Canada must pay $7M over botched assessment of NS quarry project
US company wanted $443 million for "profits lost" resulting from negative federal-provincial review.
OTTAWA — A North American free trade panel says Canada has to pay an American company $7 million over a botched environmental review of a quarry it wanted to build in Nova Scotia.
The company, Bilcon, had wanted $443 million for profits it said it lost when a federal-provincial review concluded that a basalt quarry in Digby Neck, on the Bay of Fundy, would violate “core community values.”
The company is owned by three American brothers: William, Douglas and Daniel Clayton.
In a ruling made in January and just released publicly, the three-member review panel decided Bilcon and the Claytons aren’t entitled to all the money they think they might have made if the project had gone ahead. The quarry had other obstacles that could still have stopped it from getting permits and a fair assessment of its value is much, much lower, the panel found.
“While the extent of the permitting risks is difficult to measure, it is telling that market players other than the Claytons, on two occasions in 2002 and 2007, appeared to have been unwilling to absorb permitting risks,” the panel ruled. “This suggests to the tribunal that such risks were considered significant.”
In 2015, the NAFTA panel decided that violating core community values wasn’t a legitimate ground for killing the project under environmental-assessment rules, so denying Bilcon approval for its quarry was an arbitrary decision. It also found the Delaware-based company was treated worse that a comparable Canadian company would have been.
Environmentalists said the shipping traffic at a new terminal serving the quarry would be a risk to the ecology of the Bay of Fundy, which is frequented by endangered right whales.
The case has been going on for nearly 11 years and has included a court challenge over whether it’s really a trade dispute at all.