A pitiful defence

Murray Dobbin tears into the B.C. provincial government's weak attempt to pretend that the TILMA won't have a massive effect on government action:

In his interview with (B.C. Minister for Economic Development Colin) Hansen, Michael Smyth raised the point that TILMA does not allow governments to violate the agreement just because they have good intentions -- like protecting the environment. The agreement says whatever governments do to pursue their objectives cannot be too restrictive to business...

Perhaps flustered by getting the first challenging question from a journalist he has had on TILMA, Hansen responded to Smyth by implying B.C. and Alberta could sort of stack the jury if they get a TILMA complaint they do not like.

He claimed that all B.C. and Alberta ever intended with TILMA was to make sure companies from both provinces got treated the same -- given a "level playing field." If someone tried to use TILMA to attack regulations that were "non-discriminatory," then B.C. and Alberta could choose panellists for the case who would rule against this kind of complaint.

Said Hansen: "We are going to make sure that those panellists actually understand the objectives of this agreement."

But defending governments only get to pick one of the members of a TILMA panel.

Private complainants also get to pick a panel member, and their choice is likely to be whoever on the list of potential panellists would be most sympathetic to their case.

In addition, governments are not permitted under these agreements to coach panellists about the outcomes they want.

If B.C. and Alberta intended only that TILMA prevent governments from favouring local companies, they should have said so in the agreement. Instead they have made legally binding commitments under TILMA not to maintain programs and regulations that restrict any investment, not to establish new regulations that do this, and not to do a whole raft of other things even when they are treating local and out-of-province companies exactly the same. So they are counting on dispute panels to ignore the actual words and meaning of the agreement when making their decisions.

It's truly remarkable that even before the TILMA takes effect, its defenders have been reduced to yet another attempt to pretend either that its text consists of everything other than what it actually says, or that the provinces are free to make up wink-wink-nudge-nudge side deals which will supersede the readily foreseeable problems with the agreement. And that complete disconnect between rhetoric and reality should serve as a stark warning to any other province considering whether to sign onto the agreement - or for that matter whether to take B.C.'s and Alberta's provincial governments seriously on any other issue.