NAFTA blues: public opinion runs against, plus potential threat to Canadian water

Voters in the 1988 federal election took sides on the issue of free trade with the United States. When Brian Mulroney won re-election on his free-trade agenda, he moved quickly to sign a treaty and begin negotiations on a larger scale - coming up with the North American Free Trade Agreement. It became law under the Liberals in 1994 and, despite problems over the years, Canadians generally accepted the consequences with characteristic politesse.

No longer.

It seems Canadians don't view an economy wedded to the United States and, in terms of disappearing jobs to Mexico, as such a great idea anymore. A new Angus Reid poll released this week shows a majority of Canadians want the deal renegotiated (52 per cent) in the belief this country got the short end of the the stick. The survey showed 46 per cent of those polled said NAFTA has benefited the U.S. most, while 30 perc ent said Mexico and only 7 per cent responded Canada has come out ahead of everyone else on the deal.

It's the second time this week NAFTA has presented potential problems for Canadians. Earlier, environmentalists on both sides of the border raised their concerns about the threat a recent agreement poses to Great Lakes-St Lawrence Basin water. The compact among eight U.S. Great Lakes states (with a side agreement already signed with Ontario and Quebec) is before the U.S. Congress and expected to be approved. While its design supposedly is to prevent bulk export of water, it does exactly the opposite, according to Michigan environmental lawer James Olson, by legally defining water as a "product" and not in the public domaine. It's a dangerous legal precedent, he says, and a slippery slope to eventual bulk export of water from the Great Lakes.

It appears that the agreement is following a trend set by NAFTA. Both Olson and Meera Karunananthan, water analyst for the Ottawa-based Council of Canadians, say NAFTA already leaves Canadian water resources exposed. That's because the 1994 treaty doesn't protect water, an omission that came after heavy lobbying by industry groups throughout NAFTA negotiations. That means water is nothing more than a commodity, as it is in other trade agreements, notably the World Trade Organization (or GATT, as it was known in 1994 when NAFTA became law). Commodity, product, same idea - and all exploitable for profit, rather than a vital resource required for human survival. Karunananthan believes the concept of viewing water as a commodity was the reason the Stephen Harper government foiled a plan at the United Nations Human Rights Council in Geneva earlier this year to have water recognized as a basic human right.

Already there have been challenges to Canadian sovereignty under the Chapter 11 provision of NAFTA, which ensures national treatment for corporations and entities in all three countries. In other words, the Canadian government cannot legally introduce a job initiative or a "Buy Canadian" plan that would favour domestic operations over U.S. and Mexican companies. The clause has remained untested, with a few notable exceptions, including the reversal of Ottawa's decision to ban the additive MMT in gasoline for environmental and health reasons after the Ethyl Corporation (which makes the additive) launched a lawsuit based on Chapter 11. More challenges are certain to come,  according to the Council of Canadians. In the absence of specific treaty protection for water in the NAFTA, a Chapter 11 challenge demanding national treatment could win the case for, say, a multinational bottling company that wants to export Great Lakes water. The Ontario government, for example, argues that less than one per cent of Ontario water is taken by foreign operations. A U.S. company could use Chapter 11 to hypothetically argue it is being unfairly treated since domestic companies already are bottling water. The NAFTA would trump all.

Besides, with water defined as a product and exempted from a ban on bulk diversions from the Great Lakes, it appears the heavy lifting is being done by other agreements. Unfortunately, a body of law designed to do the opposite and protect Canadian resources seems to be lacking - sadly.