11 March 2011

AbitibiBowater, Democracy and the Public Interest

There’s a new commentary from an Ottawa-based think tank on the AbitibiBowater expropriation.  The commentary is basically Brian Lee Crowley’s presentation to the Commons standing committee on international trade.

You can read the full text here. and below are four highlighted points:

“1.  The Chapter 11 provisions of NAFTA provide no bar whatsoever to Canadian
governments acting in the public interest through law and regulation, but they
properly require that the government pay the legitimate costs associated with
their decisions, including compensating parties whose property is confiscated or

2.  Paying compensation for expropriation is a matter of basic fairness and is a
fundamental principle in Canadian law, not just NAFTA.

3.  As a country with huge investments in other jurisdictions, we benefit enormously from such investor protections in other countries, and failure to apply
such protections domestically would damage our credibility and harm Canadian

4.  The AbitibiBowater case points up a damaging inconsistency in Canada’s constitutional and legal framework whereby Canada has the treaty-making power
and, therefore, is responsible to ensure that we meet our treaty obligations; but
provinces are not bound to respect the NAFTA provisions. A mechanism can and
should be found to oblige provinces to take responsibility for their decisions and
prevent them from passing the costs of provincial decisions on to the federal taxpayer.”

There’s also a version of the presentation in a Troymedia piece called “Provinces behaving badly and what can be done about it”:

Governments in Canada have the right to take your house, farm, or factory, but the requirements of fairness and the Canadian democratic tradition normally subject that power to limits. Governments must compensate you if they take your property. Moreover they don’t get to set the price unilaterally; it must be done by an arm’s length agency and be subject to judicial review.

It was Newfoundland and Labrador’s decision to ignore these rules of decent behaviour that created the damage that federal taxpayers must now clean up.

If there is any kind of a democratic deficit in the AbitibiBowater decision, surely it is here: in a genuine democracy, voters should have to face the true costs of their decisions so that they can make a balanced assessment of the pros and cons. The current arrangements force innocent federal taxpayers, who have no hand in choosing provincial governments in other provinces, to nonetheless pay the tab for those governments’ bad behaviour. And that is practically the textbook definition of a perverse incentive.


- srbp -