Thursday, June 27, 2019

My Log 742 June 27 2019: Chronicles from my Tenth Decade: 177; Fabled walled city of Dubrovnik caught by infamous mechanism designed to stitch-up deals in favour of investors; caught, like Canada before them, and sued for millions, suckers for the wealthy, just like us

In recent years I have spent quite a bit of time in the fabled walled city of Dubrovnik, on the Adriatic coast of Croatia, a small city of 50,000 or so people, of which something like 500 live inside its medieval walls, and a city that is already choked with tourists every summer.
Perhaps I became too familiar with the city, because I used to tell my resident friends, more as a joke than a criticism, that it is a city of military fortifications and churches, neither of which interests me. So litle do they interest me that I never set foot inside any of the churches through which squads of tourists were marshalled every day, a press of people so intense that they were rationed to half an hour at a time, My question always was: this is a holiday?
Of course that the whole stone site --- construction, buildings, churches, walls and all---  was built in medieval times makes it a very impressive example of human ingenuity and taste, which I suppose is why tourists flock to see it from China, Japan, Korea, and every other known country.  (The Japanese tourists, I can report on the basis of months of observation,  are the most polite and most elegantly and tastefully  dressed, the Chinese more rowdy and exuberant, and the Koreans seem to come somewhere between the two, as Korea does on the map.) 
My especial friend, the one I was visiting, is an Englishwoman, Sheila van Bloemen, (raised in Montreal) who went to live in Dubrovnik in 1973, and, now 90 years of age,  is still living in the same house, overlooking the walls, and above the city’s small harbour. The story of how she came to be there is a saga in itself, and one that I told in a small booklet I wrote while visiting her, but it will have to await a later Chronicle.
Still, of immediate interest is that Dubrovnik, which lies on a piece of flat land at sea level, beneath a towering hill, known to everyone as Srd (pronounced “Surge” to my untrained ear),  is threatened with a development,  against which the residents  have been fighting a rearguard action for 14 years.
Initiated by some international  investors, this development is proposed to occupy a 359-acre piece of flat land just on the other side of Srd, that will have two golf courses, and a gated community of 240 residences, plus 400 apartments, constituting altogether a huge playground for the rich that, the residents discovered in 2010, will be equal in size to the entire city of Dubrovnik, and 20 times bigger than the fabled walled section.
The residents are only too conscious of the fact that the old city’s infrastructure is falling apart, and are outraged that the investors expect the city to finance the entire infrastructure for this vast new project.
Golf courses, especially in this relatively barren landscape, require huge amounts of water, and this project will require three times as much water as Dubrovnik currently needs during the tourist season, when its resources are already over-charged. “This is completely crazy, and unacceptable for us,” says Duro Capor, a resident spokesperson, in a very persuasive video they have put together, of which I recently received a copy, from my friend’s son, Marc van Bloemen, who operates one of the highest-rated small tourist establishments in the old town.
The residents have done everything they could to bring the project to a halt, even organizing a referendum, which voted 85 per cent against the project. Meanwhile, every organ of government at every level, local to national, was supporting the project, having already issued the necessary permits to the investors.  They don’t say so in the video, but this no doubt raises some issues around the subject of corruption, which appears to be endemic throughout what was once Yugoslavia. “So we had to go to the court, to show that this project was bad for Dubrovnik, bad for the environment, and illegal,” says Capor, in the video. “We fought them for two and a half years in the courts, where we in fact won, and had two court judgments in our favour, so they issued judgments killing the permits for the project.”
But, as so often happens in this modern world, the rich and powerful are always organized to snatch victory from the jaws of defeat  (and, as we shall see from the rest of this story no one knows this better than Canadians). “The investors found a legal backdoor”, says Pia Eberhardt, another resident, “and this backdoor is called ISDS”, something that she says “is found in many trade and investment agreements, and with the help of a letter-box company in the Netherlands, the investors are now suing Croatia, claiming $500 million dollars in compensation.
This ISDS is presented in the video as if it is a sinister, half-hidden entity that suddenly springs up to bite them, but in fact it is well-known to Canadians, for the acronym stands for Investor-State Dispute Settlement, and it is one of the most cunning stich-ups created by the world’s wealth-owners to ensure that even when they lose, they win. In fact ISDS first gained international acceptance when Brian Mulroney and his team of so-called negotiators agreed to its inclusion when the original NAFTA was negotiated in the 1980s.  That any government could agree to a clause under which a company could sue a government for prospective losses caused by some government action was one thing about that agreement that particularly left me speechless. That  was the nadir of the Reagan-Thatcher propaganda argument that the governments they headed were the real problem. For me, on the contrary, governments have always seemed like the essential instrument needed if wealth redistribution is ever undertaken. Naturally the wealth-owners of international investment were quick to take advantage of this berserk provision of law.
“As a teacher I try to teach kids about values, about how to be active citizens and to respect the law,” says Capor, “and I cannot understand how something like this can exist, despite all our efforts, despite all our court decisions, and wins, despite the referendum and will of the citizens, now three foreign arbiters will decide, and we will not have a say about what is happening in our future”.
Ms.  Eberhardt says, “ this is just one of 1,000 ISDS cases around the world that we know of, and in many cases corporations use ISDS decisions to bypass decisions by domestic courts and undermine democratic political processes, like in Dubrovnik where people rejected a project, because it would have been in the interests of a tiny elite.”
“As soon as the arbitration claim was submitted, the State issued new permits to the investors which were identical to the permits that had previously been cancelled. And as if this wasn't enough, the investor sued the citizens group, which called itself “Sjd is Ours”,  to prevent our critique of this process, which we called racketeering, and they want an amount that is capable of shutting down our environmental organization.”
Another spokesperson said she thought the arbitration process came because “we were too powerful for them, and they couldn’t imagine any other way to destroy us.”
They conclude by saying, in chorus:: “This has been a 14-year long struggle, but what we want to say is we will never give up. Because what we want to say is “Srd is ours.”
The video ends with a title that says simply,
Time to close the backdoor for corporations. Join the movement to stop ISDS.”
*       *                                                                        *       *

“The NAFTA agreement put the famous investor-state-dispute- settlement mechanism on the map. Now its rebirth as the USMCA is taking it off again --- at least between the United States and Canada.

“Bilateral investment treaties with investor–state arbitration provisions have existed since the 1980s. They were not broadly used initially; the first handful of cases went unnoticed. But when companies used NAFTA’s investment chapter to launch the first international arbitrations against Canada (then the United States and Mexico), law firms leaped at the new business opportunities, and investment arbitration took off.
“Today we know of close to 900 arbitrations worldwide—far more than in any other field of public international law. The early NAFTA cases are studied in university programs that did not previously exist.
“When the first NAFTA case in the late 1990s challenged a Canadian government environmental measure, it hit like a bombshell. In the following years, foreign investors would sue the Government of Canada 27 times; 26 of those cases were brought under NAFTA by U.S. investors. These cases challenged a wide range of government actions, such as banning products due to their health and environmental risks and denying permits for environmentally unsound projects.
“But Canada and the United States have just pulled the plug on this practice. Under the new USMCA,  U.S. investors already present in Canada will be allowed to use investment arbitration for another three years. After that, they will have to go back to the good old Canadian courts, like Canadian companies already do. And that is probably about right.
“ ‘But what about Mexico?’ you might ask. Mexico and the U.S. have negotiated an annex that allows investment arbitration to continue, but only in well-defined circumstances. Established investors can only bring claims about expropriation and non-discrimination. They can no longer base allegations on the most worrisome and fluffy concepts like fair and equitable treatment.
“Most interestingly, the U.S.–Mexico dispute resolution annex has brought in a concept at the heart of international law: claimants need to first try to resolve issues in domestic courts and can only afterward bring disputes to the international level.
“NAFTA’s investment chapter did not follow this international rule and allowed investors to bring claims directly to international arbitration, sidestepping local courts altogether. In the new United States–Mexico annex, investors cannot bypass domestic courts. They must try to use local remedies for 30 months. International arbitration then becomes an option if this does not reach a conclusion.
“A few sectors — including oil and gas and some public service sectors— get special treatment. If foreign investors in these sectors have a contract with their host government, they, allowing such, can bring claims based on most investor protections contained in the USMCA, including fair and equitable treatment; this includes oil and gas and some public service sectors. In addition, they are not required to go to domestic courts before initiating arbitration. But even claims from these investors are subject to significant new limitations.
“All in all, Canada comes out of the investment negotiations in a better situation than when it went in, at least with respect to the United States. Its relations with Mexico, on the other hand, will be regulated under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which includes traditional investor–state arbitration.

“How Canada will deal with these different approaches and what path it will adopt in future and ongoing negotiations remains to be seen. But, whatever the context of the overall renegotiations of NAFTA, the outcome of the renegotiations on investment should pave the way for new ideas that can provide food for thought for the Canadian administration in its ongoing or future negotiations. At a time when many countries are overhauling their approach to international investment governance, these changes demonstrate willingness for new thinking.
“The dramatic turnaround on ISDS in the renegotiated NAFTA, the agreement which triggered the explosion of ISDS cases in the late 1990s, is significant. Perhaps it will once again spur a novel approach to international investment governance, but one in which ISDS is no longer the norm or is at least more tightly circumscribed.”
Incidentally, the investors involved in the Dubrovnik case are known as Razor Golf and Leitch, the former of which is owned by Muja Briar and her husband, Israeli investor Aaron Frenkel, who, before initiating their law suit, stated that even after 10 years of effort and expending 130 million Euros they cannot start the project.
“They added:
“Due to total blockage of the project and annulment of permits already issued due to administrative failings of state bodies, we have decided on this action to secure our rights as investors who have been attempting for 10 years to realise this project, while investing over 130 million euros by now. By obeying procedure and striving to reach an agreement, we sent in December of 2016 a letter to the government ahead of the arbitration with an invitation to peaceful resolution of mutual issues, but this did not lead to any specific progress. With the goal of protecting our investment and the project, arbitration was the last, unwanted move we were forced into after complete blockage the project faced, although not due to any failings on the side of the investor,” stated Ivan Kusalić, a procurator with the Razvoj Golf company.
This seems like one story to which my mantra “Wot the hell, wot the hell,” does not apply.

Wednesday, June 26, 2019

Link of the day, June 26 2019: Today I am happy to hand over my Chronicles to this press release by three important indigenous activist networks :

Link of the day, June 26 2019:: Here is the case being argued by the three Indigenous Networks, Defenders of the Land, Truth Campaign and IIdle No More, against the Trudeau government’s Policy of Reconciliation with indigenous people, which they call a Termination Policy 2.0, since they regard it as nothing more than a continuation of the 50-year-old White Paper issued in 1969 that proposed abolition of Indians and their special status, and their treaties, and their Inherent Rights and Treaties.
I am happy to hand over my Chronicles for today to this press release by these three important indigenous activists:
Indigenous Activists Networks
Defenders of the Land, Truth Campaign, Idle No More

On 50th Anniversary of the 1969 White Paper on Indian Policy, Indigenous Activists Networks Condemn the Trudeau Government’s Termination Legislation

Turtle Island/June 25, 2019) 50 years ago today, under a government led by Prime Minister Pierre Elliot Trudeau, the Minister of Indian Affairs, Jean Chretien, stood in the House of Commons and introduced a Statement of the Government of Canada on Indian Policy.

1969 White Paper on Indian Policy

The White Paper proposed the Termination of “Indians” through various measures to “end the legal distinction between Indians and Canadian citizens.”
The 1969 White Paper proposed:
• Eliminate Indian Status.
• Dissolve the Department of Indian Affairs within 5 years.
• Abolish the Indian Act & remove Constitutional Reference to Indian & Indian Reserve Land.
• Convert reserve land to private property that can be sold by the band or its members.
• Transfer responsibility for Indian Affairs from the federal government to the province and integrate these services into those provided to other Canadian citizens.
• Provide transitional funding for economic development.
• Appoint a commissioner to end outstanding land claims and gradually terminate existing Treaties.

The reaction from First Nations was swift and furious across Canada.

Cree Leader Harold Cardinal compared the White Paper to the American policy that “The only good Indian is a dead Indian” and said “Chretien had amended this to read "The only good Indian is a non-Indian.” In the face of the fierce opposition the government publicly withdrew the White Paper in 1971. However, internal correspondence from within the Department of Indian Affairs shows the 1969 federal Termination Plan has remained the federal objective.

 As DIA Assistant Deputy Minister (Indian Consultation and Negotiation) David A. Munro, wrote in a 1970 letter to the DIA Deputy Minister, not to abandon the White Paper Plan but to change tactics
"We need not change the policy content, but we should put varying degrees of emphasis on its several components and we should try to discuss it in terms of its components rather than as a whole. [emphasis added]

This was followed by a 1971 letter from the Minister of Indian Affairs, Jean Chretien to Prime Minister Pierre Trudeau confirming continuation of the White Paper Plan:
…we are deliberately furthering an evolutionary process of provincial and Indian inter-involvement by promoting contacts at every opportunity at all levels of government, at the same time recognizing the truth of the matter – that progress will take place in different areas in different ways at a different pace. Experience shows that the reference of a time frame in the policy paper of 1969 was one of the prime targets of those who voiced the Indian opposition to the proposals. The course upon which we are now embarked seems to present a more promising approach to the long-term objectives than might be obtained by setting specific deadlines for relinquishing federal administration. [emphasis added]

Today, on the 50th Anniversary of the 1969 White Paper on Indian Policy we are facing the implementation of White Paper 2.0 by the current Trudeau government!

What is White Paper 2.0?

It’s Prime Minister Justin Trudeau’s Recognition and Implementation of Indigenous Rights Framework, which involves co-opting the Assembly of First Nations to use them as a springboard to manufacture consent through various co-development tables and processes giving the illusion that Indigenous Nations want these Bills, policies and changes. The Federal Government is imposing an overwhelming “shock and awe” strategy of massive changes to legislation, policies and new funding agreements that are designed by the Prime Ministers’ Office and the federal bureaucracy to complete the assimilation-Termination objectives of the 50 year old 1969 White Paper on Indian Policy.

Justin Trudeau’s version of the longstanding federal Termination Plan, which he calls the Recognition and Implementation of Indigenous Rights Framework, was first announced on February 14, 2018 with the goal to remove bands from the Indian Act and turn them into federally recognized “Indigenous Governments” or “Nations” that will have self-government given to them as defined by the Government of Canada. They will be subject to the Canadian Constitution as a 4th order of government—below federal and provincial governments and with less power than municipal governments.

The Trudeau government has delayed the “Rights Recognition“ legislation because it was widely rejected by First Nation Peoples and Chiefs across Canada. Now the government is taking advantage of our poverty to change administrative agreements and funding that forces us to accept policies that impact our sacred Treaties & Inherent Title & Rights, while directly attacking our sovereign jurisdiction. This is genocide through law and policy!

Moreover, the Trudeau government is now proceeding to implement its White Paper 2.0 Framework in a piecemeal approach that involves: 1) issuing a one-sided Directive to Federal Negotiators who preside over “Land Claims”, Self-Government & “Recognition Tables”, 2) new coercive funding policies, including 10 year funding agreements & new funding arrangements and 3) through the following Termination Bills that passed into law on June 21, 2019:

Bill C-97 – On August 28, 2017, Prime Minister Justin Trudeau announced the federal government was dissolving the Department of Indian Affairs & Northern Development and creating two new federal departments: one for Indigenous Services and one for Crown-Indigenous Relations. The legislation to make this happen is buried within the April 2019 omnibus budget bill now before parliament without any debate from Indigenous peoples. This federal restructuring of government is central to the Trudeau government’s White Paper 2.0 Framework approach to Indigenous policy, law, funding and is unilaterally defining a “new” relationship with Indigenous Peoples (First Nations, Metis & Inuit). 3

Bill C-86 – a 900 page Omnibus Bill that became law in December 2018, making substantive amendments to the: First Nations Land Management Act, First Nation Fiscal Management Act, Additions to Reserve and First Nation Matrimonial Property Act – all of this legislation facilitates eliminating reserves by transitioning communally held reserve lands into a new land regime that eventually leads to individually held private property (fee simple) that would come under provincial laws and lands registry.

Bills C-91/92 – language and child welfare legislation are intended to take our existing Inherent Rights and convert them into federally defined section 35 rights, which are subsumed under Crown Sovereignty (to be dictated by the limitations stemming from section 35 federal doctrine/court decisions), as well as, provincial controls into Indigenous jurisidiction.

This suite of federal legislation will now be used by the federal government to continue the attack on our sacred Treaties, Inherent Title & Rights and sovereign jurisdiction, particularly with the creation of two new federal departments (Indigenous Services & Crown-Indigenous Relations) to continue to implement the 1969 White Paper objectives through the current Trudeau government’s White Paper 2.0 Framework (2019).

Although the current Trudeau government was able to push its Termination Bills through Parliament our Resistance Campaign will continue to support our grassroots Peoples in their exercise of the right of selfdetermination as Indigenous Peoples!

We note from the AFN Website, the 40th Annual General Assembly of the Assembly of First Nations will be held July 23-25, in Fredericton, New Brunswick and “only Chiefs will be allowed in the main plenary”, so ask your Chief and Council what are they doing to stop White Paper 2.0?

We remember June 25, 1969, as a dark day of infamy in the history of Canada’s Plan to Terminate our collective rights! We survived into today because of the fierceness of our parents and grandparents in opposing it and this is our inspiration in our continuing fight against this the new offensive to convert us from being Indigenous Peoples into becoming ethnic minorities as Indigenous-Canadians.


 Communications Contact: E-Mail: Sylvia McAdam, Idle No More Organizer, Cell: (306) 281-8158
Rachel Snow, Spokesperson, Cell: (403) 703-8464
Russ Diabo, Spokesperson, Cell: (613) 296-0110

Sunday, June 23, 2019

My Log 741 June 23 2019: Chronicles from my Tenth Decade: 176; Wot the hell, wot the hell, I fear I am never going to make it in politics; my fear of the bone-head move would immobilize me

I have begun to try to imagine what it must be like to be involved in politics. There are a thousand reasons I could never do it. The first is, I know what I think about most things, and am not really that open to persuasion. Since politics is essentially about the art of compromise, I could never make a go of it.
For one thing, I would, supposing myself for a moment to be in politics, occasionally be forced into making a bone-head move, like Justin Trudeau’s bone-head move in going last week to New York to beg Donald Trump to represent Canada with the President of China, begging him (Trump) to ask Xi Jinping to release  the two Canadians he has held in custody for months, because we are holding  an important Chinese businesswoman in Vancouver, at the request of this same Donald Trump. This is a plea to which I would already know the answer ---“you release her and I will release them” --- and the solution to which lies within my own hand. Talk about a bone-head move!
Even worse than discovering I have made a bone-head move would be the fact that the surrounding acolytes on whose advice I depend (especially in view of the upcoming election) would be virtually unanimous that I was showing the highest level of statesmanship by grovelling at the feet of this appalling American bully. (And always echoing around in my head would be the sweet soprano of my Minister of Foreign Affairs assuring me that it was all Russia’s fault, as, apparently, in her mind, everything is.)
Would this be a recipe for the easy-going, relaxed life of the sort I have always craved?
Not at all. Far better never to have got involved in this rat-race. Worrying ceaselessly about what would be the right move, given all the circumstances --- the worry of our famers suffering from their loss of the Chinese market, the threat of worse to come, the uneasiness of our business community, always anxious in their ceaseless grubbing for profit, the indignity of sending the Chinese leaders messages that they don’t even bother to answer, my fear of an explosion of wrath against me by the unpredictable man now running the United States into the ground, the fact that my bone-head move flies in the face of my country’s long friendship with China,  with all the positive results that have occurred over the decades, especially in having elevated our status as a minor world power, all that, and more --- and I would probably pass a sleepless night.  But I  would hope that when I emerge after my sleepless night, the bare facts of the case would present themselves to me as the obvious solution.
Okay, we have an extradition treaty with the United States, but we never thought they would elect an unbalanced Despot to power. That is one consideration. Another is that, as I would have been repeating to myself over and over during my long sleepless night, we are a country that believes in the rule-of-law.
Our extradition treaty mandates that we cannot extradite a person to face a charge that is not a crime in our own country.
Ms. Meng, the important Chinese lady who is held under detention of a sort in Vancouver, is accused by the United States of having  somehow tried to avoid the sanctions imposed by the Madman in the Oval Office, as he is affectionately known, in relation to Iran. Not only are these sanctions not imposed by Canada, but they have been imposed in defiance of the Join Comprehensive Plan of Action in relation to Iran from which the Despot has withdrawn unilaterally, after it had been laboriously negotiated by the combined diplomatic brains  of the five permanent members of the United Nations Security Council — China, France, Russia, United Kingdom, United States — plus Germany, and the 25 other members of the European Union.
Mind you, in my personal experience I have found that diplomats, as a class, are guys who live high on the hog even in the world’s poorest countries, and their judgments are not always to be trusted, but I would think that by combining the knowledge of the world held by diplomats from the 31 countries with probably the best educated diplomats extant, we could have expected more respect for their work than the Despot has given them.
It would be deeply demeaning, it seems to me, that my good self in the guise of a politician, would be required by the bullying tactics of the Despot to abase myself before him in such as way as happened last week.
I would, of course have borne in mind the advice given by one of our former prime Ministers, Brian Mulroney, who warned our young leader  --- did I mention that I took the political job as a young man, still a trifle wet behind the ears? --- that the number one job of a Canadian Prime Minister is to keep on the good side of the President of the United States, but this advice might have been somewhat tarnished in my mind by the memory of his joining President Ronald Reagan in singing a cringeworthy version of Abie’s Irish Rose, or maybe it was When Irish Eyes Are Smiling, before embarking an an economic plan for free trade that has resulted in the takeover of our economy (once again) by the American moloch, a result that anyone with his eyes open might confidently have forecast.
So I would hope that emerging from my sleeplessness, my first call would be to the Minister of Justice asking  him to advise the United
States that he has been advised by his officials that sufficient grounds do not exist for the extradition of Ms. Meng, and that he so rules.
End of  crisis, leaving me, as the young nation’s young leader, with nothing more to do than ride out the storm of tweets and insults that would emerge from the Despotic bully in the Oval Office,  which could be assuaged by offering him a life membership in the exclusive 80-member Redtail golf club at Port Stanley, Ontario,  that once had Queen Elizabeth, his pal, stay overnight, or better still, we could invest a paltry $78 million in buying millionaire Craig McCaw’s golf club on James Island, near Victoria, B.C, where he could become the sole owner of a whole island in which to indulge his narcissism and megalomania, recently identified by author Michael Wolff in his follow-up book on  him, as being among the Despot’s mental deficiencies.
And cheap at the price, I would say.
Wot the hell, wot the hell, I fear I am never going to make it in politics….