Premier Clark promoting BC seafood exports to China during a trade visit in November 2011 (photo: BC Government flickr page)

Premier Clark Supports Canada-China Trade Deal, Abandons BC’s Constitutional Rights


I don’t suppose that many of you have not by now heard of FIPA (Foreign Investment Promotion and Protection Agreement), the trade deal between Canada and China Stephen Harper is pushing forward – and I don’t suppose that many of you, including me, have a full comprehension of what this will mean to trade, not to mention our economy, resources and environment.

Dr. Gus Van Harten of Osgoode Hall has written a must-read letter to Premier Clark which you can read here.

There are a few things we do know:

  1. It applies to trade agreements between Canada and China and, thanks to the premier, BC as well.
  2. It is, like NAFTA, a treaty that for practical reasons, is all but unbreakable for 31 years.
  3. It gives China the ability to obtain huge damages if we don’t perform our side of any deal and to sue for them in her own courts
  4. This agreement has not been debated in Parliament nor in the Legislature of BC
  5. It won’t be debated in Parliament or the BC Legislature because both the Prime Minister and Premier Clark don’t think they need the agreement of our legislative bodies
  6. Without any question, this treaty will impact upon the Province of British Columbia and could cost us hundreds of millions of dollars
  7. It seriously compromises the constitutional rights BC has under Section 92 of the Constitution Act (1982)

Let me direct you to the Premier’s letter (below) for which I’m grateful to Laila Yuile, a blogger who’s a necessary read if you want to really see what’s going on inside.

Let us suppose the Province, under a different government, wants to stop the Enbridge pipeline or any other contract where China has an interest. This will involve us in a huge claim in damages. Indeed, any deal the federal government makes with China has been accepted in advance by Premier Clark.

Think on that for a moment. We have signed away, without any mandate from the Legislature, let alone the people, our constitutional right to oppose trade agreements with China no matter how badly they fly in the face of BC’s constitutional powers or how injurious they are to BC’s interests.

Below you’ll see a letter from Clark pledging BC cooperation with the feds.


Jane Sterk, Leader of the Green Party of BC, questioned this policy and got this rubbish in reply on October 26:

Dear Dr. Sterk:

Thank you for your letter of October 23, 2012, regarding the Canada-China Foreign Investment and Protection Agreement (FIPA) that was signed at the Asia-Pacific Economic Cooperation Summit in September.

The provincial government has been involved in the process that led to this agreement and we are confident the new Agreement will provide a framework through which greater economic prosperity will come for British Columbians and for British Columbia’s business sector.

I think we can agree that international investment is key to building our provincial economy. We feel encouraged that written in the Agreement are unambiguous assurances that provisions and procedures for investor-to-state dispute settlements are clearly laid out and that they stipulate transparency provisions that are important to Canada. We have been advised that the Agreement will likely result in one of the best written investor protection treaties ever and significant efforts have been put into ensuring the Agreement is in the best long-term interests of Canada.

The main goal and objective of this FIPA is to establish a more transparent investment relationship with China and to ensure Canada and Canadian businesses are treated fairly. China is B.C.’s second largest trading partner and we want to strengthen that relationship. This investment agreement is an important step in the right direction towards improving our trade, investment and cultural ties with China.

Christy Clark

There are two major issues here:

  1. Is this a good deal for Canada and BC?
  2. What are the implications for BC’s constitutional rights under the Constitution Act of 1982?

As to the former, again, I urge you to read this letter from trade expert Dr. Gus Van Harten to Premier Clark.

As to the latter, as one who has been involved in such matters at the highest level, I can tell you that on the face of it, Premier Clark’s letter abandons the constitutional protections BC has.

This is no minor, legal nit-picking. We live in a federation where both the federal government and the provinces have legal, inviolable rights. This is the glue that holds the nation together.

On the pipelines/tankers specifically there are a number of areas where BC has the absolute right to make conditions or ban them outright. Premier Clark, in her disastrous statement, has, on the face of it, estopped BC from exercising our rights. “Estopped” means that she has taken a position upon which another has acted and can no longer exercise the rights she signed away.

In short, by agreeing to this treaty, she has, for the length of the contract, surrendered our right to exercise our constitutional rights.  

Why did Premier Clark do this?

We can’t overlook the fact that she may just be too stupid to understand what she has done. One hates to say this sort of thing but this is surely an option we must consider, remembering Mair’s Axiom One which states, “You make a very serious mistake assuming that people in charge know what the hell they’re doing.”

If she took advice, it was terrible. Moreover, she couldn’t possibly have read outside independent advice as that given by Dr. Van Harten.

To my way of thinking it’s because she’s at the mercy of the Feds when it comes to canceling the HST, just a month ahead of next May’s election.

We have, then, given our constitutional rights away without any consultation with the people who lose these powers. It’s been called “economic treason” and I agree.

Is there any doubt now why she was too cowardly to call a fall sitting of the Legislature?

To give this bunch another mandate would be insane.


About Rafe Mair

Rafe Mair, LL.B, LL.D (Hon) a B.C. MLA 1975 to 1981, was Minister of Environment from late 1978 through 1979. In 1981 he left politics for Talk Radio becoming recognized as one of B.C.'s pre-eminent journalists. An avid fly fisherman, he took a special interest in Atlantic salmon farms and private power projects as environmental calamities and became a powerful voice in opposition to them. Rafe is the co-founder of The Common Sense Canadian and writes a regular blog at

15 thoughts on “Premier Clark Supports Canada-China Trade Deal, Abandons BC’s Constitutional Rights

  1. I think we should derail Christy Clark’s ongoing campaigning and sucking up and fire/impeach her.

  2. How can we trust Christy Clarke? Pipeline, CN scandal, BCTF scandal and now this. How can we impeach her? Can we sign a petition and get a real election now that the facts are coming out.

  3. We should have all seen this coming, and should not be a surprise. I said it a long time ago, and have written many MP about the fact that this is the most dangerous man in OUR Canada. He poses a clear and present danger to our very demoracy and our way of life. Unfortunately he cannot be impeached, or unseated by the opposition.
    As stated by another person it is time to take to the streets to peacefully protest, and we must number in the millions.

  4. The feeling I get is that Clark has been complicit in this thing from the get go and quite possibly prior to Harper’s announcement made from abroad on the Canada-China Foreign Investment and Protection Agreement (FIPA) deal as I think the whole leaving of Campbell was an orchestration to further nullify BC’s political strength. All the meetings appeared to be concerned about the lands waterways and treaties were just a smokescreen to make it all seem democratic… all the while carrying on with the Harper agenda.

  5. Our governments are selling us out to foreign interests. Why are we allowing them to do this to us and our children?
    When will we all stand up and say enough is enough?
    Time to take back our country!

  6. What is happening here is a continuation of Chinese foreign policy: to acquire in any way possible increasingly scarce resources in the world which will then be extracted and used by China, and only by China. In my opinion, any elected official who works to further the interests of a foreign power at the expense of his own commits nothing less than an act of treason.

  7. Interesting link I have come across today:
    Quoted from the article:
    “Under the Canadian constitution, the federal government is incapable of unilaterally implementing international treaty obligations in areas that fall within provincial jurisdiction. Nor is it acceptable for the federal government to use its treaty-making powers to do an end run around the federal-provincial division of powers or in a way that diminishes Canadian federalism and democracy.

    Read more here;

  8. It makes sense now that Christy Clark was asking for more money out the pipeline venture – she knew she couldn’t stop it as this Federal Government is bent on signing this deal with China.
    If we have a deal, it should be debated and then altered to protect Canada’s rights.
    What has happened to democracy?

  9. Ah..someone (above) finally invokes the magic word “treason”…I’m not completely clear on the current/standing operational definition of treason but this certainly looks like the real thing!


  10. I am not constitutional expert but I don’t believe Harper can sign a deal that violates the constitution.

    Two weeks ago, I suggested in a posting somewhere else (Tyee) that this FIPA was part of the agreement for the province to step aside during the hearings on the pipeline and allow the feds to make all decisions regarding access to the coast.

    So all of Clark’s protestations and juvenile posturing regarding the pipeline and the business surrounding that debacle was a total ruse, as she reveals that she will go along with the FIPA and was willing to all along.

    We all know where this is going. It is meant to threaten into silence the opponents of the pipeline by implying British Columbians will suffer millions in damages by preventing the pipeline access.

    So damages paid without the pipeline and damages suffered with the pipeline…how big was that earthquake?

  11. In Washington D.C. they call this “fast-track treaty empowerment” – the President has hired-gun lawyers negotiate with foreign countries, then Congress rubber-stamps the “trade” accord without ever reading the document, typically leaving state governments legally tied and bound as foreign “business” interests are often granted exception regarding compliance with the laws and regulations ( as in “environmental”, “workplace”, etc. ) that home-grown businesses must obey.

    In Hollywood, they call it the “Manchurian Candidate”.

    A very sorry development for and betrayal of any democratic people or nation.

  12. We need to get out into the streets with a general strike protest to put a stop to this. It may be the shock doctrine “shock” of what is happening that prevents us from acting. I’ve written numerous letters to MPs, Premiers and the PM. I’ve tried to inform people I work with.
    However, even among well educated people I notice a stunning lack of awareness or concern.
    I guess it’s not really a surprise because even if one reads the so-called daily “news” papers and watches the nightly news, this issue of national importance has been routinely ignored. It’s surreal and heart-breaking . Maybe so many people are living their lives in virtual worlds that they don’t have a clue what’s going on in the real world.

  13. How is this legal, and why has this not been challenged in the Courts? Do we need a Class action suite or what? Do we impeach Christy Clark for seriously compromising the constitutional rights BC has under Section 92 of the Constitution Act (1982) ? AS you stated, Clark has stepped out of her elected mandate and given MY constitutional rights away without consulting me and MY permission.
    This is Fascism. You have taken away our Rights to have any say in OUR Country about things that will effect all of us (The Canadian People) and our children’s way of Life!
    Our Governments are running amuck. We must do something to stop all this, and we must start doing this quickly. Canada is going to become a Polluted third World before you know it. A lot of people don’t believe this, but I assure you, as the Government and Business chip away at all the safety and health regulations, and amending or just ignoring our Environmental, Conservation Laws and Constitutional rights, THIS WILL HAPPEN.

  14. Is this not a doubling down with the same effect as the legally binding Equivalency Agreement signed by the BC Liberals in 2010?

    That was a legal document, not a simple letter.

    I agree, that clearly these guys have no intention of upholding the rights of British Columbians. instead its all about abandoning them, just as this and the Equivalency Agreement and the the Environmental Assessment of the FIPA clearly prove.

    This government is completely finished.

  15. We saw what Iceland did, let’s do the same, tell China were not going to honor Harpers deal, and if they don’t like it sure Harper.

    And as far as courts go, fire any Supreme court Justice who won’t back Canada, by Canada I don’t mean Mr. Corporate Jackass Harper, I mean the citizens of this country.

    Let’s make a new retroactive law that allows future our future government to arrest politicians for treason if they act in a willful manner to cheat its citizens case in point this agreement.

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