Nova Scotia

Bilcon appealing quarry decision under NAFTA

The American company that was refused permission to develop a quarry near Digby is looking for $188 million in compensation.

The American company that was refused permission to develop a quarry near Digby is looking for $188 million in compensation.

Bilcon of Delaware, a subsidiary of New Jersey-based Clayton Concrete, Block and Sand, has filed a complaint under NAFTA rules that allow companies to go after foreign governments if they can prove they have been unfairly treated.

Bilcon claims a joint federal-provincial environmental review panel was both unfair and discriminatory when it rejected its plan to set up a quarry at Whites Point in Digby County.

"This is not about sour grapes. It's about having a fair process," said Barry Appleton, lawyer for Bilcon.

Appleton said "community values" were at the core of the review, which he said was a change from the original criteria on which the company based its environmental assessment.

"They had the Bilcon people filing all kinds of environmental reports. They filed the reports, then [the panel] changed the criteria. It's like changing the goal posts for the Super Bowl. You're not allowed to do that," he said.

Bilcon had proposed to develop a basalt rock quarry on approximately 120 hectares of a 150-hectare site. The company had planned to employ 34 people to help ship two million tonnes of rock a year for the next 50 years to the United States.

In October, the review panel rejected the proposal, stating the project would undermine and jeopardize the community's vision and expectations and lead to undesired changes in the quality of life.

Gil Winham, an international trade expert at Dalhousie Law School, said the terms of the environmental assessment included socio-economic impacts. 

He said the company's strongest argument may be one of discrimination and why the quarry's review process took much longer than one to open a mine owned by an Australian company at Moose River.

"Mr. Appleton referred to a new gold mine that was assessed in 11 months, whereas the procedure for Whites Point quarry took five and a half years. I would say that is something you would look at," Winham said.

Winham said there have been 15 cases in which foreign companies have sued NAFTA countries for unfair treatment, 10 of which have been ruled in favour of government while five were in favour of the companies.

"And I must say, in five cases that were won by the companies, I thought they had reasons to win," Winham said.

Nova Scotia's minister of environment is declining to comment until the complaint has been heard, a process that could take up to two years.

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