The March 20 NAFTA Arbitration Panel ruling that federal and Nova Scotia decisions were “unjust” in rejecting a massive basalt quarry and marine terminal fundamentally undermines Canada’s laws to protect nature argues Nature Canada. The two governments had accepted the unanimous recommendations of a 2007 joint environmental assessment review. I testified at the hearings of the joint review on issues relating to cumulative effects of the project together with other development.

The so-called White’s Point Project involved a basalt quarry on North Mountain near Digby and a marine terminal that would result in a large increase in marine traffic south through the Bay of Fundy along the eastern seaboard, resulting in more ship strikes of whales, including the endangered North Atlantic Right Whale. These oceanic areas, especially the Bay of Fundy, provide critical habitat for many whales. The basalt gravel from the quarry would have been shipped to New Jersey for road construction.

Bilcon, the proponent of the proposed quarry, appealed the government decisions through the Chapter 11 investor-state provisions of NAFTA (North American Free Trade Agreement). Two of three members of the Arbitration Panel ruled that the federal-provincial panel was “unjust” in recommending rejection of the project after other branches of government had promoted coastal mining projects. Prof. Donald McRae, the dissenting tribunal member, argued that the majority decision could create a significant intrusion into Canada’s domestic laws and undermine environmental assessment reviews. The Arbitration Panel’ decision also creates doubt as to whether “core community values” should be considered in decisions to approve or reject development projects—which seems truly outrageous.

Bilcon is now pursuing its claim for $300 million in damages in a second hearing to determine what Canada owes the New Jersey company. In Nature Canada’s view, Canada and Nova Scotia should pursue every possible appeal of this perverse decision. Perhaps it is also time to renegotiate these investor-state provisions of NAFTA with the United States.