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29 January 2018

Another round of NAFTA talks is winding up in Montreal. The tightrope that Canada has been walking since Donald Trump announced the US renegotiation of NAFTA seems to have slacked a bit as phrases like “glimmer of optimism” fill the newswires.

At ECELAW we too have a “glimmer of optimism” as we fight alongside Canada, not for NAFTA’s success but to stop some of its more devastating effects.

NAFTA, signed in 1994 by Canada, the United States and Mexico, was the first trade deal among developed countries to include investor-state protection provisions (Chapter 11). These provisions benefit multinational corporations by allowing them to sue a NAFTA country, other than their own, for lost profits. If a foreign investor believes that they are being treated differently than domestic investors, or are not being treated fairly, the provisions give the investor a special right to initiate legal action against the country, including seeking compensation.

Canada is the most sued NAFTA nation. According to the Canadian Centre for Policy Alternatives, many of the claims involve challenges by companies to Canadian efforts to protect the environment or manage our resources. And so it was with Bilcon. In 2008, after an independent environmental impact assessment panel, established under Canadian law, recommended that Bilcon’s proposed coastal quarry on Digby Neck, Nova Scotia would cause significant environmental effects, Bilcon sued Canada.

Bilcon could have gone to a Canadian court to ask for a review of the government decisions that ended their planned quarry and marine terminal, but instead they laid their case before a NAFTA Tribunal. In that case they claimed that the environmental impact assessment (EIA) process was politically motivated and that the Independent Panel abused its mandate, was secretive, and held bias against them. Seven years later, the NAFTA Tribunal issued its decision: 2-1 in favour of Bilcon.

Because members of ECELAW fully participated in the EIA process that recommended against the Bilcon quarry, attended every hearing and reviewed almost every document, we fundamentally disagree with the findings of the NAFTA Tribunal.

In June 2015, when the Government of Canada took the rare step of asking a Canadian court to have the decision of the NAFTA Tribunal set aside, we knew that this was an important case and that we had to take steps to help. On May 25, 2016, ECELAW and Sierra Club Canada Foundation were accepted as interveners in the case. The Court agreed that our organizations have a genuine interest in the proceedings and that we will provide unique viewpoints.

Today, with the outstanding lawyers at Ecojustice by our side, we are on our way to Ottawa to make our case for strong, independent environmental impact assessment in Canada. We are standing up for every Canadian in every community who believes that environmental decision-making should be made in Canada and should not be overridden by foreign corporations.

This has been an incredibly long and complicated journey. We can’t thank you, our supporters, enough for sticking with us as we travel this road. Today is the day we reach the crossroad.

The case will be heard on January 29 and 30, starting at 9:30 AM at the Supreme Court of Canada building. 

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