Hi Ann. Thanks for this information. It was great to meet you in Ottawa and
I look forward to seeing you in Victoria at the Building Bridges conference.
Tammy and I are plugging away at this paper. I fluctuate between thinking
that we really can have an impact to being overwhelmed by the nasty politics
in this province.
Talk to you soon. C.
----- Original Message -----
From: "Ann Pederson" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Sunday, March 12, 2000 3:12 PM
Subject: Re: question about trade agreements & privatization


>
>
>
> Sorry everyone, failed to correctly include the material I had gathered.
> Here it is.  Ann
>
> I'm not a lawyer, but have worked quite a lot on these issues and can
answer
> =
> >at least part of your question.
> >
> >First, everything in NAFTA is subject to legal debate! Another problem =
> >with the agreement is that even if a disputes panel makes a ruling on =
> >something, NAFTA stipulates that such a ruling will not establish a =
> >precedent. So the debate seems destined to continue into eternity.
> >
> >Second, the situation you are describing is something that will arise in
=
> >Alberta and is upper most in the minds of many people, including myself.
=
> >It also will arise in Ontario and other provinces that are contracting =
> >providers of home care, for example, and other types of health care =
> >provision outside the hospital sector.
> >
> >"Contracting" as distinct from "funding" providers may undermine the =
> >public purpose exemption negotiated in Chapters 11 and 12 (investment =
> >and cross-border trade in services). If that's the case, all of the =
> >provisions in these chapters apply. That's because the exemption is a =
> >qualified one, ie., it says that only health services provided for a =
> >public purpose are exempt from certain of the provisions in both =
> >chapters. The US position is that any service provided by a =
> >non-governmental entity, whether for-profit or non-profit, does not fall
=
> >within this public purpose exemption. The terms "public purpose" and =
> >"health care" are not defined anywhere in NAFTA -- another subject for =
> >legal debate.
> >
> >Canada, however, has maintained what I consider to be an ambiguous =
> >position on these matters. It doesn't offer a definition of public =
> >purpose, except to say that a service meets the definition if that was =
> >the intent of the provincial or federal government. This may be because =
> >the overwhelming majority of health services are delivered by =
> >non-governmental entities, including hospitals (except for mental health
=
> >hospitals, which are disappearing). Most of these, in turn, are =
> >non-profit. Until relatively recently, these non-profits received =
> >funding for the provision of services as well as for the maintenance of =
> >the organization. Now they are competing head on with corporations large
=
> >and small in a competitive tendering process.=20
> >
> >In this situation it might be hard for Canada to argue that services =
> >provided by for-profit entities in a competitive tender meet the public =
> >purpose criteria. In addition, contracting by a public body is probably =
> >covered by public procurement in the NAFTA, Chapter 10. This chapter =
> >does not apply to health care or social services.
> >
> >Nonetheless, most governments are following NAFTA procurement rules to =
> >the letter, except, interestingly, Alberta. Alberta does not use a =
> >tendering process in its allocation of contracts for diagnostic =
> >services, for example. The regional authorities contract a private lab =
> >directly and there is no competition. Presumably it's able to do this =
> >because Ch. 10 doesn't apply to health care. This also is how it's =
> >proposing to proceed with the for-profit hospital, HRG, Inc. Others =
> >argue that public procurement rules are also established by common law =
> >in Canada, and this applies to health care.
> >
> >On the other hand, the Agreement on Internal Trade (AIT) will probably =
> >apply to post-secondary education, health and social services when the =
> >NDP government of BC is defeated in the next election. BC was the only =
> >province to oppose the application of procurement rules to these areas, =
> >despite great pressure from the federal government. If the AIT =
> >procurement rules apply to health care, there is a "lock in" to NAFTA, =
> >that is, NAFTA's procurement rules will also apply, turning the carve =
> >out for health in Ch 10 on its head. It also would extend the national =
> >treatment provisions of NAFTA to health care and to provinces, neither =
> >of which are currently subject to these rules.
> >
> >I wish there was more cheerful news on this front, but unfortunately if =
> >one supports equity and universal access in health care, there isn't =
> >much good news. If you wanted a lawyerly perspective on this, you might =
> >want to contract Barry Appleton in Toronto, or Steven Shrybman in =
> >Vancouver. I'm sorry I have neither of their phone numbers -- the latter
=
> >is at the West Coast Environmental Law Society.
> >
> >I hope this has been helpful.
> >
> >Colleen Fuller
> [log in to unmask]