4.5 Quarrels over a Proposed Quarry in Nova Scotia: Successful Application of Sustainability Principles in Environmental Impact Assessment but Not a Perfect Ending

David L. VanderZwaag351, Jason May352


Abstract

In 2004, the Canadian Minister of the Environment and the Nova Scotia Minister of Environment and Labour appointed a Joint Review Panel to environmentally assess a controversial proposal by Bilcon of Nova Scotia Corporation to develop a large basalt quarry and marine terminal at Whites Point, Digby County, Nova Scotia. The subsequent Joint Review Panel Report, which recommended against the development, and the rejection of the project proposal by the provincial and Canadian governments, represent a major success story for the practical implementation of the principles of sustainable development.

However, the review process does not represent a perfect outcome. The Joint Review Panel Report provided scant justification of the legal grounds for its rejection, and missed the opportunity to ground the recommendation in the context of recent international environmental law and policy developments. The U.S. corporate interests behind Bilcon of Nova Scotia, upset by the Review Panel's recommendations and the subsequent governmental rejection of the project, filed a claim against the Canadian government for US $188 million in damages under Chapter 11 of the North American Free Trade Agreement. Canadian and Nova Scotian environmental assessment law is adequate in many respects, but it should not be considered complete or without fault. Although both federal and provincial environmental impact assessment (EIA) legislation embraces various sustainability principles in their purpose sections, Canada and Nova Scotia have yet to establish clear and substantive criteria for reaching EIA decisions, opening the door to uncertainty and continued legal challenges.

4.5.1 Introduction

On 5 November 2004, the Canadian Minister of the Environment and the Nova Scotia Minister of Environment and Labour announced the appointment of a three-member Joint Review Panel to environmentally assess a controversial proposal by project proponent Bilcon of Nova Scotia Corporation, a wholly owned subsidiary of Bilcon of Delaware,353 to develop a large basalt quarry and marine terminal at Whites Point, Digby County, Nova Scotia.354 Although the project promised some benefits, such as the annual employment of 34 people at the quarry during its expected 50-year operation,355 it fuelled public controversy and community opposition because of its scale and potential environmental and social impacts. Bilcon proposed blasting/crushing about 2 million tonnes of rock per year and shipping about 40,000 tonnes of aggregate 44 to 50 times per year to New Jersey in the United States.356

Many potential adverse environmental impacts were of concern. They included: increased risk of ships striking endangered North Atlantic right whales due to the larger volume of vessel traffic;357 possible transport of invasive marine species from the United States to Canada via ballast water (particularly parasitic lobster disease occurring in United States waters but not in Canadian);358 and various potential impacts from noise associated with blasting and crushing rock. Other possible impacts were disruption of the migratory behavior of the endangered Inner Bay of Fundy Atlantic salmon;359 alteration of marine mammal feeding and socialising behaviors;360 and alteration of the movements and distribution of crustaceans, such as lobsters and snow crabs.361

Various potential social and cultural effects also fuelled community opposition. Fishers feared displacement from the marine terminal area and potential destruction of gear from shipping movements.362 Those in the tourism industry worried about the area's loss of its image as a pristine and peaceful environmental sanctuary and about the adverse effects on eco-tourism such as whale watching and kayaking.363 Aboriginal resource users had concerns over adverse impact on traditional uses such as hunting, fishing, and berry picking.364 Many residents lamented the possible reduction in the high quality of rural life and opposed an industrial-lifestyle model in favour of small local businesses.365 The Digby Neck area had attracted many retirees and summer residents intent on maintaining the area's natural beauty and peaceful environment.366 Loss of property values in the vicinity of the quarry and negative effects on drilled and dug wells were other ‘spark points’.367

The Joint Review Panel Report of October 2007368 and the subsequent rejection of the project proposal by the provincial369 and Canadian governments370 represent a major success story for the practical implementation of the principles of sustainable development.371 The following section summarises the Review Panel's strong reliance on sustainability principles, such as precaution and public participation, in reaching its recommendation for rejection of the proposed project.

The final section offers three cautions about the success story. The Review Panel paid scant attention to justifying the legal grounds for its rejection recommendation. The Panel missed the opportunity to link its principled approach to international environmental law and policy developments. The investors behind Bilcon of Nova Scotia, incensed over the alleged discrimination against an American corporation and its investment commitments, has filed a claim against the Canadian government for US $188 million in damages372 under Chapter 11 of the North American Free Trade Agreement.373

4.5.2 Description: Success story – putting sustainability principles into practice

The Review Panel, admitting to a somewhat unconventional approach, decided to evaluate the proponent's project proposal and EIA documentation in light of an ‘adequacy analysis’ framework through two lenses. The first lens was used to look at the project through five key principles:

The second evaluative lens was the policy and legislative context. The Panel sifted through various policy and planning documents as well as many pieces of federal and provincial legislation for further guidance regarding the values and principles that should inform decisions about development projects.375 For example, a regional development authority, the Western Valley Development Authority, had issued a document entitled Building Tomorrow – Vision 2000: Multi-year Community Action Plan for Annapolis and Digby Counties, which set out various community goals including preservation of the region's biological diversity and ecological heritage and promotion of cultural heritage and tourism attractions.376 Regarding legislative guidance, the Panel noted the fundamental purposes set out in the Canadian Environmental Assessment Act,377 such as application of a precautionary approach,378 promotion of sustainable development379 and encouragement of public participation.380

The Panel's Report, submitted to the federal and provincial ministers in October 2007, was very critical of the proposed project and the proponent's environmental impact statement (EIS) in light of the five guiding sustainability principles. The Panel concluded that the proponent had not lived up to the ‘spirit’ of the public participation principle by not effectively working with project opponents to find mutually agreeable solutions to identified problems.381 The Panel found inadequate efforts to include traditional community knowledge in the assessment process, especially the lack of consultation with or input by local fishers worried about losing access to fishing sites and potential negative effects on the quantity and quality of harvested marine organisms.382 The Panel criticised the proponent's EIS for not taking the ecosystem approach seriously and largely ignoring the interconnections among the terrestrial, marine, and human environments.383 The Panel also found the EIS feeble in addressing sustainable development. The EIS did not address the question of whether the project would deliver long-term improvements to sustainability.384 The Panel was especially critical of the proponent's flawed conception of the precautionary principle, which the proponent equated with adaptive management (learning through trial and error).385 In the Panel's view, the precautionary principle requires that the onus of proof rest with the proponent to show the proposed project will not lead to serious or irreversible environmental damage.386

The Panel further critiqued the project for not fitting within the core values reflected in various policy documents and legislative provisions.387 Community values were characterised as showing little support for an industrial-lifestyle model and favouring traditional lifestyles and quality of life.388

Although the Panel's main recommendation was for the project proposal to be rejected,389 which both levels of government subsequently followed,390 it made other recommendations, including that Nova Scotia develop and implement a comprehensive coastal zone management policy or plan to clarify what kinds of uses should be permitted391 and that Nova Scotia develop and implement more effective mechanisms for facilitating consultations between quarry proponents and local governments and communities.392

4.5.3 Evaluation: Not a perfect ending

Although the Whites Point Quarry EIA process may be deemed a success story in putting sustainability principles into practice, the process should not be considered as having a ‘fairy tale’ ending. The Joint Review Panel Report gave scant justification for the legal grounds for its recommendations393 and in particular missed the opportunity to link its analytical framework to recent international environmental law and policy developments. The U.S. corporate interests behind Bilcon of Nova Scotia, upset by the Review Panel's recommendations and subsequent governmental rejection of the project, have chosen to pursue a US $188 million damage claim against the Government of Canada under Chapter 11 of the North American Free Trade Agreement.394

Scant attention to justifying the legal grounds for the rejection

The ‘adequacy analysis’ framework adopted by the panel for the evaluation of the proposal was strongly supported by sustainability principles, while concomitantly being informed by pertinent legislation, regulations, and policy. However, despite a detailed focus on sustainability, the Panel's report failed to provide a concrete linkage between this principled approach and Canadian and provincial environmental assessment legislation and regulations. Aside from a cursory reference to relevant laws and regulations within Appendix 4,395 the Panel largely missed the opportunity to link sustainability principles contained within the Canadian Environmental Assessment Act and the Nova Scotia Environment Act396 to its decision.

In respect of a project assessment, the Canadian Environmental Assessment Act has broadened the definition of ‘environmental effect’ to include changes to (among other things) ‘health and socio-economic conditions’ and ‘physical and cultural heritage’, insofar as such changes are linked to changes in the natural environment.397 Although this federal legislation puts limits on how principles and social considerations might be considered by requiring a connection to environmental change, it nonetheless provides a tangible connection in law between sustainability principles and environmental assessment.

In a similar fashion, the Nova Scotia Environmental Assessment Regulations398 have defined an ‘environmental effect’ as including, ‘any effect on socio-economic conditions, on environmental health, physical and cultural heritage or on any structure, site or thing including those of historical, archaeological, paleontological or architectural significance’.399 This wording provides a firm basis in law to justify the inclusion of social, economic, and community-based concerns within the assessment of the Whites Point Quarry proposal.

The purpose sections of the Canadian Environmental Assessment Act and the Nova Scotia Environment Act provide those conducting environmental assessments with guidance towards the inclusion of sustainability principles in assessment procedures. Section 4 of the Canadian Environmental Assessment Actsets out key principles including precaution, sustainable development, and public participation.400 Likewise, Section 2 of Nova Scotia's Environment Act also encourages application of various principles including the principle of ecological value, the precautionary principle, pollution prevention, integration of environmental and economic issues, and polluter pays.401

Despite these characteristics of the federal and provincial statutes, some within the legal community feel that the Panel exceeded its mandate (at least in part) by basing its decision on core social values independent of adverse environmental impacts.402 These critics have argued that the expanded role of sustainable development in environmental assessment is inconsistent with and unsupported by existing environmental assessment legislation.403 By not addressing the legal grounds for its recommendation in a detailed manner, the Panel missed an opportunity to address this argument and to advance the understanding of how sustainability principles may be currently applied within Canadian and Nova Scotian environmental assessments.

Missed opportunity to link with recent international environmental law and policy developments

A somewhat disappointing dimension of the Joint Review Panel Report was the limited reference to the international environmental law and policy context supportive of a principled approach to EIA.404 Although the Panel noted the importance of international agreements relevant to environments and communities potentially affected by the project,405 the Panel specifically referred only to the North American Free Trade Agreement and noted the rights afforded to foreign investors are not absolute but subject to governmental responsibilities to protect the environment and human health.406

Two key international guidance documents were brought to the Panel's attention, which might have further supported the principled approach adopted,407 but no reference to these documents was made. The ‘Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management’,408 approved by the World Conservation Union (IUCN) Council in May 2007, suggest that where uncertainties exist about environmental threats, values and cultural perceptions of risk must play a role.409 The Guidelines further suggest that the precautionary principle may sometimes require strict prohibition of activities, particularly where potential damage is likely to be immediately irreversible (such as the spread of an invasive species) and where particularly vulnerable species or ecosystems are concerned.410

The ‘Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which Are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities’, endorsed in 2004 by the Conference of the Parties to the Convention on Biological Diversity411 and meant to be used in conjunction with the ‘Voluntary Guidelines on Biodiversity-inclusive Environmental Impact Assessment’,412 support a broad consideration of social and cultural impacts of proposed activities in impact assessment processes. For example, taking account of value systems of indigenous and local communities is urged413 and weighing the effects of a project on social cohesion is advocated.414

The Chapter 11 NAFTA challenge

A Chapter 11 NAFTA challenge is unique because it permits an investor to launch a unilateral claim against a foreign (NAFTA signatory) government, thus allowing foreign corporations to engage host governments directly in binding international arbitration over complaints.415 This is a departure from customary international law in which the complaints of investors are normally asserted by their own governments on their behalf.416 Chapter 11 was originally included in NAFTA as a mechanism for protecting foreign direct investment from expropriation by host governments and to encourage cross-border investment among NAFTA member states through the protections it offers.417

However, despite its initial intent, the dispute resolution mechanism within Chapter 11 has increasingly been used by aggrieved foreign corporations as a vehicle to recoup losses arising from environmental regulations imposed by host nations.418 This unforeseen use of Chapter 11 has sparked particular unease within the environmental community.419 Specifically, they have expressed concern that the filing of claims by foreign investors may cause a ‘regulatory chill’ on host governments who hesitate to adopt environmental laws and policies for fear of being litigated against.420

Subsequent to the release of the Report by the Joint Review Panel, and the decision by the federal and provincial ministers to disallow the proposed quarry and marine terminal at Whites Point, the U.S. corporate interests behind Bilcon of Nova Scotia initiated an action under NAFTA Chapter 11, claiming damages in excess of US $188 million.421 Within the Notice of Intent, the investors claimed that Canada violated the provisions of Chapter 11; specifically Articles 1102, 1103, and 1105.422 Essentially, the investors are claiming that the regulatory measures taken by the governments of Canada and Nova Scotia were executed in a way that was ‘discriminatory, arbitrary and unfair’, and not in compliance with the international law obligations that Canada holds under NAFTA.423 The investors claim that these actions resulted in their receiving a treatment less favorable than that which is accorded to domestic corporations and investments.424 More specifically (and amongst other claims), the investors claim that the environmental review of the proposed development was biased, politically motivated, and that it took an unreasonable length of time.425 The claim also takes aim at the Joint Review Panel, alleging that the Panel exceeded and abused its mandate by incorporating elements into its analytical framework that are not established as accepted components of environmental reviews,426 and that the Panel recommendations were based ‘on factors that were unprecedented and undisclosed to the investors.’427

When Chapter 11 arbitrations are decided in favour of an investor, the Tribunal has authority to order that damages be paid to the investor in compensation for its losses or that restitution of property (with an option to pay damages in lieu of restitution of property) be provided.428 However, there are limitations to the relief that can come from a Chapter 11 decision. A Tribunal does not possess the authority to issue injunctive relief, nor can it make recommendations to the respondent state to alter laws or policies that it finds are in violation of NAFTA.429 Furthermore, the dispute resolution mechanism under Chapter 11 only allows for a national government to be named as a respondent. In cases like the Whites Point Quarry dispute where there is another political entity (the Nova Scotia provincial government) involved, any obligation to pay an award in damages would nonetheless fall on the Canadian government as a NAFTA signatory.430 It is beyond the purview of NAFTA to determine whether the respondent state should seek reimbursement from the provincial government.431 Instead, issues such as these are destined to become matters of future domestic litigation.

Although Chapter 11 may have been forged with the intent of defending investors from discrimination and unjust measures, it has been shown to be a capable offensive tool for direct foreign investors wishing to be compensated for the effects of domestic environmental laws and policies.432 In addition, NAFTA categorizes the nature of all disputes between the state and the investor as commercial and very little allowance is made for public interest within commercial arbitration settings.433 However, many of the environmental issues arbitrated under Chapter 11 are more regulatory than commercial in nature and involve widespread public interest.434 Critics have argued that such an allowance is causing a shift in authority from the state to the investor, resulting in a tangible loss of sovereignty by the host nation.435

Whether a fuller legal grounding of the rejection recommendation by the Joint Review Panel and a more detailed discussion of how international environmental law and policy developments support a broad basis for weighing social and cultural values in EIA would have helped ward off a Chapter 11 action seems doubtful. Although the reasons for the action in the Notice of Intent make specific reference to an EIA procedure that was perceived to be ‘fundamentally flawed’ by the investors,436 it also makes reference to actions that are not directly related to the EIA, including a claim that provincial policy statements asserting the value of the mining industry in Nova Scotia led to a ‘legitimate expectation’ that the investors' business would be welcome in the province.437 It would seem that the investors have cast the net wide on the bases for their claim.

4.5.4 Conclusion

The contested Whites Point Quarry proposal in Nova Scotia stands as a sustainable development success story. The Joint Review Panel applied five of the key sustainability principles, including precaution and the ecosystem approach, and took seriously local social and cultural values in recommending rejection of the project.

The EIA review process does not represent a perfect story. The Joint Review Panel missed the opportunity to fully justify the legal grounds for its conclusions and to firmly ground its rejection recommendation within the context of international environmental law and policy developments. The distraught U.S. corporate interests behind Bilcon of Nova Scotia are pursuing a Chapter 11 challenge against the Canadian government for US $188 million in damages.

Canadian and Nova Scotian environmental assessment law should not be considered in a state of nirvana. Although both federal and provincial EIA legislation embrace various sustainability principles in purpose sections,438 Canada and Nova Scotia have yet to fully embrace the Akwé: Kon Guidelines and have yet to establish clear and substantive criteria for reaching decisions in environmental impact assessment.439 Perhaps the Chapter 11 challenge will be a wake-up call for further legislative reforms.


351 David L. VanderZwaag is Director, Marine & Environmental Law Institute, Dalhousie University; Canada Research Chair in Ocean Law and Governance; and Co-chair IUCN Commission on Environmental Law's Specialist Group on Oceans, Coasts, and Coral Reefs.

352 Jason May is a Research Assistant, Marine & Environmental Law Institute, Dalhousie University.

353 Bilcon of Delaware in turn is wholly owned by the principals of the Clayton group of companies in New Jersey.

354 Joint Review Panel Report, Environmental Assessment of the Whites Point Quarry and Marine Terminal Project (Including Appendix 1- Joint Panel Agreement), (Joint Review Panel for the Whites Point Quarry and Marine Terminal Project: Ottawa. 2007) available at http://www.gov.ns.ca/nse/ea/whitespointquarry.asp (accessed 15 May 2008).

355 Ibid., p. 10.

356 Ibid., p. 1.

357 Ibid., p. 9.

358 Ibid.

359 Ibid.

360 Ibid.

361 Ibid., p. 66.

362 Ibid., p. 76.

363 Ibid., p. 77.

364 Ibid., p. 67.

365 Ibid., p. 99.

366 Ibid., p. 72.

367 Ibid., pp. 74, 78.

368 Supra note 354.

369 Nova Scotia Department of Environment and Labour, Office of the Minister, ‘Re: Whites Point Quarry and Marine Terminal’ (20 November 2007) available at: www.gov.ns.ca/nse/ea/whitespointquarry.asp (accessed 15 May 2008).

370 Fisheries and Oceans Canada, Standing Committee Reports and Government Responses, ‘The Government of Canada's Response to the Environmental Assessment Report of the Joint Review Panel on the Whites Point Quarry and Marine Terminal Project (The Project)’, available at: www.dfo-mpo.gc.ca/communic/reports/quarry/gr-quarry_e.htm (accessed 15 May 2008).

371 On the role and importance of principles, see: Nicolas de Saldeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press: Oxford, 2002); Sumudu A. Atapattu, Emerging Principles of International Environmental Law (Transnational Publishers: Ardsley Park, New York, 2006).

372 Notice of Intent, Bilcon of Delaware v. Government of Canada (2008), (Notice of Intent to Submit a Claim to Arbitration Under Section B of Chapter 11 of the North American Free Trade Agreement, issued 05 February 2008 and served to the Office of the Deputy Attorney General of Canada) at 7, available at: www.international.gc.ca/trade-agreements-accords-commerciaux/disp-iff/clayton_archive.aspx?lang=en (accessed 15 May 2008).

373 North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA].

374 Supra note 354, p. 3.

375 Ibid., p. 94.

376 Ibid., p. 119.

377 Canadian Environmental Assessment Act, S.C. 1992, c. 37.

378 Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 4(1)(a) states that a purpose of the Act is to, ‘ensure that projects are considered in a careful and precautionary manner [...] in order to ensure that such projects do not cause significant adverse environmental effects’.

379 Canadian Environmental Assessment Act, S.C. 1992, c. 37, s.4(1)(b) states that a purpose of the Act is to, ‘encourage responsible authorities to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy’.

380 Canadian Environmental Assessment Act, S.C. 1992, c. 37, s.4(1)(d) states that a purpose of the Act is to, ‘ensure that there be opportunities for timely and meaningful public participation throughout the environmental assessment process’.

381 Supra note 354, p. 88.

382 Ibid., p. 89.

383 Ibid., p. 90.

384 Ibid., p. 91.

385 Ibid., p. 92.

386 Ibid.

387 Ibid., p. 99.

388 Ibid.

389 Ibid., p. 103.

390 Supra notes 369 and 370.

391 Supra note 354, p. 104. The Nova Scotia Government has subsequently committed to developing a Sustainable Coastal Development Strategy. See ‘Nova Scotia Government Business Plan 2008–2009’, available at: www.gov.ns.ca/finance/site-finance/media/finance/GovBusPlan.pdf (accessed15 May 2008).

392 Supra note 354, p. 105.

393 The limited legal discussion was largely confined to Appendix 4 (Policy and Legislative Context) of the report. For the view that the Panel, by making ‘core values’ and sustainability stand alone considerations, was not consistent with existing environmental assessment legislation, see Densted, S., Jamieson, J. and Keen, M., Joint Review Panels Exceed Mandate With Use of Sustainability Framework (20 February 2008), available at: www.osler.com/resources.aspx?id=14376 (accessed 15 May 2008).

394 Supra note 372, p. 7.

395 Supra note 354, p. 125.

396 Environment Act, S.N.S. 1994–95, c.1.

397 Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss.2(1)(a), (b)(i) – (iv).

398 Environmental Assessment Regulations, N.S.Reg. 44/2003.

399 Environmental Assessment Regulations, N.S.Reg. 44/2003, s.2(l)(i).

400 See supra notes 378–380.

401 Environment Act, S.N.S. 1994-95, c.1, s.2.

402 Supra note 393.

403 Ibid.

404 The Panel merely questioned in a general way whether the quarry and associated marine terminal would be consistent with the spirit and concepts advanced at the Earth Summit in Rio in 1992. Supra note 354, p. 27.

405 Ibid., p. 119.

406 Ibid., p. 128.

407 Professor VanderZwaag highlighted the relevance of the guidance documents through written and oral presentations to the Joint Review Panel. For the written presentation see: Comments by David L. VanderZwaag, Professor of Law and Canada Research Chair in Ocean Law and Governance, Marine and Environmental Law Institute, Dalhousie Law School, June 26, 2007, available at: www.ceaa.gc.ca/010/0001/0001/0023/001/WP-1785-024.pdf (accessed 15 May 2008).

408 Developed jointly by Fauna & Flora International, IUCN-The World Conservation Union, ResourceAfrica and TRAFFIC. Available at: http://www.pprinciple.net/ (accessed 15 May 2008).

409 Ibid. Guideline 4.

410 Ibid. Guideline 12.

411 See Decision VII/16, Annex. Available at: www.cbd.int/decisions/cop-07.shtml?m=COP-07 (accessed 15 May 2008).

412 See Decision VIII/28. Available at: www.cbd.int/decisions/cop-08.shtml?m=cop-08 (accessed 15 May 2008).

413 Akwé: Kon Guidelines, supra note 411 para. 49.

414 Ibid. para. 51.

415 Capling, A. and Nossal, K.R. ‘Blowback: Investor-State Dispute Mechanisms in International Trade Agreements’, 2006 Governance: An International Journal of Policy, Administration, and Institutions, Vol.19, No.2, 151 at 152.

416 Meltz, R. ‘Foreign-Investor Protection and the Environment: A NAFTA Chapter 11 Update’, 2004 Environmental Law Reporter, Vol.34, No.11, 10941 at 10945.

417 Supra note 415, p. 153.

418 The unintended use of Chapter 11 as a protection against environmental regulations has been attributed by some to the broadly defined key terms (such as ‘expropriation’ and ‘fair and equitable treatment’) within the document, leading to an expansive application of its provisions. See Chiu, C. ‘Chapter 11 and the Environment’, 2003 Environmental Policy and Law, Vol. 33, No. 2, p. 71.

419 Gaines, S.E. ‘Environmental policy implications of investor-state arbitration under NAFTA Chapter 11’, 2007 International Environmental Agreements, Vol.7, No. 171, p. 197.

420 Supra note 415. p. 156.

421 Supra note 372, p. 7.

422 Ibid., p. 3.

423 Ibid.

424 Ibid.

425 Ibid., p. 4.

426 Ibid., p. 5.

427 Ibid.

428 Supra note 416, p. 10946.

429 Heindl, J.A. ‘Toward a History of NAFTA's Chapter 11’, 2006 Berkeley Journal of International Law, Vol.24, Issue 2, 672 at 675.

430 Supra note 416, p. 10946.

431 Ibid.

432 Supra note 418, p. 74.

433 McBride, S. ‘Reconfiguring Sovereignty: NAFTA Chapter 11 Dispute Settlement Procedures and the Issue of Public-Private Authority’, 2006 Canadian Journal of Political Science, Vol.39, No.4, p. 770–771.

434 Ibid., p. 771.

435 Jones, R.C. ‘NAFTA Chapter 11 Investor-to-State Dispute Resolution: A Shield to Be Embraced or a Sword to Be Feared?’, 2002 Brigham Young University Law Review, Issue 2, 527 p. 542.

436 Supra note 372, p. 5.

437 Ibid. p. 6.

438 Supra notes 378–380 and 401.

439 On the need for clear criteria, see: George, C. ‘Testing for Sustainable Development Through Environmental Assessment’, 1999 Environmental Impact Assessment Review, Vol.19, 175; Gibson, R.B. ‘Favoring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and Decisions under the Canadian Environmental Assessment Act’, 2000 Journal of Environmental Law and Practice, Vol.10, Issue 1, 39; VanderZwaag, D.L., ‘On the Road to Kingdom Come’ in VanderZwaag, D.L. and Lamson, C. (eds.), The Challenge of Arctic Shipping: Science, Environmental Assessment, and Human Values (McGill-Queen's University Press, Montreal and Kingston, 1990) p. 237. For a discussion on EA process reform, and the importance of harmonizing the criteria for final decision-making among multiple EA jurisdictions, see: Doelle, M., The Federal Environmental Assessment Process: A Guide and Critique (LexisNexis Canada Inc.: Markham, Ontario, 2008).

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