NAFTA Challenge - Digby Neck Quarry

Bilcon claims in its notice of intent that the joint federal- provincial environmental review process was unfair and treated the U.S. company differently than a Canadian company would have been treated. Both levels of government rejected the quarry proposal after receiving the panel´s report. Bilcon lawyer Barry Appleton of Toronto also told The Chronicle Herald that the panel stepped outside its jurisdiction, factoring "community core values" into its decision. Mr. Fournier said the panel got advice on the NAFTA implications from a federal international trade official and from Gilbert Winham, an expert from Dalhousie, during the panel´s hearings last June. "We feel that we took that advice and that our document doesn´t lend itself to this kind of lawsuit," Mr. Fournier said. "I just think it´s without merit." Mr. Fournier said he didn´t want to get into a back-and-forth on Mr. Appleton´s allegation that the panel didn´t ask questions of Bilcon´s expert witnesses. "That´s not going to be helpful here," the Dal prof said. "As I said, I read your article in the paper this morning, and . . . I didn´t find that his comments really had a great deal of merit to them. "I´m not moved by his arguments." As for Mr. Appleton´s claim that the panel went outside its mandate by considering "community core values," Mr. Fournier said it was well within the panel´s mandate to look at how the project could affect the area in ways that weren´t strictly environmental. The definition of "environmental effects" in the panel´s terms of reference included any effect a change in the environment would have on "health and socio-economic conditions (and) physical and cultural heritage." The federal and provincial governments also said the scope of the assessment should include "the socio-economic effects of the project." Mr. Fournier said that should answer those people who have criticized the panel for straying from its mandate. "We were asked to consider natural environmental things, like the physical environment, the biological environment and so forth, but also distinctly included was socio-economic issues related to this project, and I don´t know how more explicit you have to be than that," Mr. Fournier said. Bilcon launched its challenge under Chapter 11 of NAFTA. That section lays out rules for foreign investment, including the requirement to treat foreign investors the same as domestic ones - fairly and equitably. Mr. Winham´s submission to the panel said there have been 15 completed cases of investors challenging governments. In 10 of those, the government "won" when the complaint was dismissed, he said. Bilcon is supposed to file its formal complaint within 90 days. A tribunal would then look at the case, and a decision would come in about two years. Janet Eaton of the Sierra Club of Canada said this challenge will add more fodder to the argument to get rid of NAFTA. "To me, this is just another reason why all of those voices that are calling for rescinding NAFTA may start to mount into something that would be an election issue, would be something that average citizens might want to pursue," said Ms. Eaton, the Sierra Club´s international liaison for corporate accountability. Nova Scotia Environment Minister Mark Parent said he couldn´t offer much response to Bilcon´s harsh criticism of the process in its notice of intent. The minister said he hadn´t seen the document and that the action is directed toward the federal government. Mr. Appleton has complained that the review process for Bilcon took more than five years, while other projects got a decision much quicker. He cited last week´s provincial approval of a gold mine in Moose River after a review that took just 11 months. "Every project is different and evaluated differently," Mr. Parent said. "Certainly, I´ve expressed in the past that we want to do things in a timely manner, but each project is different." Mr. Parent wouldn´t comment on the process in the Bilcon case but he said he stands by his decision to reject the quarry proposal. The panel found that Bilcon didn´t provide enough information on several environmental matters, including protecting water and species like whales in the Bay of Fundy. ... http://www.thechronicleherald.ca/Front/1036279.html [2] Green Party says Bilcon suit proves NAFTA needs fixing http://www.greenparty.ca/en/releases/06.02.2008 06.02.2008 ======================================== NEW GLASGOW - Green Party leader Elizabeth May today denounced the flawed provisions of NAFTA that allow a foreign investor rights to sue governments that make appropriate decisions to protect the environment. Bilcon, proponent of the White Point Quarry project that was rejected last year, is suing the government for more than $188 million for rejecting the development. "The decision making process on the White Point Quarry was not at all discriminatory to a foreign investor. It is NAFTA that discriminates against domestic investors by granting unreasonable rights to US- based companies," said Ms. May. "The proposed quarry on Digby Neck was completely unsustainable and could not be justified in the environmental assessment process. The panel had it right. Both the federal and provincial ministers had it right. It is NAFTA that is wrong." Ironically, in its brief to the joint federal-provincial panel, the Green Party focused on the threat of a possible Chapter 11 challenge by Bilcon and even quoted the Toronto lawyer who has been retained by Bilcon. The Green Party brief stated in part: "The key thing to understand about Chapter 11 is that findings in favour of a foreign corporation do not rest on the regulation or governmental policy shift being wrong in science. The sole issue is `did the investor company experience a reduced expectation of profit?´ In fact, Ethyl Corporation in its settlement received money from the federal government for damage to its reputation in the House of Commons debate to eliminate a toxic additive. This is the same company that continues to sell leaded gasoline to the developing world. As explained by the Toronto lawyer who successfully represented both S.D. Myers and Ethyl Corporation, Barry Appleton, `It doesn't matter if you are adding liquid plutonium to children´s breakfast cereal.´ If you were allowed to do so and then the government banned the practice, the government would owe the foreign investor money." "We must re-open NAFTA and fix Chapter 11. I have spoken to Canadian negotiators of NAFTA. They never imagined that Chapter 11 could be used in this fashion. It is an outrageous perversion of democracy," said Ms. May.

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