Dissenting Opinion of Professor Donald McRae

1. I regret that I am unable to join my colleagues in their ultimate disposition of this case. I agree with many of the majority’s conclusions in the Award, but on the key question of whether there has been a violation of Article 1105, I cannot agree.

2. In large part, my disagreement is with the majority’s assessment of the facts, whether the report of the Joint Review Panel (JRP or “the Panel”) through endorsing the concept of “community core values” and its treatment of the requirement of a “significant effects analysis”, “departed in fundamental ways from the standard of evaluation required by the laws of Canada”.1 At the same time, my disagreement is with the effect of the majority’s decision on the threshold for the application of the standard under Article 1105. The majority accepts the well-known statement in Waste Management 2 as encapsulating the standard to be applied under Article 1105 and acknowledges that it is a “high threshold”. 3 But it applies the standard in a way that it is met simply by an allegation of a breach of Canadian law.