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Spectre of NAFTA investor-state challenge looms over New Brunswick fracking moratorium

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Photo: Jeannine St. Amand/flickr

On September 22 the people of New Brunswick voted clearly and decisively against fracking. They defeated the incumbent government that was backing (and was backed by) the fracking industry and elected a government that promises to implement a moratorium against fracking.

And so far the premier-designate is holding firm to his promise. The Canadian Press has reported, "Brian Gallant is promising to make a moratorium on hydraulic fracturing for shale gas one of his first priorities when he becomes premier of New Brunswick in the next couple of weeks."

But the fracking industry isn't likely to give up easily.

CBC reports, "Andrea Bjorklund, a professor of international commercial law at McGill University in Montreal, said the Liberals have to be careful about how the moratorium will be instituted. ...Bjorklund, who was a part of the U.S. State Department's NAFTA arbitration team, said provinces have the right to change laws under NAFTA, especially to protect people or the environment. But Bjorklund said they also have to respect the rights of investors. ...She said the Liberals will have to review what kind of promises were made to the 10 companies who have leases or licences for shale gas in the province."

The article highlights that the new premier will need to keep in mind the $250 million North American Free Trade Agreement (NAFTA) investor-state challenge launched by Lone Pine Resources after the Quebec government revoked permits to frack under the St. Lawrence River.

The Council of Canadians has been highly critical of that challenge by the Calgary-based, Delaware-incorporated company. Water campaigner Emma Lui has stated, "We're asking Lone Pine to do the right thing and drop this outrageous NAFTA lawsuit against a completely legitimate, precautionary and publicly supported environmental decision by the Quebec government. The people of Quebec demanded a ban on fracking and the Quebec government listened. Communities should not be penalized when governments live up to their obligation to safeguard people, water and the planet from harmful activities like fracking."

Already CBC reports, "Sheri Somerville, a representative with the Canadian Association of Petroleum Producers, said the industry group would like to sit down with the incoming premier to discuss the industry. 'We want to sit down, provide science-based and fact-based information to Premier-[designate] Gallant so he can make a decision on how to move forward with the industry in New Brunswick,' she said." And another CBC report notes, "Corridor Resources has invested half a billion dollars in New Brunswick in the last 10 years, including $25 million last summer, said [Corridor's president and CEO Steve] Moran." The Corridor CEO also seems to derive some hope by noting that a moratorium is not a ban.

Last week, Gallant said, "I'm very open to meeting with them, and I'm open to hearing their concerns, but my position and my resolve remains the same -- to have a moratorium on hydraulic fracturing."

Halifax-based Council of Canadians organizer Angela Giles has commented, "Congratulations to Premier-elect Brian Gallant and the New Brunswick Liberals for the win. But an even bigger congratulations goes to the anti-shale gas movement, who worked tirelessly for the past 4 years to achieve broad public support and ultimately unseed the industry-friendly PCs under Premier David Alward. Community groups formed across the province, with Indigenous, Francophone, Anglophone communities working to educate the public and protect the water."

Photo: Jeannine St. Amand/flickr

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