William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL, PCA Case No. 2009-04, Expert Report of David Estrin (July 8, 2011)
PART I: WHAT ARE A QUARRY PROPONENT’S REASONABLE EXPECTATIONS FOR THE ENVIRONMENTAL ASSESSMENT PROCESS?
When the application for the Whites Point Quarry (“WPQ”) was submitted, there would have been no reasonable basis for its proponent to expect that the project would be subjected to a Canadian Environmental Assessment Act (“CEAA”) Review Panel, let alone a Joint Review Panel.
The WPQ received exceptional treatment under CEAA. Prior to the WPQ, the use of a CEAA Review Panel or Joint Review Panel process for a quarry anywhere in Canada was unprecedented. But for the WPQ, the use of the CEAA or Joint Review Panel process for such a quarry remains unprecedented in the annals of Canadian environmental law.
Public hearings are also exceptional under Nova Scotia EA legislation. There have been no hearings held in Nova Scotia for any quarry or other similar mining type undertaking, other than the WPQ, from the time the Nova Scotia Environment Act was enacted in 1994-95, until the present time.
The WPQ Review Panel process illustrates that a requirement for a Panel Review results in significant cost to a private sector proponent in terms of financial resources required, time to approval, and possibly prejudice to the ultimate approval.