A legal opinion released last month by CAUT and a coalition of education groups and unions warns Canada's public education system is at risk during the current round of trade liberalization talks now taking place in Geneva under the authority of the World Trade Organization.

"The opinion leaves no doubt that existing WTO protections of education and other public services are inadequate," said CAUT president Tom Booth. "This really puts into question the Canadian government's entire negotiating strategy."

Canadian officials and proponents of the WTO's General Agreement on Trade in Services (GATS) claim education and other public services like health care are excluded from the treaty, but the opinion, prepared by the international law firm of Gottlieb Pearson, concludes this protection is "unclear" and will be "narrowly interpreted." This explicitly contradicts Canada's position and also runs contrary to statements made by WTO officials, including Director General Michael Moore.

"Rather than being excluded, education is already more exposed to the GATS than we'd like it to be," Booth said. "The coverage of the treaty is so broad that it extends even to local school boards."

One trade expert says the opinion "should shock Canadians." Scott Sinclair, senior research associate with the Canadian Centre for Policy Alternatives, believes the opinion "demonstrates that the GATS purported exclusion for governmental services is flawed and cannot be relied upon to protect public services. If the Canadian government is serious about protecting public education systems, it must obtain concrete changes now to ensure public services are truly off the negotiating table."

The opinion states that government services are defined very narrowly in the GATS text as "any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers." If a public service is provided on a commercial basis, or if there are other non government suppliers, it is subject to the GATS.

It is highlighted that the increasing commercialization of education in Canada makes it increasingly difficult to draw a clear line between those services provided strictly on a commercial basis and those provided on a competitive and commercial basis.

The authors state that "(d)ue to scarcity of public funding, some public universities as well as secondary schools are starting to offer cost-recovery continuing education and extension programs, and are developing innovative institutional arrangements between public and private entities."

Booth says this means Canada's public education system is at greater risk than many people think. "Since education in Canada involves both public and private funding and is delivered by a mix of public, nonprofit, and for-profit providers, it is not fully protected from the general exclusion," he explained. "This runs directly counter to what trade officials have assured us."

If education were to become fully covered by the GATS, Booth said the measures that would be put at risk include:

• Local hiring preferences, such as the current requirement that Canadian citizens and landed immigrants be given first priority for faculty positions;
  
• Local content requirements, such as the required use of Canadian textbooks in public schools;
  
• The restriction of "consumption subsidies" such as student loans and scholarships to Canadian citizens and landed immigrants only;
  
• The restriction of research grants to Canadian citizens and landed immigrants only;
  
• The restriction of degree-granting authority to Canadian institutions only; and,
  
• The restriction of public subsidies to Canadian and nonprofit institutions.
  

Booth added the threats to public education are heightened by Canada's negotiating position in which it has indicated it will seek and is considering making further GATS commitments covering "private" education services.

"You can't build a firewall between the public and private education systems," Booth commented. "The line between the two is blurry. If you make commitments on private education, you increase the threat to the public system. Canadian negotiators should be seeking a permanent protection for mixed public services like education."

The opinion also warns that commitments Canada may make in other sectors could have profound impacts on the education system: "(e)ven though Canada has not made any specific commitment in the area of education services, commitments made in other sectors could have an impact on education services as well as the supply of services in conjunction with products such as text books or courseware."

Moreover, "(a)lthough intended to be self-exclusive, commitments made by Canada in sectors such as telecommunication services as it deals with data processing services for instance, research and development, libraries, and professional services may affect education services and their delivery."

The authors conclude by raising concerns about the impact of this and future rounds of GATS negotiations, particularly in light of growing U.S. pressure to bring education more fully under the disciplines of the treaty.

"The broad coverage of GATS and the future outcome of current GATS negotiations will probably further affect education services in Canada, particularly if Canada chooses to make commitments in that sector.

"With the United States seeking removal of obstacles to trade in education sectors and other negotiating proposals to come, it is conceivable that Canada will make market access and national treatment commitments in this sector and in others."

The legal opinion was commissioned by the B.C. Teachers' Federation, the Canadian Union of Public Employees (B.C.), CAUT and the Canadian Federation of Students. The opinion is available at www.caut.ca.