May 21, 2009

 

Deconstructing Dinner

 

DOW Formalizes NAFTA Challenge to Quebec Pesticide Ban

One of the world's largest manufacturers of chemicals disputes the reasons for cosmetic pesticide bans and takes legal action against Canada.

 

Jon Steinman

 

In some provinces across the country, walking outside your house in the morning will no longer be greeted with a breath of fresh chemicals being applied to your next-door neighbour's lawn.

 

Quebec was the first to implement a province-wide cosmetic pesticide ban, similar to those within municipalities being enacted throughout Canada on the use of chemicals for lawn and gardens. Only organic food can be grown now!

 

Their Pesticides Management Code was phased into effect between 2003 and 2006. It prohibits the use and sale of 20 active ingredients1 in lawn pesticides and prescribes additional restrictions on pesticide use outside public daycares and schools.

 

On April 22, Ontario implemented an even broader but similar ban on the sale of 250 chemicals.

 

Unfortunately for those who now celebrate the move by both provinces, Canada's commitment to the North American Free Trade Agreement (NAFTA) opens up the door to legal challenges whenever an industry is disrupted. The chemical industry is now in that compromised position.

 

Dow Agrosciences is one of the world's largest manufacturers of chemicals, and through NAFTA article 1105 and 1110, filed a notice of intent to seek compensation from the Government of Canada for lost profits resulting from Quebec's ban on their 2,4-D herbicide. They announced they would seek a minimum of $2 million in damages.

 

Dow argues that the Quebec ban was imposed without scientific justification and they dispute the cancer risk associated with 2,4-D.

 

On March 31, Dow formalized their notice of intent under NAFTA's Chapter 11. Dow and the Government of Canada must now jointly appoint a three-member arbitration panel. Each may choose one of the panelists, and the third panelist is nominated jointly as the Chair.

 

There are, however, some active and vocal opponents to Dow's actions.

 

Once the panel is constituted, the Canadian environmental organization Ecojustice will file documents on behalf of Équiterre and the David Suzuki Foundation seeking leave (permission) of the panel to intervene as "non-disputing parties" in this matter and to file an amicus curiae submission.

 

The three groups uphold Quebec's ban and support that the Code is grounded in the precautionary principle. According to Ecojustice, the advisory group whose recommendations first formed the basis for development of the Code explicitly recognized this orientation.

 

"We cannot allow U.S. businesses to handcuff provinces from applying the precautionary principle when it comes to protecting residents from potentially cancer-causing chemicals," says Will Amos, a staff lawyer with the University of Ottawa-Ecojustice Environmental Law Clinic. "We will seek to intervene before the NAFTA tribunal and submit the viewpoint of environmental groups."

 

The other groups involved in voicing their concerns are also coming out strongly against Dow's actions.

 

"Dow's actions clearly show that, for this company, promoting its economic interests trumps public health concerns. Shame on Dow," says Hugo Seguin, the coordinator of Équiterre, a Quebec environmental group. "This kind of irresponsible corporate behaviour has no place in Québec and Canada."

 

The three group's have developed a list of recommendations for the Government of Canada as 'we' defend ourselves against Dow's challenge.

 

1. The federal government should vigorously defend Quebec's ban on 2,4-D lawn pesticides in the arbitration proceeding. The federal minister of international trade should immediately and publicly announce Canada's intentions in this regard and acknowledge the appropriate precautionary basis for Quebec's action.

 

2. The federal government should ensure more robust application of the precautionary principle in the Pest Management Regulatory Agency (PMRA) risk assessments of pesticides.

 

3. The federal government should assert the position that non-discriminatory regulatory measures enacted for a public purpose in accordance with due process are not, under international law, expropriations or violations of the minimum standard of treatment rules. As such, such regulatory measures are not subject to any compensation.

 

"The Government of Canada's stance on this issue could have serious implications both in Quebec and across the country," adds Lisa Gue of the David Suzuki Foundation. "We believe provinces and citizens are on the right side of this issue, and encourage the federal government to take a leadership role and set a high standard for protection of human health and the environment."

 

In light of the Province of Ontario having followed Quebec's lead with their provincial cosmetic pesticide ban coming into effect on April 22, Ontario's Ministry of the Environment stands to uphold their decision. "We have made the decision to ban the use and sale of highly toxic chemical pesticides for cosmetic use in the interest of protecting public health and safety," says the Ministry's Kate Jordan. "If a corporation chooses to pursue legal avenues, that is its choice to do so, but we stand by our decision."

 

Deconstructing Dinner is heard on radio stations across Canada and is available as a Podcast. More information on the show can be found at www.deconstructingdinner.ca