Bilcon’s claim could exceed $188m

By Jonathan Riley

DIGBY COURIER

NovaNewsNow.com

Damages sought by Bilcon in the wake of its rejected quarry bid could be more than the $188 million mentioned in its notice of intent to sue the Canadian government.

Barry Appleton, the Toronto lawyer representing Bilcon of Delaware and its owners, the Clayton family, would not say last week whether Bilcon wants a reversal of decisions by provincial and federal governments to deny permits to the company.

He would only say that the damages in this case could be “significantly higher” than the $188 million set out in the notice of intent that was filed Feb. 4.

“So the governments will have to decide if there is something they can do to settle the issue.”

Appleton says NAFTA calls for mediation and consultation before the two parties appear at hearings.

The Clayton family, owners of Bilcon, is claiming that under the North American Free Trade Agreement (NAFTA), Canada treated them unfairly in denying approval of their proposed 120-hectare quarry project on White’s Point on Digby Neck.

"For five and a half years, the Clayton family played by all the rules," said Appleton, "but the governments of Canada and Nova Scotia kept changing the rules, and then blindly followed the biased, flawed recommendations of an environmental panel."

Nova Scotia Environment Minister Mark Parent rejected the accusation.

“I had officials in my department who are well-versed in environmental assessment go through the recommendations to make sure they provided me with all the research.

“And I didn’t even blindly follow the advice of my own department. I looked at all the information at my disposal and made an informed decision that this project carried unacceptable risks.”

Appleton says that the panel didn’t make Bilcon aware how important community core values would be in its decision.

“It’s like moving the net after someone has already taken their shot.”

Don Mullin, vice-chair of the Partnership for the Sustainable Development of Digby Neck and Islands Society, says the issue of core values shouldn’t have been any surprise.

“This is clearly a legitimate area of investigation. No rules were changed.

“They may not know that in Nova Scotia, we have different provisions than in Ontario or federal legislation. ‘Enjoyment of life or property’ is a part of the Nova Scotia Environment Act under socio-economic impacts.

“The words the panel used were sense of place, sense of community, both historic and cultural – all those values shared widely by the people from this area.”

The Claytons claim in the notice of intent that Canada subjected Bilcon to treatment far less favourable than that accorded similar Canadian-owned investments.

"Honest business people who are invited to do business in Canada expect to be treated fairly when they come," said Appleton. "The NAFTA is designed to ensure they have a level playing field in Canada. The NAFTA entitles the

Claytons to be treated in an even-handed way when they are investing in

Canada."

Now that Bilcon has filed a notice of intent to make a claim under NAFTA, Bilcon must wait 90 days before filing its formal complaint.