Nova Scotia environmentalists must fight quarry — again
Digby Neck quarry battle was won nearly a decade ago — but now it's a sovereignty test
Nova Scotia environmentalists will re-fight a quarry battle this month they won nearly a decade ago as the case morphs into a test of sovereignty under the North America Free Trade Agreement.
The Federal Court of Canada granted intervenor status to the Sierra Club of Canada and East Coast Environmental Law of Halifax in the Bilcon case, as it's known.
Company says quarry was wrongly rejected
The Delaware company is seeking $100 million US in damages from an international arbitration panel that ruled a joint Canada-Nova Scotia environmental assessment panel wrongly rejected Bilcon's plans for a quarry at Digby Neck.
"It is crucial for this community and Nova Scotia have the environmental assessment decision upheld," said Gretchen Fitzgerald, director of the Atlantic chapter of the Sierra Club of Canada.
In June 2007, Fitzgerald participated in the review panel hearings held at Digby Pines.
Company calls treatment unfair
The result was a recommendation — accepted by Canada and Nova Scotia — to reject the proposal on the grounds it compromised "community core values."
In 2008, Bilcon appealed under NAFTA Chapter 11 arguing it was being unfairly treated.
A three member international arbitration panel upheld the company's complaint in March 2015 on the grounds the "community core values" criteria does not exist in Canadian law, was not raised at the hearing and there was no proper assessment of the environmental impact of the project nor of mitigation measures.
Exceeded jurisdiction
While the company seeks $100 million in compensatory damages, the federal government has applied to the Federal Court of Canada to set aside the ruling on the grounds the panel exceeded its jurisdiction.
It says a Canadian court — not a NAFTA tribunal — is where the company must turn if it objects to a decision made by a Canadian environmental assessment.
Avoid casting a chill
Fitzgerald says if Bilcon succeeds, foreign companies will be able to make an end run around Canada's environmental laws.
"There was a review that involved the community, that involved expertise. It was methodical. It followed a process the company was well aware of, and they didn't pass the test." Fitzgerald told CBC News.
"This has to be upheld so in future there isn't a chill cast that no matter what we do, there is another process that a company can go to and have all this work and expertise overturned."
New hearing soon
Bilcon has applied to the Federal Court of Canada to put the judicial review on hold until the arbitration panel decides how much Canada owes the company.
The stay hearing will be held in Toronto on June 22.
Canada, the United States and Mexico have argued the arbitration panel misinterpreted NAFTA in the Bilcon case.
Canada said if Bilcon gets its stay, it will be another 18 months before Canada's application to set aside the arbitration panel ruling will be heard.
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