rabble.ca Canadian federal election blog

NAFTA’s threat to health care: ‘we told you so’

By Steven Shrybman

NAFTA’s threat to health care has been exposed right in the middle of the federal election.

For some time we have been warning that Canada’s health care system is vulnerable to attack under NAFTA investment rules (Chapter 11 of the trade deal.) That risk increases with the extent to which private investment is allowed into the medicare system.

The “we” I am referring to is a group of unlikely bed-fellows.

First, there is Bryan Swartz who was a member of a NAFTA tribunal that found Canada liable for banning PCB exports to the U.S. even though importing PCBs was illegal in that country. Mr. Schwartz compares NAFTA to Canada’s constitution. Barry Appleton represented the company in that case, and several others who have brought claims against Canada. He claims that NAFTA rules are so inviting of private claims that a U.S. investor could sue Canada if it banned putting plutonium in breakfast cereal. (Don’t worry, that isn’t happening – yet.)

John Johnson was on Canada’s legal team when the first free trade deal was negotiated. He believes medicare is probably safe from NAFTA claims as long as we don’t try to expand it, say to establish a national pharmacare program. I think the risk of NAFTA claims is one of a number of very good reasons for not privatizing publicly-funded health care services.

Notwithstanding our differences, we all agree that NAFTA investment rules pose a serious risk for Canada’s health care system. You can find our respective legal opinions on the Canadian Health Coalition website and in the archives of the Romanow Commission.

The federal government has long dismissed these concerns, although it doesn’t dispute the fact that NAFTA opens the doors to such claims.

Seeing that the welcome mat was out, a U.S. investor is now suing Canada for $155 million because he says the governments, including municipalities, disrupted his plans to establish private hospital facilities in Canada. A spokesperson for Canada’s Department of Foreign Affairs and International Trade is reported as saying that the lawsuit would be vigorously defended. Let’s hope it does a better job than it has in the majority of other NAFTA cases that it has either lost or settled.

Getting to say “we told you so” is small consolation.

Its time for reform - not to the principles of medicare, but to those of trade liberalization. Investor rights have no more place in trade agreements than they do in the Constitution.

Let’s hope federal election candidates start talking about this important issue.

Steven Shrybman is a partner at Sack Goldblatt Mitchell practising trade and public interest law. He is also a member of the Council of Canadians’ board of directors.