The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-Based Environmental Assessments

Abstract

This article considers the implications of a March, 2015 ruling of a tribunal struck under the Chapter 11 investor protection provisions of the North American Free Trade Agreement (NAFTA). The majority of the tribunal found that Canada violated Articles 1102 and 1105 of NAFTA when the federal and provincial governments refused to approve a basalt quarry in Digby County (Whites Point Quarry), Nova Scotia following an environmental assessment carried out by way of a joint panel review. The article starts with an overview of the environmental assessment process carried out for the Whites Point Quarry, followed by a summary of the findings of the NAFTA tribunal. The ruling and its implications are then assessed, followed by a review of the investor protection provisions of the recently concluded trade agreement between Canada and the EU (CETA) to consider whether CETA’s investor protection process is likely to encounter similar challenges, particularly when considering the fair treatment of foreign investors in sustainability focused environmental assessment processes.

Keywords: NAFTA, Environmental Assessment, CETA, Investor Protection