Will this be OUR call?

Just wrapped up our hearings in federal court regarding a US quarry company's bid to extract $500 million from Canadians for rejecting its damaging project. Madam Justice Mctavish informed the court that she will now take the arguments she has heard and provide her judgement at a later time.

Chilling words were heard today in federal court as Bilcon argued that when Canada “signed NAFTA, Canada agreed to this.” Meaning Canada agreed to let trade tribunals decide on the application of our environmental laws and decide how much we owe corporations for rejecting projects that threaten our air, land, and water.

I hope Canada’s negotiators for new trade deals are paying heed.

Because if we are working on new trade deals that will make more cases like this possible, we are giving up our right to say no to any damaging project proposed by foreign-owned companies from countries with whom we make trade agreements. We will be hamstringing our ability to meet climate goals and protect communities.

It was also chilling to hear Bilcon's lawyers assure the judge not to be concerned about the $500 million price tag. After all, one of their lawyers remarked, he has been involved in investor disputes where the payout requested was in the billions, not a mere half a billion! (Not sleeping better after hearing that one!)

There were many wonderful counter arguments of course from the Government of Canada’s lawyers who asked our courts to set aside the decision by the NAFTA Tribunal, and by our lawyers from Ecojustice.

Canada argued that NAFTA Tribunals are only meant to apply internationally-accepted standards of law - things like your country can’t invade my country and if it does, my country has the right to self defense. Not matters regarding our application of our assessment laws. 

Our excellent representatives from Ecojustce argued that the judge must not defer her powers to the “muddle “ that is the NAFTA Tribunal's decision in favour of Bilcon, but rather to well-established authorities and experts. Most importantly, they argued that Bilcon - if it had a grievance with the rejection of its project - should have gone to Canada's courts to seek remedy. And that the NAFTA Tribunal, in its poor decision, overstepped into what is rightfully Canada's business.

After hearing the arguments brought by Bilcon for most of the day, it brought tears to my eyes to have our lawyers have an opportunity to rebut. With clarity and (I hope!) extremely convincing arguments.

The last words heard yesterday by the judge were from one of our lawyers, Amir Attaran, asking her not, as Bilcon suggests, to defer to the NAFTA Tribunal, but to show clearly that Canada's laws must be adhered to in Canada by all comers, be they Canadian or foreign-owned: “The implications of this decision are profound ... granting $500 million to Bilcon, $15 for every man, woman, and child in the country, could create a regulatory chill that will threaten everything Canada holds dear. Madam Justice, this is OUR call."


Gretchen Fitzgerald

National Program Director

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