Inishowen opposition to Comprehensive Economic and Trade Agreement.
As part of its ongoing campaign of opposition to gold mining and prospecting in the peninsula, the environmental group 'Save Inishowen from Gold Mining' has made a submission to the EU Affairs Committee of the Oireachtas.
The EU Affairs Committee is currently in the process of examining the Comprehensive Economic and Trade Agreement (CETA).
CETA is the free trade deal between the EU and Canada, signed in 2016, which removed custom checks and taxes on trade. It also gave mutual recognition to qualifications for professions, including architects and engineers.
For the treaty and all its provisions to come into force, the parliament of each member state of the EU must ratify it.
However, concerns have been expressed about the impact of CETA on environmental standards. The Green Party has an official policy against CETA and it was not mentioned by name in the Programme for Government.
In the 'Save Inishowen from Gold Mining' submission, environmental lawyer, Sean Gallagher, the group's joint chairperson referenced the “looming threat” of gold prospecting in Donegal.
He said: “Many within the local community and beyond consider that the present provisions of CETA, concerning the Investor Court System (ICS) would allow corporations to pressurise or sue the state over regulatory decisions that may negatively impact profit margins and therefore have disastrous effects on a range of issues of public concern. It would in effect circumvent our courts and take lawsuits against the state
“In the negotiation of CETA, the EU had a duty to cooperate sincerely under Article 4(3) of the Treaty of European Union (TEU) but it does not extend to Ireland to ratify agreements contrary to its domestic constitutional requirements.
“It is in the assessment of the Irish courts to decide if CETA is compatible with Article 15 and Article 34 of our Constitution. It has to be noted though that under Chapter 8 of CETA in the context of ICS decisions of the Tribunal and Appellant Tribunal would in effect the law making function of the Oireachtas as stated in Article 15 therefore creating a penetrating negative effect on our democratic system. It would also transfer judiciary power contrary to Article 34 of the Constitution.
“'Save Inishowen from Gold Mining' is motivated by our concern for the environmental damage that gold mining would have on one of the nation’s most beautiful and important habitats including the serious threat to public health. We therefore view that any ICS mechanism would not only be anti-democratic but an act of the state absconding their fiduciary obligations,” said Mr Gallagher.
According to Sean Gallagher, the ICS would “seriously undermine the state from taking the appropriate regulatory provisions necessary to protect the environment and to follow the Precautionary Principle.
Mr Gallagher added: “This therefore would have a serious overarching effect in key areas such as climate change, biodiversity, health, food, finance, taxation and workers welfare.
“Canada has a large mining industry that extends across the planet and their ambition is to increase their activity in Europe and in Ireland. They are therefore very enthusiastic about the ICS mechanism.
“The President of the Prospectors and Developers Association of Canada Glen Nolan sees CETA has a boost for his sector by commenting that 'CETA will eliminate much of the red tape', an obvious referring to the tilting in their favour of the mechanism allowing companies to sue for lost profits should public interest legislation impact them.
“The Precautionary Principle is not mentioned in CETA and it has left the burden of proof of harmful practices or a harmful product to fall upon the government. Mining is a continually evolving process due to a need for safe certainty and therefore the necessity of monitoring by a competent authority such as the Environmental Protection Agency (EPA). The EPA must have a free hand to modify or impose new specifications in their course of inspections. This could be possibly be related to serious environmental degradation or effects not foreseen in an initial permit. A Company though could argue that any regulations must be established in advance (Article12.3),” said Mr Gallagher.
Environmental legislation requirements in Ireland involves impact assessments which by their nature are dependent on third parties and public participation.
According to Sean Gallagher “many of the determinations concern the subjective nature of 'significant' in relation to environmental impact and thus under ICS could be challenged as not being 'objective' (Article 12.3)”.
He said: “Many of our requirements regarding Natura 2000 sites are also based on subjectivity and cannot be made 'simple as possible and do not unduly complicate or delay the supply of a service, or the pursuit of any other economic activity.' (Article 12.3.7).
“Corporations will argue environmental requirements should not go beyond what they presume is necessary. Obviously therefore a threat of compensation demands would be a serious obstacle to our competence to protect people and the environment from harmful effects of activities like mining.
“A new arbitration mechanism is totally unnecessary as International Law already includes an array of standards such as fair and equitable treatment, protection from discriminations and the security of investments as also does the European Court of Justice.
“In Irish law there includes the Legitimate Expectation doctrine set out by Mr Justice Fennelly in Glencar Exploration plc v Mayo County Council and therefore any detrimental reliance can be pursued in our court system eliminating interference in our national sovereignty and environmental regulations.
“Regardless of Ireland in the future breaching any contractual agreement, it could still be violating a company legally protected expectations defined and secured by the provisions in CETA giving grounds for them to sue for billions.
“Toxic mines or costly lawsuits are not something many of us can support in Donegal and therefore we plea that this trade agreement be not ratified by the Oireachtas because it carries huge judicial, financial and policy implications for Ireland,” said Sean Gallagher.
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