It was with great interest that I heard about a new "case" against the Government of Canada under the NAFTA, concerning the provision of health care services. Granted, I had learned of the matter through a very small handful of press articles; NGO warnings; and personal messages from individuals asking for information from me about it. I have learned to be skeptical of such news, given that Canada has already had highly dubious "cases" filed against it under the NAFTA that never went anywhere (at least three of which I am aware). That is the down side of a general policy of publishing all "notices of intent" received, however without merit and/or frivolous they might be. In this particular case, there was still no "notice of intent" posted by the government; just the rumours. I immediately inquired as to the existence of such a document with a friend in the appropriate Canadian department, and a couple of weeks later this friend's colleagues had dutifully posted it online.
Sadly, the document, which is available at naftaclaims.com, is really not worth anybody's time. It is written by someone who apparently does not have the benefit of experienced counsel (or any counsel, for that matter). It is very short and it does not appear to allege any sort of valid claim. The verb "expropriated" appears but no corresponding reference to NAFTA Article 1110 accompanies it. Neither do any allegations of fact appear, upon which an indirect, de facto expropriation could be based. There are some stray allegations that seem to suggest that the author believes that certain actions of community activists opposed to the prospect of his planned business venture may have somehow attracted State Responsibility, but there is no rational explanation of how that might be so (which, to be clear, may be possible in a given case ... it's just that there is no hint of how the actions of community activists would be relevant in these circumstances).
Worse, the would-be claimant appears to be basing his primary case on the existence of alleged inconsistencies between provincial regimes concerning the delivery of healthcare services. Under Canada's constitution, the provision of healthcare falls primarily under provincial government jurisdiction. The federal government has asserted a role for itself through the power of the federal purse (using concomitant transfers of wealth from the richest provinces to the less wealthy in order to - theoretically - maintain a uniform, nation-wide system of socialised medicine). Federal legislation accordingly exists to facilitate the transfer of funds to provincial governments (using the national tax base), as well as the imposition of largely symbolic universal 'standards' that must be observed by each provincial government in order to qualify for funding offered (which also purports to apply to the provinces whose citizens are actually underwriting the services provided to their confreres in less wealthy provinces). Legislation and regulation at the provincial level - however- is where one finds the true loci of power, at least in terms of maintaining 'Canada's system' of socialised medicine.
The crux of the would-be claimant's would-be case appears to be that he believes better treatment is being provided to other medical service providers by other provinces (namely: Quebec and Alberta). He seeks to receive no less favourable treatment from the Government of British Columbia. Even if it were true that valid comparators existed and that better treatment was demonstrably on offer to them in these other provinces, a simple reading of NAFTA Articles 1102 through 1104 makes it crystal clear that one cannot seek better treatment under these obligations in one jurisdiction (BC) by alleging that it is being offered in another (Quebec). The basis of comparison is at the level of jurisdictional responsibility; if the measure at issue is a provincial or state measure, the comparators must be found within the same province or state. Only if the measure at issue is imposed at the federal level (or, for the sake of argument, by a group of lower-level governments attempting to impose national or quasi-national regime of their own accord, i.e. without federal government sanction or participation) could the investor seek to receive the most favourable treatment being provided nationally.
It thus appears manifest that the fellow who filed the document that caused all of this fuss, one Mr. Howard, does not have a valid claim to make. Given that there is no evidence, at least in the notice of intent, that he has consulted a qualified lawyer about the matter, it may well be that Mr. Howard has come to his own conclusion that he has been treated unfairly and expects to receive a tidy settlement from a frightened government (federal or provincial) in exchange for leaving them be. People are entitled to mislead themselves in whatever way they see fit. My concern is with the headlines that the actions of such folk generate. Canadians display a unique attachment to their 'system' (or more accurately, their systems) of socialised medicine. Indeed, it is almost regularly demonstrated in polls that Canadians see 'Medicare' as the most important part of our national identity (perhaps because we have always tended to define ourselves and our collective identity negatively, primarily by looking to our neighbours to the south and proclaiming how we are not 'like them'). Accordingly, opponents of the NAFTA have long attempted to scare the populace into the belief that Canada's entry into trade and investment treaties threatens our ability to provide ourselves with socialised medicine (i.e. that participating in international economic agreements threatens, on a powerfully symbolic level, our very existence as a people).
In other words, for those inclined to see the sky as falling; for the reporter seeking good placement for her story in the local newscast or broadsheet; and for those with vested interests in the status quo to protect, even the most frivolous of threatened treaty claims is to be devoured as manna from the heavens. That there is no merit in the allegations and that there will never be an arbitration is of no deterrence (see, e.g., the countless times that the so-called "Sunbelt v. Canada NAFTA case" has been cited over the years by anti-globalisation and 'fair trade' polemicists as a cause celebre).
As someone who favours much-needed reforms to provincial health care regimes (that maintain a single-payer insurance scheme but welcome much more private investment in the business of providing medical services), and as someone who knows a thing or two about the NAFTA, it can be quite frustrating to see headlines such as the ones linked below:
Protection of Canada's not-for-profit health care is a critical part of supporting families says CUPE
NAFTA-based suit threatens Canada's medicare
U.S. Investor Threatens First Ever Health Care Suit
Canada faces a potential lawsuit as a US investor complains of expropriation of investments in health-care facilities
Such stories don't just provide some modicum of credibility for manifestly incredulous legal claims; they reinforce commonly-held beliefs about the sacred quality of a method of socialised medicine that verge upon some sort of political existentialism. It would be okay if these provincial health care systems were serving us well, rather than being on the verge of collapse given their unsustainable use by a population of ageing 'boomers' (who have utterly failed to embrace healthy living, preferring to count upon the availability of top-quality urgent care to treat chronic conditions ignored until they have reached the crisis stage). But in a country with an oddly fragile political psyche that has perversely come to be based upon access to socialised medicine (given just how much we Canadians have to be proud about ourselves and our country, and the fact that the provision of universal health care is hardly novel among OECD countries), the willingness of NGOs and members of the media to treat any alleged "NAFTA claim" as being valid on its face is simply not productive.
PS - Just to be clear, I make no statement about the quality, accuracy or motivations behind the aforementioned stories linked above. Interested and well-informed readers can judge for themselves. These were were merely the links available at my fingertips, provided in order to illustrate the more general point.
