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Charity Series Part 1: Canadaʼs Fake Non-debate on the Definition of “Charity”

ictinus — Mon, 22 Apr 2013 17:11:25 +0000

This is Part 1 in a four-part series outlining the attack on Canadian charities and the consequences of that attack. Read Part 2, Charities and Self-Censorship: Is Canada Going the Way of the UK?

In testifying before the House of Commons Standing Committee on Finance to deal with charity provisions in the 2012 Federal Budget, Jamie Ellerton, the Executive Director of Ethical Oil, offered a succinct definition of charity. “If you need to debate whether or not something is charitable,” he told the House, “it is not.”

Ellertonʼs definition of charity, takes 400 years worth of legal debate on the definition of charity, and wraps it up so tightly, makes it so simple, that one would wonder why it ever need be debated at all. If his were the working definition, charitable work would be limited to such tasks as feeding the hungry and planting trees.

Charities would have no say in making change to end hunger or protecting trees that are already standing. They would be mute players, picking up the pieces when government fails to protect the public interest. It is all too clear that the simple definition might be preferred by a government intent on ending conversations – or at least controlling them.

The 2003 Canada Revenue Agency (CRA) policy statement on charities and political activity, CPS-022, was born out of the complexity of the subject matter it deals with. The statement was formulated after years of research, panels and studies to increase both the effectiveness and the accountability of Canadaʼs voluntary sector. It clarified the definition of political activity, and expanded the types of political activities charitable organizations can undertake. The new rules proposed in the 2012 budget once again tightened the restrictions on political activities and gave the Minister of National Revenue new powers to suspend charitable privileges. The government justified these changes in part because of Ethical Oilʼs complaints about various environmental charities engaging in political activity.

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Whatʼs the problem with a charity taking political action? As Ellerton stated in his testimony to the House:

"The main reason why the courts rule out political purposes for charity is, is the result of the requirement that a purpose is only charitable if it generates a public benefit."

If a charitable purpose needs to generate public benefit, what is public benefit, and who decides? In 2012, the Canadaʼs Conservative government looked to its friends at Ethical Oil to decide. If the the Council of Canadians had lodged a complaint against the Fraser Institute on the same basis – would the government have moved to change the regulations on charities and political activities?

What was it about Ethical Oil that launched them into such a privilege position? Perhaps it was the organizationʼs ties to the Conservative Party of Canada – Ellerton, for one, was an aide to Minister Jason Kenney prior to taking the helm at Ethical Oil. Or maybe, the Government was in fact happy to hear from a group of concerned citizens.

The government knows, however, that most Canadians donʼt share Ethical Oilʼs un-critical faith in the oil industry. Recent polling shows that Canadians value environmental sustainability, and would like to see their leaders do more to address problems such as climate change. A poll conducted by Natural Resources Canada expressed Canadian values this way: Foremost, participants saw the Governmentʼs primary role as guarding against negative outcomes or undue environmental or public health impacts of energy sector activity. These relate to activities such as extracting, processing, using and transporting resources. Participants identified actions such as establishing and enforcing regulations and laws and providing oversight.

Public opinion, as Justice Robert Décary stated in the case, Everywomanʼs Healthcare vs. MNR (1988), is a “fragile and volatile concept.” If it were left to the public to decide on the meaning of charity, or whether an act was beneficial to the public, that judgement could well become “a battle between the pollsters.” In his decision, Judge Décary explains that the decision has been one that has been left to the courts, so as to prevent it from becoming a political football. In 2012, the courts were not called to weigh in, and the term public benefit was merely tossed around.

Canadian environmental charities exist for the purpose of promoting the publicʼs interest in a healthy environment. The act of holding the government accountable for environmental protection in the Alberta tar sands, the largest industrial project in human history, is a charitable act. This fact is outlined in CPS-022, and asserted in its preceding document, An Accord Between the Government of Canada and the Voluntary Sector. The Accord states, on page 17:

The independence of voluntary sector organizations includes their right within the law to challenge public policies, programs and legislation and to advocate for change.

In complaining, publicly, about these actions as conducted by Environmental Defense, The David Suzuki Foundation and Tides Canada, Ethical Oil turned the legitimate issue of government accountability into a false debate about the definition of charity. The purpose of these organizations was, and remains, well accepted as a public benefit, but Ethical Oil found a way to make that purpose vulnerable to political attack.

Canadaʼs current government sees its top priority as economic development, and has in the last four years has met more with representatives of the oil and gas industry than members of any other interest group. This government has chosen a strategy of censorship and obfuscation, as opposed to democratic engagement and dialogue.

When it comes to environmental charities, the government has attempted to poison the strong relationship they have with Canadians and create a legal climate which makes acts of environmental protection criminal. Labeling them “foreign radicals” was shocking and absurd, but including them as a potential threat in their Counter Terrorism Strategy? As charity and non-profit lawyer Terrance S. Carter writes in his article, Canadaʼs Counter Terrorism Strategy Targets Environmentalism, it is unclear why environmentalists were singled out or how they are logically connected to white supremacists or other recent examples of domestic terrorism: "Likening environmentalists and animal rights groups to home-grown terrorists and mass murderers raises the question of whether the government is blurring the lines of counter-terrorism in order to target otherwise legitimate opponents and justify questionable surveillance campaigns."

Marco Navarro-Genie, a political scientist from the right-wing think-tank, Frontier Centre, told the Vancouver Sun he was not surprised the government put a halt to some environmental groupʼs “incendiary” influence on the public policy debate.

"There seems to have been a greater deal of sympathy among the public and media for a little bit of the radical edge [of environmentalism]. It seems to be based on the notion that you have to push the envelope to get somewhere. That basically throws out the window any kind of [common sense] conversation about the environment."

Which brings us back to Ethical Oil – the perfect foil in a debate thatʼs been twisted. Healthy democratic debate on any matter of public interest is a good thing. We should welcome the opportunity to discuss the idea of public benefit, and to question the role of charitable organizations in our political landscape – but not as a distraction from other important conversations.

Other countries are debating the meaning of charity as well, and many leaders in Canadaʼs voluntary sector were not satisfied with the 2003 policy changes. They felt the statement hadnʼt done enough to bring Canadian charities freedoms comparable to their counterparts in the US, the UK and elsewhere.

This series will aim to unravel all the complicated threads of what political powers charities have, and what powers charities are barred from, and how the debate over those is playing out elsewhere. We can add to our own conversation, and hopefully find a way forward with a wider perspective.

Image Credit: Jamie Ellerton testifying before the House of Commons Committee.

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Canada Exports Ethical Oil Talking Points to US on Keystone XL

Carol Linnitt — Fri, 01 Mar 2013 17:52:17 +0000

We’ve heard it all before: get your oil from Canada, or get it from the devil.

Okay, well, maybe not the devil, but if you aren’t dealing with Canada, you’re dealing with despots, tyrants, oppressors of women and suppressors of democracy.

This is the pervasive pseudo-logic brought to us by conservative commentator and Sun News correspondent Ezra Levant. In his book Ethical Oil, which eventually grew into the Ethical Oil Institute, Levant poses Canadians with a false dichotomy: either we support Canada’s ethical oil – which is democratically developed in an environmentally responsible way – or we support conflict oil.

The argument is a classical for-or-against proposition meant to polarize Canadians on a complex issue. And it is Canada’s latest export to America.

In the current media volley between American and Canadian leaders on President Obama’s upcoming decision to either approve or deny the Keystone XL pipeline border crossing, this deceptive ‘you’re either with us, or you’re with the terrorists’ argument is on the loose, begging the overall question: is Canada taking its talking points straight out of the Ethical Oil playbook?

Let’s begin with Canada’s Ambassador to the US – Gary Doer. During the February 17th Forward on Climate rally in Washington DC – the largest climate change rally in US history – Doer claimed protestors lacked “logic.”

The ‘outspoken minority’ who oppose the Keystone XL, said Doer, don’t express American wishes; they just happen to get more media attention than the “65 percent of Americans that prefer to get their oil from Canada rather than Venezuela or the Middle East.”

Doer followed up with an interview this week with Postmedia News where he posed the issue this way: “If you ask the question: Do you want your oil from Hugo Chavez or Alison Redford, I think I know the answer.”

“If you look at the fundamental criteria for presidential legacies,” Doer said, commenting on the idea that Keystone XL is Obama’s legacy issue, “it’s peace and prosperity.” 

“I would argue that that means less reliance on Middle Eastern oil and more jobs building the independence here in North America.”

Doer’s sentiments were echoed this week by Alberta Premier Alison Redford whose column in USA Today stressed “Alberta is the safest, most secure and responsible energy supplier to the US.”

“The same cannot be said for the other foreign countries and regimes that currently feed US energy demand.”

Levant himself has been somewhat more forthcoming with his thoughts on the subject, claiming nearly one year ago that the Keystone XL is “a pretty straight swap of Canadian ethical oil for Venezuelan conflict oil. And Obama chose Hugo Chavez over us.”

“Blocking the Keystone XL isn’t going to stop a single American car trip. It will simply ensure that car is fuelled by Hugo Chavez and King Abdullah of Saudi Arabia, who must have been popping champagne while laughing at Obama on TV.”

Around the same time Ethical Oil spokesman Jamie Ellerton wrote “every drop of Venezuelan oil that Americans buy, is more money that ends up helping Venezuela to help support Syria’s massacre of its own people. Conflict oil is fuelling more conflict.”

As much as a year ago, conservative staffer and Ethical Oil campaigner Alykhan Velshi suggested “Americans are still stuck supporting…Chavez. Sanctions won’t stop that; working on replacing every last drop of Chavez’s Conflict Oil with Canada’s Ethical Oil, will.”

The argument loses full steam however, when you consider Canada imports a tremendous amount of Venezuelan crude. That’s right – imports.

As reported yesterday by DeSmogBlog’s Kevin Grandia, “a May 2011 Natural Resources Canada report notes that Canada imported 33,000 barrels per day of crude oil from Venezuela in 2009. That works out to about 12 million barrels of oil that year.”

Those imports were valued at $778 million for the year and made up roughly 86 percent of Canada’s total imports from Venezuela.

As Grandia notes, Canada imports oil from other countries – like Algeria, Angola, Iraq and Nigeria – that suffer worse human rights records than Venezuela.

So Canada, if anything, represents a layover for Venezuelan oil.

And Canada’s oil (whether developed domestically or imported), like any other oil, is merely looking for a cheap and easy access to the global market, where it can fetch a higher price.

Albertan oil is landlocked and desperately needs an export strategy. Canada isn’t offering the US an ethical escape from conflict oil. We’re just looking for a path – any path – to an export terminal. And if the US allows it, we’ll track our oily footprints all over the national carpet on our way.

Americans should be on their guard against Canada’s dirty exports – whether of the bituminous or rhetorical kind.

Image Credit: visionshare via flickr.

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China-Canada Investment “Straitjacket:” Interview with Gus Van Harten Part 3

Carol Linnitt — Fri, 19 Oct 2012 18:00:52 +0000

This is the third and final post in the series China-Canada Investment "Straitjacket:" Exclusive Interview with Gus Van Harten. You can access Part 1 here and Part 2 here. Canada has already begun the short countdown to the day the China-Canada Investment Deal becomes ratified in the House of Commons, although the nation has been granted no opportunity to clarify or discuss the full economic or environmental significance of the agreement – the most significant in Canada's history since NAFTA. Prime Minister Harper, who signed the agreement in Vladivostok in September, is forcing this deal through with such force and brevity it makes the undemocratic Omnibus budget bill C-38 look like a dress rehearsal. International investment lawyer and trade agreement expert Gus Van Harten has landed center-stage in the controversy as one of the only figures willing and qualified to speak up against the investment agreement. He told DeSmog that Canada's rush to enter into an investment deal of this sort endangers Canadian democracy, threatens Canadian sovereignty and could fracture the government's loyalty to its people. In this post, the final segment of our interview with Van Harten, he discusses in more detail just how bad this deal is for Canada economically and how much it threatens to corrupt our way of doing business.

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Below is Part 3 of our interview: Carol Linnitt: I’ve got a couple other questions for you. Maybe I’ll ask you about transparency. So, any challenge that Chinese investors might pose to the Canadian government in regards to legal frameworks, this all can happen behind closed doors, in the sense that the Canadian public will have no idea that this is happening whatsoever, and have no possibility of even participating in a discussion about the outcome or the decisions the Canadian government makes. Gus Van Harten: In the arbitrations, the only parties that have a right to standing are the national government of the country that’s been sued, the federal government, and the investors. No one else, native groups in BC, the British Columbia government, domestic Canadian companies, even if their rights or interests are affected directly by the occasion, let’s say their reputation is affected, they have no right of standing. That is because it’s an international arbitration, so it’s not exceptional in that context. What’s exceptional is that they allow this private investor to go into the international arbitration, but no other private party. The point is, the Canadian government reserved the right in the treaty to keep claims by Chinese investors against Canada, against the Canadian governments, to keep those confidential if the Canadian government decides that it is in the public interest to do that. So that raises the question, when will the Canadian government think it is not in the public interest to tell Canadians that Canada has been sued by a Chinese investor? The treaty clearly contemplates that there will be such situations. If the government wanted to make all of these claims public, it could easily have done so in the treaty, because that’s what it has done in the past treaties, that it signed with countries like Romania for example. CL: Okay. GVH: So we can presume that some or many or even all of the arbitration claims may not in fact be made public. That is, the hearings may not be made public and documents associated with the arbitration may not be made public. I should stress, the treaty does provide for any awards to be made public, but also important are the submissions that the parties are making in the arbitration, especially our own government on our behalf. Those should also be public, but the government has said that it can keep them confidential if the government considers it to be in the public interest under the treaty. CL: This is interesting too because if we are looking at this deal as a great economic opportunity in terms of Canada’s doors being open to the fastest growing global economy in the world right now, is there additional element of say, economic entanglement that will complicate these issues further, if say we become reliant upon Chinese investment and also the availability of Chinese markets for our products. Does that add an additional layer of complication to the way that decisions will be made with this deal? GVH: Well, what this deal is setting up is for us to play the role of the supplier of raw resources to feed the Chinese industrial machine. We will have difficulty competing with Chinese manufacturing because of the extremely low cost of labour in China. Because the lack of regulation of various aspects that we would regulate here, because of the immense amount of money the Chinese are investing in research and development, and because the Chinese are very quickly copying western technology, they in fact use foreign investment as a way to get access to western technology. So the Chinese strategy is to set itself up as the manufacturing centre, and that’s where the money is. The real economic benefits is not taking the resources out of the ground, it’s adding value by manufacturing the resources and then exporting the manufactures. No country, or very few, has ever industrialised, and based its development on industrialisation, other than by setting up a manufacturing sector. So we are, in a sense, setting up conditions when we will simply supply resources to manufacturing in China. And that in a way is a kind of economically dependent relationship, because you’re more vulnerable economically if your economy is too dependent on simply exporting raw materials and you leave the economic benefits from value-added activity and from the super profits that can come from developing manufactured goods that are the edge of the technology frontier. You give those opportunities over to China. And I think it’s quite clear that that’s the Chinese strategy and this deal fits right into it. It would be more beneficial to Canada if the deal at least allowed Canadian investors to buy Chinese companies, on a relativity widespread basis. But the deal does not do that. Also there could be benefits in having a wider trade deal in that Canadian exports would have more favourable access to the Chinese market than other countries receive under the world trade organisation rules. But we also haven’t got that because we were told there’s not going to be any trade deal for at least another ten years, if ever, so I think the Chinese have really got what they wanted out of this deal, and Canada did not get much in return if our aim was to counterbalance Chinese foreign ownership of our economy with opportunities for Canadian companies to own profitable assets in China or with opportunities to increase our ability to compete by exporting goods to China, other than obviously the raw materials in which the Chinese will own the rights. CL: And we’ve already seen a major flagging of the manufacturing sector in Canada just by virtue of how much emphasis has been put on the export of raw materials, bitumen being just one of those. [For the impact of the tar sands on the Canadian manufacturing sector, read the Pembina Institute's "In the Shadow of the Boom: How Oilsands Development is Reshaping Canada's Economy."] GVH: Yes, I mean, it’s pretty clear that the Harper government does not have as its priority support for the established manufacturing sector, and that its higher priority is to get investments into the resource sector to get the resources out of the ground and generate economic activity in that way. It’s not a bad short-term strategy if you want to create some growth, but as a long term strategy it’s not good because it puts too many of our eggs in one basket. And because resource prices are notoriously unreliable, and finally because if the resource extraction activities are owned by foreign companies, then over the long term they will be earning the profits from the exploitation of our resources rather than Canadian companies. CL: And doing so under a rubric of foreign design that might not serve Canadian interests or the interest of local communities, or upholding the rights of First Nations. GVH: Economically, socially, politically, culturally, it’s less in Canadian control. CL: I’m so baffled that this kind of information hasn’t been highlighted by the media, who have been covering this topic, because I‘m just shocked at how bad this deal is, how much it doesn’t seem like a good opportunity for Canadians. Arguments in terms of economic security don’t even really hold. Speaking environmentally, which is such a relevant issue with climate and the tar sands right now, this is a disaster. And in terms of the pipeline, which is massively important on the west side of Canada, no one is talking about the significance of this deal for these issues that are in the spotlight right now. GVH: Well, people don’t understand how the treaties work and that’s entirely fair, I mean it’s complex, but those who do understand them, lawyers and academics, you see, I would say most of them make significant income, either working for investors or for states in investor-state arbitrations, working as arbitrators in these arbitrations, or working as experts hired by the investor or the state in the arbitration. I can’t say that there’s a massive conspiracy, but there’s certainly a link between the way in which some commentators frame the system and evaluate risks arising from the system and tend to, in my view, understate those risks, slip them under the rug. A link between that and their own career track, and their own career interests, is apparent. Whether it’s actually those interests that influence them I don’t know, on an individual basis, but in terms of watching how the technical literature is written, how people comment publicly on the system, it seems to me that there is a legal and arbitration industry that has a lot of interest in these treaties, and less interest in how the treaties affect Canadian interests, for example, in our case. CL: So the way that the treaty and this deal have been negotiated, it’s all said and done at this point, so it’s not as though the Canadian government could redefine its terms for example, at this stage. GVH: Nothing’s completed yet, the treaty has not been ratified. CL: Okay. GVH: It’s been signed but not ratified, and it has to be ratified to come into effect. The Canadian government said, ‘look, it’s going to come into effect after we’ve put it before parliament for 21 days, and that’s it. We’re not going to have any public hearings about it; we’re not going to have a vote in parliament about it, of course it would probably win the vote anyway; we’re not going to put it to provincial legislators for a vote; we’re not going to put it to a referendum.’ This is going to be in force after 21 days, that’s sitting days of parliament, that’s it. But, in the meantime the government can change its mind. I don’t think they will, but at best it’s important to at least, at this time, make people aware of just how significant a long-term decision this is going to be. CL: So what could you foresee being…how can we stop this? That’s the question I really want to ask. GVH: Yes, other people are asking that question. I talked to one or two people about it and there are some ideas, but I’m not really that optimistic. Not through the legislative process because the government controls that. The provinces might object, and the courts might play a role, possibly, but I'm not really holding my breath. I know that some provinces are aware of this and are not happy about it. I hope the provinces do pay attention and that one of them might take action to delay ratification, but time is getting very short. CL: Yes, very short. GVH: For example, I would have thought the current BC government and the incoming NDP government in BC would not be very keen to hear about how its options with respect to the northern gateway pipeline might be frustrated by this deal. CL: That would have been my next question, that is, what is BC’s stance? So that’s interesting. Perhaps some really, really outspoken provincial opposition could sway public opinion about the benefits of this deal. GVH: …to show how this deal appears designed to stop BC from blocking the Northern Gateway Pipeline. CL: That would definitely be relevant for people to be thinking about right now. It’s hard not to be blindsided by some of the unexpected elements in the pipeline argument, you know, between provincial legislation and federal legislation, the transformation of our laws while the hearings are in place, that affect those hearings, province to province deals; it’s had to wrap your mind around who actually has the decision making authority when it comes to this pipeline, and this is a really interesting new element to add to this whole issue. GVH: Yes, I assume that here are people in the provincial governments that are looking at this, but I don’t think there are very many who really understand the implications fully. CL: And people who are in those positions have a thousand things to juggle, and just to wrap your head around this treaty and to get the details of it straight is a lot of work, and it’s the kind of complications that don’t play out well in the media. It’s difficult to try to inform people about these kinds of things because of the sorts of technicalities difficulties involved. GVH: It’s complicated, true. And a government can always throw up some lawyer in a suit to say, ‘oh no, it’s fine’. CL: Okay, I just have one last question for you. I wonder if you’re familiar at all with the 'Ethical Oil' campaign. GVH: You mean Ezra Levant’s thing? CL: Yes, yes. GVH: Vaguely, I didn’t really pay much attention to it. CL: Well it's still in play as as public opinion machine that is very active. In relation to the China-Canada deal, one Ethical Oil writer named Jamie Ellerton has written two pieces on Huffington Post Canada, arguing that Canada’s oil will still be the most ethical oil in the world, even if China has a massive stake in the oil sands. He’s saying our human rights record, our way of doing business, all of these things will persist, even if other international players who don’t have good human rights records are involved, or we’re entering into partnerships with them. [Read: Ellerton's "No Foreign Investments Can Tarnish Our Ethical Oil" and "Just Because They're Communitsts Doesn't Mean We Can't Do Business With Them."] And that’s, for me, a very frustrating narrative that is emerging when we’re discussing things like the oil sands. I feel like there’s more serious conversations to be had and arguments in favour of 'ethical oil' are simply emotional fodder and not at all the specific conversations we need to have about Canada's economy, energy diversity, climate action, First Nations rights, democracy and the significance of our decisions for future generations. So I would like to counteract that narrative, and I’m wondering if you could talk about the meaning of this deal for Canada in term of Ellerton's argument. If we consider ourselves responsible actors, and we have a good human rights record, could something like this deal have the capacity to transform that side of Canada? That way of doing business? How would that happen, what would that look like, what’s the potential for Canada’s position on those types of issues to change? GVH: I think that’s a bit more removed, I mean it’s just a bit more speculative. As to how this deal might undermine our reputation for ethical oil, I think the debate about whether Canadian oil is ethical, is really about something fundamental about the tar sands, and whether that oil should ever be taken out of the ground, because it’s going to go into the atmosphere in carbon, and if it does, if a large amount of it does, the risks in terms of climate catastrophes are obviously going to be higher. So I am not sure this deal really accentuates, or somehow undermines, the case that otherwise would be in place for ethical oil. CL: The side of it that I’m trying to pick up on is the issue of sovereignty. We may be able to say right now that Canada has great management structures in place, and equitable regulatory frameworks, and so on and so forth, even though I don’t think that’s the case, especially with first nations and… GVH: I guess perhaps the point is, you can't really talk about Canadian ethical oil anymore: it’s really Chinese oil. It’s Chinese oil that, because of this deal, is insulated from regulations and legislation in Canada, so this deal makes it increasingly Chinese oil. Rather than Canadian. It comes out of the ground in Canada, but many of the decisions about whether and how to take it out of the ground are going to be made by the Chinese investors. And they’re going to be able to avoid, potentially, attempts by the Canadian parliament or a provincial legislature, Canadian governments, to put environmental, health and other kinds of standards on the exploitation of that resource. CL: I guess the reality is that by going ahead with this deal we are relinquishing some of our decision-making authority about the way that these resources are developed. So you can’t just blanket it and say that this oil’s developed according to Canadian values, because that will no longer be the case. And, in fact, I don’t think it is the case right now. But, this is just a perfect point in case, where we are relinquishing our authority and our value base will change accordingly. Well, that gives me a lot of important material to work with. I’ll be in touch with you, thanks again for your time, I really appreciate it. GVH: Okay, well good luck with your writing. CL: Yeah thanks, and you too. Nice to talk to you, bye. [END OF INTERVIEW] Gus Van Harten continues to write on the topic and has recently addressed an open letter to Prime Minister Harper and the Honourable Edward Fast, Minister of International Trade and Minister of the Asia-Pacific Gateway, urging them to halt the trade agreement's ratification. Van Harten's research is freely available on the Social Science Research Network and the International Investment Arbitration and Public Policy website. Images from the "PM visits China" photo gallery.

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