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Is Canada legally bound to release the CETA text now?

A post by Robert Howse, law professor at NYU, on the International Economic Law and Policy blog suggests the Harper government has broken the law by not making the full text of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) public and allowing for public input. It starts with a bang:

It almost goes without saying that it is an egregious violation of the principles of liberal democratic governance that Canada—and the EU, apparently—are keeping the agreed, final text of the CETA a secret.

Howse argues that the Harper government’s proposal to adopt the CETA triggers an obligation in Article 1802 of NAFTA, which looks like this:

1. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and Parties to become acquainted with them.

2. To the extent possible, each Party shall:

(a) publish in advance any such measure that it proposes to adopt; and

(b) provide interested persons and Parties a reasonable opportunity to comment on such proposed measures.

“There is also no doubt that the CETA text concerns matters covered by NAFTA – in fact there is enormous overlap in coverage,” writes Howse. “There is also no doubt that it is now ‘possible’ to provide the text, since a final text for adoption exists in the phenomenological world.”

If it’s possible, and possibly illegal not to, then we should be increasing the pressure on the Harper government to release the text and hold public hearings. The Trade Justice Network continues to collect signatures on a simple petition asking as much, which you can sign here.


This morning, the House of Commons committee on international trade held a kind of sham hearing into the EU deal based on the few details that were published on the government’s Action Plan website. The Council of Canadians live-tweeted the fiasco from the @CETAWatch account and commented here.

International Trade Minister Ed Fast told the committee that CETA negotiations will continue for another two to three months, but that the technical briefing they released last week provides “everything Canadians need to know” about the deal, and that “as soon as we have a text available we’ll make it available to the public.”

Fast also recently said he does not expect the CETA text to change substantially before it is signed and ratified, leaving the public and parliament with virtually no ability to make changes to any part of it. That would include the additional patent protections for brand name drug companies, and their associated costs.

NDP Trade Critic Don Davies asked Fast today in committee if he would at least share the federal estimates of the impact of CETA on drug costs in Canada. A recent CCPA study suggests they will be between $850 million and $1.65 billion annually.

“Mr. Davies,” Minister Fast said, “we are not going to provide you, or the public with information that is speculative in nature. The information we’ve been provided is speculative… We’re confident that the impact on the costs of medicines in Canada will be mitigated by steps that we can take.”

Also speculative – the value of CETA to the Canadian economy, as Brent Patterson points out here. No wonder the Harper government doesn’t want too much information in public hands. We might not like the look of this deal when we see its several thousand pages.

If Robert Howse is reading this, we took your advice. The Council of Canadians has filed an access to information request for the working draft text of the Canada-EU deal. We’re not hopeful of getting it, even if (as Howse argues) the government is breaking the law by holding back.

To write your provincial premier to say we can’t afford to pay more for pharmaceutical drugs in Canada, and to demand provincial hearings into the EU deal, use our action alert here. For more information on The Council of Canadians’ campaign against this “free-trade-plus” deal, click here.