Threat of NAFTA Suit Kills MMT BanMost of our readers have probably been following recent news coverage of the settlement of Ethyl Corporation's claim against the government of Canada under NAFTA's investment rules. The case has already been the subject of commentary in our newsletter, but because of its far-reaching implications for the future course of Canadian law and policy, we feel it is worthy of further comment. Most of our readers will also recall that NAFTA's investment chapter now serves as the prototype for the Multilateral Agreement on Investment. Let's briefly recount the salient details. Ethyl Corporation is a US-based manufacturer of a manganese-based fuel additive called MMT. Because of serious concerns about the impact of MMT on human health, and MMT's potential to interfere with automobile emission controls, the federal government banned the importation and interprovincial trade of MMT in 1996. The decision of our government to rely upon its trade and commerce power arose from the reluctance of Health and Welfare Canada to pronounce MMT a hazard to human health notwithstanding the fact that workplace exposure had demonstrated its neurotoxic effects. But without epidemeological evidence of adverse public health impacts, Health and Welfare would not be moved off the fence. Nor would it be persuaded by the claims of automakers that continued MMT use would make emission reduction targets much harder to achieve. So much for the precautionary principle. In any event, Ethyl Corporation hardened by previous years of aggressive campaigning to preserve its markets for lead as a fuel additive reacted quickly by suing the Canadian government for approximately $350 million under the investor-state suit provisions of Chapter 11 of NAFTA. Ethyl's claim asserted that federal MMT regulations violated several provisions of NAFTA and effectively expropriated Ethyl's business of manufacturing the controversial substance. It was time, therefore, for Canada to pay up. In initiating its claim, Ethyl relied upon the unprecedented and untested investor-state suit provisions of NAFTA, which represent a truly radical departure from the norms of contract law, treaty law, and even international law. For example, under these rules, investors are entitled to invoke binding international dispute resolution even without having a contractual relationship with, or any other obligation to, the government against which they are claiming. Nor do they have to exhaust available remedies provided by domestic courts, or enlist the support of any government in a claim. Moreover, the shroud of secrecy surrounding these dispute procedures represents a further assault on the bedrock principles on which our legal system is founded. In fact, we only learned of its claim because Ethyl chose to make it public. But when West Coast and other groups sought to intervene in the case we were rebuffed by the Canadian government, which also refused us access to any of the documents either Ethyl's or its own relating to the case. Thus, during 1997 and early 1998, the case proceeded under the cone of silence imposed by these highly secretive arbitration rules. While federal officials were busy publicly discounting Ethyl's claim, internal memoranda offered a more sober assessment. In fact, the federal government was so concerned about losing the case that it decided to settle on terms that can only be described as a complete capitulation to Ethyl's claims. On July 20, 1998, under front page headlines "Threat of NAFTA Case Kills Canada's MMT Ban," the Globe & Mail reported that Canada had agreed to rescind the MMT ban, pay Ethyl in excess of $19 million, and take the unprecedented step of issuing a statement that MMT was neither an environmental nor a health risk. Not surprisingly, even prominent members of the Liberal government slammed the deal as a sell-out of the public interest. Thus the first case to have invoked the powerful enforcement rules of NAFTA has resulted in a stunning victory for a US-based transnational corporation unhappy with Canadian environmental regulation. Moreover, to avoid a whopping damage settlement, the federal government has set a very dangerous international precedent which we can expect to invite similar challenges by other foreign investors. In fact, it is clear that other corporations have already gotten the message, because Canada was recently served with another NAFTA-based claim for damages by the US-based corporation, SD Myers. This claim arises from a ban (since removed) on international PCB waste trade. Even more chilling is the fact that federal officials have refused to disclose how many other claims may have been made under NAFTA's investment rules, stating that even the fact of the claim is subject to NAFTA's secrecy regime. As disturbing as these developments are, they are not entirely unwelcome, as the Ethyl and SD Myers cases have finally brought to light just how draconian these investment rules truly are. Even the editorial boards of the Globe & Mail and the Financial Post have gotten into the act by denouncing the investor-state suit provisions of NAFTA and the MAI, and by asking pointed questions about the extraordinary and secretive character of these powerful enforcement regimes. But even as they are chided, the federal government prepares itself for the renewed MAI negotiations that reconvene this October. Canada is still determined to promote free trade for the Americas, replete with the investor protection provisions of NAFTA. But while the federal government appears undaunted in its pursuit of international treaties for investor-rights, it now seems that the cat may really be out of the bag. The challenge will now be to ensure that the sorry details of the MMT debacle receive ongoing and prominent coverage both in Canada and in other countries as well. We also hope that, in addition to frustrating progress with the MAI negotiations, the Ethyl case will spark long overdue attention to NAFTA and the need for surgery to excise rules that expose an expansive catalogue of Canadian laws and regulation to the withering fire of investor-state litigation. News Flash: Skytrain Exempted from Environmental AssessmentOn September 17, BC Minister of Finance Joy McPhail announced the exemption of the Skytrain Extension Project from the BC Environmental Assessment Act. The exemption followed three months of discussions between environmental groups and the government in which WCEL repeatedly stressed the need for a thorough assessment under the EA Act. The government rationalized the exemption from the EA Act on the basis of the urgent need for improved transit in the lower mainland. At the same time, McPhail argued that environmental assessment was unneccessary because there "are no environmental concerns." While pleased to see the fast tracking of rapid transit, WCEL and other groups had warned the government that an expensive and ill-thought Skytrain extension could do more harm than good. First, concerns have been raised that Skytrain would bleed the overall transit system dry, leading to a further shortage of buses. Vancouver's current transit problem is in part due to the severe cash shortage created by financing the existing Skytrain, especially the extension beyond Scott Road in Surrey. Although government has justified the Skytrain as being "only slightly more expensive" than the primary alternative, street level light rapid transit (LRT), cost estimates were based on assumptions that street level LRT would require numerous tunnels, even where municipal councils had not requested such tunnels. Second, with construction slated to start October 31, there appears to have been no consideration given to important design issues. For example, the planned extension will run from New Westminster to Lougheed to Broadway and Commercial and then terminate on Broadway between Glen Drive and Clark Drive. (Any bets on the name of the terminus?) Current plans show that passengers on the new line will have to transfer at Broadway station to go downtown, instead of having a through-train service. Given crowding on trains from New Westminster this could make Skytrain far less effective at getting people out of their cars. As a palliative to environmentalists, the government announced an alternative environmental assessment process to consider environmental concerns. It is not clear whether or not the alternate process will be too late to stop major, expensive mistakes. Commissioner Derek Thompson's terms of reference are vague, although there appears to be some interest in a review of all environmental concerns. More troublesome is the fact that construction can begin while Thompson considers the project. This may lead to a situation where government becomes financially committed to a poor design decision. WCEL and a coalition of environmental groups has already met with Thompson in efforts to ensure that the process has some value. The coalition includes representatives from West Coast Environmental Law Association, Better Environmentally Sound Transportation, Society Promoting Environmental Conservation, Transport 2000, David Suzuki Foundation, and the Stoney Creek Environment Committee. Passing the Buck:
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Selling Clean Air A workshop on market instruments for climate protectionOctober 15 & 16, 1998, Vancouver, BC, Blue Horizon Hotel, 1225 Robson
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Endangered Species UpdateThe BC Endangered Species Coalition has been extremely busy over the summer and we are delighted to tell you about three exciting new initiatives: Paw Print Program Many kids in BC are growing up largely ignorant of British Columbia's remarkable natural heritage and the threats to that heritage. Ask kids in BC about endangered species, and while they may mention grizzly bears, bald eagles or salmon, their primary focus is generally on tigers, pandas, elephants and other international species. Educational material for teachers and students about BC species at risk is extremely limited. At present, with one or two notable exceptions, we have to refer teachers and students to American lesson plans and classroom activities on biodiversity and endangered species protection. The Paw Print Program is working to change this. An educational program of the BC Endangered Species Coalition, the goal of the program is to educate kids about the importance of protecting endangered species and their habitat. The program provides kids with the opportunity to "make their mark" on endangered species protection by learning about endangered and threatened species in their area, by educating other people about endangered species and by choosing and undertaking a specific action to protect species at risk. Membership in the program is free and kids can either sign up to the program individually, or as a whole class or group. There are no geographical restrictions - we welcome kids from BC, from Canada and from other countries. Although British Columbia is the primary focus for the Program, we will be linking with kids across Canada as part of Dr. David Suzuki's national tour on endangered species protection. The tour will cover 10 cities and run from September, 1998 until the end of March, 1999. As part of the campaign for comprehensive federal endangered species legislation, we will be working with federal environmental groups to develop educational materials about Canadian species at risk. The Coalition's primary contribution to educating Canadian kids about their heritage will be through our web site. Flyers being distributed throughout Dr. Suzuki's tour will encourage kids across Canada to send us their research on species at risk, so we can post the information on our web site, divided by region. Kids across Canada can then learn from other kids what species are at risk in Canada and where they are found. The Coalition is currently seeking funding to hire an environmental educator for the program. Educational materials will be prepared for both elementary and secondary school students about BC endangered species and slide show presentations given to schools in the Lower Mainland. Call the Coalition for more information. Visions for the Earth As part of the Coalition's outreach work with religious organizations, we are working on the Visions for the Earth event, scheduled for Thanksgiving weekend, October 10 and 11, 1998 in Vancouver. Visions for the Earth is one of a series of events being promoted by VISION TV (the Canadian faith television network) to celebrate the 50th anniversary of the Universal Declaration of Human Rights. The BC event will be focusing on the environment, with particular emphasis on building alliances between environmental groups and religious groups on environmental issues. The experience in the United States has shown that such a coalition can be a potent force for protecting the environment. Although most major North American social movements, like women's suffrage, the anti-nuclear campaign, anti-racism, civil rights, workers' rights and universal health care have relied upon a strong collaboration between social activists and faith groups, to date there has been little or no engagement from Canadian religious groups in environmental causes. This is a key omission considering that faith groups constitute the largest grassroots organizations in Canada. The Thanksgiving event will feature keynote speaker Paul Gorman at the Plaza of Nations on the evening of October 10. Mr. Gorman is the Executive Director of the US National Religious Partnership for the Environment ("NRPE"). The NRPE a federation of American faith groups has done magnificient work in involving faith groups in environmental issues, including protection of endangered species. Mr. Gorman will be joined by leading BC environmentalist, Valerie Langer from Friends of Clayoquot Sound. Tickets to the Saturday evening event will be $8 and can be purchased in advance or at the door. Call the Vancouver Multicultural Society at (604) 731-4648 for more information. Endangered Species Online! The Coalition's new "one stop shop" web site is now up and running on West Coast's home page. Check us out at http://vcn.bc.ca/wcel/esc for information about BC, Canadian and international species at risk; recent federal policy documents; our new educational program for kids the Paw Print Program; and a whole bundle of endangered species educational materials, including lesson plans and classroom activities. We even have "cool sites for kids"! Although currently lacking in visuals, the web site will be re-developed over the next few months. We're also facilitating kids teaching kids about endangered species by posting kids' research on the site. Library News: Resources for Environmental GroupsIf you are part of a citizen's group, society, or non-profit organization either established or just starting out consider using our library as a resource for information on managing and working with your group. As a non-profit organization hard at work for nearly 25 years, West Coast Environmental Law has built up a sizable collection of resources and experience on fundraising, working with boards, dealing with volunteers, and other associated non-profit activities. During this time we have also collected directories, articles, workshop material, and books on a wide range of topics such as proposal writing, media relations, fundraising theory, financial management, group dynamics, and directors' liability. The following is a list of just some of the materials that are available for use at our library. Directories
Proposal Writing
Organizations/Groups
Our library is open to the public Monday to Friday, 8:30 am to 5:00 pm. Did you know we have the largest collection of environmental legal holdings in the province? As always, we also encourage citizens, activists, students, reseachers and lawyers to come in and use our extensive collection. Our library intern, Sandra Janzen, is available daily to help you begin your research on climate change, water pollution, land trusts, forest practices and many other environmental and resource related issues. For more information, call (604) 684-7378, or 1 800 330 WCEL toll free in BC. Guide to Forest Land Use PlanningWest Coast Environmental Law will soon release a new major work on forest and land use law.
The Guide to Forest Land Use Planning offers readers a comprehensive look at forest land use planning in BC. The Guide will provide a comprehensive source of information on the laws and policies respecting forest land use, so that those involved in planning can be made aware the full range of land use designation options, and how land use plans are linked to practices on the ground. Through the authorities and materials cited for further reference, readers will be able to find their way to more detailed information where required. The Guide discusses the various aspects of all levels of forest land use planning, from strategic to operational. It also provides a summary of legislation and policy relevant to forest planning in BC. The Guide is currently in the final stages of editing and will be available this fall. Readers may order a copy now through our office, or visit our website for up to date informaton on the release of the Guide. Advocacy WorkshopsWCEL is pleased to announce a new series of workshops on Advocacy Training for Stewardship Groups. The workshops are funded by the Urban Salmon Habitat Program of the BC provincial government and will be scheduled over the fall and winter of 1998-99 in the Lower Mainland. The workshops are designed to answer the following questions:
If you are interested in having a workshop in your community, please contact Linda Nowlan at (604) 601-2509. |
Support West Coast with a giftWe hear a lot of good things about what we do to make our community a better place to live. People like the way we balance strong advocacy with good judgement. They like the way we find solutions to environmental problems; solutions that people can live with. You can share our vision for a healthier environment by becoming a financial supporter. West Coast Environmental Law Foundation is a non-profit corporation with charitable tax status. Every West Coast donor who gives $10 or more will receive a tax receipt. West Coast donors receive regular issues of the News from West Coast Environmental Law. Of course, all West Coast donors will receive our thanks. Become a member of the West Coast Protectors ClubWhen you pledge a monthly donation ($10, $25, $50 or more) through an authorized monthly payment by VISA, you will be enrolled as a member of the West Coast Protectors Club. For more information about benefits and how to get started, call Catherine at (604) 601-2513 in Vancouver and 1-800-330-9235 throughout British Columbia. Become a member of West Coast Environmental LawYou may become a member of WCEL by paying the membership fee of $20 per year. Members receive News from West Coast Environmental Law and are invited to participate in our Annual General Meeting. |
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West Coast staff and project workers are: Laurel Brewster, Karen Campbell, David Clark, Mark Haddock, Chris Heald, Sandra Janzen, Cynthia Linderbeck, Catherine Ludgate, Alexandra Melnyk, Linda Nowlan, Chris Rolfe, Steven Shrybman, and Kate Smallwood. |
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