Lost in Translation: A study of how unclear application to the Investment Canada Act has deterred foreign investment into the oil sands

Abstract

Prime Minister Harper’s statement following the 2012 takeover of Nexen by CNOOC that “going forward, the Minister will find the acquisition of control of a Canadian oil-sands business by a foreign state-owned enterprise to be of net benefit, only in an exceptional circumstance” represented a major shift in the Canadian government’s attitude towards foreign direct investment into the energy sector by state owned enterprises. While the policy announcement was intended to clarify application of the Investment Canada Act (ICA), it has done the opposite. By adding the term “exceptional net benefits” when reviewing state owned enterprise’s bids for control of Canadian oil sands companies, the Canadian government has unfairly targeted Asian SOEs and confused the use of the net benefits test when assessing foreign investments. The resulting policy has had a negative effect on the development of the oil sands and on investor sentiment towards Canadian energy projects. Evidence suggests that the policy change has had negative consequences on investment activity including: increasing investment costs for acquirers, increasing costs of capital and decreasing available capital for junior oil and gas companies, and creating uncertainty in the minds of foreign investors leading to them questioning Canada as a place for future investment.