The Canada-China Investment Protection & Promotion Treaty (FIPPA China), along with changes the Harper Conservatives made to the Temporary Foreign Worker Program earlier this year, may be setting the stage for a migration of Chinese workers into Canada.
An Article within FIPPA China limits the ability of Canadian governments–at any level–to change regulations concerning the importation of Chinese nationals working for Chinese state-owned enterprises (SOEs).
"The treaty will constrain the ability of any government in Canada to take a wide range of decisions, including on economic and employment issues," Gus Van Hartan, Osgoode Hall law professor, expert on FIPPA China and outspoken critic of the trade deal, said.
"Article 7(3) would provide a basis for challenges to government decisions in this respect. So too would Articles 4, 5, and 6, although at a more general level than Article 7(3), which focuses on temporary entry of workers."
Article 7(3), along with other provisions of FIPPA China, states that subject to Canadian laws, regulations and policies relating to entry of non-citizens at the time the agreement is signed, Canada shall permit workers employed by any enterprise that is a covered investment. Further, it states that workers may remain temporarily in a capacity that is managerial, executive or that requires specialized knowledge.
Earlier this year, and despite reports of widespread abuse, the Harper Conservatives deregulated the Temporary Foreign Worker Program (TFWP), which outraged labour and advocacy groups. Two interconnected, back-to-back and behind-closed-door policy decisions were made–deregulating the TFWP and entirely eliminating the Fair Wages Act, which Conservatives said, in both cases, were to get rid of "unnecessary red tape" for Canada’s business community.
"It would require further study to determine whether the employment picture for Canadians will be worsened. However, if the employment picture does worsen, due to federal approvals of temporary Chinese workers who compete with and undercut Canadian workers in any sector, then the treaty will make it difficult for any government other than the federal government, and (depending on the circumstances) possibly the federal government, to change the approvals or other decisions that worsened the employment picture," Van Hartan said.
"A federal review of past approvals, or any provincial or municipal or First Nations decision, that led to a change in the approvals which affected a Chinese-owned company could give rise to an actionable claim by the company for taxpayer compensation. The claim would proceed outside of the Canadian legal system and Canadian courts, and--although it would depend on the circumstances and the decisions of the arbitrators–the claim would carry a reasonable prospect of success based especially on Articles 4, 5, and 6."
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Experts also say that in its growing direct investments in African, South American and Asian resource assets, China relies on an "unemployment export" of blue-collar workers to mitigate internal social tension. Because of a double agenda of access to resources plus Chinese blue-collar workers employment overseas, Chinese SOEs are willing to pay hefty premiums on resource corporations by out-bidding competitors.
Juan Pablo Cardenal, author and investigative journalist based out of Beijing, explains there are two main factors in force that drives China’s foreign investment policy.
"The central government has two drivers–assuring the supply of resources and because China needs to grow (GDP per year) by 8 per cent to grow employment, it’s a domestic decision. We need to employ all those people. They want to go to the source (for raw resources). They don’t want their supply of natural resources disrupted," Cardenal said.
He also says China usually prefers doing business with nations where there are lax or non-existent regulations and laws and cited the Congo as an example. He says he is surprised by recent developments in western countries.
"The law, if there is a law, the decision to allow or not, is always in the hands of the receiving country. The Chinese, they are only interested in how much money they make. The reason they succeed is nobody has the money the Chinese have and they’re going to put in their own conditions," Cardenal said.
"It’s a complete necessity. They use the cultural barrier... And on the other hand, there is a culture of how they work. They know that their labour force is disciplined, that labour force works hard and they’re not going to cause any problems... so those workers won’t be part of labour unions. It’s not uncommon to see it in the developing world. They are happy to go around the laws. What is surprising is countries like Canada and countries like Greenland. China has asked very clearly that you have to allow us to bring in our own labour."
On the Canadian front, the planned use of workers from China at a northern B.C. coal mine sparked a court fight and demands to have the BC government step in to shut down the Murray River mine operation near Tumbler Ridge. Indeed, the B.C. issues that arose last month have fueled flames of controversy, with dueling versions of events and denouncements of Canada’s "broken" immigration system. The dispute also called into question why the Harper Conservatives are siding with the company facing court action, doing a second review when one preceded the Haprer Conservatives deregulation of the TFWP, and why two Conservative ministers’ statements over the issues were conflicted.
The issuing of TFW permits first became a major concern among B.C. labour groups since the United Steelworkers Union found advertisements placed by HD Mining Ltd. preferring those applicants who have knowledge of the Mandarin language. Despite claims by laobur that Canadians applied for the positions, 201 TFW permits were granted for what labour groups say is to be the first of several thousand positions for the company’s Murray River project. It was later reported the ads in which Mandarin was preferred were placed by "mistake."
Meanwhile, opposition to FIPPA China continues to mount as critics hammer the Harper Conservatives in an effort to delay the agreement's ratification. The federal government was in a position to ratify the agreement November 1 through an order-in-council, but it has yet to do so.
For additional information see TFWP Backgrounder