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Canada faces NAFTA Chapter 11 challenge by US-based wind farm company

Port Elgin, Ontario is situated on Lake Huron.

Canada is being challenged by Napa, California-based Tennant Energy under Chapter 11 of the North American Free Trade Agreement.

Investment Arbitration Reporter reports, “The Government of Canada disclosed today [December 21] that it faces a new claim under Chapter 11 of the North American Free Trade Agreement (NAFTA). The Request for Arbitration by US investor, Tennant Energy, LLC, was filed on June 1, 2017 and acknowledged today in a brief announcement on a Canadian government website.”

The Government of Canada website notes, “The claim has been brought by Tennant Energy, LLC (‘Tennant’), a US corporation that claims to own and control Skyway 127 Wind Energy Inc. Skyway 127 Wind Energy Inc. is an enterprise that proposed to develop a wind farm in Ontario. …Tennant alleges that Ontario’s administration of the Feed-In Tariff program (FIT) was non-transparent and opaque, and that Tennant was treated unfairly with respect to their project in Ontario. In addition, Tennant alleges that government records documenting the nature and extent of the alleged unfair energy regulatory measures were intentionally destroyed.”

That website adds the company is claiming damages of “at least $116 million CDN” due to a violation of “Article 1105 (Minimum Standard of Treatment)”.

The website for the law firm Appleton & Associates notes, “Tennant Energy LLC v. Canada: Based on public admissions of unfair and non-transparent treatment, we represent a US Investor who failed to obtain contracts from Ontario in a publicly-administered Energy program.”

The Windrush Energy website notes: “Skyway 127 Wind Energy – 100 MW – Tennant Energy, LLC, California & GE Energy, LLC, New York, USA”.

An Owen Sound Sun Times article (dated January 24, 2011) makes a brief reference to “the Skyway 127 project near Port Elgin”. An editorial in the Shoreline Beacon (dated November 29, 2011) notes, “Skyway 127 Wind Energy Inc wants to build 50 [wind turbines] in the Port Elgin area…”

The IA Reporter article suggests, “The claim appears to bear some similarity to the earlier Windstream case, where Canada was held liable for a breach of NAFTA Article 1105 and ordered to pay $25 million CAD.”

In October 2012, Windstream Energy LLC filed a NAFTA Chapter 11 challenge against Canada after the Ontario government placed a moratorium on off-shore wind power developments within five kilometres of land. Windstream Energy had planned a 100-turbine off-shore wind power project in Lake Ontario near Wolfe Island (situated just south of Kingston). Windstream described the moratorium as “arbitrary, irrational and discriminatory”.

When the Government of Ontario announced its moratorium on offshore wind projects in February 2011, Ontario Environment Minister John Wilkinson had stated, “We will be working with our U.S. neighbours to ensure that any offshore wind projects are protective of the environment. Offshore wind on freshwater lakes is a recent concept that requires a cautious approach until the science of environmental impact is clear. In contrast, the science concerning land-based wind is extensive.”

The case was heard in February 2016 in Toronto by the Permanent Court of Arbitration. In October 2016, the three-member panel awarded the company $25.1 million in damages plus $2.9 million in legal costs.

The Globe and Mail has reported, “The tribunal found the [provincial] government’s decision was at least in part prompted by a lack of scientific data, but was also influenced by political considerations arising from public opposition and a looming election.”

The Council of Canadians will monitor this challenge.

We are calling on the Trudeau government to remove the Chapter 11 investor-state dispute settlement (ISDS) provision in NAFTA during the renegotiation of this deal with the United States and Mexico. The sixth (and reportedly penultimate) round of talks is scheduled to take place in Montreal on January 23-27, 2018.