Why NAFTA Sucks: DOW to Sue Canada for anti-pesticide laws
Original story here from Canadian Newswire.
This story is a little hard to figure out, but it seems like DOW, the company that gave us Bhopal and Napalm, is suing the government of Canada through a backdoor policy with NAFTA known as ‘Chapter 11’. Apparently, with Chapter 11, companies that are ‘wrongfully’ affected by the legislation of any Canadian body can seek damages.
I did a quick search on ‘Chapter 11 settlements’ and found this chart . While there aren’t many cases that actually have an impact on Canada (it’s actually the other way around), I’m surprised that this kind of mechanism hasn’t received more scrutiny in the grand scheme of things.
Does it protect Canadians or Canadian companies? I doubt it.
Does it prevent Canadians from doing what they want to do without facing challenges from US or Mexican companies? THAT’S the big question. What will happen in a fragmented marketplace when a conglomerate can claim that ‘local’ is illegal under the NAFTA? What about fair-trade policies? What happens when other pieces of legislation are brought into question, discouraging lawmakers from being proactive in the first place?
Obviously, for a legal expert, these seem like pretty naive questions, but for your average Canadian, these types of challenges and these mechanisms could be very damaging to new businesses and efforts to shift away from a traditional way of doing business (ie. the corporate, mega-co kind of way).
What are your thoughts on this?
CALGARY, Oct. 22 /CNW/ – Dow AgroSciences LLC today confirms that it has submitted a Notice of Intent to Submit a Claim to Arbitration for breach of Canada’s obligations under NAFTA.
In filing this Notice, Dow AgroSciences alleges that the Government of Canada has breached its obligations under Section A of Chapter 11 of NAFTA, under Article 1105 (Fair and Equitable Treatment in Accordance with International Law) and Article 1110 (Expropriation).
Dow AgroSciences bases its claim on the actions of the Government of Quebec in starting a campaign in 2002 to ban 2,4-D, a Dow AgroSciences pesticide product, without any scientific basis for such a ban.
That ban went into force on April 3, 2006 despite the Government of Quebec’s own advice that there was no scientific basis for this ban and despite numerous attempts by Dow AgroSciences to work with the Government of Quebec in using a science-based, transparent policymaking framework for the decision affecting 2,4-D. The Government of Quebec and the Government of Canada are both parties to NAFTA.
"This challenge is aimed at ensuring that important public policy decisions are based on scientific evidence, predictability and a clear set of principles, and are managed within a transparent framework," said Jim Wispinski, President and CEO of Dow AgroSciences. "The actions of the Government of Quebec are tantamount to a blanket ban based on non-scientific
criteria, and we are of the view that this is in breach to certain provisions of NAFTA. We don’t welcome this step, but feel it is necessary given the circumstances."Dow AgroSciences manufactures 2,4-D for sale to companies around the world, including Canada. Regulators in several countries, including Canada, the United States and in the European Union, have all reviewed 2,4-D on the basis of modern science and concluded that it is safe for use according to label instructions. On May 16, 2008, Health Canada’s Pest Management Regulatory Agency announced the results of an extensive review on 2,4-D. The
PMRA concluded that 2,4-D can be used safely according to label directions for a variety of lawn, turf and agricultural applications, and that the product meets all of Canada’s pesticide health and safety regulations, which are among the toughest and most stringent in the world.The Notice of Intent was filed with The Department of Justice and is available online at
http://www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/
gov.aspx?lang=en. Dow AgroSciences is seeking a $2 million CAD settlement, plus legal costs, in filing its Notice.
This is the same Chapter 11 that Elizabeth May brought up with respect to health care. She was indicating that if we open that door even a little then it opens the door to privatization of our health care through Chapter 11 challenges. This also is the reason why I don't support Ontario and Quebec moving to a TILMA agreement like Alberta and BC have. We are open to being sued for any laws we have that might infringe on an American company that feels it can't compete or will lose business.
Chapter 11 challenges have thus far not been very prevalent but American companies that have a couple of successes will bring a flood of these cases, in my opinion. The Americans are much more litigious than we are and there is a real risk to sovereignty over municipal bylaws where a community decides that it wants to be pesticide-free or any other similar bylaw. American companies could swamp municipalities with litigation and we will lose one of the aspects of our democracy that I believe gives our communities character.
What’s dis-heartening about this is the lack of appreciation for the thorough analysis by the Canadian Government (Health Canada) finding that 2,4-D may be used safely. The Agency reviewed all available data to arrive at this conclusion after many years of evaluation. The Provincial Government noted this on-going evaluation in their reasoning to ban 2,4-D. When the Agency evaluation was concluded, Quebec declined to follow-through with their process. As one of my childhood heroes used to say, “Quebec speak with forked-tongue”.
Understood. Thanks for your feedback. Nuclear has been proven to be safe as well. By GE, the largest beneficiary of investment in nuclear power and technology.
Under what circumstances does Health Canada conclude that 2,4-D can be used safely? How long have they been studying this and what humans have volunteered to be tested with these products? Do you have a link that you can offer the audience so that we can see the research? Does the research disclose funding or resources that may have been provided by DOW?
Anyways, the root of my disapproval of products like 2,4-D and other toxins is that, while they may be proven to be somewhat safe in controlled circumstances, I believe that we have a responsibility to always consider ways to take care of our property without using supplements. This way, there remains no doubt that by taking 'the high road', we are not having an impact on our drinking water, our air, our kids and pets and so on.
For years, I've argued with a friend that Canada should be embarassed that we continue to ban asbestos in our country in most cases, and yet benefit from its export to countries like India. He is convinced that asbestos has received a 'bad rap' and has great physical properties. Yeah. Until it kills you. In a very painful and disgusting way.
The point: in the short term, clinical studies may prove that some of the known products are reliable and stable, but given that we have a life-span of 60-80 years, we don't know what the long-term impact on any of these chemicals are. And yet we keep making them. And selling them. And leaving the social and health costs to the public to bare.
Great read! You should definitely follow up on this topic!
Thanks
Corine
kuhinje