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Foreign investors to face additional scrutiny under proposed changes to investment act

Click to play video: 'Foreign investors to face additional scrutiny under proposed changes to Investment Canada Act: Minister Champagne'
Foreign investors to face additional scrutiny under proposed changes to Investment Canada Act: Minister Champagne
WATCH: On Wednesday, the federal government unveiled what officials describe as the biggest update to Canada’s foreign direct investment laws in over a decade, with new rules requiring approval for investments in “sensitive sectors” and broader efforts to share information on firms under review. – Dec 7, 2022

The federal government on Wednesday unveiled what officials bill as the biggest update to Canada’s foreign direct investment laws in over a decade, with new rules requiring approval for investments in “sensitive sectors” and broader efforts to share information on firms under review.

The pre-implementation requirement is one of several changes outlined in a bill seeking to modernize the Investment Canada Act in order to further protect Canada from malicious foreign actors.

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“The reality is, geopolitics of the world today have vastly changed in the last few years,” Minister of Innovation, Science and Industry Francois-Philippe Champagne told reporters Wednesday evening in Ottawa.

“That’s why we must be prepared to face the challenges that could endanger our economic security, and I would say our national security.”

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The proposed amendments do not specify what sectors will require the new pre-implementation filing, which will require firms seeking to make foreign investments in those sensitive sectors to give advance notice of those proposed investments. The change is meant to give the government a chance to ensure foreign investors do not gain access to “sensitive assets, information, intellectual property or trade secrets” that would become available on the closing of a deal before a national security review can be done.

Champagne told reporters the list of sectors the changes seek to protect will include critical minerals — where lithium, graphite and cobalt are increasingly being used for electric vehicles and other goods — as well as sensitive technologies and those holding Canadians’ personal information.

“We’ve seen more and more in the digital economy, people want (to) access the data of Canadians,” Champagne said.

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He also mentioned quantum and artificial intelligence as technologies in need of protection.

Failure to submit the filing will result in a fine of at least $500,000, according to the legislation.

Other changes in the proposed bill include a more streamlined process to initiate a national security review of any foreign investment and additional powers to the industry minister during such a review.

The legislation would also increase penalties for any non-compliance with the act to $25,000 per day, per infraction, with no limit.

Why reform the foreign investment law now?

The government says the proposed changes are meant to address “evolving national security concerns,” and are the latest move by Ottawa amid renewed scrutiny on its ability to counter foreign interference and influence in its domestic affairs.

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The federal government last month unveiled a new Indo-Pacific strategy aimed at countering a “disruptive” China that includes military, domestic security and cybersecurity enhancements, and a new Investment Canada Act rule restricting the involvement of foreign state-owned firms in Canada’s critical mineral sectors was announced on Oct. 28.

The new legislation would give Champagne, as industry minister, the ability to extend a national security review into any foreign investment after consulting with the public safety minister. Currently, extensions require a Governor in Council order. The government says the change would streamline the process and give security and intelligence agencies more time to complete their reviews.

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Champagne would also be able to impose conditions on an investment under national security review, including freezing the transfer of assets and intellectual property, and directly approve actions by investors that would mitigate a national security risk. The minister said this change brings Canada in line with the United States, which already has such rules in place.

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He added that while the current version of the Investment Canada Act only allows the government to say “yes” or “no” to foreign investments being reviewed for national security concerns, the change would give Champagne the opportunity to say “maybe, but with conditions.”

The proposed changes would also allow Canada to share information about investors with foreign allies “to potentially address common national security threats.”

Government officials said in a technical briefing this is aimed at better examining investment proposals from firms that may be seeking sensitive technologies in multiple jurisdictions.

Currently, specific investor information is considered privileged and cannot be disclosed.

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Champagne’s mandate letter instructed him to modernize the Investment Canada Act with goals to “promote economic security and combat foreign interference” by strengthening the national security review process.

The Indo-Pacific Strategy also stated that Canada will implement changes to the Investment Canada Act in an effort to “strengthen the defence of Canadian infrastructure, democracy and Canadian citizens against foreign interference” at the domestic level — protecting Canadian critical minerals supply chains, intellectual property and research and strengthening Canada’s cybersecurity systems.

Following the announcement, Champagne ordered three Chinese firms to divest from Canadian critical mineral companies on Nov. 2.

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— with files from Global’s Heidi Lee and The Canadian Press

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