NAFTA challenge to Quebec fracking law puts profits ahead of water
by Emma Lui
Communities everywhere are calling for a stop to fracking – from Elsipogtog First Nation’s highway blockade in New Brunswick to Californians, New Yorkers and other Americans urging for a frackign ban on public lands to farmers occupying fields in Poland, to recent fracking protests in the U.K.
Quebec fracking moratorium
It was this sort of public pressure that prompted the Quebec government to place a moratorium on new fracking permits in parts of the St. Lawrence Basin in June 2011. With this law, less than one per cent of licenses in the total exploration area were revoked. In June 2013, a bill submitted to the Quebec National Assembly that would expand the moratorium to fracking in the lowlands of the St. Lawrence River.
If the law is passed, the moratorium would be in effect for a period of five years. Quebec’s anti-fracking movement has been incredibly strong with dozens of municipalities passing resolutions calling for a moratorium on fracking, frequent protests and a 700-kilometre march along from Rimouski along the St. Lawrence and Richelieu Rivers to Montreal.
Fracking’s water contamination
Fracking is a way of extracting natural gas – often using millions of litres of water, thousands of pounds of sand and thousands of litres of unknown chemicals, gas companies blast apart shale rock to release the trapped natural gas. U.S. and Quebec government studies have shown that some fracking chemicals include carcinogens and hazardous air pollutants.
Companies are not legally required to disclose the amount or type of chemicals they use and in fact this information is protected as a trade secret. Communities around the world have raised concerns about the impacts that fracking has on drinking water, greenhouse gas emissions and public health.
Given the red flags raised by indigenous communities, dairy farmers, U.S. doctors, German brewers and more recently even the European Union, you would think Quebec was well within its right to ban this risky practice until they had completed the necessary studies. Think again.
Lone Pine’s NAFTA challenge
Holding one of the revoked licences, Lone Pine Resources, an oil and gas company, is now launching a $250 million lawsuit against the Canadian government over Quebec’s fracking moratorium under the North American Free Trade Agreement (NAFTA). Although Lone Pine maintains all its operations in Canada, it’s registered in Delaware which allows it to make claims under NAFTA.
The company is claiming that Quebec moratorium is “arbitrary” and “capricious,” and that it deprives Lone Pine of its right to profit from fracking for natural gas in Quebec’s Saint Lawrence Valley.
Groups like the Council of Canadians, the Réseau québécois sur l’Intégration continentale, the Sierra Club, For Love of Water (FLOW), Eau Secours!, and AmiEs de la Terre have been gathering signatures for a letter to Lone Pine urging the company to drop plans to sue Canada and sending a letter to Lone Pine for every thousand signatures they receive. The groups issued a press release last week when they discovered that Lone Pine had quietly filed a request for arbitration indicating that the company was moving forward with the NAFTA lawsuit.
NAFTA Tribunal not accountable to Canadians
The lawsuit is very troubling. It undermines our basic notions of democracy, threatens needed environmental regulations, and puts private profits above the public good. What’s more, the lawsuit will not go through the public court system. The case will be heard before an unaccountable tribunal that may but is not required to consider issues of public health or water and environmental protections. The tribunal’s one concern is whether a government measure upsets the company’s broad set of rights in NAFTA.
And we could be seeing more cases like this where investor rights trump legitimate regulations protecting water sources, curbing climate impacts or safeguarding public health if trade agreements that are currently being negotiated are signed into law. The text of the proposed Trans-Pacific Partnership (TPP) between the U.S., Canada, and 10 other nations, is expected to closely mirror NAFTA’s investment rules, while Canada is in the final stretch for a deal with the European Union that would also provide those excessive powers to multinationals.
Trade deals, water and fracking
And it’s not just fracking bans or moratoria that can be challenged under these trade deals. The amount of water a fracking company draws could be subject to a trade agreement lawsuit if a government decides to cut back on the amount of water it had previously allocated for a fracking project. The Fort Nelson First Nation has been fighting applications for the withdrawal of three billion of litres of water per year from the Fort Nelson River for fracking projects in northeastern B.C.
Once approved, if the B.C. government decided to restrict the water withdrawals because of drought or other availability concerns, the government could open Canada up to another investor-state lawsuit. B.C.’s recent announcement of its LNG deal with Malaysia’s Petronas, one of countries that are involved in the TPP negotiations, is another reason alarm bells should be sounding.
UN: Water is a human right
In July 2010, the United Nations General Assembly passed a resolution recognizing the human right to water and sanitation and the UN Human Rights Council has also passed resolutions outlining governments’ obligations concerning the right to water and sanitation. This right is now enshrined in international law and Canada, like all other countries, must ensure its implementation.
Catarina de Albuquerque, the UN’s special rapporteur on the human right to safe drinking water and sanitation, wrote specifically about fracking and its relationship to the human right to water during her visit to the United States in 2011. De Albuquerque’s U.S. report highlights the concerns raised about the impacts of fracking on water and recommends that countries need to take “a holistic consideration of the right to water by factoring it into policies having an impact on water quality, ranging from agriculture to chemical use in products to energy production activities.” In order to protect the human right to water, governments of all levels must place a ban on fracking.
Study finds radioactive water from fracking
With the exorbitant amount of water used for fracking and the risk of water contamination – as seen with Duke University’s recent study warning that fracking is resulting in radioactive contamination in Pennsylvania rivers – communities must continue to call for a ban on fracking.
Communities have a right to say ‘no’ to fracking and any projects that threaten their water sources. So it’s even more crucial that communities pressure decision-makers to exclude investor-state dispute settlement processes from trade agreements so that communities safeguard not only their right but also their responsibility to protect water for current and future generations.
Emma Lui is a water campaigner with the Council of Canadians, based in Ottawa. Emma’s work focuses on the Great Lakes, human rights, water privatization and the connection between energy and water. She has worked at the Canadian Human Rights Commission and has an M.A. in political economy.