Urgent Action - Canada on the hook for $500m NAFTA payout

#ReplaceNAFTA - send your letter today!

It's with very heavy heart that I write to say we lost the court case we (Sierra Club Canada Foundation and East Coast Environmental Law) intervened in regarding the Digby Quarry in Nova Scotia. Our reaction to the judge's decision can be found here.

This means Canada may need to pay out hundreds of millions of dollars for the privilege of rejecting the Digby Quarry, a coastal quarry project planned for the shores of the Bay of Fundy. It also calls into question the validity of assessment and public consultation processes when they evaluate projects proposed by foreign companies protected by trade deals like NAFTA.

The Digby Quarry was rejected in 2007 by both the federal and Nova Scotia Ministers of Environment after undergoing an environmental assessment. The quarry company then turned to a NAFTA Tribunal for compensation, and they are asking for over $500 million CDN. The Tribunal found in Bilcon's favour. The Canadian government then asked Canada's courts to "set aside" the Tribunal's decision. That request was denied on Wednesday by Federal Court Judge Mactavish.

It turns out our worst fears have been realized and corporations do, in fact, have a separate legal system:

· one that decides on "facts" that then our own courts cannot question

· one that does not have to hear from project opponents or independent experts

· and one where investor's "expectations" are protected with our tax dollars.

In addition to payouts, this comes at the great expense of citizens' expectations for fair and democratic processes to protect our environment and our own communities.

This decision shows how broken NAFTA really is. This decision comes at the exact time Canada, the US and Mexico are in critical negotiations, and our time to act is very short.

Coincidentally, this decision came the exact same day as we and 50 of Canada’s major labour, climate and social justice organizations wrote a joint letter calling for Canada to #replaceNAFTA.

Canada lost this case, but the negotiations on the next version of NAFTA mean we can fix this, and Digby Neck may make history yet again!

Thank you for helping us get us this far, and thank you for taking action today,

Gretchen Fitzgerald - National Program Director

To: The Right Honourable Justin Trudeau, Prime Minister of Canada *

c.c.: Minister of International Trade, The Honourable Chrystia Freeland and The Honourable Catherine McKenna, Minister of Environment and Climate Change *

c.c.: Andrew Scheer – Conservative Party Leader, Elizabeth May - Green Party Leader, Jagmeet Singh - NDP Leader *

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Dear Prime Minister,
 
On May 2nd, the Government of Canada's attempt to overturn a NAFTA Tribunal's decision in favour of US Quarry company Bilcon was dismissed.
 
I am very alarmed that Canada may need to pay out $570 million dollars because a NAFTA Tribunal has passed judgement on how a Canadian environmental assessment was conducted. This environmental assessment recommended the rejection of Bilcon’s project because it was not consistent with the healthy environment upon which the community relied. The federal and provincial Ministers of Environment accepted the panel's recommendations and rejected the quarry in 2007.
 
This case shows that our courts really have no way of protecting decisions made by elected leaders based on our environmental assessment processes: that there is a different set of rules for corporate investors that gives them rights superceding those of regular Canadians.
 
It is simply unfair that the rights of investors outweigh those of citizens. 
 
In her ruling, Madam Justice Mactavish states:

"I accept that the [NAFTA TRIBUNAL] majority’s Award raises significant policy concerns. These include its effect on the ability of NAFTA Parties to regulate environmental matters within their jurisdiction, the ability of NAFTA tribunals to properly assess whether foreign investors have been treated fairly under domestic environmental assessment processes, and the potential “chill” in the environmental assessment process that could result from the majority’s decision."

As Canada is currently renegotiating NAFTA, we must seize the opportunity to address this problem. 
 
On May 3rd, in response to the Bilcon decision, you said in the House of Commons you were "looking for a deal that is good for Canada." You also committed to "vigorously pursue and defend Canadians' interests" as you work to renegotiate a North American trade deal. 
 
A deal that is good for Canada will protect the right of communities to engage in fair democratic processes to protect their environment and the communities it supports. A deal that is good for Canada will not create a separate court that tips the balance in favour of corporate investors over that of the public.
 
Please take Chapter 11 off the table as you renegotiate NAFTA. It does not belong in a modern trade agreement that will enable us to meet our climate commitments, protect indigenous rights, and engage in credible environmental impact assessments.
 
Sincerely,

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