The debate about Bill 11, NAFTA, and Medicare in the House of Commons

Question Period - April 12, 2000:

Ms. Alexa McDonough (Halifax, NDP): Mr. Speaker, in a legal opinion released earlier today by the Canadian Health Coalition, trade lawyer Barry Appleton described Alberta as going down a one-way street toward health care privatization. Here is what he said: ?Under NAFTA, a province cannot experiment with for-profit health care because the process will be irreversible?.

In last week's letter to Alberta, the health minister acknowledged that Bill 11 may have implications which will be felt in provinces and territories across the country.

In view of that, what is the government's response to the NAFTA threat?

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, we made our position very clear last week when I wrote to the Alberta minister of health.

We identified four respects in which we thought there were difficulties with Bill 11. In particular, we asked that the bill be amended to prohibit the sale of enhanced medical services along with insured services in a private for profit facility.

We contend that that combination imperils the principle of accessibility, which is fundamental to the Canada Health Act.

Ms. Alexa McDonough (Halifax, NDP): Mr. Speaker, we can continue to try to ignore Mr. Appleton's opinion, but the last time Mr. Appleton weighed in on an important trade issue was in the case of the gasoline additive MMT. Mr. Appleton was right, the Government of Canada was wrong, and it cost us million. If we get it wrong this time it will cost us our health care system.

Will the government address the NAFTA implications, or will it risk losing Canada's health care system?

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, the hon. member is a little behind the times. Why should this issue be any different? If the member would look at the record, she would see that in my correspondence with Minister Jonson in November of last year, I squarely raised the NAFTA issue and identified the risk which that issue presents to the health care system of Canada.

Question Period - April 13, 2000:

Mr. Bill Blaikie (Winnipeg-Transcona, NDP): Mr. Speaker, for our part, we are not sure that we want the Prime Minister to come home. When he travels within Canada he does things like go to Alberta and tell Premier Klein that everything is okay.

In that respect, I would like to ask a question of the Minister of Health. Yesterday, in response to a question from my leader, he referenced his own letter to the Minister of Health of Alberta in relation to the whole NAFTA question, but he simply asked the minister of Alberta whether he had any strategies to deal with this potential problem.

It is the minister's government which signed NAFTA. It is the minister's government that is responsible for these kinds of agreements. What kind of strategy does the Minister of Health have for dealing with this possible problem?

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, first, when the Prime Minister was in Calgary three weeks ago he made it very clear that the Alberta government, like all provincial governments, must respect the principles of the Canada Health Act or the Government of Canada will act accordingly. He made that very clear. Second, in relation to NAFTA, I did raise the concern in my correspondence with Minister Jonson. Frankly, I did not get from Minister Jonson a satisfactory response. We have been examining the implications of this bill under NAFTA. Yesterday we received the opinion from Mr. Appleton, which is under study. Together with the experts at justice and foreign affairs we are looking at those implications now.

Mr. Bill Blaikie (Winnipeg-Transcona, NDP): Mr. Speaker, I am having about as much luck getting a response out of this Minister of Health as he is getting from the Minister of Health of Alberta.

He has the opinion from Mr. Appleton. He now has a letter from a former premier of Saskatchewan, Allan Blakeney, on this matter. It is not something that can be left for a long time. If the wrong thing happens, NAFTA kicks in. If the bill passes and it is vulnerable to NAFTA, it will not be able to be undone.

We want to know what the minister is going to do in the very short term about this problem.

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, we are fully aware of the need to examine the implications under NAFTA of Bill 11. We raised these concerns with the Government of Alberta. We are doing our own legal analysis through justice and foreign affairs. We are also examining the various opinions that have been made public, including the opinion yesterday from Mr. Appleton. I assure the member and the House that we will respond at the appropriate time.

Question Period - April 14, 2000:

Mr. Bill Blaikie (Winnipeg-Transcona, NDP): Mr. Speaker, my question is for the Minister of Health. Yesterday, the Minister of Health indicated that his department was studying the NAFTA implications of Bill 11 in Alberta. We welcome this. We think it should have happened a long time ago. But time is now of the essence. By the time we come back from the Easter recess Bill 11 could have passed and the wall that protects Canada's medicare system could well have been breached by then.

What contingency plans does the minister have to stop Bill 11 and to stop Premier Klein from committing this act which has irreversible and national consequences?

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, first, there are differing points of view on that question. The hon. member has expressed one, there are others. The job of this government and its lawyers is to examine those various interpretations to determine which is the most sensible, and then develop policy on that basis. That is what we are doing.

The NAFTA is only one of the concerns we have about Bill 11. We think it is bad policy. We have also written to the Alberta government saying that enhanced services should not be sold for profit at a private for profit hospital. The bill has not yet passed. Amendments will be coming before the Alberta legislature. We hope the bill, as it emerges-if it emerges-will not contain that feature.

Mr. Bill Blaikie (Winnipeg-Transcona, NDP): Mr. Speaker, I say to the minister that he cannot afford to be wrong in his interpretation of the NAFTA. Time is of the essence. We cannot afford to allow the bill to pass if there is any uncertainty.

Recently we passed Bill C-20 in the House, which said that Quebec could not unilaterally separate from Canada, that the interests and rights of all Canadians must be taken into account. Where does Premier Klein get the right to unilaterally sabotage a national social program which all Canadians value? What will the national Minister of Health do about this?

Hon. Allan Rock (Minister of Health, Lib.): Mr. Speaker, the national Minister of Health, from the beginning of this debate in November, has made it very clear that the Government of Canada will safeguard the principles of our national health care system. We have done precisely that in the positions we have taken and on the issues we have identified for the Klein government, including NAFTA.

I tell the hon. member that not only NAFTA, but the combination of enhanced services being sold at a private for profit hospital, elements of conflict of interest and overnight stays enlarging the role of private for profit hospitals at an accelerated rate are all issues that have been taken up with the Alberta government, and we will continue to do so.

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Recent news stories on Bill 11, NAFTA and Health Care:

?New Democratic MP, Bill Blaikie, says it's time for Ottawa to play hard ball with Alberta.?

From The Toronto Star, April 14, 2000:

[Federal Health Minister Allan] Rock said Ottawa is studying whether Bill 11 could open the country to American private health marketers under the North American Free Trade Agreement but he resisted NDP calls to get a lot tougher, a lot faster.

NDP House leader Bill Blaikie said it's time for Ottawa to get tough with Alberta and threaten the province with much more than the loss of transfer payments.

If the cash loss doesn't intimidate Klein, Blaikie said, then Ottawa should strip Alberta of tax points - tax money Ottawa defers to Alberta and the other provinces.

That cost to Alberta could run into the tens of millions of dollars.

"Alberta is really saying: 'To hell with the rest of Canada, to hell with the risk to medicare this poses throughout the country . . . "

Blaikie said NAFTA regulations which kick in the moment Bill 11 passes would open the entire country's health care system to foreign ownership.

"This can affect every other province. I think Alberta has got its nerve. They don't have the right, out of their own ideological fixation, to put the entire medicare system under threat. Who the heck do they think they are?"

From CBC Radio?s The World at Six, April 14, 2000:

R. GERMAIN (CBC-R): The opposition is demanding that the federal take a hard line on Alberta's controversial health care legislation. The Alberta legislature is debating bill-11. The bill would allow private clinics to set up in the province and perform some surgical procedures. Federal Health Minister, Allan Rock, has been criticizing the bill since it was introduced. Today he said he was disappointed with the amendments the Alberta government has introduced. One thing Rock has never said is how the federal government will deal with bill-11 if it becomes law. In Ottawa today, the opposition NDP demanded Rock take a tough stand. Tom Perry reports.

TOM PERRY (Reporter): New Democratic MP, Bill Blaikie, says it's time for Ottawa to play hard ball with Alberta.

BILL BLAIKIE (NDP MP): Alberta's really saying the hell with the rest of Canada. To hell with the risk to medicare that this poses throughout the country. We're going to do what we're going to do. And if this introduces an element which puts at risk something that Canadians value from coast to coast, too bad. Well, I say this is time for the federal government to say all right the gloves are off.

PERRY: Blaikie says if the Alberta legislature passes bill-11, Ottawa should cut health transfers to the province, and even chop the money Alberta receives through tax points.

BLAIKIE: It may be difficult to do, but I think the government has to make it clear that will be one of its goals - that Alberta can't enjoy the revenue that comes from those tax points if they?re going to put the entire country's health care system at risk.

PERRY: Federal Health Minister, Alan Rock, has written to Alberta's health minister to criticize the province's legislation. Today he also said he's disappointed with the amendments the province has introduced. The amendments deal with problems like queue- jumping at private clinics but Rock says they don't go far enough. One thing Rock has not said is whether he thinks bill-11 contravenes the Canada Health Act. And as he's done in the past, Rock today refused to say how the federal government would react once bill-11 becomes law.

ALLAN ROCK (Health Minister): The debate is not over in the Alberta legislature. And if and when the bill is adopted, we'll express our position as to where we're going to go from there.

PERRY: Rock's diplomatic approach hasn't won him much praise among medicare advocates. They've been calling on him to take a tough stand on bill-11 since the start. Rock says he wants to keep talking to Alberta. But some health groups wonder if he is secretly in favour of allowing the private sector to get more involved in health care. Tom Perry, CBC NEWS, Ottawa.

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Steve Shrybman on the NAFTA threat to Health Care

From the Edmonton Journal, April 16, 2000:

?Uncertainty on NAFTA, care future?

By Steve Shrybman (Vancouver-based international trade lawyer and author of a detailed legal opinion on the NAFTA implications of Alberta?s Bill 11).

Spring may be coming to Alberta, but the snow is piled high when it comes to Premier Ralph Klein's legal posturing about the NAFTA implications of his private health scheme.

While at first blush the government's legal opinion on the North American Free Trade Agreement and Bill 11 appear to quell fears about the privatization and Americanization of medicare, that blush is nothing more than the tint of the rose-coloured glasses the government would like us to wear in surveying the damage Bill 11 will cause to public health care.

Key Concerns

Alberta's claim that NAFTA has no implications for Bill 11 is no more reliable than its claim that the bill is really about protecting public health care or that private surgical hospitals are really not hospitals at all.

In fact, a review of the government's legal opinion reveals it actually confirms several key concerns raised by a legal critique of Bill 11 that I prepared for the Canadian Union of Public Employees (CUPE).

For instance, on the central point of whether medicare can survive in the free trade context, the government's legal advice confirms the future of Canada's health-care system depends upon preserving the integrity of the NAFTA reservations that protect our system from free trade rules.

Otherwise U.S. and Mexican providers will be guaranteed the same access to Canadian health services delivery as Canadian providers, including those in the public sector.

Klein's legal advisers also concur with our concern that the fate of these reservations is uncertain, and Bill 11 may not be entitled to the protection they currently afford. While their opinion expresses the hopeful view that Canadian reservations would still apply to protect Alberta's experiment from the corrosive influence of free trade rules, on two separate occasions they concede this estimate may prove incorrect. I suspect this is not a gamble Canadians would knowingly accept.

The point is that ultimately the debate about Bill 11 and NAFTA won't be resolved by lawyers working either for the government or its critics, but by an international tribunal convened to settle a challenge or claim most likely to be made by, or on behalf of, a U.S. health-care company seeking greater access to the Canadian health- care system. Because, as the government's opinion also readily concedes, only foreign investors have the right to invoke the extraordinary enforcement provisions of NAFTA investment rules to challenge Canadian health-care policy and law.

(The opinion offers the reassuring comment that Canadian investors have the reciprocal right to attack U.S. or Mexican public policy should they wish.)

Should that occur, an international tribunal will decide the dispute behind closed doors without ever considering the views of provincial governments, trade unions or heath care consumer groups -- none of which have any right to participate in the process.

Risk Increased

Canadians should vociferously reject leaving the future of public health to this uncertain fate.

This brings us back to Bill 11, and the likelihood that Alberta's experiment will significantly increase the risk of public health care falling victim to international trade challenges or foreign investor claims.

Unfortunately, on this critical point, the government's lawyers have no comment. Neither have they been willing to consider the impact of NAFTA's onerous expropriation provisions, which are written in such sweeping terms as to make it virtually impossible for any future government to re-establish elements of the public health-care system lost to private U.S. or Mexican companies.

While the province's spin on their NAFTA legal opinion suggests strong disagreement with CUPE's legal concerns, an assessment of the actual text of the opinion reveals little of substance to either contradict or even take issue with CUPE's assessment.

It is telling that the province was unable to muster an opinion more supportive of its position. Clearly Ralph Klein knows he's on thin ice, and that it's melting by the second.