Canada being sued under NAFTA by US firm


Tonington
#1


THE COMPANY that wanted to develop a quarry on Digby Neck will seek damages of at least US$188 million for the way Canada handled its environmental review of the project.

In a notice of intent to be filed today in Ottawa, Bilcon of Delaware is seeking a massive compensation package under the North American Free Trade Agreement, or NAFTA.

And be warned, folks: If Canada loses this trade action, Nova Scotia will end up coughing up a lot of cash.

Under international trade law, Bilcon has to name the federal government as the respondent in this dispute. But sources say Ottawa would go after Nova Scotia as a key player if compensation is awarded to the firm.

Bilcon is part of the Clayton family empire, a New Jersey concrete conglomerate, that is arguing — in essence — that the environmental assessment of this project uncovered anti-Americanism.

"This is perhaps the worst example of regulatory failure that I have ever seen," said Toronto trade lawyer Barry Appleton, who is representing the Claytons in the NAFTA dispute.

The notice of intent alleges that Canada violated NAFTA by taking "discriminatory" actions against Bilcon — imposing "treatment far less favourable than that accorded to similar Canadian-owned investments."

Asked to elaborate on this, Mr. Appleton referred to the new gold mine project at Moose River, which he says was reviewed and assessed by the province in 11 months.

The review process for the Whites Point quarry took 5 1/2 years.

"That’s a tremendous difference of treatment," Mr. Appleton said in an interview. "The Clayton family was treated significantly less favourably."

Mr. Appleton said other odious (or unfavourable) comparisons will be cited when Bilcon tables its formal complaint under NAFTA after a 90-day waiting period.

Today’s action triggers a process that should take about two years to complete, he said. After adjudicating the facts, a NAFTA tribunal would award appropriate compensation — or not.

Last October, environmentalists heaped praise on the work of the federal-provincial environmental panel that reviewed the proposed Whites Point quarry.

The panel, chaired by Robert Fournier of Dalhousie University, called on the federal and provincial governments to reject the project. (Both governments did just that.)

Mr. Fournier’s panel also suggested Nova Scotia should put in place a comprehensive management plan for coastal development. More dramatically, it cited community values as a key factor in its decision.

At the time, the use of core community values was praised as precedent-making.
"We are making history here in Nova Scotia," said Gretchen Fitzgerald of the Sierra Club of Canada.

But neither the Claytons nor their lawyer were impressed. Mr. Appleton, a veteran international trade litigator who has written books on NAFTA, said Monday that the "wheels fell off" this regulatory process.

The Fournier panel "included novel, non-scientific criteria" in its decision, Mr. Appleton said.
"They used this concept of community core values, which they had no authority to invoke. Bilcon was never informed of these community core value criteria so it could address them."

Mr. Appleton says, in essence, that the Fournier panel stepped outside its jurisdiction.
In the notice of intent, Bilcon also says the panel ignored favourable submissions from government departments, including Transport Canada, Natural Resources Canada and the Nova Scotia Department of Environment and Labour.

Mr. Appleton’s comments make it clear that the Claytons also expected a warmer reception from the province. Nova Scotia promotes international investment, he said, but you sure wouldn’t know it from the treatment that Bilcon received here.

"It takes a lot of beautiful tourism advertising to try to overcome this kind of international investment record," he said. Are there other signs that this dispute is turning bitter, if not personal? My impression is that the Claytons are determined to get a fair hearing at NAFTA, after they feel they were denied one by a Nova Scotia government they see as hypocritical. (Politicians here got behind the project, until the opponents started winning the war for hearts and minds.)

And then there’s the personal and symbolic stuff. Sources say at least one government minister cancelled a meeting with members of the Clayton family. They also say the photograph of the supposed quarry site, on the cover of the panel’s report, missed the target by several hundred metres.

Are they bitter?

Maybe not. But Clayton family interests will clearly argue that the loss of "aggregate" from the quarry and a flawed regulatory process will cost their companies a fortune — at least $188 million, I guess.

In short, the real battle is just beginning. In all likelihood, Bilcon will never develop a quarry on Digby Neck. But it might just grab the Nova Scotia government by the scruff of the neck and give it a good shake, instead.

( jmeek@herald.ca)


Yikes
 
karrie
No Party Affiliation
#2
hmm. not good.
 
EagleSmack
#3
So basically this US company wants to mine in Canada...Canada has decided they do not want them there...so the company is filing suit. This is garbage. Before NAFTA would Bilcon even have a leg to stand on?
 
lone wolf
Free Thinker
#4
Would you take the word of anyone whose name shortens to something like Bilk?

Woof!
 
karrie
No Party Affiliation
#5
They'd have had no leg before NAFTA eagle.

but, they do now. This'll be a great one for fostering peace and brotherly love hey?
 
Tonington
#6
Quote: Originally Posted by EagleSmack View Post

So basically this US company wants to mine in Canada...Canada has decided they do not want them there...so the company is filing suit. This is garbage. Before NAFTA would Bilcon even have a leg to stand on?

Actually, the Federal Government is only on the hook for the marine terminal, the quarry is the provinces jurisdiction.
 
lone wolf
Free Thinker
#7
Quote: Originally Posted by EagleSmack View Post

So basically this US company wants to mine in Canada...Canada has decided they do not want them there...so the company is filing suit. This is garbage. Before NAFTA would Bilcon even have a leg to stand on?

In Ontario, assuming all the environment stuff hadn't got in the way, anyone whose living could be negatively impacted by the new guy could go before the Ontario Municipal Board. The new guy could file any litigation he wanted, nothing would go before the Court until there was a ruling by OMB.

Woof!
 
EagleSmack
#8
Quote: Originally Posted by Tonington View Post

Actually, the Federal Government is only on the hook for the marine terminal, the quarry is the provinces jurisdiction.

Ok...but it is still part of the Canadian Govt. Because I am not sure exactly how the provinces vs govt run...would it be like saying a Canadian firm wants to sue the state of Maine as opposed to the US Fed Govt. in a similar circumstance? (hypothetical)
 
EagleSmack
#9
Quote: Originally Posted by lone wolf View Post

In Ontario, assuming all the environment stuff hadn't got in the way, anyone whose living could be negatively impacted by the new guy could go before the Ontario Municipal Board. The new guy could file any litigation he wanted, nothing would go before the Court until there was a ruling by OMB.

Woof!

I think I am getting this. So NAFTA allows a US company to file suit against a Canadian Province. To me it should be as easy as "Yankee Go Home" you aren't welcome here. I would feel the same if a Canadian company wanted to come to my town and mess things up for their gain.
 
Tonington
#10
Quote: Originally Posted by EagleSmack View Post

Ok...but it is still part of the Canadian Govt. Because I am not sure exactly how the provinces vs govt run...would it be like saying a Canadian firm wants to sue the state of Maine as opposed to the US Fed Govt. in a similar circumstance? (hypothetical)

I think it would be similar. The federal government is probably named just because they were an involved party. Like If Manitoba wanted to sue North Dakota for water use of something like that, but that might be a different thing altogether removed from NAFTA.

I think they'll get some money, but not all. The 5.5 years is a long time to wait. But the panel that made it's decision took a long time, because they were also looking at NS's lack of coastal zone development strategy. They actually recommend that no proposed quarries on North Mountain be granted license to operate until they draft a strategy to deal with the issues.
 
darkbeaver
Republican
#11
NAFTA has been used against Mexican municipalitys as well as Canadian and American, nationalitys don't matter in these in cases under NAFTA regulations. It's corporations against the public interest in all three countries. The bigger the corporation the less chance countys states and provinces have as esentially the outcomes depend on the size and cost of the law firms. NAFTA really is a corporate crime.
 
lone wolf
Free Thinker
#12
Quote: Originally Posted by EagleSmack View Post

I think I am getting this. So NAFTA allows a US company to file suit against a Canadian Province. To me it should be as easy as "Yankee Go Home" you aren't welcome here. I would feel the same if a Canadian company wanted to come to my town and mess things up for their gain.

Read the very first lines. It's an environmental issue - not a political one. Yankee go home would never fly in our prissy Courts.

Woof!
 
EagleSmack
#13
Encompassing all of your responses I think that this is just wrong. I think it is a question of sovreignty. Canadians should be the ones (Federal, Provincial, or local) to decide what is down with their land. The same goes with Mexicans and Americans. I never liked NAFTA but I did not think that foreign companies were allowed to force themselves on foreign nations or else.
 
EagleSmack
#14
Quote: Originally Posted by lone wolf View Post

Read the very first lines. It's an environmental issue - not a political one. Yankee go home would never fly in the Courts. Besides, lumber tariffs and the California Hydro thing should be proof enough that the US doesn't pay attention to Court rulings any more than they care about another nation's soverignity.

Woof
Woof!

Now Now Now...for once don't turn this into another one of THOSE threads. I am not here to look for a chink in Canadian armor here Wolf. I am in agreement with with you folks. That is of course if you agree with the stand the Nova Scotians are taking. Whether it be environmental or political it should not matter what the reason is. The province has decided it does not want Bilcon there and that should be that.
 
lone wolf
Free Thinker
#15
Quote: Originally Posted by EagleSmack View Post

Now Now Now...for once don't turn this into another one of THOSE threads. I am not here to look for a chink in Canadian armor here Wolf. I am in agreement with with you folks. That is of course if you agree with the stand the Nova Scotians are taking. Whether it be environmental or political it should not matter what the reason is. The province has decided it does not want Bilcon there and that should be that.

Words eaten and the crow is delicious....

Woof!
 
karrie
No Party Affiliation
#16
'The province has decided, and that should be that.'

No. Not entirely.

There's enough room for abuse by governments without making it possible for a provincial or federal government to only allow in investors that they like or benefit from in some way. All investment opportunities should be open to bidders, and should be rejected only on tangible grounds. I don't know that 'community values' is a ground upon which I want to start seeing investors turned away. I've seen that sort of strangle hold on a community at a municipal level, and the lack of new business nearly destroyed the town.

I'm kind of on the fence with this one as it reads.
 
EagleSmack
#17
Quote: Originally Posted by karrie View Post

'The province has decided, and that should be that.'

No. Not entirely.

There's enough room for abuse by governments without making it possible for a provincial or federal government to only allow in investors that they like or benefit from in some way. All investment opportunities should be open to bidders, and should be rejected only on tangible grounds. I don't know that 'community values' is a ground upon which I want to start seeing investors turned away. I've seen that sort of strangle hold on a community at a municipal level, and the lack of new business nearly destroyed the town.

I'm kind of on the fence with this one as it reads.

Well perhaps I am more stuck on the sovreignty issue. I see your point. I am putting myself in the shoes of the Nova Scotians that don't want Bilcon. There are enough of them to make the politicians shudder and back off. But you make a good point.
 
karrie
No Party Affiliation
#18
Quote: Originally Posted by EagleSmack View Post

Well perhaps I am more stuck on the sovreignty issue. I see your point. I am putting myself in the shoes of the Nova Scotians that don't want Bilcon. There are enough of them to make the politicians shudder and back off. But you make a good point.

Yeah, the sovereignty issue bugs me too, but, as a sovereign nation we signed the NAFTA.

Either we stand by the agreements we make, or we don't. So many Canadians had their hackles up over the softwood tariffs (not wanting to start a fight here, but, we wanted the agreement upheld), so how can we then be right to expect to get to ignore it when it suits us?
 
lone wolf
Free Thinker
#19
Really, it seems awful petty to me when they use an aesthetics plea to spark an environmental issue. Quarrying operations are tough on the landscape. That's the nature of the business. It changes for nobody no matter whose flag you fly. A pit can (and in Ontario it is required by law) be rejuvinated. The loss of your people because there is no work for them can't....

Woof!
 
Tonington
#20
For those who don't know, Digby neck is a very narrow finger of land that juts out into the Bay of Fundy. It's actually a very old mountain range. If you follow the contours northeast from there, up the coast, you'll find North Mountain.

The topography to me makes me think that in this particular case, erosion would be a big issue. If they can't deal with that in an adequate way, then they risk interfering with the marine life in the area. Which brings us to the crux of the issue. By far the largest income source in that area relies on the marine life. They fish, and in the summer they supplement their income by taking tours of rich tourists out to see the whales.

That is a very important aesthetic issue Wolf. We've seen here in the Maritimes that when tourism starts to fall off, for whatever reason, it is very hard to convince people to come back. Having the renowned natural landscape of this area of NS, or any other for that matter, would be horrible for a big part of the local economy.
 
darkbeaver
Republican
#21
Fornicate NAFTA and the life sucking corporations. There was the MTBD case in California which if I recall was a case brought under NAFTA rules about a municipalitys not wanting the chemical anywhere near thier community, I think the same thing happened in BC with the same chemical.
 
lone wolf
Free Thinker
#22
I'm thinking in terms of Ontario - where the closest parallel we have are the quarries on the Quinte Peninsula. I'm also a bit biassed toward the aggregates industry considering my business ran on hauling quarried material to the cement plant. Odd how Free Trade and GST conspired to bankrupt me....

Woof!
 
karrie
No Party Affiliation
#23
Quote: Originally Posted by Tonington View Post

For those who don't know, Digby neck is a very narrow finger of land that juts out into the Bay of Fundy. It's actually a very old mountain range. If you follow the contours northeast from there, up the coast, you'll find North Mountain.

The topography to me makes me think that in this particular case, erosion would be a big issue. If they can't deal with that in an adequate way, then they risk interfering with the marine life in the area. Which brings us to the crux of the issue. By far the largest income source in that area relies on the marine life. They fish, and in the summer they supplement their income by taking tours of rich tourists out to see the whales.

That is a very important aesthetic issue Wolf. We've seen here in the Maritimes that when tourism starts to fall off, for whatever reason, it is very hard to convince people to come back. Having the renowned natural landscape of this area of NS, or any other for that matter, would be horrible for a big part of the local economy.

Ecological and Economical impact are valid reasons to deny a bid.

Why didn't they do that in this case? Why the community values bull?
 
Tonington
#24
Quote: Originally Posted by karrie View Post

Ecological and Economical impact are valid reasons to deny a bid.

Why didn't they do that in this case? Why the community values bull?

I believe it was the reasoning. As I said earlier, the panel recommended that no quarries be given license to operate until NS drafts a comprehensive plan for coastal zone development.

What troubled me was the language used in the statement by Bilcon's lawyer. I think it was way off base.
 
Praxius
Free Thinker
#25
This made me laugh:

Quote:

The Fournier panel "included novel, non-scientific criteria" in its decision, Mr. Appleton said.

"They used this concept of community core values, which they had no authority to invoke. Bilcon was never informed of these community core value criteria so it could address them."

This coming from a guy who has a president who still believes Creationism over Evolution?

A concept of community core values indeed.... I remember when this was all going on. They wanted to mine in that location. The people who lived there didn't want the damn thing there, so they didn't allow it.

Now they're sueing because they didn't get what they wanted?

It took that long because of the amount of controversy from the local community and what the provincial government had to juggle with NAFTA and these guys.

That's like a Canadian company who flies down to the Mississippi River to buy out a few KM's for a giant Beaver Farm. I'm pretty sure the community nearby would be a bit PO'd and it wouldn't be allowed for many reasons... scientific or not.

The Province/Government has to answer to the people they work for, not the companies from another country who want to buy us out for their own reasons. And besides, if they did allow it, then they'd still be out of a job because the community wouldn't put up with it.

They're suck holeling the crap right out of this NAFTA BS and since they couldn't milk all the money out of the community and their resources one way, they'll just sue all the money out of the community in court.... either way they get rich at the expense of some small town/community.

If Ottawa doesn't back up our proviences and our people in this matter, then they truly have no spine and took it one too many times bent over for my liking.

Election.
Last edited by Praxius; Feb 6th, 2008 at 09:21 AM..
 
Nuggler
#26
Praxius:"If Ottawa doesn't back up our proviences and our people in this matter, then they truly have no spine and took it one too many times bent over for my liking"

Certainly the case here, no doubt.

I believe that NAFTA was signed for the benefit of CORPORATIONS, countries be damned. Unless, of course, it's the US................Just me?

Ottawa will fold on this one also.

Are there any examples of Canada suing the US under NAFTA, and winning? Just wondering. A mining company in the Midwest??

 
Praxius
Free Thinker
#27
One other thing:

Quote:

....The notice of intent alleges that Canada violated NAFTA by taking "discriminatory" actions against Bilcon — imposing "treatment far less favourable than that accorded to similar Canadian-owned investments."

Well......... Duh, that's because their company isn't a Canadian one, therefore more checks and background searches are required to make sure their regulations meet our own.

• Do their environmental practices meet Canadian requirements.
• What employment procedures will be in place (US employed or Locals?)

And a bunch of other crap I don't even know about. But I know it's not just as simple as saying "Oh you're from the US, so your company should work just the same as our own, and we're pretty sure you have our country and community's best interests at hand."

I mean, why did they target Canadian soil for this project and not in the US to begin with?

Also, wtf do they care? Go somewhere else.

Money Grab.
 
EagleSmack
#28
Quote: Originally Posted by Nuggler View Post

Praxius:"If Ottawa doesn't back up our proviences and our people in this matter, then they truly have no spine and took it one too many times bent over for my liking"

Certainly the case here, no doubt.

I believe that NAFTA was signed for the benefit of CORPORATIONS, countries be damned. Unless, of course, it's the US................Just me?

Ottawa will fold on this one also.

Are there any examples of Canada suing the US under NAFTA, and winning? Just wondering. A mining company in the Midwest??

I agree with this. It was never about the benefit of the people but the corporations who tend to prosper exploiting other countries and now superceding their right for sovreignty.