• Project justification; 
• Description of the environment; 
• Description of biophysical environment; 
• Valued ecosystem components (VECs); 
• Effects Prediction; 
• Public Involvement; 
• Cumulative effects assessment (CEA); 
• The North American Free Trade Agreement; and • Best practices for environmental assessment (EA).

"Factors to be considered (e) any other matter relevant to the screening, comprehensive study, mediation or assessment by review panel, such as the need for the project and alternatives to the project, that the responsible authority or, except in the case of a screening, the Minister after consulting with the responsible authority, may be required to be considered".

"'Need for' the project is defined as the problem or opportunity the project is intended to satisfy. That is, 'need for' establishes the fundamental rationale for the project. 'Purpose of' the project is defined as what is to be achieved by carrying out the project…'Need for' and 'purpose of' should be established from the perspective of the project proponent and provide the context for the consideration of alternatives. For private sector projects, proponents should provide a clear statement of the need for the project. Such a statement will establish the scope of the alternatives to be subsequently considered (i.e. those within the control or interest of the proponent)”.

"These definitions (i.e. ‘need for and alternatives to’) are problematic. 'Need for' does not mean 'problem’, 'opportunity' or arguably, 'rationale'. A more appropriate way to determine need is to ask 'is the proposed action necessary? Why? Are the possible or likely environmental implications justified? How?'…. Also, the Policy limits the issues unduly by saying “’need for’ and ‘purpose of’” should be established from the perspective of the project proponent”. The issues should be considered from a broader, public interest perspective. An example given in the Operational Policy Statement (CEAA, 1998) highlights the shortcoming of this approach. The example concerns a 'proposed construction and operation of an oil refinery'. The stated need, ”increased demand for refined oil products”, is not a 'need'. At best it is a “market opportunity”. It does nothing to integrate environmental values into the EA". CEN also comments that "Government policy should define 'need' in terms of necessity and justification; criteria could de developed for 'need' that are compatible with other sustainability criteria….It must be clearly determined who must consider the need for and alternatives to a project, i.e. the proponent or the responsibility authority”.

"The Panel does not consider the review to be a proper forum for discussing the importance of the Project to the economic viability of Inco. However, the Panel acknowledges the contribution of the nickel industry to the Canadian economy….The supply of cost-effective Canadian [nickel] concentrates is being threatened….The Panel observes that there is potential for growth in the world nickel market and that new domestic sources will have to be developed just to maintain Canada's existing position. Given that Inco supplies about 20% of that market, the Panel assumes that Inco, as part of its internal justification for the project, will assure itself that production from Voisey's Bay is required".

(1) It is water accessible, and therefore a convenience and advantage for shipping to the markets for aggregate stone. Because the stone is removed by ship, there will be minimal truck traffic from the site in the community; 
(2) The quarry will not be visible from Route 217 or from anywhere on the Eastern side of the neck; 
(3) The ridge of the North Mountain provides some protection from typical quarry noise; and 
(4) The Proponent believes that there is a pool of skilled and highly motivated people on Digby Neck capable of operating this project”. Skirted here are answers to a larger and more relevant question that goes beyond what the proponent feels is the ideal nature of the quarry site: Why is Global Quarry, now Bilcon of Nova Scotia, here, in Nova Scotia? The only part of the proponent's "Why Here?" explanation that comes even close to answering this bigger question is: "It (i.e. the site) is water accessible, and therefore a convenience and advantage for shipping to markets for aggregate stone". But why does the proponent need to quarry basalt here?

• the Convention on Biological Diversity;
• the United Nations (UN) Global Plan of Action for Marine Environments;
• the planned World Biosphere accreditation for the Bay of Fundy.

i) protect and restore coastal and marine habitats;
ii) protect human health and ecosystem integrity; and
iii) encourage sustainable maritime activities.

“Worrisome changes seem to be happening in the Bay of Fundy. Declining fish stocks threaten many coastal communities. Many other wildlife species have declined in numbers or mysteriously changed distributions. Collisions between ships and endangered North Atlantic Right Whales illustrate the vulnerability of these giants. In the upper Bay, changes in salt marshes and mud flats threaten many species dependent on these productive habitats.

Causeways and dams obstruct many rivers flowing into the Bay, and there is evidence that these may have altered sediment transport and other ecological processes over wide areas. The millions of shorebirds that feed voraciously on the Fundy mudflats during their annual migration from the Arctic to South America seem to be having trouble finding enough food to build up the fat reserves needed for their gruelling 4000 km non-stop flight. Sewage contamination has closed many highly productive clam flats, and scientists are finding a growing list of potentially hazardous chemicals in seawater, bottom sediments and marine organisms. In many areas, productive bottom habitats are being degraded by intensive and destructive harvesting methods. And on the Annapolis River, the spinning turbines of a tidal power plant kill large numbers of migrating fish each year.

With each such assault the vitality and integrity of the Fundy ecosystem is imperceptibly diminished. Slowly but surely we have been undermining the sustainability of the Bay's living resources and curtailing future economic opportunities. In recent years scientists have begun to question the adequacy of their understanding of the Bay's oceanographic and ecological processes with respect to some of these issues”.

“The Fundy Biosphere Initiative is continuing in its development phase; the partnership is steadily being built, a strategy plan is being developed and information is being gathered to aid the development of a proposal to be submitted to United Nation’s Educational, Scientific and Cultural Organization (UNESCO) for designation as a world biosphere site”.

“Biosphere reserves are areas of terrestrial and coastal/marine ecosystems or a combination thereof, which are internationally recognized within the framework of UNESCO's programme on Man and the Biosphere (MAB)”.

(i) conservation - contribute to the conservation of landscapes, ecosystems, species and genetic variation; 
(ii) development - foster economic and human development which is socio-culturally and ecologically sustainable¹; 
(iii) logistic support - support for demonstration projects, environmental education and training, research and monitoring related to local, regional, national and global issues of conservation and sustainable development².

In regards to acceptable development initiatives in biosphere reserve areas, the Statutory Framework of the World Network of Biosphere Reserves recognizes that a buffer zone should be an area where only conservation initiatives and activities take place.

3.3 Digby Neck and Islands 
Conservation objectives in this area should reflect those other biosphere reserves. As a potential buffer zone in a biosphere reserve, Digby Neck should be limited to small-scale community-based economic development and activities. For example, in 1998, UN Habitat Settlements named the Western Valley Development Agency (WVDA) to its Global Best Practices List. WVDA was recognized for its approach to sustainable economic development. For instance, the WVDA Vision 2000 Community Action Plan (1995) emphasized: 

• Renewable natural resource industries (e.g. fisheries, agriculture, forestry); 
• Tourism, Heritage, Culture; 
• Ecotourism, Environment and Waste Management; 
• Infrastructure; and 
• Business development (Business info, projects, HRD & recruitment).

The WVDA does not recognize non-renewable resource extraction or mining as an approach to sustainable economic development. Furthermore, the development of Vision 2000 included public consultation while awareness of the Whites Point quarry permit was forced upon the community with little public participation. 

In their Statutory Framework of the World Network of Biosphere Reserves (1996), UNESCO asserts that States should encourage the cooperation of regional and/or thematic sub networks of biosphere reserves. It is apparent that Digby Neck, south-western Nova Scotia and the entire Bay of Fundy-Gulf of Maine region are unique and should be protected. Thus, conservation, biodiversity, traditional ecological knowledge and a sustainable economy need to be encouraged (UNESCO, 1996). To further emphasize the importance of Digby Neck, it is important to note that it is in close proximity to another biosphere reserve. Approximately 64 kilometres inland from Digby Neck, another potential biosphere reserve can be found. 

Recommendation: Inappropriate industrial development in the Digby Neck is perceived as a crime against nature and the people of Digby Neck. With so much of Nova Scotia’s economy continuing to rely on natural resource extraction as well as the need for sustainable rural economic experiments, the SCC-ACC recommends that the proponent demonstrate how an industrial extractive operation (and its possible cumulative effects) is compatible with the existing spiritual, social, participatory and small-scale economic development parameters supported by UNESCO. 

The SCC-ACC would like the proponent to provide evidence that their proposal is compatible with the overall ecosystem and economic zeitgeist of the region.

4.0 Biophysical Environment 
In section 8.1.7, Aquatic Species and Habitat, the Draft Guidelines do not include an explicit reference to amphibians and reptiles even though it is well-known that there are several amphibian species throughout the Bay of Fundy ecosystem. These species include, but are not limited to: 

• Salamanders (e.g. dusky blue-spotted salamander); 
• Toads and frogs (e.g. wind frogs); and 
• Turtles (e.g. loggerhead turtle). 

The proponent needs to identify the current status of all amphibians and reptiles in the project area as well as the potential impacts to these species. Parks Canada highlights that there three rare salamander species in the Bay of Fundy National Park (Parks Canada, 2005). The rare salamander species are the: 

• Four-toed salamander; 
• North-dusky salamander; and 
• Blue-spotted salamander. 

Recommendation: The SCC-ACC requests that the Panel amend section 8.1.7 to include a baseline assessment of amphibians and reptiles in the project area. 

5.0 Valued Ecosystem Components 
The Draft Guidelines indicate that VECs will be used as a foundation for predicting project-related impacts. SCC-ACC’s view is that the Draft Guidelines must specify which VECs are to be used and not leave these decisions up to the proponent. SCC-ACC proposes that the following biophysical VECs need to be included: 

• Biodiversity and Species at Risk; 
• Marine Mammals (i.e. Northern right whales); and 
• Greenhouse Gas Emissions and Climate Change. 

Recommendation: Revise the Draft Guidelines to require that carbon releases and changes to carbon sinks as well as Northern right whales are designated as VECs. These VECs must be monitored and reported throughout the cumulative effects assessment and monitoring framework established for the Project. 

5.1 Biodiversity and Species at Risk 

Biodiversity 
In the January edition of Resurgence (2005), Stephen Harding highlights that recent experiments prove that biodiversity gives rise to healthy ecological communities that are more effective at resisting climate change. Furthermore, the importance of biodiversity is reflected in international law and treaties such as the Convention on Biological Diversity which Canada has signed, not simply for preserving ecosystems for all their innate worth but because biodiversity plays a key role in creating habitable conditions on Earth, including a climate which favours domestic species. 
Biodiversity also provides us with ecosystem services such as soil and water purification. Economists are attempting to calculate how much ecosystem services are worth in monetary terms. The results of their calculations are staggering. In 1997, ecosystem services were calculated to be worth three times the global GDP (Harding, 2005). This should be enough to convince us to reconsider preserving all ecosystems, not to mention ecosystems already recognized by international authorities to be worthy of our respect and attention. 
Recommendation: The information provided above reiterates the need for the Panel and proponent to view this project from an ecosystem perspective. Special attention should be given to Gaia and Planetary perspectives. 

Species at Risk 
The Draft Guidelines address adverse environmental effects on species at risk and wildlife generally but do address biodiversity issues specifically. SCC-ACC believes that biodiversity should be the fundamental concept guiding the environmental assessment. Particular attention must be paid to wildlife, wildlife habitat, and ecosystems.

In this way, the EIS should conform closely to the guidelines highlighted in the report titled, A Guide on Biodiversity and Environmental Assessment (CEAA, 1996). In addition to the guidelines, the Canadian Biodiversity Strategy needs to be referenced. 

A Guide on Biodiversity and Environmental Assessment (CEAA, 1996) notes that biodiversity needs to be examined at the ecosystem, specie, and genetic level. For example, at the ecosystem level, areas of high biological diversity, critical habitat areas, relic and fragile ecosystems need to be identified and assessed for impacts. At the species level, COSEWIC/IUCN species at risk, populations at low levels, populations at outer limits of their range, species with low reproductive capacity, and species highly sensitive to disturbance need to be identified and assessed for impacts. At the genetic level, genomes and genes of social, scientific and economic importance must be identified. 

An important biodiversity issue is the risk of introducing non-native and invasive species into the project area. For example, it is obvious that deforestation will take place to accommodate the proposed project. Therefore, reseeding efforts must use plants native to Nova Scotia. Given the clear and growing potential of non-native invasive species to completely transform ecosystems (e.g., zebra mussels in the lower Great Lakes), specific requirements for risk management are needed. 

Recommendation: Revise the Draft Guidelines to ensure that biodiversity protection becomes an overarching principle for the analysis. Revise the Draft Guidelines to conform to the guidance provided in the Agency’s A Guide on Biodiversity and Environmental Assessment highlighting ecosystem and genetic-level diversity and invasive species. Furthermore, the proponent should use to biophysical impact analysis model to address significant or adverse environmental effects (e.g. Beanlands and Duinker, 1983).

The EIS should include a section that describes how the proponent plans to comply with existing federal and provincial environmental legislation and regulations. At the federal level, these laws include, but are not limited to, the Migratory Birds Convention Act, the Fisheries Act, the Species at Risk Act and the Canadian Environmental Protection Act. At the provincial level, these laws include, but are not limited to, the Endangered Species Act, the Environment Act, and the Water Act. Where compliance is not possible in the absence of permits or authorizations, the EIS should provide details. 
Recommendation: Include a new section in the Guidelines that requires the Project proponent to describe how the proponent plans to ensure compliance with federal and provincial environmental legislation and regulations. 

5.2 Marine Mammals

According to the National Oceanic and Atmospheric Administration's Marine Fisheries Service (NOAA) draft North Atlantic Right Whale Recovery Plan (2003, p.IG-1): 

"The greatest known current cause of right whale mortality in the North-western Atlantic is collision with ships”. 

In addition, the Marine Mammal/Vessel (MMVS) Strike Working Group of the Stellwagen Bank National Marine Sanctuary in its May 25, 2004 Meeting Summary Report (MMVS, 2004) states: 

“Vessel strikes along the east coast of the United States have received a great deal of attention in recent years because of their role in inhibiting the recovery of the North Atlantic right whales. Vessel strikes account for one of the two primary causes of human-induced mortality in this species cases of right whale-ship strikes were reported in Knowlton et al. 2001, of which 18 (72%) were fatal. Given the precarious position and current decline of right whale population (Caswell et al. 1999), and the contention that saving one right whale female per year would cause the decline to be halted (Fujiwara et al. 2001), the issue is serious”.

Ships involved with the Project pose a threat to Northern right whales. Given that the proposed quarry has a projected lifespan of 40-50 years, the increased traffic of ships entering and leaving the Bay of Fundy threatens the long-term viability of North right whales. If the Whites Point Quarry is carried out, it is likely that similar projects will be carried out in the area in the near future. Added threats to the survival of the Northern right whale, even if small, are unacceptable.

All results of efforts to reduce ship-Northern right whale interactions are incremental in nature. The recent alteration of shipping lanes to and from Saint John, New Brunswick, in the Bay of Fundy incrementally reduced the likelihood of such an interaction. Any shipping added to those lanes incrementally increases the risk of such an interaction, undoing to some degree the good done by altering the lanes. Every added ship in the shipping lanes is an added threat. Any shipping added to those lanes incrementally increases the risk of such an interaction, undoing to some degree the good done by altering the lanes. 

Recommendation: The proponent should be required to demonstrate that mitigation measures related to shipping will reduce the threat of a ship striking a Northern right whale to zero. In this regard, the panel should establish a zero tolerance perspective.

It has been demonstrated that sound from certain coastal activities, such as quarrying, can carry into the neighbouring marine environment. What effects such activities may have on marine mammal behaviour is not well known. However, there are numerous studies that suggest that the effects of anthropogenic sound on marine mammal behaviour may be significant. In their report titled Review of Scientific Information on Impacts of Seismic Sound on Fish, Invertebrates, Marine Turtles and Marine Mammals (DFO, 2004), the Department of Fisheries and Oceans (DFO) state: 

"There is documented displacement and migratory diversion in some marine mammal species exposed to seismic sound…The ecological significance of such effects is expected to be low, but may be higher if they: 

• displace feeding marine mammals from areas where there are no alternates; 
• displace marine mammals from resting areas where there are no alternates; displace marine mammals from breeding or nursery areas; and 
• or divert migrating animals from routes for which their alternate routes either do not exist or would incur substantially greater costs to traverse". 

The DFO also states in this report that: 

"Social behaviour can include a wide variety of activities, such as mating, cooperative feeding, play, aggressive interactions, and communication…However, there have been no directed studies of seismic sounds on mating, cooperative feeding, play, or aggressive interactions…In summary, it is unknown if exposure to seismic sound can result in changes in marine mammal social behaviour, but if it were to occur there are conditions under which the worst-case consequences of such changes could be highly significant". 

Recommendation: The proponent should be required to demonstrate that quarrying activities, especially blasting, will have no significant effect on the behaviour of marine mammals in the vicinity of the quarry.

5.3 Greenhouse Gas Emissions and Climate Change

Greenhouse Gas Emissions 
The Project will release significant quantities of carbon dioxide as a result of construction and operation activities. The Draft Guidelines do not require an assessment of GHG emissions. The EIS must include a baseline measurement of total carbon currently stored and current fluxes of GHG emissions in the region. The EIS must also measure the amounts of GHG expected to be released by construction and operation activities as well as the capacity of the project area’s natural ecosystems to store carbon over the lifespan of the project.

The EIS must reflect the following reports: 

• Incorporating Climate Considerations in Environmental Assessment: General Guidance for Practitioners (CEAA, 2003); and 
• Cumulative Effects Assessment Practitioners Guide (CEAA, 1999b). 

The quarry operation, with its trucks, drills, loaders, crushers, conveyers, and ships, will create considerable quantities of carbon in the form of carbon dioxide (CO2) emissions over the life of the project. It should be noted that a gallon of diesel fuel consumed produces approximately 25 pounds of CO2. Considering that the Project has an expected 40-50 year life span, the amount of CO2 that is likely to be produced is a significant concern. The fact that Canada has ratified and is now implementing the Kyoto Protocol is a factor that should be considered. As a result of this commitment, Canadians are being asked to take the One-Tonne-Challenge. The proponent must account for the amount of carbon resulting from the Project and what affect it has on Canada’s commitment to the Kyoto Protocol. The ownership of the carbon emissions needs to be addressed. Is it Canadian? Or does it belong to the US, the home of the proponent and the destination of the quarried aggregate?

GHG management plans should be developed. Monitoring and follow-up programs must include a GHG management plan to ensure they are consistent with Canada’s Climate Change Action Plan - which is Canada’s plan for meeting its commitments under the Kyoto Protocol. 

Recommendation: Revise the Draft Guidelines to require predictions of greenhouse gas emissions associated with: 

• construction and operation of Project components and activities, accidents and malfunctions; 
• deforestation and soil disturbance; and 
• induced and reasonably foreseeable projects. 

Recommendation: Revise the Draft Guidelines to require measurement and assessment of changes to the carbon sequestration capacity of the Digby Neck region resulting from the Project and induced and reasonably foreseeable projects be measured and assessed. 

Recommendation: Revise the Draft Guidelines to require preparation of a formal GHG management plan. 

Recommendation: The SCC-ACC recommends that the proponent follow the guidelines stipulated in the Agency’s report titled, Incorporating Climate Change Considerations in Environmental Assessment: General Guidance for Practitioners (2003). The proponent should be required to prepare an estimate of carbon emissions reflecting the anticipated quantity of CO² produced by the project per annum and over its lifetime. The proponent should also be required to devise and describe a method for mitigating CO²  in a way that estimates the extra burden it places the Canadian government and its people with respect to reaching Canada's CO²  reduction targets set forth in the Kyoto Protocol. 

Climate Change 

Those familiar with the imperatives signaled from current climate change analysis realize that we are on the verge of massive extinction and face the potential for irreversible implosion of the planet’s ecosystems. One landmark study commissioned by the Secretary General of the UN for the Millennium Summit (2000) titled People and Ecosystems: the Fraying Web of Life concluded that the drastic decline occurring in all but one of the earth's major ecosystems must be reversed or there could be devastating implications for humankind. 

More recently Sir David King, the UK’s chief scientist, warned that global warming is a far greater risk to human security than terrorism (Harding, 2005). Scientist James Lovelock, author of Gaia theory, believes the threat of global warming is so great that humanity must immediately cease its consumption of fossil fuels (Harding, 2005). 

The message is becoming clear: it is time for immediate change. We all need to reconsider our lifestyles and political decisions so that they do not impact the planet negatively. It is time to shift paradigms, reframe the way we see the world, adopt systemic thinking and make personal and professional decisions that consider the negative implications in our backyards as well as the entire planet.

6.0 Effects Prediction 
The current information supplied in section 9.0 of the Draft Guidelines requires the proponent to complete a detailed analysis of the proposed project’s anticipated residual environmental effects. In addition to this task, the proponent should also be required to complete an analysis that discusses how potentially affected areas (e.g. VECs) will evolve naturally overtime. With regards to the biophysical analysis, at least two forecasts should be included. One forecast should predict how the biophysical components will change and evolve naturally. The second forecast should predict how the biophysical components (e.g. VECs) will respond to the proposed project (Duinker, 1985; Environmental Resources Ltd., 1985; Raymond et al., 2001). 

Recommendation: In addition to the detailed analysis of anticipated residual environmental effects resulting from the project, the proponent must address how the project area’s biophysical components will change and evolve naturally. 

The proponent should be required to justify their methods for evaluating impact significance. Justification of the method for evaluating impact significance should be included since it can reveal whether the results from the effects prediction are acceptable. The method for determining significance needs to be analytical and scientifically sound (Thompson, 1988). In addition to demonstrating an analytical and scientifically sound approach, the proponent should allow the public an opportunity to comment on the expected impacts. With respect to determining impact significance, public participation allows the affected and non-affected public an opportunity to highlight areas and impacts that may not have been addressed by traditional forecasting methods (Thompson, 1988). 

Recommendation: The proponent should be required to provide information related to the applied methods as well as the results from the effects prediction to the public. Allowing the affected and non-affected community to comment helps assure that the proponent has addressed all potential impacts. Similarly, allowing the public to comment tests the merit of the applied methods. 

7.0 Public Involvement 

The public involvement requirements discussed in section 4.0 of the Draft Guidelines need to be revamped to assure that the proponent completes a well-rounded, transparent, and effective public involvement process. Prior to carrying out the public involvement process, the proponent must identify clearly the goals of the public involvement program (CSA, 1996; Duinker, 1998; Chess et al., 1999). In addition to this, the proponent needs to assure that the public involvement program is initiated early and carried throughout the project’s lifecycle (e.g., scoping, impact analysis, final decision) (Grima, 1997; Duinker 1998; Chess et al., 1999). 

When carrying out the public involvement program, the proponent ought to include various mechanisms of public participation to assure that the widest range of stakeholders are included. Traditional approaches to public involvement such as closed-door discussions between politicians and experts are no longer acceptable (Vasseur et al., 1997; Duinker 1998). Hence, to be truly open and transparent, the public involvement program needs to include all stakeholders. 

Although the Draft Guidelines address the need to consider traditional knowledge (section 3.0), the description defining traditional knowledge needs to be modified. For instance, the description provided in the Draft Guidelines emphasizes that traditional knowledge is obtained primarily from Aboriginal people. Although this is often the case, the SCC-ACC asks the Panel to revamp the current description of traditional knowledge to include local knowledge, that is, knowledge obtained by local residents which concerns the Project’s potential impacts as well as the region’s current and future social and biophysical characteristics.

Recommendation: The proponent needs to define its public involvement program. The goals of the public involvement program need to be stated clearly. A schedule and list of pubic involvement methods needs to be included. Furthermore, the proponent needs to state the goals of the public involvement program clearly. 

Recommendation: The SCC-ACC asks the panel to revamp the Draft Guidelines’ description of traditional knowledge to explicitly include local as well as aboriginal knowledge. 

8.0 Cumulative Effects Assessment 

Section 16(1a) of the CEAA states that an EIS needs to include: 
“Any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out”. 

In the Cheviot coal mine case (the leading case on the subject of CEA requirements), the Federal Court maintained the position that projects or activities that will be carried out include those that are “likely” under the Agency’s Operational Policy Statement on Cumulative Effects Assessment (CEAA, 1999c), Responsible Authorities are advised to include projects that are “certain” and “reasonably foreseeable” in the CEA. The regime for monitoring environmental effects, ongoing biophysical research and follow-up should be at least as rigorous as those initiated for mining projects recently assessed under CEAA such as the Diavik and Snap Lake diamond mines in the Northwest Territories. For example, an ongoing regime for monitoring environmental effects, including cumulative effects, should be established and funded by the proponent.

Project proponents may not have access to government and other information needed to determine whether or not future projects are likely or reasonably foreseeable. Some of the information needed to make this determination will be held by various provincial and federal departments such as the National Energy Board, DFO, and the various natural resource related ministries operating within the governments of Nova Scotia and New Brunswick. 

Therefore, the SCC-ACC recommends that the Draft Guidelines specify that projects and activities other than the Whites Point Quarry and Marine Terminal Project must be included in the CEA. Examples of other projects that are reasonably foreseeable (and thus must be included in the CEA) include: 

• reasonably foreseeable basalt quarries; 
• possibilities of uranium mining in the North Mountain range; 
• proposed bottled water plant (initially to include plastic bottle production as well as water bottling, which would create added pollution factors as well as increased shipping pressure in the Bay of Fundy); 
• other reasonably foreseeable mining initiatives, forestry developments, and infrastructure developments on Digby Neck; and 
• Possible production plant closer to source of aggregate (i.e. on Digby neck once fall scale marine terminal exists). 

This list of reasonably foreseeable projects and activities should be confirmed by consulting the key federal and provincial departments and ministries mentioned above. Establishing a list early assures that the proponent will include the projects in the CEA. 

Section 9.5 of the Draft Guidelines does not stress the importance of addressing VECs within a CEA. A CEA needs to address VECs for several reasons. First, an action may be considered benign by itself but when coupled with another event (past, present, or future) it may cause changes to VECs that are synergistic or additive (MacDonald et al., 2000). Second, the significance of any one action depends on the intensity of the action and the importance and sensitivity of the VECs being affected. Third, when measurable thresholds exist for a VEC’s tolerance level (e.g. a species population threshold), they should be compared to the effects of the proposed project. If the threshold is exceeded, then the impact must be considered significant (CEAA, 1999b). Once cumulative impacts and their significance are considered, the Panel can make a more informed decision.

Recommendation: Revise the Draft Guidelines to include a schedule of existing, current, and future projects and activities that must be included in the CEA. 

Recommendation: The SCC-ACC asks that the Panel revamp section 9.5 to reflect a CEA that pays particular attention to the project area’s VECs. The proponent should demonstrate a competent understanding of past, present, and future activities in the area. In addition to this, the proponent needs to discuss how these activities will affect VECs.

8.1 Scenario Development at Five-year Intervals 

According to the Cumulative Effects Assessment Practitioners Guide (CEAA, 1999b), it is fundamental that the CEA includes effects resulting from the Project and other concurrent projects and activities. The Guide advises that temporal boundaries for the CEA reflect the operational life of the project (e.g., exploration, construction, operations and abandonment). The Guide further advises that the CEA highlights time-dependent changes in discrete units of time (i.e. five year intervals). As a practical matter, this means that the scenario analysis of cumulative environmental effects would be undertaken for the year that construction on the Project commences (Year 0), with further scenario analysis undertaken at five-year intervals during the expected 25-year lifespan of the Project (e.g. Year Five, Year Ten, Year 15 etc.). As additional projects are introduced to the Digby Neck and Bay of Fundy, the cumulative effects of the Project in combination with these projects must be brought into the analysis of overall significance. 

Recommendation: Revise the Draft Guidelines to require the proponent to organize the CEA to reflect the operational lifespan of the project (e.g., exploration, construction, operations and abandonment) and the analysis at five-year intervals throughout the lifespan of the Project. 

9.0 North American Free Trade Agreement 

Further concern under cumulative effects is found in the possibility of the proponent or other possible companies moving to Digby Neck and Islands, invoking NAFTA chapter 11, and increasing the chances of removing domestic legislation put in place to protect the local environment and its citizens. Local inhabitants ranging from Brier Island to Wolfville and areas opposite of the North Mountain range are becoming increasingly concerned with the level of industrial development in their area and the potential of NAFTA, particularly Chapter 11, to refute domestic environmental legislation. 
What is NAFTA? 

January 1, 2004 marks the ten year anniversary of NAFTA. NAFTA promoters - including many of the world’s largest corporations - promised that NAFTA would create hundreds of thousands of new high-wage jobs, increase living standards in the U.S., Mexico and Canada, improve environmental conditions in the member countries and transform Mexico from a poor developing country into a booming new market for U.S. exports (Public Citizen, 2005a). NAFTA opponents, including labour, environmental, consumer and religious groups, argued that NAFTA would launch a race-to-the-bottom in wages, destroy hundreds of thousands of jobs, undermine democratic control of domestic policy-making and threaten health, environmental and food safety standards (Public Citizen, 2005b). 

The environment is an area that has been threatened by NAFTA and more specifically, Chapter 11. As Stephen Clarkson (2002) notes in his book titled, Uncle Sam and Us: Globalization, Neoconservatism, and the Canadian State, the federal government’s (i.e. U.S.) four-pronged strategy to cut back its own environmental protection capabilities issued in the 1990s included NAFTA and the World Trade Organization’s supra-constitutional provisions, limiting U.S. citizens capacity to protect and nourish public goods, particularly a clean environment. 

What is Chapter 11? 
According to Professor David Boyd (2003), Canadian environmental law expert and author of Unnatural Law: Rethinking Canadian Environmental Law and Policy, the most detrimental part of NAFTA threatening Canadian environmental law is Chapter 11. Boyd argues that chapter 11 discusses investment and investor-state dispute settlement. Hence, investors are offered protection from domestic environmental legislation and regulation while providing an unprecedented method for resolving disputes. 

Article 1110 of NAFTA protects investors against expropriation or “any measure or measures having equivalent effect”. This goes farther than any Canadian expropriation law, thereby placing a broad range of government actions (e.g. environmental legislation) at risk of being undermined. NAFTA’s investor-state dispute mechanism is unprecedented in that it allows foreign investors (predominantly corporations) to bypass the Canadian legal system and challenge our government directly though international arbitration. NAFTA’s Chapter 11 process runs counter to international law where governments historically were given access to dispute resolution mechanisms. Boyd (2003) notes that contrary to popular belief, NAFTA arbitration tribunals although undemocratic and lacking in transparency do not have the power to strike down laws that violate NAFTA, but they can require government to pay huge sums in compensation to affected investors, a reality which has a so-called ‘chill effect’ of coercing governments into repealing laws or refusing to pass certain laws in the first place (Bottari, 2001). 

In addition, two other articles of NAFTA are widely used by corporations in their investor-state disputes: Article 1102 provides for "national treatment", which means that governments must contend with companies from other NAFTA countries with no less favourable treatment than they give to their own companies. Article 1105 contains a "minimum standard of treatment" provision that includes vague prose about fair and equitable treatment in accordance with international law (Bottari, 2001). 

Investor-state cases are litigated in international arbitration bodies that fall under the World Bank and the United Nations. Cases litigated by the arbitration bodies do not include public participation, observation and input, and hence are highly undemocratic. A three-person panel composed of professional arbitrators listens to arguments in the case and maintains the power to award an unlimited amount of taxpayer dollars to corporations whose NAFTA-investor privileges and rights they judge to be affected (Bottari, 2001). 

NAFTA and its potential impacts on the Digby Neck 
A list of cases filed under NAFTA Chapter 11 was recently published by Sinclair (2005) in a Canadian Centre for Policy Alternatives’ document. The number of cases brought forward by corporations in NAFTA’s member countries are: Canada, 11; US, 13; and Mexico, 15. The largest number of measures challenged fall under environmental protection; five challenges occurred in Canada, three in the US and four in Mexico. 
In the first investor-state case against the government of Canada, the Ethyl Corporation, an American outfit, sued the Canadian government for $US 250 million and obtained an out of court settlement of $US 13 million for the Canadian ban on the gasoline additive, MMT, a nerve toxin (Bottari, 2001). In addition to the out of court settlement, the Canadian government repealed the MMT ban and issued an apology to the company (Sinclair, 2005). 

Clarkson (2002) explains the extremely negative affects this case had on Canadian environmental policy and the ability of corporations to continue polluting in Canada (2002, p.349): 

“The MMT case revealed how Canadian environmental policy, once thought to be the purview of sovereign legislature, has been taken hostage by continental governance. Under supra-constitutional aegis of Chapter 11, the issue is no longer the classic Canadian question of which level of government – federal or provincial – can initiate an environmental regulation. The issue now became whether any level of government could initiate such legislation if it jeopardizes the interests of a foreign company. Far from the polluter’s paying to rectify the externalities is caused, Chapter 11’s expropriation clause led to the polluter’s being paid to keep on polluting”. 

The second case against the government of Canada is the S.D. Myers case. In October 1998, U.S.-based S.D. Myers Inc., which treats transformers containing toxic PCBs, filed a claim for $US 30 million for losses it alleges to have incurred during a one-and -a-half year ban (1995 to 1997) on the export of PCB wastes from Canada. The Canadian government argued that Canada is bound by international conventions which stipulate that PCBs must be destroyed in an environmentally sound manner. Furthermore, the Canadian government argued that U.S. standards for PCB disposal are not as high as Canada's (Bottari, 2001). The arbitration tribunal ruled that Canada violated NAFTA articles 1102 (national treatment) and 1105 (minimum standards of treatment). S.D. Myers Inc. was awarded $US 5 million plus interest in damages. Canada applied to the federal court to set aside the tribunal’s award. On Jan. 13, 2004 the court dismissed Canada’s application and the government of Canada was forced to pay S.D. Myers Ltd. (Sinclair, 2005). 

Clarkson (2002, p.350) sheds light on the implications of this case as well as in regard to NAFTA usurping international law. He notes that a second piece of federal environmental legislation was invalidated by the S.D. Myers Ltd. case: 
“When Ottawa banned the export of PCB waste, it thought that it was conforming with three of its international environmental commitments – the Basel Convention on Control of Transboundary Movement of Hazardous Wastes and their Disposal; The Canada-US agreement Concerning the Transboundary Movement of Hazardous Wastes, and NAFTA’s article 104 , which proclaims the primacy of the international environmental treaties”. 

However that was not the case as Clarkson recounts that the arbitrator’s decision was a ‘flight of stupefying legal logic’ which discriminated on ‘aberrant grounds’. He also suggested that the failure to meet expectations was deepened by the revelations of chapter 11’s potential to empower foreign corporations and castrate democratic government. Angela Rickman, deputy director of the Sierra Club of Canada stated in reference to NAFTA’s Ministers of the Environment (CIELAP, 2002): 
"Ultimately, we need these Ministers to commit to ensuring that existing environmental legislation is enforced, that it is not trumped by trade agreements, and that there is an adequate budget for the CEC to ensure these commitments are met". 

Recommendation: The panel should take into account the threat that NAFTA and in particular Chapter 11 pose to Digby Neck. This is especially pertinent given the trend towards industrial development in the Bay of Fundy-Gulf of Maine area (e.g. the potential risk of the Digby Neck being opened up to industrial development). The proponent should be asked what physical, biological, and socio-economic changes may be expected to occur or could occur as result of a NAFTA challenge and the effects of a worst case scenario. The potential for cumulative effects also needs to be addressed. 

It is obvious the proponent is aware of the advantages NAFTA can offer. Bilcom of Nova Scotia Project Manager, Jim Wall stated publicly at a December 6th municipal council meeting that he will get his work visa through NAFTA (recorded by Marilyn Stanton from the partnership Society, carbon copied to Lisa Mitchell the Society’s lawyer). 

10.0 Best Practice 
The SCC-ACC takes the view that the Draft Guidelines are inadequate given the scale of the Project. Introducing this project to the Bay of Fundy, specifically to the Digby Neck, may encourage additional basalt quarries and other industrial developments over the next decades. 

Generally speaking, the Draft Guidelines do not reflect the many changes in environmental assessment policy and practice in the past 20 years (e.g., more careful assessment of effects on species at risk, biodiversity, greenhouse gas emissions, and cumulative effects assessment). SCC-ACC believes that the EIS needs to reflect best practice standards and meet the legal requirements stipulated in the CEAA and the province of Nova Scotia’s Environment Act.

In efforts of reflecting current best practice standards, the EIS should comply with guidelines prepared by the Canadian Environmental Assessment Agency (the Agency) including the following: 

• A Guide on Biodiversity and Environmental Assessment (CEAA, 1996); 
• Cumulative Effects Assessment Practitioners Guide (CEAA, 1999b); 
• Climate Change Guidance for Environmental Assessments (CEAA, 2001); and 
• Incorporating Climate Considerations in Environmental Assessment: General Guidance for Practitioners (CEAA, 2003). 

The Draft Guidelines convey little sense that the EIS will be state of the art. Rather, the Draft Guidelines convey the impression that the proposed schedule for construction is the primary factor in setting the requirements for the EIS. Nova Scotians and Canadians, not to mention the ecosystems of the Bay of Fundy and Digby Neck, deserve better. 

Recommendation: To ensure that the EIS for the Whites Point Quarry and Marine Terminal is state of the art, SCC-ACC recommends that the Draft Guidelines require that the EIS complies with guidelines prepared by the Agency and meet best practices of other panel reviews in recent years. 

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