OTTAWA – On Friday, a three person arbitration panel, by a margin of 2-1, ruled against the Nova Scotia government in its clear decision to reject a controversial quarry proposed for Digby Neck, Nova Scotia. The NS government decision was based on a unanimous recommendation from a 2007 joint federal-provincial review panel held under the terms of the now-repealed Canadian Environmental Assessment Act (CEAA).
The CEAA panel, chaired by respected scientist Dr. Robert Fournier, made its recommendations to then Environment Minister, John Baird and NS minister Mark Parent. Bilcon of Delaware had proposed a massive basalt quarry on Digby Neck to ship basalt to the US for highway construction in New Jersey. The project involved a marine terminal and a large increase in marine traffic through an area of the Bay of Fundy — critical habitat for many whales, including the Right Whale, the world’s most endangered whale species. It was the first time in the history of environmental assessment law under CEAA that a project was so unacceptable that the panel ruled it not proceed.
Bilcon appealed through the investor-state provisions of NAFTA (Chapter 11). Two out of three members of the arbitration panel ruled that the federal-provisional EA panel was “unjust” in rejecting a project after other branches of government had promoted coastal mining projects. Bilcon will now pursue its claim for $300 million in damages in a second hearing to determine what Canada owes the New Jersey company.
“This is one in a long list of perverse decisions from unaccountable arbitration panels. The language used in the panel decision confirms these international lawyers have not even the most rudimentary understanding of the environmental assessment process. There was nothing unusual or ‘unfair’ in what the panel concluded. Contrary to claims by Bilcon’s Toronto lawyer, Barry Appleton, the panel did not stray beyond its mandate under CEAA and nothing in CEAA should have been a surprise to Bilcon,” said Elizabeth May, Leader of the Green Party of Canada and Member of Parliament for Saanich-Gulf Islands.
In her role as Executive Director of the Sierra Club of Canada, Ms. May had extensive involvement in the Digby Neck quarry issue, was an intervenor and testified to the EA panel. “This arbitration panel decision is so outrageous that it must be appealed,” she went on to say.
An appeal to whichever court was designated in the establishment of the panel is supported by the dissent of tribunal member, Prof. Donald McRae, who argued that the majority decision could create a significant intrusion into Canada’s domestic laws and undermine environmental reviews.
“We need to make these anti-democratic investor-state provisions an election issue,” said Paul Manly, International Trade Critic for the Green Party of Canada and candidate for Nanaimo-Ladysmith. “Thanks to Stephen Harper, China now has access to the same kind of arbitration appeals that Bilcon used. It doesn’t take much to imagine Enbridge or Kinder Morgan arguing it was encouraged by Stephen Harper, only to be turned down by environmental and First Nations objections. We need to ensure that all opposition parties are prepared to re-negotiate all such FIPAs (Foreign Investor Protection Agreements) and make sure Canadian environmental and labour laws are not trumped by foreign investors.”