Environment Media release

Statement: Federal Court dismisses NAFTA tribunal case, environmental groups react

May 2, 2018

OTTAWA – East Coast Environmental Law, Sierra Club Canada Foundation and Ecojustice issued the following statement in response to the Federal Court’s dismissal of Canada’s case challenging a landmark arbitral award brought under the North American Free Trade Agreement (NAFTA) Chapter 11 provision by an American corporation:

Lisa Mitchell, East Coast Environmental Law’s Executive Director said:

“While we are disappointed that the Federal Court dismissed Canada’s case, we’re more alarmed by the chilling message it sends: That even when the Canadian government makes good decisions to protect our environment, there’s a chance a NAFTA tribunal could swoop in, decide our environmental laws are ’unfair’, and force Canada to pay hundreds of millions of dollars — leaving Canadian taxpayers on the hook and the environment at risk.”

Gretchen Fitzgerald, Sierra Club Canada’s National Program Director said:

“We have been there since the beginning, fighting to protect our communities and to ensure international trade agreements do not supersede the health of Canadians or interfere with our environmental assessment laws and protections.

“As Canada is renegotiating NAFTA and parliament is evaluating a Bill designed to make environmental assessments credible again, this decision comes at a critical moment. Canada must now look to fix NAFTA to protect the environment and the right of Canadians to reject damaging projects by getting rid of the Chapter 11.

We remain committed to continuing to push government to strengthen our environmental laws, and to close the trade loophole in ongoing NAFTA negotiations to prevent issues like this in the future.”

Amir Attaran, Ecojustice lawyer said:

“As environmentalists our worst fears have been confirmed that NAFTA can override Canada’s right to protect its own environment. This decision points to the extreme urgency of killing Chapter 11 investor-state dispute resolution in the NAFTA renegotiation.

“We stand by the fact that NAFTA tribunals are only supposed to decide questions of NAFTA law. “The NAFTA tribunal in this case went outside its realm of expertise to rule on a matter of Canadian law, and now Canadian taxpayers are on the hook for half a billion dollars to a single company. That’s enough money to pay the salaries of at least 7,000 nurses or teachers for one year. There is clearly a problem with NAFTA and its investment protection chapter.”

Represented by lawyers from Ecojustice, East Coast Environmental Law and the Sierra Club Canada appeared as interveners in the legal proceedings. The groups argued that the NAFTA tribunal exceeded its jurisdiction when it made a determination on what a Canadian environmental assessment panel can decide and found Canada liable for damages — which Bilcon claims is upwards of $500 million.



Federal Court Decision


Gretchen Fitzgerald, National Program Director | Sierra Club Canada Foundation


Lisa Mitchell, executive director | East Coast Environmental Law


Amir Attaran, lawyer | Ecojustice law clinic at the University of Ottawa


Note: see also The Battle that won’t go away. Appealing the NAFTA Digny Neck quarry decision