Premier Brad Wall to sign TILMA/WEPA by year’s end; Opposition Saskatchewan Party called for public and stakeholder consultations in March 2007

BC Premier Gordon Campbell with Alberta Premier Ed Stelmach
and Saskatchewan Premier Brad Wall at joint cabinet meeting in Calgary on September 11, 2009

Some time between now and January 1, 2010, Premier Brad Wall will sign the BC-Alberta Trade, Investment, and Labour Mobility Agreement (TILMA) – but not in its present form. It will instead be called the Western Economic Partnership Agreement.

In Calgary, on September 11, 2009, the governments of Alberta, British Columbia, and Saskatchewan held their second joint cabinet meeting to continue discussions on a new pact.

A provincial government news release said the premiers signed a Western Economic Partnership. The partnership will create a broad western interprovincial trade agreement to create the largest barrier-free trade and investment market in Canada.

“I am pleased that we are one step closer to completing the Western Economic Partnership that we committed to at our last meeting,” said Premier Wall. “This partnership will break down unnecessary trade barriers and facilitate cooperation on international marketing, innovation and procurement.”

It was at the inaugural meeting on March 13, 2009, in Vancouver, that the three governments agreed to enter into an economic partnership.

In an interview with StarPhoenix reporter James Wood, the premier admitted the new agreement is similar to the controversial TILMA but said it will address the potential impact on Crown corporation subsidiaries and municipal tax incentives that caused the Saskatchewan Party to shy away from TILMA in the first place.

“We have concerns from before the election that remain consistent with us and I think they will be accommodated,” said Wall.

“We are going to have a trade agreement to take care of some of the barriers to growth . . . and also to make sure we’re achieving certain things like an interprovincial business registry. In other words, if you are registered to do business in Saskatoon, you can do business in Calgary without registering.” [Sask. inks deal with Alta., B.C. (StarPhoenix, September 12, 2009)]

Wall failed to name the barriers he’s concerned about or acknowledge that sweeping and intrusive trade agreements like TILMA or WEPA aren’t needed in order to address things like business registration.

The StarPhoenix neglected to remind readers that Wall once supported TILMA without reservation. On May 1, 2006, shortly after BC and Alberta signed the trade agreement, the opposition Saskatchewan Party issued a news release in which leader Brad Wall demanded the NDP government join immediately.

Wall wanted Premier Lorne Calvert to sign TILMA under the same circumstances BC and Alberta did – behind closed doors with no public or legislative debate. The latest agreement appears to be headed down the same road.

Wall’s flip-flop on TILMA first became apparent in a March 19, 2007, letter to Saskatoon city clerk Janice Mann thanking her for forwarding him a copy of city solicitor Theresa Dust’s February 2007 report outlining the trade agreement’s potential impact on municipalities.

“The Saskatchewan Party supports TILMA in principle because it is consistent with the growth agenda that we have called for. That being said, a Saskatchewan Party government would not sign on to the agreement unless certain it was in the best interests of Saskatchewan people. It would be in the best interest of the Saskatchewan people if it removed barriers to growth without negatively impacting on the public ownership of the major Crowns, environmental standards in the province and well-being of workers,” Wall said.

By June 28, 2007, the references to environmental standards and worker safety were removed and replaced with concerns over TILMA’s impact on provincial and municipal new growth tax incentives. Protecting Crown corporations remained.

Wall said in a news release that the Saskatchewan Party “would not sign TILMA in its present form.”

“Our goal would be to negotiate trade agreements with BC, Alberta and other provinces that reduce trade barriers while protecting these three important areas,” Wall said.

Ken Krawetz, the Saskatchewan Party’s then labour critic and deputy leader, made the same comments a week earlier in a letter to the Leader-Post attacking Saskatchewan Federation of Labour president Larry Hubich for criticizing TILMA (Western trade deal worries unions, Leader-Post, February 23, 2007).

Krawetz also added this forgotten gem: “Given the impact of TILMA across the province, we also believe the provincial government has an obligation to consult with stakeholders and the public prior to accepting or rejecting Saskatchewan’s participation in TILMA.” [TILMA contains no threat to labour (Leader-Post, March 10, 2007)]

Hypocritical as ever the Saskatchewan Party government appears to have no intention whatsoever of consulting with all stakeholders or the public before it signs the new partnership agreement.

The Western Economic Partnership will encompass four areas:

1. internal trade;
2. international marketing;
3. innovation; and,
4. procurement.

On the surface the agreement appears to be TILMA and then some. It’s right there in the first paragraph under internal trade: “Building on the agreement already in place between British Columbia and Alberta, the Western Economic Partnership will include a comprehensive western interprovincial trade agreement (Agreement) to remove barriers to trade, investment and labour mobility between the three western provinces.”

The opening paragraph and six bulleted points that immediately follow describing the agreement’s purpose have been lifted almost word for word from Part I of TILMA’s operating principles.

Saskatchewan is not a signatory to TILMA, and yet its obvious Wall agreed to let it be the foundation, the starting point of discussions. With negotiations ‘building on’ TILMA the end result could be an agreement that’s equal to or more far reaching, one that might include things BC and Alberta couldn’t or didn’t think to include in the original agreement. It’s hard to imagine these two provinces wanting something less than TILMA. It stands to reason they would want something that’s at least on par with or greater than what they already have.

And like TILMA, the new agreement will apply to “all public sector entities” and “all economic sectors.”

This likely means every government department, ministry, board, council, committee, Crown corporation, regional, local, district or other forms of municipal government, school boards, publicly-funded academic, health and social service entities and non-governmental bodies that exercise authority delegated by law will be subject to the new agreement.

TILMA includes a list of measures relating to water, Aboriginal people, taxation, royalties, health and social services, social policy and labour standards that are excluded from the agreement. However, all exceptions to the agreement are subject to an annual review by a Ministerial Committee (Article 17). This committee will to look at how these exceptions can be reduced and covered by the general rules and special provisions of the agreement. In other words nothing is completely safe.

The Western Economic Partnership signed by the three premiers is silent on exemptions. The document also raises a few early questions.

A purpose of the agreement “will be to… promote development that is sustainable and environmentally sound, high levels of consumer protection, and health and labour standards.”

What is considered high level? Will the lowest standard of the three provinces become the new benchmark? The agreement is designed to “remove” barriers. What happens when health and labour standards are identified as barriers? Many business lobby groups and industry associations see things like workers compensation, EI benefits, social assistance benefits, labour laws, minimum wages, and OH & S regulations as impediments to economic growth.

The partnership document states: “The Agreement will provide a level playing field for workers and businesses across the region.”

This appears to be Article 4 of TILMA’s non-discrimination policy which states each party “shall accord to: like, directly competitive or substitutable goods; persons; services; and investors or investments of the other Party treatment no less favourable than the best treatment it accords, in like circumstances, to its own or those of any non-Party.”

The partnership document states: “The Agreement will remove unnecessary barriers, reduce costs and improve the competitiveness of businesses operating across the region, which will benefit consumers.”

What constitutes an unnecessary barrier and who gets to make that determination?

The partnership document states: “The Agreement will address the differences in government measures that are creating unnecessary barriers to trade. The Agreement will ensure that, going forward, the three provinces work together when developing new measures so that they do not create impediments to trade within the region.”

This appears to be Article 5 of TILMA relating to the harmonization of standards and regulations.

Under TILMA a ‘measure’ means any legislation, regulation, standard, directive, requirement, guideline, program, policy, administrative practice or other procedure.

How will differences be addressed? Will it be by eliminating certain ‘measures’ altogether or by adopting the highest or, more likely, the lowest standard?

With regard to environmental and consumer protection, worker and public safety, health and labour standards the partnership document states: “The Parties recognize the importance of such measures and the Agreement will provide for the ability of each Party to maintain and enact legislation and regulations in these areas.”

This appears to be Article 6 of TILMA relating to legitimate objectives.

Legitimate objectives are defined by TILMA to include such matters as the protection of the environment; protection of the health, safety and well-being of workers; and the provision of social services and health services.

Under TILMA a party may adopt or maintain a measure that does not fully follow the agreement provided that it can demonstrate that: “the purpose of the measure is to achieve a legitimate objective; the measure is not more restrictive to trade, investment or labour mobility than necessary to achieve that legitimate objective; and the measure is not a disguised restriction to trade, investment or labour mobility.”

In other words the onus is on the party to go through the grueling task of trying to prove that its measure satisfies all three requirements of Article 6. How hard will the Wall government fight for tougher, better standards and regulations?

The only concession to Saskatchewan is in the very last sentence under internal trade: “The Parties further agree that negotiations will recognize the particular needs of Saskatchewan.”

What those needs are isn’t stated. The parties can negotiate all they want but there is nothing in the partnership document guaranteeing that Saskatchewan’s needs will be in the final agreement.

What the public requires right now is to see a copy of the most recent draft of the final agreement. Also needed are public and stakeholder consultations before it gets signed. This is what the Saskatchewan Party demanded of the NDP government in March 2007. No less should be expected today.

It should be noted there are two versions of TILMA available: the original that was signed April 28, 2006, and the consolidated one released in April 2009 that includes the original agreement as modified by subsequent amendments.