It’s time to scrap the New West Partnership
In some ways, the recently announced Canadian Free Trade Agreement is just one more entry on the growing list of trade agreements destined to create more problems than they solve.
The CFTA is aimed at answering perpetually overstated claims about trade barriers made by groups whose ultimate goal is to turn over the role of government to the business sector. Like so many recent trade deals, it deems all public action to be illegitimate unless proven otherwise, and sets out a closed list of valid objectives which governments are allowed to pursue while presuming as a general principle that profit trumps all.
For some provinces, the CFTA creates new obstacles to democratic policy-making. But for Saskatchewan and the rest of the members of the New West Partnership Trade Agreement, it’s more duplicative than destructive.
While other provincial governments now need to answer primarily for agreeing to the national deal, we should now consider whether to keep the NWPTA in place.
To the extent they differ, the CFTA is marginally more reasonable than the NWPTA — both in the degree of freedom it allows provincial governments, and in the effect of disputes about a particular policy.
While both agreements require governments to prove that a policy is “necessary” to achieve a legitimate objective, the CFTA defines that term in a way which is at least capable of being met by a government whose policy is challenged. In contrast, the NWPTA’s lack of clarification makes nearly any government action vulnerable to the argument that some other policy could achieve the same objective — even if the alternative is no more “necessary” than the policy being challenged.
Both the CFTA and NWPTA require a province to provide notice to provincial governments and other actors before it may validly implement new regulations. But the CFTA at least applies that rule only to laws which might have a significant effect on trade or investment, and provides for a specific exception for emergencies — where the NWPTA sets out a blanket rule restricting any possible regulatory decision.
And while both agreements allow businesses to challenge policies through arbitral tribunals, the CFTA reasonably limits the results of those challenges to declarations, costs and payment into a trade advancement fund. In contrast, the NWPTA allows businesses to pursue direct monetary awards based on the claim that it would have been possible to increase profits if democracy didn’t stand in the way.
So in light of the agreements’ common purpose, the CFTA’s broader application and its somewhat less extreme terms, does the NWPTA now serve any useful purpose for Saskatchewan (and its other participants)? The answer depends primarily on one’s view of the relationship between governments and business.
For anybody whose primary intention is to pursue the stated goals of interprovincial trade agreements, the trade provisions of the NWPTA now look to create far more trouble than they’re worth. The CFTA sets out rules which ensure that businesses avoid discriminatory policies, while also providing for a means of harmonizing regulations to ensure that the public interest isn’t completely lost.
On the other hand, anybody whose goal is to give businesses the largest possible variety of weapons to attack public policy — and indeed create the possibility that trade challenges could be turned into a profit centre — will see the combination of conflicting terms and extreme requirements in the continuation of the NWPTA as a plus.
Unfortunately, it’s fairly predictable where the Saskatchewan Party government falls on that spectrum. But Saskatchewan residents who have always been skeptical of the NWPTA (in whatever guise) now have even more reason to want it scrapped.
Greg Fingas is a Regina lawyer, blogger and freelance political commentator who has written about provincial and national issues from a progressive NDP perspective since 2005. His column appears every week.
For some provinces, the CFTA creates new obstacles to democratic policy-making.