Chronicle Herald | 20 February 2018
Digby Neck quarry claim: PM should save us from NAFTA
by PAUL MANLY
On Feb. 2 at the prime minister’s town hall in Nanaimo, B.C., I asked Justin Trudeau why he and his government were fighting to keep Chapter 11 of NAFTA in the agreement.
I explained that Chapter 11, containing the controversial Investor State Dispute Settlement (ISDS) provisions, allows foreign corporations to seek damages from the government of Canada when our laws and regulations get in the way of their ability to maximize profits.
The Bilcon vs. Canada case is a prime example. Bilcon is a Delaware-based corporation that’s seeking $500 million-plus costs for the loss of “potential profit” after their proposed quarry at Digby Neck, N.S., failed to pass an environmental assessment with a federal-provincial joint review panel.
Bilcon wanted to blast a 150-hectare hole near important habitat for the critically endangered North Atlantic right whale and then ship the gravel to New Jersey. The project was deemed to be too harmful to the environment, and not in the interest of the local community. Bilcon claimed there was an error in the environmental assessment process, but rather than take its case to federal court, it appealed to a NAFTA tribunal, which ruled that Canada had discriminated against the company.
Starting this week, the Permanent Court of Arbitration panel will meet again to determine how much Canadian taxpayers will have to hand over to Bilcon. If it’s the full half a billion dollars the company is demanding, that will be $15 out of the pocket of every single Canadian.
In November last year, I travelled to the site of the proposed quarry to interview people who were involved in the environmental assessment process as part of a case study for the film I am producing about ISDS provisions in international trade agreements.
Local fisherman Kemp Stanton, whose family has been living in Digby Neck for over 300 years, told me that Bilcon regarded locals as “stupid fishermen and country hicks” and treated the environmental assessment process like a walk in the park.
Unsurprisingly, their representatives were furious when they found out that locals had lined up a series of experts who swiftly and thoroughly debunked the assumptions Bilcon had made in its own environmental impact study.
I also spoke with experts on the Nova Scotia environmental assessment process who told me that Bilcon based its discrimination claim on the joint review panel’s conclusion that the project would have a significant and adverse environmental effect on “community core values” of Digby Neck. This terminology was used to summarize the socio-economic effects on the community, which are a consideration under the Nova Scotia environmental assessment process.
The experts who testified on behalf of Bilcon at the NAFTA tribunal, David Estrin and NDP MP and environmental lawyer Murray Rankin, understood the federal environmental assessment process. But according to Dalhousie University law professor Meinhard Doelle, neither had “any experience or particular expertise with respect to the Nova Scotia Environmental Act and its environmental assessment process.”
Not one local resident or expert from the joint review panel was allowed to testify at the NAFTA tribunal.
Mr. Trudeau’s answer to my question about Chapter 11 was that Canada would not be bullied in the NAFTA negotiations. This was an odd response, given that Canada is already the most bullied country under NAFTA, having paid out hundreds of millions of dollars in compensation to U.S. corporations. Meanwhile, the U.S. government has never lost a case — and they’re the ones calling for Chapter 11 to be scrapped.
The prime minister also stated that the Liberal government is pursuing progressive trade agreements that protect the environment and the rights of workers and Indigenous peoples. He cited changes to the investment chapter of the Comprehensive Economic Trade Agreement with the European Union (CETA), and the Trans Pacific Partnership without the USA (TPP11), both of which maintain old-school ISDS provisions allowing foreign corporations to sue our governments when laws protecting our communities could impede their potential to earn profits.
All three NAFTA countries have judicial systems that can adjudicate trade disputes between companies and governments. We do not need a secretive tribunal system to protect corporate interests.
U.S. Trade Representative Robert Lighthizer agrees. “I’m always troubled by the fact that non-elected non-Americans can make the final decision that the United States law is invalid. This is a matter of principle I find offensive.”
I hate to agree with the Trump administration, but I find the concept offensive as well.
We must get rid of Chapter 11 in NAFTA, and for that to happen, the government has to stop defending it in the negotiations. Old-school ISDS mechanisms have no place in progressive trade agreements between established democracies. Our sovereignty is literally at stake.
Paul Manly is the International Trade and Investment critic for the Green Party of Canada and producer of the feature-length documentary You, Me and the SPP: Trading Democracy for Corporate Rule.