Ever since the Doug Ford government proposed its massive, sweeping housing bill, Indigenous chiefs and organizations across Ontario have been urgently reminding the Progressive Conservatives of their legal duty to consult them before making any decisions about land use.

Despite these reminders, consultation didn’t happen, and Ford’s caucus passed the More Homes Built Faster Act, or Bill 23, on Nov. 28 — a move being blasted as a blatant violation of Indigenous Rights. The government is “respectfully advised that development cannot proceed without full recognition of the rights of our Nations,” Nishnawbe Aski Nation Grand Chief Derek said in a statement released hours after the bill’s passage.

He wasn’t the only Indigenous leader to express his opposition. In the days before the bill became law, the Chiefs of Ontario, a group representing First Nations across the province, put out a statement calling it “unacceptable and an abuse of power” for the Ford government to make unilateral changes to how development projects in Ontario are approved without engaging First Nations. 

The Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council, also wrote to Ontario’s assistant deputy minister of housing before the bill passed. In stating its opposition, the institute said the legislation “will significantly impair, infringe and interfere with the established and constitutionally protected rights and interest of the Haudenosaunee.” 

“At this point we have nothing from your government or the Crown which would indicate that it has undertaken any contemplation or consideration of established Haudenosaunee rights and interests with respect to [Bill 23],” said the letter from Aaron Detlor, a lawyer for the development institute, which protects Haudenosaunee jurisdiction in regards to development on its territories. 

“We would respectfully suggest that the failure to engage in a good faith treaty-based discussion related to accommodations would likely render the proposals unlawful.”

Letter to Municipal Affairs and Housing Minister Steve Clark from the Haudenosaunee Development Institute, on behalf of the Haudenosaunee Confederacy Chiefs Council

The day after the bill was passed, Municipal Affairs and Housing Minister Steve Clark admitted the government did not consult with First Nations beforehand, in response to questions from the political newsletter Queen’s Park Today in a media briefing. “We’re looking forward to conversations with our Indigenous partners,” Clark said. He seemed to punt at least some of the responsibility to municipalities, saying they “also have a role to deal with our Indigenous Partners.” 

“We acknowledge … we have an obligation to continue the consultation with our partners,” he said. “We will continue the conversation.”

Ford government knew Indigenous communities’ response to Bill 23 could be ‘negative’

The obligation to consult Indigenous communities on decisions affecting their territories is enshrined in Canada’s constitution. And internal documents have shown the Ford government knew Indigenous communities’ response to its bill would likely be negative well before it passed. In early November, The Narwhal received and reported on a leaked 117-page cabinet document that showed an extensive list of concerns shared with Ontario’s 30 ministers ahead of the tabling of the bill. 

Almost every section of the document anticipates and outlines Indigenous communities’ response to the many changes listed in the bill — and almost every anticipated response is “negative” or “critical.”  

Take one government proposal detailed in the leaked document to launch a “high-level consultation” on the whole bill: the document said “Indigenous communities may be negative due to possible implications on treaty and Aboriginal rights (wetlands and natural heritage).”

“Indigenous communities: will be critical of reduced protections and provincial oversight”

One of the conclusions in a 117-page leaked document about Bill 23 written for Ford’s cabinet and shared with The Narwhal

Bill 23 makes multiple changes to the municipal planning process, giving towns and cities greater responsibility for reviewing and approving development plans while reducing financial and administrative support. The leaked document noted this would mean “Indigenous partners with treaty rights in affected areas will react negatively to changing relationships,” as well as to monitoring and consulting on an increased volume of development applications without an increase in resources. 

The government has also removed some of the powers municipalities had to regulate sustainable  development — the document noted this would probably create concerns among Indigeneous communities “that their cultural heritage may not be well captured.” The gutting of conservation authorities and weakening of wetland protections was also highlighted as a key concern for Indigenous communities, due to the “reduced scope of protections for wetlands and watercourses.” 

The Ford government has said Bill 23’s sweeping changes are necessary to speed up housing construction in Ontario. “Indigenous communities: will be critical of reduced protections and provincial oversight,” the document noted. 

Chief Kelly LaRocca of Mississaugas of Scugog Island First Nation told The Narwhal she’s not surprised by the details of the internal document or Clark’s comments. 

“This government’s violation of Indigenous Rights is nothing new,” said LaRocca, who sent a letter on behalf of her own First Nation on Nov. 17.

Ford government has a history of avoiding Indigenous consultation

This is not the first time the Ford government has either avoided consulting with Indigenous groups about development or shifted the responsibility onto local governments. Prior to Bill 23, a number of First Nations in Ontario had opposed the Ford government’s unprecedented use of minister’s zoning orders, or MZOs, a controversial provincial planning tool that allows the municipal affairs and housing minister to rezone land to fast-track development and overrule municipal decisions. 

In 2021, LaRocca’s community was one of a number of groups raising concerns about a minister’s zoning order issued in an attempt to speedily build an Amazon warehouse in the protected Duffins Creek watershed, near her nation. Although the order was revoked and the project cancelled, most of the wetland was recently cleared and tilled anyway. 

That same year, as reported by the Toronto Star, a group of First Nations launched legal action against the province for issuing a minister’s zoning order for a warehouse in Cambridge, Ont. One of the opposing communities was Six Nations of the Grand River, a Haudenosaunee community: after the legal action was launched, Clark’s office rebuked Cambridge’s mayor for not consulting them before asking for the order. 

In addition to the constitution, the government’s duty to consult Indigenous Peoples about land use is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples: while Canada recognized the declaration in 2021, the Ford government has still not officially recognized it in the legislature. 

The federal government has already warned the Ford government about upholding the duty to consult: documents obtained by The Narwhal show that after conversations with Six Nations and Mississaugas of the Credit First Nation, the Trudeau government told the Ford government in 2021 that insufficient consultation on Highway 413 could result in an intervention and delay the project for years. 

The federal government was also brought into a development dispute between Six Nations, Ontario and the municipality of Caledonia in 2020, when members of the Haudenosaunee communities resisted a housing development at a land defence dubbed 1492 Land Back Lane. 

In August of that year, both Prime Minister Justin Trudeau and Premier Ford addressed the standoff: according to APTN, Trudeau said “all orders of government have the responsibilities toward [reconciliation],”, while Ford called himself “a strong believer in collaboration, in sitting down, communicating.” 

Later that year, Ontario’s Indigenous Affairs ministry told the Toronto Star it was willing to participate in “federally led” discussions about the standoff, which lasted about a year and involved a court injunction aimed at dismantling the land defence camp, as well as police raids and arrests. The housing project was eventually cancelled. 

Despite prior friction over Indigenous consultation and its advance warning about the failures of Bill 23, the Ford government has gone ahead with its legislation. 

LaRocca said she was not invited to any formal consultation, despite her vocal opposition to the bill and repeated request for discussions. “As we now know from Minister Clark directly, the government did not intend to consult with Indigenous communities.”

“Bill 23 impacts Indigenous lands, treaty commitments and rights on multiple levels,” LaRocca said, adding First Nations have a right to manage their territories, natural resources and environment. “The government’s decision to pass Bill 23, knowing that consultation had not taken place, suggests a wanton disregard for our constitutionally protected rights.”

“Reconciliation is about trust,” she added. “Seeing the government so blatantly ignoring the duty to consult smacks of disrespect for Indigenous Rights and the basic democratic processes intended to serve every citizen.” 

In its letter, the Chiefs of Ontario anticipated Clark’s statement that Indigenous consultation could be done by municipalities, writing, “The Government of Ontario can no longer avoid its duty to consult with First Nations by delegating responsibilities and obligations to municipalities, developers and project proponents.” 

Environmental impacts of development also a concern for Indigenous groups

In its letter on behalf of the Haudenosaunee Confederacy Chiefs Council, the Haudenosaunee Development Institute bluntly reminded Ontario’s assistant deputy minister of housing of how the government was forced to revoke its zoning order for the Amazon warehouse in Pickering, as well as of its duty to respect Indigenous jurisdiction. 

“We’re on land that was never owned in the beginning, so it’s unfair of them to say they’re ripping up things, that they’re going to dig the land up and make money of it,” Kahentiio Maracle, team coordinator at the institute and a member of the Bear Clan from Tyendinaga Mohawk territory, told The Narwhal.

As well as Indigenous Rights, the institute’s letter spoke to the overlapping environmental impact of the bill’s sweeping changes. “The impairment and infringement that could arise from your proposed plans are particularly significant if and when the cumulative impacts are considered and contemplated,” the letter said. Detlor, the lawyer who wrote the letter, told The Narwhal the institute is giving the government one more week to respond before they “examine their options.”

“Every single parcel of land impacted by Bill 23 in Indigenous land,” he said. “The government is prioritizing development over sacred and solemn promises.”

LaRocca said the impacts of Bill 23 will be far reaching for First Nations across Ontario. She has growing concerns about the loss of major natural spaces like Lake Scugog, the Oak Ridges Moraine and the Carruthers Creek watershed, all of which act as natural safeguards against flooding and which are already under threat. Bill 23 removes or weakens many of the remaining regulations that protect those areas.

“Paving over this land will speed up this decline, and expose us more to the adverse consequences of climate change,” LaRocca said. “Planning decisions must balance the need for growth with responsible, evidence-based environmental protections and mitigation strategies — a position of which we have ensured the government is made aware.”

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As Doug Ford’s government gets set to slash environmental protections, Ontario’s auditor general has found the province is already mismanaging them, from flood risks to protected land and invasive species.

Earlier this week, the Ontario government passed development-friendly legislation that also gutted conservation authorities, agencies that oversee key watersheds and floodplains. It also stands to finalize a flurry of changes early next month, including opening parts of the protected Greenbelt for development and watering down protections for wetlands that mitigate floods, among other things.

Scientists have told The Narwhal those changes will put Ontario at higher risk of flooding as green spaces and wetlands that absorb rain and snow are lost. The thing is, auditor general Bonnie Lysyk reported Wednesday, Ontario’s flood management practices are already underfunded and disorganized.

The province is also failing to protect the Niagara Escarpment, an important and iconic green space in southern Ontario. It’s also doing little to stop the spread of invasive species, some of which are currently on sale at home improvement stores, Lysyk said.

Taken together, Lysyk’s findings show a province that is under-resourcing and mismanaging environmental measures across the board — and has been for decades. Her report also highlights a severe lack of transparency in the government’s communication with both the auditor general’s office and the public about environment and energy issues. And as Ontario heads towards an energy supply crisis, she noted, the province is still missing a long-term energy plan. 

“Funding and where money is allocated is a government choice,” Lysyk said. “It just needs to be transparent to people why those choices are being made.”

In a media scrum after the report’s release, Environment Minister David Piccini was asked whether the province is trying to protect the environment at all. He insisted the answer is yes.

“The government cares deeply,” Piccini said. Speaking to reporters, Lysyk suggested the government has a new draft environment plan is in the works — Ford’s team released one after coming to power in 2018 and has been promising an updated version for years..

“Protecting the environment we depend on is not a concern for them … other than damage control when they get called out on it,” interim NDP Leader Peter Tabuns told reporters.

Many of the problems documented in the auditor general’s report stretch back many years, predating the Ford government. But they’ve continued under the Progressive Conservatives — and in some cases have gotten worse.

Liberal MPP John Fraser admitted to reporters Wednesday his party “didn’t always get everything right as a government.” But, he said, “we did create the Greenbelt,” adding the current government isn’t being transparent enough with the public.

Ontario Green Party leader Mike Schreiner said the report shows the province as a whole needs to have “a complete rethink” about its long-term planning on environment and energy policies. “We know that the severity and frequency of extreme weather events is going to accelerate due to the climate crisis,” he told reporters. “The fact that they still don’t have a plan is reckless, it’s risky and it’s completely irresponsible.” 

While the province is underfunding environmental measures, it’s yet to find money for its own pet projects as well, Lysyk found. The Bradford Bypass highway project is set to cost far more than expected, she reported, and Ontario’s Ministry of Transportation doesn’t have the money it needs to push forward the bypass or another key infrastructure promise, Highway 413.

Here’s everything you need to know about the auditor general’s findings.

The cost of Ontario’s Bradford Bypass has grown

The Bradford Bypass will cost more than the Ontario government has disclosed publicly, Lysyk found in an audit of the province’s highway planning. Her office’s total estimated cost of the project, which would cut through the Holland Marsh section of Ontario’s Greenbelt, is between $2 billion and $4 billion. That’s far greater than the $800 million Transportation Minister Caroline Mulroney told the public in 2021. 

The auditor general’s estimated cost for Highway 413, meanwhile, is listed as “greater than $4 billion” — in line with what Mulroney has said, but lower than previous estimates from former Liberal transportation minister Steven Del Duca, who pegged it as between $6 billion and $10 billion. 

Lysyk said it’s normal for estimates to evolve over time and the ones in the report are still rough, but that “the public has the right to know.” 

As of August 2022, the transportation ministry hadn’t requested funding to actually build the 413 because it’s still being designed and is still under review from the federal Impact Assessment Agency, which is looking into how it might affect endangered species habitat. No construction can begin until the federal probe is done. 

Even if Highway 413 is out of the equation, the ministry doesn’t have enough funding to accommodate its other priority highway projects, the auditor general found. 

In a response included in the audit, the transportation ministry said it “agrees to take steps to implement the recommended action items” when government objectives clash with advice from bureaucrats.

Ontario’s Niagara Escarpment isn’t properly protected

The Niagara Escarpment is among the most defining natural features of southern Ontario. The portion of the rocky ridge that’s protected under provincial law starts at Niagara Falls, stretching around Lake Ontario and up to the Bruce Peninsula. Though the province’s protections end there, the landform itself goes on through Manitoulin Island before dipping into the United States. It’s beloved by hikers and climbers for its cliffs, caves, ancient trees and waterfalls, and crucial to the 70 species at risk living along it.

The Ontario government created a plan to protect the escarpment, a UNESCO biosphere reserve, nearly 50 years ago. That included the creation of a Niagara Escarpment Commission aimed at overseeing efforts to steward the land. Today, the escarpment makes up part of Ontario’s Greenbelt. 

But both the government and the commission are failing to actually protect the escarpment, Lysyk found. Nearly all development permits on the escarpment have been approved in the past five years. The province has allowed industry to create and expand pits and quarries for extracting aggregate — crushed stone and gravel used in construction — despite the harm they can cause to species and the ecosystem. The commission has cut environmental monitoring because Ontario’s Ministry of Natural Resources and Forestry doesn’t give it enough funding for the staff or resources it needs: its budget has been cut four times since 1996, including once under the Ford government. The lone specialist tasked with environmental monitoring left in 2015 and hasn’t been replaced.

The commission hasn’t tracked the cumulative impact of the more than 34,000 development permits it has issued since 1975, the auditor general said.

Over time, the Ford government and the previous Liberal government failed to enforce protections on the escarpment, the audit showed. Though reports of possible violations of the rules have climbed 82 per cent in the last five years, the government hasn’t charged anyone for doing so since 2014. Only 1.1 per cent of development permits on the escarpment have been denied, and in some cases the auditor general reviewed, applications were approved even if they clashed with environmental protection rules.

Roughly a third of the 54 aggregate operations on the escarpment are also allowed to extract as much as they want, with no limits, Lysk found. The government has only inspected about a quarter of those sites within the last five years, and found two weren’t following the rules. 

Though ministry staff recommended the previous Liberal government ban new aggregate extraction on the escarpment in 2017, that didn’t happen. Instead, that year, the Liberals changed the plan so applications for development on the escarpment can’t be denied solely because of endangered species habitat. The result, the audit found, is that 27 in a sample of 45 development permits from 2020 to 2021 involved harm to species at risk. 

In a response included in the audit, the Niagara Escarpment Commission said it would continue to work with the province to secure funding. The Ministry of Natural Resources and Forestry acknowledged “significant challenges” but didn’t commit to restoring that funding or making improvements. 

Speaking to reporters, Natural Resources Minister Graydon Smith placed the blame for issues with the escarpment on the commission itself, an arms-length agency. But he said he’s “open to a conversation” about giving the commission more funding.

Flood prevention and mitigation in Ontario is a mess

The provincial government’s oversight of flood mitigation and prevention in cities is severely underfunded and disorganized, the auditor general found — which is concerning since the risk of flooding is set to increase as climate change fuels more intense rainfalls. 

The report found Ontario isn’t doing enough to “reduce the risk of urban flooding, nor to provide homeowners, municipalities and other decision-makers the guidance and information they need to reduce their risks.”

Lysyk considers it a problem that no one government ministry is responsible for urban flooding in the province. Four ministries — environment, natural resources, municipal affairs and infrastructure — are involved, and have never clarified or coordinated their roles in flood-risk management. 

The audit noted this gappy system leaves Ontarians in major urban areas vulnerable to the worst impacts of flooding. These include an “ambiguous” building code that leaves buildings, particularly basements, prone to flood damage. 

As well, Ontario’s towns and cities receive “contradictory” and “inconsistent” guidance and direction from the provincial government, Lysk said, and are still relying on outdated flood data that leave them unable to map urban flood risk areas. Municipalities also don’t have reliable funding for stormwater infrastructure from either the federal or provincial government. 

Ontario’s auditor general also commented on Kashechewan First Nation: the community of 2,000 residents near James Bay experienced severe floodings four times in the last five years and has been evacuated three times, the total costs for which are not known. The audit highlighted how other First Nations communities in the region — which also experienced significant flooding in the past year and are accruing great costs for municipalities — are not getting the provincial support or funding they need.

Meanwhile, Lysyk said, natural flood protections — like green spaces and wetlands that absorb precipitation — are rapidly being lost, which will make flood risk worse. By 2015, the province had lost nearly three-quarters of its wetlands. One problem is how infrequently the value and fragility of wetlands is assessed. Only 30 were evaluated in the past decade; only one has been evaluated in the past year.

Lysyk noted that remaining wetlands are now at increased risk from development — the auditor general reported the government’s Bill 23, passed earlier this week, will weaken the evaluation system that assesses how proposed development could affect Ontario’s wetlands. The Ford government’s changes means wetlands will be evaluated individually, not as complexes that work together to absorb water and provide habitat for animals, including species at risk. This makes it likely that many small wetlands won’t be eligible for protection and, as the auditor general wrote, will damage Ontario’s “capacity to reduce flooding.”

Green spaces in Ontario’s urban centres are also being lost to development due to “weak provincial land-use planning direction,” the report found. Over the past 20 years, Ontario’s biggest urban centres have lost six per cent of their green spaces, with the biggest losses in Windsor (18 per cent) and Milton (22 per cent). The audit directly links this to the Ford government’s growth plan, which “does not set specific targets or limits on the amount of green space” that can be developed. 

“The province is well aware of the need to do more to address [flooding],” the auditor general’s report said, noting there have been four government reports and plans identifying a series of actions the government could take to alleviate the risk of urban flooding in the past four years — including the Ford government’s one and only environment plan, released in 2018. The commitments made in that plan — or any of the others — to mitigate flood risk haven’t been met, Lysyk wrote. 

“Ontario is the only province without an organization that provides climate services to the decision-makers that need them,” she said.

Ontario’s biggest power generator isn’t prepared for a likely energy shortfall

The hydroelectricity produced by Ontario’s largest power generator has not been “effectively utilized” over the last seven years, the report found, with a significant shortfall in energy production, especially considering demand. 

Between 2015 and 2021, Ontario Power Generation only used about half the capacity of its hydroelectric stations, Lysyk wrote, adding the company “has not conducted a detailed analysis of why there is a significant difference between installed capacity and actual generation.”

Ontario Power Generation offered some explanation, listed in the audit. Under-production could be due to water issues, such as availability or conservation, or station-specific issues such as a mandate to run only during peak demand periods. Ontario Power Generation said maintenance requirements could also have been a problem: the report outlines concerns that about 20 per cent of the generator’s stations have not been assessed for maintenance in a decade or longer. Two of the largest stations, both built in the 1900s, have not been reviewed properly in 18 years. 

The auditor general was also concerned “opportunities for developing Ontario’s future supply of hydroelectric power have not been fully explored” — an urgent issue as the province grapples with a projected energy supply shortage as nuclear plants are shut down for refurbishment or go offline entirely. Ontario Power Generation told the auditor general that building new hydroelectric stations in northern Ontario could take over 10 years.

The Ford government has said it plans to increase the use of methane-intensive natural gas to make up for the shutdown of Pickering Nuclear Generating Station. In Wednesday’s report, the auditor general found the energy ministry has not yet developed a long-term plan that reconciles the province’s changing energy supply with emissions-reduction targets. The ministry told her this plan will be released in December 2023

Ontario Green Party leader Mike Schreiner said this report raises concerns about the reliability and cleanliness of Ontario’s grid as the province invests in the total electrification of transportation. “The government seems to be scrambling to overcome a supply shortage and they’re doing it in a way that will use gas plants that will increase climate pollution by three to four hundred per cent in our grid,” he said. 

Unchecked invasive species are causing billions of damage in Ontario every year

Invasive species — like zebra mussels that suffocate native mussels, and reeds called phragmites that out-compete local wetland species — cause $3.6 billion of damage in Ontario every year. But the province spends just $4 million annually to combat them, and that relatively small amount is often delivered irregularly, making it hard for organizations working on the problem to retain staff. 

“Because that amount isn’t nearly enough, invasive species spread without much resistance, and Ontario’s farms, forest, and fisheries, as well as its health care, tourism and recreation sectors suffer substantial harm,” the press release said. 

The result: of all the provinces and territories, Ontario is at the highest risk of new invasive species being introduced, Lysyk found. It already has the most invasive species, with at least 441 invasive plants and 191 non-native species in the Great Lakes, a major international shipping route. 

The problem is so extensive that Ontarians can buy several invasive plant species at garden centres and plant nurseries. 

“Though the people of Ontario understand the urgent need to act when a dangerous new threat emerges in the environment, the Ministry of Natural Resources acts far too slowly to take these threats seriously,” Lysyk said. 

The ministry also lacks the staff it needs to enforce invasive species rules, according to the auditor general. Conservation officers aren’t properly trained to identify invasive species and rarely use their powers to crack down: in the last six years, conservation officers issued only 11 warnings and laid no charges for breaches of rules aimed at preventing the spread of invasive species.

The stakes of this are high, Lysk said. Invasive species have already caused historic collapses of lake trout and late whitefish stocks on the Great Lakes — fish that feed both people and local economies. 

In response, the Ministry of Natural Resources and Forestry said it would review its plan for tackling invasive species but didn’t offer specifics. 

Ontario’s failure to address invasive species is well documented — Lysyk criticized this in her report last year. She was even harsher Wednesday, saying in a press release that “Ontario is losing the fight against invasive species because it’s barely trying.”

Updated Dec. 1, 2022 at 2:50 p.m. ET: This story has been updated to correct that it was Ontario’s auditor general, not minister of the environment, that suggested the government was working on an update to its four-year-old plan to address the climate crisis.

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Last week Foreign Affairs and International Trade Canada announced Canada had "officially joined the latest round of Trans-Pacific Partnership (TPP) trade negotiations" after more than two and a half years of talks by previously engaged nations. The 15th round of talks, involving Australia, Brunei, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the U.S. and Vietnam, wrapped up yesterday in Auckland. 

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Written by David Suzuki with contributions from David Suzuki Foundation Communications Manager Ian Hanington.

Global trade has advantages. For starters, it allows those of us who live through winter to eat fresh produce year-round. And it provides economic benefits to farmers who grow that food. That could change as oil, the world’s main transport fuel, becomes increasingly scarce, hard to obtain and costly, but we’ll be trading with other nations for the foreseeable future.

Because countries often have differing political and economic systems, agreements are needed to protect those invested in trade. Canada has signed numerous deals, from the North American Free Trade Agreement (NAFTA) to several Foreign Investment Promotion and Protection Agreements (FIPA), and is subject to the rules of global trade bodies, such as the World Trade Organization (WTO).

Treaties, agreements and organizations to help settle disputes may be necessary, but they often favour the interests of business over citizens. With Canada set to sign a 31-year trade deal with China, a repressive and undemocratic country with state-owned corporations, we need to be cautious.

Should we sign agreements if they subject our workers to unfair competition from lower-paid employees from investor nations, hinder our ability to protect the environment or give foreign companies and governments excessive control over local policies and valuable resources? Under some agreements, basics like protecting the air, water and land we all need for survival can become difficult and expensive.

One recent case could put Canada on the hook for $250 million. Quebec has put a hold on fracking pending a study into the environmental impacts of blasting massive amounts of water, sand and chemicals into the ground to fracture rock and release gas deposits. A U.S. resource company plans to sue Canada under Chapter 11 of NAFTA, claiming compensation for the moratorium’s damage to its drilling interests. Similar disputes have already cost Canada millions of dollars.

Ontario also wants assurances that fracking is safe before it allows the practice. That province is facing costs and hurdles because of another conflict between trade and environment. Japan and the European Union filed a complaint with the WTO, claiming a requirement under the Ontario Green Energy Act that wind and solar projects must use a set percentage of local materials is unfair.

Many of the problems arise because of an investor-state arbitration mechanism, which is included in NAFTA, as well as the proposed Canada-China FIPA, Canada-European Union Comprehensive Economic and Trade Agreement and Trans-Pacific Partnership. It allows foreign investors to bring claims before outside arbitrators if they believe their economic interests are being harmed by a nation’s actions or policies. So economics trump national interests.

This has caused many countries, including Australia, South Africa, India and several in Latin America, to avoid signing deals that include the investor-state arbitration mechanism. In Australia’s case, the country recognized the pitfalls when tobacco companies, including Philip Morris, attempted to claim damages under a bilateral investment treaty after the federal government introduced a science-based law requiring cigarettes to be sold in plain, unappealing packages.

According to Australian National University law professor Thomas Faunce, Philip Morris then lobbied the U.S. government to include a similar mechanism in a new trade agreement it was negotiating with Australia. In an article for Troy Media, Faunce wrote that, with such a mechanism, the International Centre for the Settlement of Investment Disputes “would, in effect, become the final arbitrators on major Australian public policy questions concerning mineral royalties, fossil fuel and renewable energy, water, telecommunications, banking, agriculture and power.” 

The 31-year trade agreement between Canada and China is worrisome, with its 15-year opt-out clause (compared to just six months for NAFTA), but the inclusion of the mechanism in other agreements is also cause for concern. At the very least, we could be on the hook for millions or billions of dollars if our environmental, health, labour or other policies were deemed to harm the interests of those investing in or trading with Canada.

The government’s desire to expand global trade may be understandable, but we mustn’t give away too much. We must tell our elected representatives to at least delay the Canada-China FIPA until it has been examined more thoroughly, and to reconsider the inclusion of investor-state arbitration mechanisms in all trade deals.

Learn more at www.davidsuzuki.org.

For more insights from David Suzuki, please read Everything Under the Sun (Greystone Books/David Suzuki Foundation), by David Suzuki and Ian Hanington, now available in bookstores and online.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.