Untitled Document
They were present at the creation. And they feel betrayed.
Derek Burney, Pat Carney, Allan Gotlieb, Simon Reisman and Gordon Ritchie were
key members of the negotiating team that forged the 1988 free-trade agreement
between Canada and the United States.
Last week, the U.S. government reneged on that agreement, and its successor,
the 1993 North American free-trade agreement, by declaring that it would simply
ignore the unanimous ruling of the ultimate free trade tribunal -- a ruling
that said the Americans had no right to impose tariffs on the import of Canadian
softwood lumber.
The Americans' refusal to respect the tribunal's decision represents "an
egregious, shocking, dishonourable breach of their obligations," says Mr.
Ritchie, who was deputy chief negotiator during the original negotiations.
"It's the tactic of the schoolyard bully," declares Derek Burney, who
was chief of staff to then-prime minister Brian Mulroney, and a key player in
the talks, "which was exactly what we were trying to prevent when we negotiated
the free-trade agreement . . . it's beyond the pale."
Those who were most responsible for establishing the rules that the Americans
are now flouting have chosen to ignore the pleas of David Wilkins, American
ambassador to Canada, who has warned Canadians of the "responsibility of
keeping the rhetoric down."
"I always said they were jackboot negotiators," protests Senator
Pat Carney, who was trade minister at the time. She believes the cause of free
trade has suffered a major failure. "We will have to see now whether it
unravels totally after this."
Mr. Gotlieb, who was Canada's ambassador to the United States during the talks,
also believes that the very foundations of the North American free-trade agreement
have been undermined.
"It is profound," he argues. "There is a risk that you're putting
NAFTA at risk."
If both sides agree to a dispute resolution process, and then one side flouts
the rulings that come out of the process, Mr. Gotlieb argues, "then it
goes to the very heart of the Grand Bargain."
He notes that the Americans insist they are not in violation, although all
of those interviewed found the reasoning of Rob Portman, the U.S. trade representative,
ludicrous and incomprehensible.
Language this strong usually comes from opponents of the FTA, NAFTA and the
globalization movement. That the very architects of free trade between Canada
and the United States should be speaking in such terms is, frankly, shocking.
Even more shocking is that, to a man and woman, they believe Canada should
impose retaliatory tariffs, or other restrictive measures, unless the Americans
are prepared to negotiate a new softwood lumber agreement that accommodates
Canadian, and not just U.S., concerns, even though such a move could lead to
a trade war between the two countries.
"I would sit them down and I would say to them, 'All right. Enough of
this. You are out of line, and you know that you are out of line,' " says
Mr. Reisman, who was chief negotiator of the original free trade pact.
"Set a deadline. And if they cannot meet that deadline, and if they persist
in this, then there might be no choice but to act in retaliation."
"We should certainly load the gun on retaliation, in my view," Mr.
Burney agrees. "We should take a look at California wine, we should take
a look at Florida orange juice. We've got to get their attention down there."
There is a palpable sense of personal injury in their comments, which may come
from the political irony that lies behind the American rebuke.
In 1987, the free-trade negotiations between Canada and the United States almost
collapsed because the Americans refused to accept a binding dispute resolution
mechanism, while Canada insisted on one. At almost literally the last possible
moment, the Americans accepted the Canadian demand, on the condition that an
Extraordinary Challenge Committee, as they called it, be able to review the
decisions of all lower panels.
Although the Canadian negotiating team was very reluctant to accept yet another
layer of appeal for trade disputes, they finally acquiesced.
It was to that Extraordinary Challenge Committee that the Americans appealed
last year, when all other rulings on softwood imports went against them. It
was that same committee that ruled last week in Canada's favour. That the Americans
would repudiate the verdict of the very tribunal that they insisted must be
part of the FTA infuriates those who negotiated the pact. It leaves Mr. Burney
"mad as hell."
At this point, there are no good options. Canada has appealed to the World
Trade Organization, which will almost certainly rule in Canada's favour, allowing
this country to impose counter-measures to collect the $5-billion in tariffs
that the Americans have illegally confiscated.
That ruling won't come until next year, however. And imposing tariffs on wine,
orange juice and other American imports, to recoup the $5-billion, would only
hurt Canadian consumers.
After all, outside the softwood lumber dispute and a few smaller trade irritants,
"the agreement is working," Mr. Reisman observes, "and it is
a great advantage for Canada."
Conversely, slapping export tariffs on Canadian oil and gas exports to the
United States, as some have proposed, would harm that sector of the Canadian
economy and enrage the Alberta government.
"Others would say: 'What the hell are you doing screwing with our trade
because you have a problem in another sector?' " Mr. Reisman points out.
Nonetheless, he believes Canada may have no choice. Otherwise, Congress will
continue to bow to pressure from the American lumber industry.
"There is a strong case to be made that when you're dealing with a bully,
and the bully punches you, you should punch him back," Mr. Ritchie maintains,
echoing Mr. Burney. "You're doing something stupid to keep somebody else
from doing something stupid."
Mr. Ritchie is both advising and representing the Canadian government in the
negotiations.
Ms. Carney believes that Ottawa should order a freeze on all American investments
in Canadian energy companies, claiming it is in the interest of national security.
The Americans, she says, know full well that "when you talk about security,
you are really talking protectionism."
The Bush administration has urged the Canadian government to return to the
table in search of a negotiated settlement. Such a settlement would probably
involve Canada accepting some sort of quota on its softwood exports, with tariffs
on all sales above that quota, in exchange for which the Americans might give
back some (though probably not all) of the illegally collected tariffs. For
now, however, Canada refuses to negotiate: International Trade Minister Jim
Peterson has cancelled talks scheduled for next week.
While all of the members of the original free trade team agree that a negotiated
settlement is probably inevitable, they warn that the Canadian government must
impose a deadline on negotiations, and make it absolutely clear that if those
negotiations fail, this country will retaliate.
"Retaliation is a good thing, sometimes," Mr. Gotlieb argues. "It's
a necessary tool."
"You can't simply stand down and let them behave in this cavalier manner,"
Mr. Burney insists. "You've got to stand up to the Americans at some point."
And these are the Canadians who consider themselves among America's closest
friends.
'BETRAYED' OVER FREE TRADE
THEN: I am sure many of you have dreamed of turning a small
business into a chain or franchise operation. Free trade means such a dream
can be taken anywhere on the continent.' Senator Pat Carney: April, 1988
NOW: I always said they were jackboot negotiators. We will
have to see now whether it unravels totally after this.'
THEN: If you can't respond to our demands, we've reached the
final impasse. The U.S. administration is going to have to take a risk for Canada,
with Congress.' Derek Burney: October, 1987
NOW: It's the tactic of the schoolyard bully, which was exactly
what we were trying to prevent when we negotiated the free-trade agreement...
it's beyond the pale.'
THEN: If the trade agreement does not go through, sooner or
later, the forces of U.S. protectionism, which we caught napping this time,
will be gunning for us.' Gordon Ritchie: October, 1988
NOW: There is a strong case to be made that when you're dealing
with a bully, and the bully punches you, you should punch him back.'