In 1991, the town of Hudson, Quebec, adopted a bylaw banning the use of pesticides. The following year the municipality issued $300 fines against two companies who violated the ban. The companies fought the convictions all the way to the Supreme Court of Canada, where they lost, nine years later.
That was the end of that. All legal avenues exhausted, the companies paid their fines and moved on.
Things are different today.
Dow Agrosciences, the US chemical giant, has a similar beef with Quebec’s law banning its lawn herbicide 2,4-D, but it won’t be pursuing the matter through the Canadian court system. They’ve launched a NAFTA claim.
NAFTA Chapter Eleven dictates that governments must offer foreign companies “fair and equitable treatment.” Dow claims the Quebec ban violates this condition. While both sides in the dispute will bring scientific evidence in the case, the nub of Dow’s case is that Health Canada has declared 2,4-D “safe when used as directed.”
To describe 2,4-D as safe is to offer the same presumption of innocence to lawn chemicals as we do to humans before the courts. It probably can’t be proven beyond a reasonable doubt that the stuff is toxic, but the International Agency for Research on Cancer has classified it as a class 2B carcinogen. That means that more research is required to prove conclusively that it causes cancer in humans.
Nonetheless, there is considerable evidence that 2,4-D may be very bad for you.
Studies have found that it can cause brain tumours in rats, malignant lymphoma in dogs that play on treated lawns, lesions of the kidney and liver in rats and dogs, and non-Hodgkin’s lymphoma in farmers exposed for more than 20 days.
It seems like a lot to risk to keep dandelions off your lawn. And it is possible that Dow will lose this suit. Because only federal governments signed the trade agreement, Dow can’t sue Quebec, but must go after Canada, and trade Minister Stockwell Day has promised to conduct a “vigorous defence.”
Dow’s NAFTA suit comes at a time when Ontario and several American states are moving to ban 2,4-D. The claim against Quebec is for a mere $2 million plus costs, but it would establish a precedent for similar claims across the continent.
In 1998, when Canada tried to ban the cross-border shipping of dioxin-contaminated waste, S.D. Myers Inc. of Ohio filed a NAFTA claim and won. A three-member tribunal ordered Canada to pay $6.4 million plus costs, and repeal the law.
In 1997, Canada passed a law banning the neurotoxic gasoline additive MMT. Ethyl Corporation filed a NAFTA claim, suing for $250 million. Two years later Canada settled out of court, paying Ethyl $13 million in compensation and rescinding the offending law.
These NAFTA rules exist to protect corporations against citizens, and they trump the right of governments to pass laws that protect citizens against corporations. If Dow wins its case against Quebec, it will have won a free pass for 2,4-D all over North America.
Who knows, Day may be as good as his word. It’s not as if his minority government can afford to alienate voters in Quebec and Ontario any further at the moment. It is even possible that Canada will win this case; Chapter Eleven claims do sometimes fail.
But win or lose, the Dow NAFTA claim remains vexatious, as without doubt it was intended to be. One lawsuit at a time, corporations are using provisions in the trade agreement to make it less and less attractive to pass laws that protect people, but hurt profits.
As neighbours and trading partners it’s natural that Canada and the US should enter into a trade agreement, one that allows a reasonable passage of goods and services. What we have instead is a bill of rights for corporations.
We can’t afford it anymore. The risks to human health and to the environment are far too high, and so is the threat to sovereignty. While a succession of Canadian governments have rattled their sabers—at varying degrees of volume—over who gets to plunder the Arctic’s resources, they have frittered away the right of a sovereign state to pass laws and enforce them without challenge from an outside power.
History has given us a number of names for such states as this, none of them complimentary, but the currently popular term would be puppet government, though in this case Canada’s puppet master isn’t another country, but any North American corporation that operates within our borders.
It is not too late for Canada. Trade agreements can be revoked or rewritten. Regulations that have been choked to death by litigation can be brought back to life. It would take work, and political guts, but if the people were really determined, we could be an independent nation again.
Al Pope won the 2002 Ma Murray Award for Best Columnist in BC/Yukon. His novel, Bad Latitudes,
is available in bookstores.