International Trade

Little baloney in Carr’s assertion that Canada has won softwood challenges

Peter Clark consulted in softwood lumber challenges…

Little baloney in Carr’s assertion that Canada has won softwood challenges

The Canadian Press
By Andy Blatchford
May 18, 2017

OTTAWA — “There were court challenges in these other disputes. We have won them all.” — Natural Resources Minister Jim Carr on April 25.

Natural Resources Minister Jim Carr has been offering reassuring words as the country prepares to defend its softwood lumber industry yet again from duties imposed by the United States.

The latest round marks the fifth time in about 30 years that Canada will engage in a softwood dispute with its biggest trading partner.

“We have prevailed in the past, and we will do so again,” an optimistic Carr told reporters late last month.

He called the U.S. decision to impose countervailing duties of about 20 per cent for most mills “unfair” and “punitive.”

“Our government disagrees strongly with this decision,” he said. “It is unfounded, and we will vigorously fight for the interests of the Canadian softwood lumber industry, its workers, and their communities.”

Carr also insisted that Canada has won every court challenge of the past.

Has Canada indeed been victorious in every court challenge linked to softwood trade disputes with the U.S.?

Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of “no baloney” to “full of baloney” (complete methodology below).

This one earns a rating of “a little” baloney. Here’s why.

THE FACTS

The Trump administration triggered the latest softwood skirmish by imposing retroactive duties on Canadian lumber.

For decades, the U.S. has argued that Canada’s lumber producers are unfairly subsidized through cheap access to public land. The on-again, off-again dispute has led to duties, court battles and periods of peace with the help of temporary agreements.

Cross-border lumber quarrels are older than Canada itself and date back to the first half of the 19th century, Carr said recently.

The minister insists Canada has been victorious in all the court challenges in the “contemporary era” of the lumber disputes that began in the 1980s.

This time around, he says the federal government will tell their U.S. counterparts that Americans will also feel the pain from the border duties because jobs in both countries depend on the free flow of goods and services.

Carr has confirmed Ottawa is prepared to file challenges through the North American free trade agreement and the World Trade Organization, if necessary.

“We will look at our options, and we certainly would not exclude the possibility,” he said.

WHAT THE EXPERTS SAY

Trade experts say while the history of the softwood-lumber wars is long and complicated, they agree that Canada has repeatedly come out on top since the 1980s.

Some note, however, that the victories do not mean Canada came through completely unscathed.

Naomi Christensen, a senior policy analyst at the Canada West Foundation think tank, said that over the years Canada has had considerable success in appealing U.S. actions in front of NAFTA and WTO panels.

“What may actually be more accurate is to say the U.S. has never won,” said Christensen, who noted, for example, that panels have called on the U.S. to lower or lift its duties on Canadian lumber a number of times.

“It’s a little more complex than just a court case because it’s (presented) to trade panels, and so the rulings are typically not just ‘yes-Canada, no-U.S’.”

She noted that less than a decade ago, while the most-recent softwood lumber agreement was in place, the U.S. found some success after filing disputes with the London Court of International Arbitration over how Canada was applying the deal.

Christensen said the court ruled that some provinces were applying the agreement correctly and a couple were not. However, she noted that these rulings came while an agreement was in place.

Peter Clark, a trade strategist involved in Canada-U.S. Free Trade and NAFTA negotiations, said Canada has had a winning record — but it depends where you look.

Clark said Canada has had lots of success with NAFTA challenges.

“They’ve won a lot of them,” he said, adding that it explains why the U.S. lumber industry wants to get rid of the Chapter 19 dispute settlement tool in the agreement.

“They figure it doesn’t work all that well for them, so they would just as soon get rid of it.”

But he says some WTO disputes have had mixed results for Canada.

Colin Robertson, vice-president at the Canadian Global Affairs Institute, said his impression is that Canada won most disputes that came before the WTO and NAFTA.

However, he added that even legal wins won’t solve the decades-long problem — Canada must still negotiate with the U.S. to reach a resolution.

“There is the judicial route, but what counts in terms of softwood lumber are the politics,” said Roberston, a former member of Canada’s NAFTA negotiating team.

“The (legal) outcomes give us moral suasion, but ultimately political solutions, certainly in the case of lumber, are what we have to arrive at.”

THE VERDICT

Overall, experts say Canada has generally prevailed through four rounds of the softwood lumber dispute with the U.S., even if the Americans saw some less significant success along the way.

For that reason, Carr’s statement rates “a little” baloney.

METHODOLOGY

The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:

No baloney — the statement is completely accurate

A little baloney — the statement is mostly accurate but more information is required

Some baloney — the statement is partly accurate but important details are missing

A lot of baloney — the statement is mostly inaccurate but contains elements of truth

Full of baloney — the statement is completely inaccurate

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Donald the Destroyer

Will the Donald be the 45th President of the United States?

Are his threats on trade real?

Are there checks and balances on his trade powers?

These questions are answered in my iPolitics column – “Donald the Destroyer”.

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Lumber V: Avoiding Armageddon

The next round in the Canada – U.S. lumber wars may launch sooner than we think. In Question Period, Members of Parliament from British Columbia are pressing Trade Minister Chrystia Freeland to conclude a new softwood lumber agreement forthwith.

The Minister is taking time to get this deal done, but done properly, and in the national interest. Senator Pat Carney drove the first agreement when she was Trade Minister. David Emerson was the catalyst for the 2006 deal. There have been changes since the last agreement was negotiated. Quebec and Ontario have reformed their stumpage systems to achieve market based pricing in order to be rid of the perpetual trade dispute. At least one major producer (Resolute) is saying hell no, we won’t go.

Here is a glimpse of the complexities.

By mid-October, the U.S. Lumber Coalition (Coalition) will be able to file new anti-dumping and countervailing duty complaints against Canadian softwood lumber exports. Unless a replacement for the 2006 Softwood Lumber Agreement (SLA) can be negotiated in the next few months, Lumber V could be launched.

These perennial disputes feature extremely disruptive punitive U.S. duties. When Canadian exporters are threatened with the full force of U.S. trade remedy laws most Canadian stakeholders opt for the “least worst” option a government to government agreement to buy off the Coalition. Canada’s attachment to the rules-based international trading system will be abandoned in favour of managed trade agreements to buy peace – until next time.

SLA 4, or will it be 5, will not be possible unless the Coalition’s numbers are right for a launch. In addition, Canadian interests must agree on how they would prefer to be skewered this time. Ontario and Quebec are not on the same page as British Columbia.

How should exports be regulated under SLA 5? British Colombia prefers export taxes so that duties (based on alleged stumpage subsidies) go into its own coffers rather than the U.S. Treasury. Is this a silver lining? Would it help to explain Premier Christy Clark’s public demands for a quick negotiated solution?

Canada-U.S. lumber disputes are mainly about “stumpage” – the fee the provinces charge for harvesting standing timber on Crown lands. Coalition members claim Canadian stumpage charges are too low – read, lower than the U.S. where timber is owned by private operators. Compounding the Coalition’s complaints is a B.C. log export ban which prevents U.S. lumber mills from buying less expensive Canadian logs.

Ontario and Quebec have reformed their “stumpage” regimes.  Industry employment in Ontario has shrunk by 42% or 26,000 jobs since the 2006 SLA entered into force. Quebec has reduced availability and much higher fibre costs than B.C. While Ontario and Quebec could agree to a new SLA, they will likely insist that it transition to free trade with clear and workable “exit ramps” for their good behavior.

Lumber exporters in Atlantic Canada had a free pass under the 2006 SLA because stumpage rates were determined by private auctions. However, the recent U.S. Department of Commerce countervailing duty decision in Super-calendered Paper resulted in duties in the 20% range. Among the 14 countervailable programs found by the U.S. Department of Commerce was provision of stumpage by the Government of Nova Scotia at less than market value. This could draw Atlantic Provinces’ producers into the Coalition’s net.

Industry consensus on the need for another SLA has been elusive. Mr. Richard Garneau, CEO of Resolute Forest Products, the biggest Canadian producer east of the Rockies, is not as keen as Premier Clark is to negotiate.

Mr. Garneau is a very vocal critic of the 2006 SLA. His testimony at the April 12, 2016 meeting of the Standing Committee on International Trade runs roughshod over supporters of the SLA. Mr. Garneau claims the SLA worked well for B.C. but has been a disaster for Quebec and Ontario. He rejects claims of subsidization and wants nothing to do with another agreement.

These differences are not new. Canada tried to negotiate a second extension before the 2006 SLA expired. Extension on the same terms was not an option. The Coalition declined.

The Coalition was pleased to see the end of the 2006 SLA. It did not work well for them. Cross border lumber wars are always fiercely fought. Trade remedies (anti-dumping and countervailing duties) have provided quick and effective relief for the Coalition – and the worst possible nightmares for the Canadian lumber industry. The Coalition has little incentive to settle for an agreement less effective than successful AD/CVD litigation.

Most Canadian stakeholders attach great importance and high priority to a negotiated settlement. Richard Garneau is not interested. Even those who want to settle will be concerned about the terms. Reported Coalition demands for a single option with hard caps or strict quotas on Canadian exports have not been well received. British Columbia wants greater flexibility.

Uncertainties about the U.S. election have increased the urgency of demands for a negotiated solution. The Western provinces want a managed trade agreement and they want it soon – before November.

The election is increasing the focus of U.S. trade law administration on prosecution and enforcement. U.S. trade remedy laws have been amended and enhanced to make them more effective.

The prospect of a Trump Presidency adds urgency to an expedited negotiation. Hillary Clinton, who is being pushed left on trade by Senator Bernie Sanders’ success, has promised to appoint a Prosecutor to defend U.S. trade interests.

No matter who the next President is, the incoming Administration will be tougher on enforcement. And it will be completely disorganized and unfocussed for months into 2017. The U.S. Lumber Coalition will have an unimpeded run down the field until the CVD rates and AD margins are announced, and maybe thereafter. The pressure to negotiate and compromise is on Canada. The Coalition benefits from delay.

President Obama and Prime Minister Trudeau have instructed their trade ministers to identify options or a framework for resolution by the time of President Obama’s visit to Ottawa.

At the end of Prime Minister Trudeau’s state visit, President Obama noted –“each side will want 100 percent, and we’ll find a way for each side to get 60 percent or so of what they need, and people will complain and grumble, but it will be fine.”

Mutually unsatisfactory agreements are generally the best solutions and work well between governments. In Softwood Lumber the private interests represented by the Coalition have leverage and must be satisfied. Compromise for reasons which might motivate governments is not in the Coalition’s DNA.

USTR Michael Froman and Canada’s Trade Minister Chrystia Freeland have a big challenge – like herding ornery cats or containing a herd of bullfrogs in a wheel barrow. There are divergent interests in Canada to accommodate and the leverage is on the Coalition’s side. Delay increases their leverage in settlement negotiations.

The Coalition has a clear right to file the complaints if the evidence supports their position. If the facts appear to be right. Coalition members have nothing to lose by launching investigations. Indeed, recent tightening of U.S. Anti-Dumping and Countervailing Duty laws was not and is not targeted only at Chinese steel. These tougher trade remedy laws will apply in Lumber V investigations.

The Coalition will be encouraged by the subsidy margins in super-calendered paper and by the methodology employed by the U.S. Department of Commerce in that investigation.

The Canadian Government was quick to challenge U.S. DOC methodology in super-calendered paper. The NAFTA and WTO challenges have begun. Canadian officials are confident they will prevail.

Trade Remedy investigations are very time consuming and expensive with extensive legal teams racking up thousands of dollars per hour -(US dollars)- in fees. Dispute settlement under NAFTA and the WTO is a slow, and also a very expensive and uncertain process. U.S. officials and stakeholders have been very critical of WTO decisions which often overturn DOC methodology. Indeed the U.S. is injecting ‘oversight’ into the Appellate Body selection process as Washington is blocking re-appointment of a “rogue” Korean member.

Canadian stakeholders have not been sitting on their hands waiting for negotiations to succeed or fail. They have been “lawyering up” as they hope for the best and prepare for the worst. There has been a long time since it was clear that SLA 2006 would expire and they appear to be using the time well.

Prime Minister Trudeau has raised concerns with President Obama. Minister Freeland has been doing her own coalition building meeting with the U.S. National Association of Home Builders and others supportive of Canadian lumber exports. Follow the Minister on Twitter @canadatrade May 2 and @cafreeland.

Some central Canadian producers are confident stumpage reforms have eliminated subsidies and that the soft loonie will minimize dumping margins. Resolute is gearing up for a fight. Others too must be prepared. Hoping the problem will go away is neither a sound nor a prudent business strategy.

The legal fees will be mind-boggling. It will be back to the good old pre-SLA days for the Washington Trade Bar. And this is part of the problem – litigation is more lucrative than settling.

But costs may also help to drive the solution. The relative peace of the SLA period has saved industry on both sides of the border. Neither side wants a bad deal. There will be a premium on certainty.

Delay could be painful for Canadian exporters as duty collections can rapidly grow to billions of dollars. And if the remedy duties are diluted (Resolute’s initial CVD rate in Super-calendered paper was about 2%) or eliminated, the Coalition will have gambled and lost.

Trade litigation is a means to an end – it is more than chain rattling. Canadian exporters want and need to limit disruption to trade. For the Coalition, an agreement can bring relief without the risk of remedies being overturned by dispute settlement under NAFTA or the WTO.

No experienced negotiator begins with the bottom line. There will be a lot of fencing and jousting on the way to common ground. There are complexities in Canada which may delay the process. Delay and uncertainty favour the Coalition – it seems likely that notwithstanding the best efforts of Canadian and U.S. governments, litigation will be launched before a settlement is reached.

An edited version appeared in my iPolitics column.

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Germany’s Objections to Investor Protection in CETA and TTIP

Reports from Berlin over the weekend indicated that Germany cannot accept the Investor-State Dispute Settlement (ISDS) provisions in the Canada-E.U. Comprehensive Economic and Trade Agreement (CETA), nor in the U.S.-E.U. Transatlantic Trade and Investment Partnership (TTIP).

The report which created the fuss does seem to be premature as the negotiations have not been completed; there is no final text.  How does a Trade and Investment Partnership work without Investor Protection?  The initial report was at least premature.  See here.

German officials claim to be “stunned” by the press report.  See here.  But the same article confirms Germany’s position that NAFTA-type ISDS among countries with sound legal systems is superfluous.

How serious is the problem?  Will it become an impasse?  This is not the first time Germany has publicly explained its position on ISDS.  See here and here.  But the 11th hour timing is quite troublesome and E.U. officials are reluctant to change what has been agreed.

The implications of rejecting ISDS are drastic and could lead to unravelling.  See my iPolitics.ca column here.

Germany has said it wants nothing to do with independent arbitral tribunals in either TTIP or CETA passing judgement on German laws.  Both CETA and TTIP are negotiations among equals with well developed legal systems.  Germany considers its courts are good enough.

Negotiations among so many different parties are bound to be difficult – and when so many of the parties are sovereign states, one understands the difficulties involved in herding cats.

The problems will not be over with the initialing of the final text.  The ratification process by all 28 E.U. member states will be a new ball game.

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TPP: Trouble in paradise

Gordon Campbell of Scoop NZ and the Werewolf reviews the hurdles ahead of the Obama administration in getting TPA and passing the TPP. See his column here

Clearly, this will be no slam dunk. 

Obama cannot end run Congress with an executive order on the TPP. More about this in my next iPolitics.ca column. 

There have been suggestions that if Obama spent as much time trying to obtain Congressional support as he does jawboning other TPP leaders, he might be able to sell his trade agenda.

Perhaps, but it appears he has other fish to fry.

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TPP: Ottawa Round Simply Underwhelming

Rumours about results of the Ottawa Round justify the low expectations. 

That there will likely be another Chief Negotiators meeting (in September) and a Ministers meeting (in October) should have been blindingly obvious.

These are essentially next steps to the November Leaders meeting somewhere in Asia now that it has been recognized (or has it) that China was not the best place to declare as yet undefined victory. 

Too much spin. Too many photo ops. Too little substance. No political will. 

Move over Doha and FTAA – TPP is challenging for least credible trade initiative. 

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TPP: Japan is the key

If the TPP negotiation was a high school prom, Japan’s dance card would be full.

Without Japan, the TPP is a hollow shell, lacking critical mass.

Some in Japan claim that the U.S. needs and wants the TPP more than Japan does. This ignores the military defence sharing aspects of Obama’s Pivot to Asia. But Japanese negotiators know how to use leverage – and will.

My latest iPolitics.ca column here, addresses the state of play going into the Ottawa Round and identifies potential problems.

Back to the negotiating venue. More to come.

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TPP visits Ottawa

When is a Round not a Round? When the TPP ringmasters want to avoid consultation.

The Ottawa Round, a round in everything but name, has descended on Ottawa. The usual cone of silence rules apply.

Official Opposition trade critic, Don Davies, MP seized the advantage and spoke at length to Inside U.S. Trade. The result – Inside U.S. Trade feature status for the Official Opposition and official silence for the Government.

Where is the TPP coming from? My views are here:

The TPP: Doomed to fail?

The Trans-Pacific Partnership – State of play

The Trans-Pacific Partnership is spinning its wheels

Where is it going – please see the next post.

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