How the Windstream Energy case affects Canada’s trade future

As published on TVO.org:

If a U.S. wind-power company has its way, the federal government could end up footing the bill for part of a costly and controversial Ontario energy initiative. The case could renew the conversation around international business conflicts at a time when two major trade pacts are awaiting ratification in Canada.

Windstream Energy, based in New York state, won a contract in 2010 to build 100 offshore wind turbines near Kingston. But less than a year later, the Ontario government halted all offshore wind-power development, claiming it needed more time to study the potential risks of such projects.

The company says the provincial government acted in “an arbitrary and political manner.” Rather than pursuing its case with the province however, Windstream is demanding $475 million from the federal government under a provision of the North American Free Trade Agreement that allows companies to sue Canada over government measures that interfere with investments.

The case highlights an area of friction that also exists in the pending trade deals with the European Union and Pacific Rim countries; they contain nearly identical provisions to resolve disputes between signatory governments and foreign companies. Clashes over these mechanisms are holding up ratification of the Canada-EU trade deal.

“It’s an important case,” says Lawrence Herman, an international trade lawyer based in Toronto. “All of these cases that involve some aspect of environmental regulation are important because these arbitrations are now increasingly brought on issues of environmental and health protection.”

Herman notes that these investor-state dispute settlement provisions appear in more than 2,500 trade agreements around the world.

Windstream is due to present its case starting Feb. 15 at an arbitration tribunal made up of three judges. The Windstream contract was covered by Ontario’s Feed-in Tariff (FIT) program designed to encourage investment in renewable power in the province. It did so by offering rates far above those for electricity generated by coal and other fossil fuels.

At 300 megawatts, the Kingston project was the largest single FIT contract in the first round of awards, according to Windstream. If the project had gone through, Windstream would have received a fixed, premium price for its energy for 20 years.

The federal government responded to Windstream’s suit in 2013 by saying that the company made a “risky business decision” and that “any company doing so should have been aware that a comprehensive regulatory framework had yet to be developed.”

The Windstream case follows a trend in NAFTA investment disputes that have put the federal government on the hook for actions taken by the provinces, as noted by Lawrence Herman in a report for the C.D. Howe Institute.  

The governments of Canada, the U.S. and Mexico signed the free trade deal. But increasingly, disputes under NAFTA are about environmental and health regulations that fall under provincial jurisdiction, Herman says.

Ottawa has already had to compensate several U.S. companies for action taken by provinces, including Mobil Investments Canada Inc. and Murphy Oil Corporation, for a case about oil projects off the coast of Newfoundland and Labrador. The Claytons and Bilcon of Delaware Inc., U.S. investors, recently won a case against Canada concerning a quarry in Nova Scotia and are awaiting word on compensation. Most significantly, the Canadian government paid $130 million to AbitibiBowater, a forestry company, for Newfoundland and Labrador’s expropriation of its assets in 2010.

A case involving Mesa Power Group LLC, which owns four wind farms in southwestern Ontario, is pending. The company sued for $650 million because of the domestic content requirements in Ontario’s FIT program. Lone Pine Resources is claiming $US118.9 million in compensation for Quebec’s moratorium on fracking, which resulted in Lone Pine losing its gas exploration permits.

There is no mechanism in place for the federal government to recover these losses.

“Provinces can really take advantage of the federal government,” says Laura Dawson, director of the Canada Institute at the Wilson Center, an American think-tank. “The Ontario government was warned by legal, governmental and industry specialists about the negative trade implications of the FIT program, but Ontario went ahead and did it anyway.”

Referring to the Windstream case, a spokesperson for the Ontario ministry of energy says, “The government of Ontario is working closely with the government of Canada to vigorously defend this case.” 

The number of investment disputes between companies and foreign governments is rising. Globally, 47 per cent of all recorded cases have been initiated since 2010, according to the UN Conference on Trade and Development.

Most cases in North America are brought by U.S. companies against Canada. Americans are more inclined to use litigation as a corporate strategy, says Herman.

The difficulty of nailing down an investor dispute settlement mechanism is holding up ratification of the Canada-EU trade deal. Europe is now negotiating a free trade deal with the U.S., which has stirred up anti-American sentiment on the continent. This in turn has brought the Canada-EU deal under the microscope, as protesters criticize the investment chapter, and the prospect of American companies being able to sue European governments.

Germany has been leading the charge against these investment mechanisms, trying to flex its muscles within the European Union. “Germany doesn’t want its power to be devolved to Brussels,” Dawson says. “So I’m not looking forward to ratification [of the deal] anytime soon.” 

Europe is trying to float the idea of a permanent court and appeals process, in both the Canada-EU free trade deal, as well as in the deal it is still negotiating with the U.S.

Critics say that investment dispute rules in international trade agreements give more rights to foreign companies than to domestic firms. They also say that these rules tie the hands of governments when it comes to pursuing stricter safety and health standards and passing new laws to protect the environment.

But trade experts defend the provisions. The cases that Canada has lost were based on allegations of discrimination and due process, or fair legal treatment, Warner says. “We’re not losing on substance. A lot of people say we’re losing because these tribunals are overruling our environmental rules. Well, no.”

Sarah Reid is a global journalism fellow at the Munk School of Global Affairs at the University of Toronto.