NORAD Next: One of the Most Successful, Evolving Binational Security Agreements Charts Out Its 21st Century Role

By Keith Edmund White, Editor-in-Chief

Last week Canadian and American defense and security experts met and took the first step to chart North American Aerospace Defense Command’s (NORAD) 21st century mission. While NORAD failed to get mention in Beyond the Border’s (BTB) first report card, its proof of the benefits that Canadian and American security cooperation yields.

NORAD, a 1958 agreement crafted to defend Canada and the United States Russian nuclear weaponry, has a long history of adapting itself to new times. (Or, perhaps more well-known to readers, NORAD is the organization that tracks Santa’s Christmas Eve globe-tracking flight.)

From Donna Miles at American Forces Press Service, reporting on the recent meeting of the Permanent Board of Defense:

The discussion was a first step toward a broad analysis to identify what threats and challenges the United States and Canada will face in the 2025-to-2030 timeframe -- and what steps need to be taken now to prepare for them,, [Royal Canadian Air Force Lt. Gen. J.A.J. ‘Alain’] Parent said.

NORAD Next is largely a vision at this point, Parent emphasized, and any changes to the binational NORAD agreement would require both countries’ approval. But vast changes in the security landscape have produced broad agreement that NORAD must continually evolve to meet challenges to North America, he said.
…

More than a decade after 9/11, NORAD officials are widening their field of vision yet again as they discuss roles the command could play in addressing threats from a broad array of domains: air, space, sea, land and even cyberspace.  

They also are working to identify what warning systems and processes will be required to address these threats, particularly as the life cycles of many of the current radars expire in the 2020-2025 timeframe.

NORAD has an impressive history of adapting to changing times. From NORAD in 2012 – Ever Evolving, Forever Relevant by Lieutenant-General Tom Lawsonwith Michael Sawler: 

Although there has been little change to NORAD’s fundamental role over the years, there has been a continuous evolution of its mission. As discussed earlier, NORAD’s early mission of deterring, detecting, and intercepting Soviet bombers, soon expanded to missile detection and warning, with the later inclusion of internal air traffic, and, much later, the warning of threats from the seas. The uniqueness of the binational agreement encourages the use of NORAD to address threats of interest to Canada and the United States. One could therefore broaden the discussion to speculate upon what else could fit into the NORAD mission. An area of interest that immediately comes to mind is the Arctic. 

To get a sense of just how much NORAD has adapted over its over 50-year existence, check out this 1976 speech by Lieutenant Colonel Povilus: 

Let us take a brief look at the Soviet missile threat. It’s a fairly dynamic one. In case you have never seen a Soviet Intercontinental Ballistic Missile being fired, here is a short film clip. The whole family of Soviet ICBMs numbers over sixteen hundred targeted for North America. Some of the older ones are being dismantled in favour of submarine launched missiles. The SS-9 in the middle is the largest intercontinental missile in the world. It’s about 110 feet tall, as high as an eleven-storey building, destined for targets such as Cheyenne Mountain, perhaps, or some of our missile fields, or maybe even the Bank of Montreal…
So while we wait for details on what NORAD Next will and will not do, it’s clear that NORAD has and will continue to play a critical role in Canadian-American security cooperation. Furthermore, even if you don’t read NORAD and BTB in the same press release, the two joint endeavors are closely related and—on the security front—will likely build on one another. 

Here are some ongoing NORAD projects and possible new ventures that may be grabbing headlines in 2013: 

• Cybersecurity. A key part of the BTB Action plan, NORAD and U.S. Northern Command launched a joint cybersecurity division last May.
• Adding Mexico? Jessica Zuckerman at The Heritage Foundation calls for adding Mexico to NORAD.
• Arctic Cooperation. Col (Ret.) Alan Stephenson pushes for a robust NORAD Arctic role, and pushes Canadians not to let Arctic sovereignty concerns get in the way. And it seems that NORAD, along with independent U.S. and Canadian military commands, are doing pushing ahead on Arctic Cooperation. Check out December 2012’s Framework for Arctic Cooperation. 

Beyond the Border Meat Pre-clearance Prong Hits a Snag

By Keith Edmund White, Editor-in-Chief

The after-effects of XL Foods E. coli-related beef recall are still being felt, with the Beyond the Border (BTB) pilot pre-clearance for meat shipments between Canada and the United States on ice while the U.S. reviews it's food-safety measures.

And the XL Foods beef recall, which lead to four Canadians getting sick, has given the advocacy group Food & Water Watch powerful ammunition in lobbying against the pilot program.  

The tension is clear:  while easing restrictions at the border saves $100 an hour per driver for Canadian meat shippers, concerns over eliminating U.S. safety inspections for Canadian meat post-XL Foods has frozen this aspect of BTB for the time being.

The XL Foods E. coli outbreak highlighted some very troubling aspects of the Canadian and American meat 'safety net', in both the meat-processing and contamination response consumer protection safeguard systems.  

Perhaps the pause in the pre-clearance program will allow business groups and advocacy groups--like the Food & Water Watch organization--can work together to ensure meat screening systems in both countries are equally robust, ensuring a safe and efficient flow of products throughout Canada and the United States. 

CBC reported yesterday on Food & Water Watch's recent lobbying effort, and resulting Canadian concern over deteriorating U.S. confidence in the Canadian food safety system:

An internal Foreign Affairs memo expressed concern that U.S. "confidence in the Canadian food safety system" could be undermined in the wake of last fall's XL Foods beef recall. 

... 

Josée De Menezes, the department's acting director of the Sanitary and Phytosanitary Measures Division, expressed that concern on Sept. 27 in a widely distributed departmental briefing note obtained under the Access to Information Act by CBC News Network's Power & Politics. 

Specifically, the note refers to a U.S. campaign to halt a meat pre-clearance pilot project that is part of the Canada-U.S. Beyond the Border initiative announced last year by Prime Minister Stephen Harper and U.S. President Barack Obama. 

... 

Tony Corbo, a senior lobbyist for Food & Water Watch's food campaign, said the Sept. 18 letter to the U.S. agriculture secretary, which his group helped write, speaks for itself. 

"I'm not trying to indict Canadian meat as being less safe than U.S. meat," Corbo told CBC News. "But the fact of the matter is we have photographs indicating there was visible fecal contamination on meat products coming into the United States that were inspected at these border inspection stations. And we don't understand why there is an attempt to de-regulate a system that is actually working." 

... 

The Canadian Meat Council is one of several groups that have been pushing for the pilot project to cut delays at the border. 

"The pilot project itself only talks about getting the re-sampling, testing or inspections, getting it away from the border," said James Laws, the council's executive director. 

He said the rest of the shipments not slated for testing will be "pre-cleared" before reaching the border, allowing them get to market sooner. 

A council presentation on the project argues that "redirecting Canadian meat trucks to U.S. inspection centres also wastes time and fuel" and delays drivers from getting back on the road, at a cost of "roughly $100" per hour.

Woodrow Wilson Center's Canada Institute: A Year of Excellent Events and Publications

Want a primer on key issues impacting the Canada-U.S. bilateral relationship?

Check out the Woodrow Wilson Center's Canada Institute Activities 2012:  A Year in Review, a publication that summarizes and provides links to the Institute's 2012 events and publications.

From links to reports and archived webcasts that cover the Beyond the Border Initiative, discussions with Prime Minister Stephen Harper, and other speakers discussing topics ranging from Canada and America's energy policies and the ongoing Arctic race, this brochure offers links to the issues that define one of the world's most important bilateral relationships.

Cheetos, Canada Border Services Agency, and the Administrative Ride: Frito Lay Fixes Revenue-Neutral Clerical Error, Gets Slapped With $100Ks in Wrong-Headed Tariffs, Wins Case for Refund 5 Year Latter

By Keith Edmund White, Editor-in-Chief

When thinking about liberalized trade, some may conjure up images of presidential and prime minister press conferences, or abstract discussions among trade experts.  But, as a recent CITT case shows, maintaining free trade in practice sometimes is as simple as ensuring customs officials don't take cross-border traders for "administrative rides."

Globe and Mail Piece Highlights the Hurdles that can Throw a Wrench Even in the Canada-U.S. Trading Relationship, One of the World's Most Successful Trading Relations

The Globe and Mail reports on Frito Lay, a division of PepsiCo and makers of Cheetos, legal victory over the Canada Border Services Agency (CBSA) at the Canada International Trade Tribunal (CITT).  Unless  

The dispute:  In 2007 Frito Lay realized that it brought in Cheetos under the wrong tariff classification and fixed it.  The financial impact?  Well there shouldn't have been any.  The Cheetos went in as cardboard boxes, which incur no duties, and then were corrected to reflect cornchips, which are also duty-free under the North American Free Trade Agreement (NAFTA). 

Frito properly made the correction, but the revenue-neutral correction triggered, in the words of the CITT, "an administrative ride" that resulted in Frito Lay apparently paying hundreds of thousands in cross-border duties:

“It was Kafkaesque, and it lasted for years,” explained Peter Kirby, a Montreal trade lawyer who represented Frito-Lay in the case. “You’re guilty, but of what? What are you accused of? It kept shifting.” 

The tribunal says the Canadian government must now refund Frito-Lay hundreds of thousands of dollars in duties that should never have been collected....
“There may be political will to ease the administrative burden of trading across the border, but sometimes that message doesn’t filter down to the agencies charged with overseeing the movement of goods,” Mr. Kirby of law firm Fasken Martineau DuMoulin LLP said in an interview. 

“Perhaps politicians should be making a greater effort to get people focused on easing the flow of goods.” 

Even now, Mr. Kirby is at a loss to explain why Canadian border officials chose to play hardball with Frito Lay for so long. He doesn’t know if it was a money grab or merely an effort by the CBSA to flex its administrative muscles against a powerful U.S. multinational.

Looking at the CITT Decision

After reading the decision, I have to agree with Kirby's description of Frito Lay's experience with the CBSA.

For those of you interested in reading the opinion, I wouldn't read it in chronological order. Start with the background, and then shift to paragraphs 58 to 66 and, most importantly, read footnotes 26-29.

Barrie McKenna's summary is admirable, but the one thing that comes through in reading the decision is just how Byzantine tariff classifications, duty-impositions, and tariff re-classifications processes can be.

In short, Frito Lay corrected incorrect tariff classifications, classifications which had no impact on duty payments--both the incorrect and correct classifications were duty-free. CBSA then performed a bureaucratically elegant bob: ducking Frito Lay's correct by accepting the tariff re-classification, but denying the "amended tariff treatment... ." CBSA's supposed legal basis: Frito Lay failed to make this correction within a 1-year window.

The problem with that? It sure looks like an obvious misreading of Canadian border regulations. From the CITT decision, "[No authority was provided for such a purported 'one-year filing time limit', and the Tribunal knows of none." (Para. 61).

But the result still stood: CBSA slapped Frito Lay with hundreds of thousands of dollars in duties.

Frito Lay, in order to have CBSA review its tariff treatment rejection decision, paid the duties and then made several filings in Sept. 2007 for CBSA to review its decision. (Footnote 26).

The response? Radio silence (i.e. Frito Lay didn't get a response since CBSA took the "blanket position that none of the corrections to the tariff treatment...had any merit whatsoever" and left the matter "pending for several years."). (Footnote 29).

And this only gets to part of the administrative headache CBSA created for Frito Lay: it broke down the Cheetos shipments in five categories (even though they represented the same reclassification issue), and treated them in five different ways.

Hilariously, the first category of Cheetos "represent the manner in which the Tribunal believed that the... [other four categories] should have been treated, but unfortunately were not." (Para. 38).

Conclusion: A Successful, if Slow-Moving, Example of Free Trade Administration Oversight

Now, perhaps CBSA has a stronger case for its tariff imposition of these years-old Cheetos shipments. And it can make them in the appeal it has the right to file within 90 days of the December 21, 2011 decision.  (Note:  While the decision was issued on Dec. 21, 2011, the reasons were issued January 8, 2012.)

But this case shows that maintaining liberalized trade takes more than head-of-state consultations, treaties, and successful political votes. Liberalized trade also requires a well-functioning customs operation, and when it comes to this less-than-glamorous topic, giving cross-border traders effective legal means to challenge customs decisions is critical to a well-functioning border.

But Frito Lay is a trade juggernaut, a division of a large multi-national corporation that can absorb tariff classifications, fight them in court for years, and then even merit the national of national press. What about smaller traders?

Naturally, one case should never color the overall reputation of any agency. But the case does showcase the critical role legal mechanism have in preserving liberalized trade--not the mention the considerable impact tariffs can have on trade. The CBSA's incorrect actions resulted in Frito Lay being hit with a 11 percent duties fee, as opposed to the duty-free treatment its Cheetos should have received. (Footnote 26).

And, on the plus side, regardless of the considerable time it took, the decision represents a successful example of free trade administrative oversight.

Finally, you can read the entire decision below.

CITT Decision: Frito-Lay v. CBSA

Idle No More News Wrap: Harper's Friday Meeting, the Path Forward, Court Defeats, and Feds Audit Attawapiskat First Nations

By Keith Edmund White, Editor-in-Chief

Building off of last week's post exploring the growing aboriginal rights grassroots movement Idle No More, there are a few headlines that are worth highlighting.

• Harper to Meet with First Nations Chiefs Friday.  Harper will hold a meeting with aboriginal leaders, including the face of the Idle No More movement Attawapiskat Chief Theresa Spence, Friday.  And Governor General David Lloyd Johnston will be attending.

• Harper Faces Federal Court Defeats on Cases  Related to Aboriginal Issues.  Two recent court decisions show some of the issues driving the Idle No More social movement.  From o.canada.com's Natalie Stechyson:

Treaties, land rights and economic opportunities are all on the agenda for the meeting Friday that comes almost a year to the day after a landmark gathering in Ottawa designed to renew and review the relationship between the Crown and First Nations.  

That relationship has been tested in court, with the Federal Court the focus of two cases Tuesday, including a ruling in one that said Metis and non-status Indians should be considered “Indians” under the Constitution Act, thus falling under federal jurisdiction. The ruling ended a 13-year legal battle.  

While the court didn’t say exactly how the government must work with Metis and non-status Indians, it expected that off-reserve aboriginals would have just as much right to consult with the government over proposed legislation as do those on-reserve.  

In the second case, two Alberta-based First Nations are taking the Harper government to court over its budget legislation, adding another layer to the actions aboriginals have taken across the country to protest Bills C-45 and C-38. The chief of one of the First Nations at the centre of the case, said the request for judicial review was a separate and distinct process from Idle No More, the actions of hunger-striking chief Theresa Spence, and the meeting Friday.

• Making Friday's Meeting Successful.  What constitutes success for Friday's meeting?  The National Post offers an insightful editorial  from University of Calgary professor and former chief of staff to the minister of Indian Affairs and Northern Development from 2006-2008 Jean-Sébastien Rioux:

Leaving aside the specific controversies surrounding Attawapiskat Chief Theresa Spence’s hunger strike, or whether Idle No More’s criticisms of omnibus Bill C-45 have merit, let us focus on the upcoming meeting between Prime Minister Stephen Harper and aboriginal leaders on January 11. What would constitute success? What could move the file in a productive direction, for both the government and First Nations?  

I have some insight into these issues, having served as the chief of staff to Jim Prentice, Prime Minister Harper’s first Indian Affairs and Northern Development Minister (as the Department was then called), after the Conservatives formed government in early 2006. We dealt with all these difficult issues then, including the backlash from “cancelling” Paul Martin’s Kelowna Accord, which promised $5-billion in cash to First Nation, Inuit and Métis leaders days before the December 2005 writ.  

There were successes, and they were built on a policy of keeping the channels of communication open, and continuing to meet with aboriginal leaders through thick and thin. Prentice led the federal plan to improve water quality on reserves; matrimonial real property legislation was introduced to protect the rights of women who divorced on reserve; settlement of comprehensive claims in British Columbia, including Tsawwassen and Maa-nulth, were concluded — with more to come. And, of powerful symbolic importance was the agreement to settle the sad legacy of Residential Schools.  

So, while many of today’s issues seem intractable, success in advancing tough files can be achieved with the right set of people at the table, and through perseverance.  

... 

To return to the original question: What would constitute success on Friday?  

First of all, the Prime Minister and national aboriginal leaders should refocus the broadly-titled agenda items: No one can honestly tackle “Inherent Aboriginal and Treaty Rights” in one gathering. Focusing on, say, economic development would be a practical solution.  

Within a known set of parameters, such as the budgetary envelope for the next five years, a joint AFN-Government of Canada Task Force with a strong mandate could be appointed to write a plan to engage the country’s most significant untapped labour force by the end of this calendar year. Start with a pilot project and engage successful First Nations leaders in the process as advisors and mentors (one can think of Chief Clarence Louie of Osoyoos; Chief Darcy Bear of the Whitecap Dakota First Nation; and many others).  

The danger is that the “grassroots” movement may spin out of control. The government needs the AFN to be a legitimate interlocutor, and both sides need to keep channels open and keep working together to find solutions to the difficult problems facing First Nations. Only the demonstration of progress — not just its promise — will quell the Idle No More movement.

• Attawapiskat First Nations Faces Audit, Distraction or Real Issue?  And CTV offers an interview with aboriginal activist Ellen Gabriel, who discusses the Idle No More movement in general and responds to the federal audit of Attawapiskat First Nations.  Theresa Spence is chief of Attawapiskat First Nations.

BTBObserver Plug: Improving Border Logistics-Increased and Matched Expedited Customs Clearance Merchandise Thresholds

At Beyond the Border Observer, a project of the Woodrow Wilson Center's Canada Institute, Keith Edmund White offers an article exploring a recent regulatory change at the Canadian-U.S. border.

At a minimum, anyone interested in facilitating international trade that hasn't yet come by the term "border logistics" should take a read.

(Note: This plug represents shameless self-promotion.) 

From the post:

This Monday the United States and Canada increased and matched the value thresholds for “expedited customs clearance” to CDN$2,500 and USD$2,500 respectively. Canada also announced that their border agency would match America’s level for low-value shipments that are exempt from NAFTA Certificate of Origin requirements.

This seemingly small but important achievement resulted from the Beyond the Border (BTB) Initiative, a bi-national effort between Canada and the United States to cooperate on security and border management.

...

Now, as reported by Mark Rockwell at Government Security News, the changes to the Informal Entry Limit and Removal of a Formal Entry Requirement regulation brought three changes for merchandise going through U.S. customs valued between $2,000 and $2,500. This merchandise now: 

-bypasses surety bond requirements,
-gets a faster clearance process, and
-enjoys a reduced Merchandise Process Fee (MPF) of $2, instead of $25 (assuming e-filing).

And this regulatory change represents smart regulatory modernization for 4 reasons... 

Read more at Beyond the Border Observer.

Two Countries; Two Leaders; Two Headaches: Harper Deals with Growing Idle No More Aboriginal Movement and Boehner's Seeming Sandy Legislation Misstep

By Keith Edmund White, Editor-in-Chief

Two growing news-stories with two very different routes to prominence. 

In Canada the Idle No More movement, which started as a series of teach-ins, has now turned into a growing social movement propelled by Chief Theresa Spence's hunger strike.  After 23 days of nothing more than fish borth and herbal tea, Spence still remains strong in her demand: a meeting with Prime Minister Harper.

And in the United States, what was thought to be the end of 'Drama-Filled December' with the fiscal cliff resolved has been jolted by reaction to Speaker Boehner's decision to not permit a vote of Senate-passed Hurricane disaster relief legislation.

Idle No More Aboriginal Movement Is Growing, But to What End?

CTVNews.ca and Jordan Press at Canada.com offer a good primer for the Idle No More Movement. 

From CTVNew.ca:

Attention to the growing movement was sparked in part by Chief Theresa Spence, who launched a hunger strike last month in a bid to secure a face-to-face meeting with Stephen Harper. Spence has taken up residence on Victoria Island in the Ottawa River, wanting to discuss issues at Attawapiskat, her First Nations community located on James Bay.

Spence is also calling for a new relationship between the federal government and First Nations peoples.  

Her hunger strike stretched into Day 23 on Wednesday, with Spence vowing to survive on nothing more than fish broth and herbal tea until a meeting is set.

The broader Idle No More movement urges the federal government to honour historic treaty agreements, and organizers are concerned that Bill C-45 -- the omnibus federal budget bill which they say erodes aboriginal rights -- was drafted with no input from aboriginal leaders.

From O.Canada.com:

Rail blockades have already taken place in Quebec and Ontario as demonstrations take place around the world, and Spence’s spokespeople said Wednesday in a written statement that the situation “is becoming more volatile.”

The statement added that chiefs who met in Ottawa last week plan to launch “countrywide economic disturbances” if Prime Minister Stephen Harper doesn’t meet with Spence.

On social media, activists were calling for blockades of border crossings on Saturday “to show the government that we are willing to escalate this to a point where we shut down the country.”

The movement, which started as a series of teach-ins on a small Saskatchewan reserve, has grown into a national movement that is now receiving international attention.
Spence has become a focal point for Idle No More, subsiding on nothing more than fish broth and water since Dec. 11. She has said she’ll starve herself to death if Harper doesn’t meet with her, but has also suggested that a meeting between the government and native chiefs to discuss treaty concerns would suffice.

Harper has so far not said if he will meet with Spence. Aboriginal Affairs Minister John Duncan has offered to meet with Spence, but she has declined his offers.

On New Year’s Day, a close aide to Spence sent a letter to the founders of Idle No More which quotes Spence as saying that chiefs “must humble themselves and be one with the brave grassroots citizens of our nations.

But Keith Beardsley at HuffingtonPost.ca questions whether the Idle No More continued demand for a meeting with Harper may preclude the best outcome: both PM Harper and Chief Spence to have a face-saving way to improve the the challenges facing First Nations People.

From Beardsley's column where he urges Harper to meet with National Chief Shawn Atleo and former Prime Minister Joe Clark, and for Chief Spence to declare victory--steps which then allow both sides to begin substanial dialogue:

Chief Spence has succeeded in galvanizing First Nations communities, activists and youth to take action. Her efforts have helped the "Idle No more" movement which started in Saskatchewan, to take root and grow into a national movement. The movement will not go away any time soon and it is something both the present and future Canadian governments, as well as the First Nations leadership will have to deal with. There is more than enough here for Chief Spence to declare victory.
The Prime Minister also needs a face-saving victory. No national government regardless of its political stripe can be seen to give into a protest for the precedent it will set. He too, needs a way out. Victory for Harper will be one where he can say he did not give in to the protest.

Harper needs to reach out beyond his inner circle, cabinet and departmental advisors. Their advice is stale and hasn't worked so far.

...

Solutions exist, but both sides have to show flexibility, they also need a win-win situation. Both sides want to improve living conditions for First Nations, both sides also want increased opportunities for First Nations, especially for the youth. Who then will be the first to offer a hand in friendship this time and allow the dialogue to begin?

U.S. House Speaker's Sandy Misstep (and now mending):  Growing Criticism Over Boehner's Decision to Not Bring Senate-Passed Hurricane Sandy Relief Bill to a Vote  

This morning on the House Floor, and now with New Jersey Governor's press conference this afternoon, the excoriations of House Speaker Boehner's decision to pull Sandy relief legislation is growing, and getting more and more play throughout the cable news echo-chamber.

Christie's powerful opening statement at his press conference two hours ago included: 

"Last night politics was placed before our oath to serve our citizens.  For me, it was disappointing and disgusting to watch...Last night the House of  Representatives failed that most basic test of public service, and they did so with callous indifference to the suffering of the people of my state."

You can watch Christie's opening statement via YouTube, and definitely check-out the full presser courtesy of C-Span. 

Why has passing the Sandy bill so hard for Boehner?  Well, no one seems entirely sure--apparently there was a commitment to vote on the bill that then fizzled.  But FOXNews says the complaints from Republicans--particularly House Rep. Peter King and Christie--may be for show:

Less than an hour after Christie’s press conference, Republican lawmakers confirmed that the backlash against Boehner was mostly for show, announcing that the Speaker promised a vote on the Sandy aid package on Friday.

Rep. Peter King, R-NY, who earlier Wednesday said that anyone donating money to House Republicans is “out of their mind”, told reporters that he planned to back Boehner for Speaker again.

Update:  Boehner mends fences by agreeing to two votes on January 15, reports The Hill:

Speaker John Boehner (R-Ohio) has agreed to hold two votes on Hurricane Sandy aid after coming under withering fire from New York and New Jersey Republicans.

The House will vote to provide $9 billion to shore up the National Flood Insurance Program on Friday and will vote on another $51 billion Sandy spending package on Jan. 15, according to GOP aides after a meeting between Boehner and GOP lawmakers from the affected states.