.

There are cases on fracking and a wide range of issues. We have heard about the cases taken against Egypt when it sought to raise the minimum wage on the loss of profits to companies which managed to have the decisions quashed. This, therefore, is a chilling and dangerous new measure which has no place in an appropriate modern trade agreement, certainly not in any country that gives any consideration to human rights and accountability.

Provisional application is the focus. I recognise that not everyone agrees with me on the CETA or the TTIP, but I have a proposal to make on provisional application, to which the Government is to sign up on 19 October, yet it does not know what it means. It has an opinion on what it means, but that opinion differs from that of the European Commission. In fact, the Commission is hearing a case on the very similar EU-Singapore deal in which it is fighting member states on the issue of member state competency. I spoke to the Commission on Monday when a representative told me that its view was that all areas would be covered in provisional application. It has agreed to treat it as a mixed agreement, recognising that there is member state and EU competency, but in its opinion everything falls into the column of EU competency. Moreover, I have received a very serious acknowledgement from the Minister in which he states clearly:

As you correctly pointed out in the Seanad, the European Court of Justice is currently considering the application by the EU Commission to have the EU-Singapore agreement treated as an EU only Agreement. The outcome of this case will have an impact on the scope of provisional application of the Singapore FTA but also of CETA.

That ruling is due in the spring, yet in October we are signing up, having acknowledged that what we are signing might change in the spring. Surely this is reckless behaviour.

I ask everybody here who wants to preserve political and policy options and ensure the public good, rather than a fear of lawsuits, will remain the centre point of our decisions to tell the Government to take a step back and say we cannot sign up to provisional application right now.

We will hear rosy scenarios being outlined. I beg to be given one minute of the time of the Senator who will second the motion.