Update on Bill C-30 and CETA Implementation in Canada

May 12, 2017

Late in the afternoon on Wednesday, May 10th, the proposed federal legislation to implement Canada’s rights and commitments under the Canada-EU Comprehensive Economic and Trade Agreement (CETA) — that is, Bill C-30 — passed swiftly through the clause-by-clause consideration conducted by the Senate Committee on Foreign Affairs and International Trade. No proposed amendments were raised by the Committee members during this process and there was no substantive debate on the provisions of the Bill. However, a number of comments and concerns were voiced by the Committee Chair, Senator Andreychuk, and others during the hearing. These comments and concerns had less to do with the substantive content of Bill C-30 (or the CETA) than with the Canadian Government’s own internal processes. There were strong calls for increased transparency, for example, including in the context of changes to Canada’s regulatory regimes to implement the CETA. The content of the hearing can be reviewed here: https://sencanada.ca/en/Committees/aefa/MeetingSchedule/42-1?mode=PAST.

In its report to the Senate, the Committee has appended nine paragraphs setting forth “certain observations”. These observations serve to identify, in politically neutral language, criticisms and concerns with respect to the Canadian Government’s processes relating to the negotiation and implementation of the CETA in particular and of Canada’s free trade agreements (FTAs) more generally.

For example, paragraph 1 calls for the development of a publicly accessible CETA implementation strategy, and paragraph 2 plainly states that transparency regarding the government’s trade policy “needs to be enhanced”, e.g., through “[m]ore inclusive and extensive consultations before, during and after negotiations”; paragraph 3 calls for transparent consultations with stakeholders affected by the regulatory changes required to implement an agreement, as well as the pre-publication of such changes in the Canada Gazette for public review; paragraph 4 criticizes the Canadian government’s use of non-disclosure agreements in exclusive consultations with limited stakeholders, particularly in relation to the implementation of provisions affecting intellectual property rights; paragraph 7 recommends that the Government of Canada should take appropriate action to ensure that Canadian firms are not placed at a disadvantage as a result of CETA implementation; and paragraph 8 recommends that the Government of Canada should implement an automatic reinstitution of visa requirements for citizens of Bulgaria and Romania in the event that the number of violations of Canada’s immigration rules by individuals from these countries exceeds a specified threshold. The Report of the Senate Committee can be found online here: https://sencanada.ca/en/committees/report/40506/42-1.

The following day, Thursday, May 11th, the Senate wasted no time in completing the Third Reading of Bill C-30, passing the Bill with no amendments. It is expected that Bill C-30 will be granted Royal Assent by early next week.

Following Royal Assent, the Government of Canada will proceed immediately with the process of modifying Canada’s regulatory regimes to implement the CETA at the federal level. This will involve both the creation of new regulations and the amendment of existing regulations. While it is expected that most regulatory changes will be pre-published in Part I of the Canada Gazette for a short period of public review, some changes could be published as law in Part II of the Canada Gazette with no opportunity for review or comment by affected stakeholders. In order to expedite the regulatory process, the Government of Canada may pre-publish the proposed regulatory changes early next week in an “extra edition” of Part I of the Canada Gazette rather than in the regular issue on Saturday, May 20th.

Once the foregoing steps have been completed, Canada will be in a position to exchange notices with the European Union under CETA Article 30.7 (Final provisions – Entry into force and provisional application). As the European Union will be entering into provisional application of the CETA pending the implementation required in each of its Member States, it is reasonable to expect that Canada will follow the same approach, considering the implementation that will be required in each of the ten provinces and three territories. In this respect, sub-paragraph 30.7(3)(a) provides that the “Parties may provisionally apply this Agreement from the first day of the month following the date on which the Parties have notified each other that their respective internal requirements and procedures necessary for the provisional application of this Agreement have been completed or on such other date as the Parties may agree” (underline emphasis added).

While it might be technically possible for provisional application of the CETA to commence as early as June, a start date of July 1st seems more reasonable, providing a more practicable lead time for completion of the necessary prerequisite steps.

Tereposky & DeRose is closely monitoring all aspects of CETA implementation.  Please feel free to contact us if you have any questions relating to the matters raised in this article or the CETA more generally.


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