Northback owner's foreign investment claim against Canada is "part of a broader campaign of intimidation and influence"
University of Calgary and Queen's University professors rip the "bullying" by the Australian swagwoman exploiting Canada's foolishness in signing the Trans-Pacific Partnership
Northback’s owner, the rapacious and litigious Gina Rinehart, is following the well-known Australian playbook of suing foreign governments over denied mine schemes.
Canada’s mainstream media has persistently ignored this scandal since it was first revealed by Andrew Nikiforuk in The Tyee on March 20. And the federal government has broken its own transparency rules by keeping the public in the dark, perhaps because of its foolishness in signing the Trans-Pacific Partnership in 2018 and not renouncing it since.
All Canadian taxpayers, not just Albertans, may be on the hook for $2 billion in compensation for the 2021 regulatory rejection of her scheme to re-mine Grassy Mountain.
Here is the devastating conclusion of the analysis by University of Calgary Professor Emeritus Nigel Bankes and Queen’s University Associate Professor Kyla Tienhaara:
Nobody should be surprised that Northback’s Australian investors have taken advantage of the CPTPP (Comprehensive and Progressive Trans-Pacific Partnership) to seek compensation for its failed Grassy Mountain project, Northback having exhausted its legal options to overturn the decision of the JRP (Joint Review Panel) in domestic courts. While we don’t believe that the claimants have a strong case on the merits, perhaps that was not the principal purpose for filing the claim, especially when one looks at the timing of the filing of the NOI (Notice of Intent to Submit a Claim) and RFA (Request for Arbitration). Instead, the companies may have aimed to foster a climate of regulatory chill, a climate that favoured the lifting of the coal moratorium (a month after the RFA was filed) and a climate that favoured consideration of Northback’s proposal for additional exploratory drilling on the Grassy Mountain property. In short, this claim is part of a broader campaign of intimidation and influence.
This kind of bullying is much easier to carry out if the public is unaware that it is happening. This is why it is particularly concerning that there has been so little information provided by the government about this case. Furthermore, given the facts identified by the JRP—that the Grassy Mountain project presents significant risks to water, fish, and therefore human health—it is completely inappropriate that impacted communities in Alberta will have very limited opportunities to intervene in the case if it proceeds.
The case raises the broader question of why Canada continues to agree to ISDS (Investor-State Dispute Settlement) in trade and investment agreements, despite previous above-described acknowledgements by Liberal governments that participation in the system is costly and impedes the right to regulate. This question is particularly pertinent in the context of the climate crisis and the need for countries to rapidly phase-out fossil fuels. European governments and the UK have withdrawn from the Energy Charter Treaty (ECT), an investment treaty that has generated more ISDS cases than any other, because it is incompatible with the Paris climate agreement and the EU Green Deal. Colombia has also recently announced that it will withdraw from investment agreements in the lead up to the Santa Marta conference on the transition away from fossil fuels, which identifies ISDS as an “legal barrier” to the transition that will be discussed by governments. Canada is sending a delegation to Santa Marta. We hope that the delegates will be open to a productive exchange on ISDS, in line with Prime Minister Carney’s desire for a new global order that “embodies our values”.
Read the full analysis in ABLAWG . . .
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