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Hearing Transcripts 00001 1 IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN OF THE NORTH AMERICAN FREE TRADE AGREEMENT 2 AND THE UNCITRAL ARBITRATION RULES, 3 BETWEEN: 4 WILLIAM RALPH CLAYTON, WILLIAM RICHARD CLAYTON, DOUGLAS CLAYTON AND DANIEL CLAYTON AND BILCON OF DELAWARE INC. 5 Claimants 6 - and - 7 GOVERNMENT OF CANADA Respondent 8 9 ARBITRATION HELD BEFORE JUDGE BRUNO SIMMA (PRESIDING ARBITRATOR), 10 PROFESSOR DONALD McRAE, and PROFESSOR BRYAN SCHWARTZ held at ASAP Reporting Services Inc., 11 Bay Adelaide Centre, 333 Bay St., Suite 900, Toronto, Ontario 12 on Wednesday, October 23, 2013 at 9:41 a.m. 13 VOLUME 2 14 COUNSEL: 15 Barry Appleton For the Claimants 16 Gregory Nash Frank S Borowicz, Q.C. 17 Kyle Dickson-Smith 18 Scott Little For the Respondent Shane Spelliscy 19 Jean-François Hebert Stephen Kurelek 20 Reuben East Adam Douglas 21 Dirk Pulkowski PCA (Secretary to the Tribunal 22 Kathleen Claussen PCA Teresa Forbes Court Reporter 23 A.S.A.P. Reporting Services Inc. © 2013 24 200 Elgin Street, Suite 1105 333 Bay Street, Suite 900 Ottawa, Ontario K2P 1L5 Toronto, Ontario M5H 2T4 25 (613) 564-2727 (416) 861-8720 00002 1 2 3 4 5 6 (ii) 7 8 INDEX 9 10 11 PAGE 12 13 AFFIRMED: PAUL BUXTON, P.ENG. 3 14 Examination In-Chief by Mr. Nash 4 15 Cross-Examination by Mr. Little 10 16 Re-Examination by Mr. Nash 139 17 Questions by the Tribunal 174 18 Further Re-Examination by Mr. Nash 196 19 Further Cross-Examination by Mr. Little 198 20 Examination In-Chief by Mr. Nash 201 21 22 AFFIRMED: T. MURRAY RANKIN, Q.C. 203 23 Cross-Examination by Mr. Spelliscy 205 24 Cross-Examination by Mr. Kurelek 300 25 Questions by the Tribunal 383 00003 1 Toronto, Ontario 2 --- Upon resuming on Wednesday, October 23, 2013 3 at 9:41 a.m. 4 PRESIDING ARBITRATOR: Good 5 morning, everybody. I think we are ready. Sorry. 6 Okay, except me. 7 Good morning, everybody. It looks 8 like we are all ready. Good morning -- we will 9 continue with the examination. Good morning, 10 Mr. Buxton. 11 MR. BUXTON: Good morning. 12 PRESIDING ARBITRATOR: Mr. Buxton, 13 you should find before you a form, a declaration. 14 MR. BUXTON: Yes. 15 PRESIDING ARBITRATOR: Could you 16 please read that out. 17 THE WITNESS: I solemnly declare 18 upon my honour and conscience that I will speak the 19 truth, the whole truth and nothing but the truth. 20 AFFIRMED: PAUL BUXTON, P.ENG. 21 PRESIDING ARBITRATOR: Thank you. 22 And you have also signed an assurance that you have 23 not listened to the live stream video. 24 THE WITNESS: That is correct. 25 PRESIDING ARBITRATOR: You did not 00004 1 do so? 2 THE WITNESS: I did not. 3 PRESIDING ARBITRATOR: Thank you, 4 okay. So I will give the floor to Mr. Nash. 5 MR. NASH: Thank you, 6 Mr. President. 7 EXAMINATION IN-CHIEF BY MR. NASH: 8 Q. Mr. Buxton, I would just like 9 to ask you a few questions about your personal 10 background. You're a professional engineer? 11 A. Yes, I am. 12 Q. How long have you been a 13 professional engineer? 14 A. I've been a professional 15 engineer for well over 40 years. 16 Q. And you have worked 17 continuously as a professional engineer since that 18 time? 19 A. Pretty much. One year out in 20 1970, but other than that, as a professional 21 engineer. 22 Q. And you still work as a 23 professional engineer full time in your own 24 practice? 25 A. Yes, I do. 00005 1 Q. Where do you live? 2 A. I live in a little village 3 called Deep Brook in Nova Scotia. And to orient 4 you, it is between the Town of Digby and the Town 5 of Annapolis Royal. 6 This would be about 50 kilometres 7 from the project in question. 8 Q. And how far from where you 9 live is Annapolis Royal? 10 A. Annapolis Royal is about 20 11 kilometres; Digby, about 14, 15 kilometres in the 12 other direction. 13 Q. And how long have you lived 14 in the area of Digby, Annapolis Royal and Deep 15 Brook? 16 A. I have lived in the area 17 since 1973. In the specific location I am now, I 18 have been for over 20 years. Prior to that, 20 19 years on the other side of the Annapolis Basin, so 20 40 years in the immediate area. 21 Q. And have you worked on 22 projects as a professional engineer requiring 23 government approvals? 24 A. Yes, very much so. In the 25 past 30 or 40 years, I've worked for three levels 00006 1 of government, municipal, provincial, and federal 2 governments, both as a consultant and occasionally 3 on a contract basis. And many of those projects 4 have required approvals of one sort or another. 5 Q. Have you ever worked on 6 projects requiring the approval of more than one 7 level of government? 8 A. Yes. A number of projects, 9 in fact, involve whether it is Nova Scotia 10 environment or fisheries or Environment Canada, 11 yes. 12 Q. Have you worked on any 13 heritage-related projects? 14 A. Yes, I have. In fact, I 15 would say that a vast majority of my work, 16 certainly over the last, say, 35 years, has been in 17 the cultural heritage, environmental spheres. 18 In the early 1980s, I was engaged 19 to restore the Town of Annapolis Royal, which is 20 actually Canada's birth place. 21 It commenced as Port Royal in 22 1605, so even prior to Quebec, and Annapolis Royal 23 was in fact the capital of Nova Scotia until 1749, 24 but it had fallen on hard times and it was 25 economically depressed. The buildings were 00007 1 beginning to go, and there were some very important 2 buildings in the town. I was engaged to both find 3 the money and to bring the town back to its former 4 glory. 5 And this involved projects as 6 diverse as buying an old theatre and restoring it 7 to actually a live theatre, as well as a cinema, 8 and in fact operating it. My organization operated 9 it for four years. 10 The design and construction of the 11 Annapolis Royal historic gardens, which are still 12 open and doing very well, they are in the 13 thirtieth-odd year now, and the restoration of the 14 two oldest buildings in English Canada, one of them 15 built in 1710 and one of them built in 1712. 16 Q. Have you worked on projects 17 during the course of your career requiring 18 environmental assessments? 19 A. Yes. In fact, even tourism 20 projects occasionally get into environmental 21 assessment processes. I was responsible as project 22 manager for the design and construction of the 23 Upper Clements theme park, which is an historic 24 theme park, if you like. Although it has rides, it 25 has a historic theme, and that required an 00008 1 environmental assessment of the property and, of 2 course, dealing with the various elements of 3 environmental material on the site, human waste, et 4 cetera. 5 Q. Generally speaking, do you 6 work on projects requiring environmental 7 assessment? 8 A. Really, it depends on the 9 time period. Certainly for the last two years, for 10 example, I think almost exclusively I have worked 11 on projects requiring environmental assessment, 12 because the Department of Agriculture in Nova 13 Scotia brought in new regulations under the Fur 14 Industry Act, and I am one the small number of 15 accredited engineers in Nova Scotia who were 16 accredited to produce environmental farm management 17 plans for the mink industry. 18 MR. LITTLE: Excuse me, Judge 19 Simma. I hate to interject here, but direct 20 examinations are supposed to be for a brief 21 introduction of the witness and to correct any 22 statements in the witness statements, and we're 23 getting far beyond that at this point. 24 MR. NASH: I am just endeavouring 25 to give a brief introduction and an indication of 00009 1 Mr. Buxton's background, his work experience. 2 MR. LITTLE: We are getting into 3 evidence, Judge Simma, that is beyond what is in 4 Mr. Buxton's witness statement. 5 PRESIDING ARBITRATOR: Yes. So 6 would you please just come to the end. 7 MR. NASH: Yes. Yes, sir. 8 I would like to ask, though, 9 whether Mr. Buxton has had experience working on 10 projects requiring consultations with First 11 Nations. 12 MR. LITTLE: Again, Judge Simma, 13 this was not covered in Mr. Buxton's witness 14 statement. 15 PRESIDING ARBITRATOR: Mr. Nash. 16 MR. NASH: Yes, I understand. 17 BY MR. NASH: 18 Q. Could you turn, please -- you 19 should have in front of you, and, if you don't, I 20 will put it in front of you -- a copy of your first 21 witness statement. This witness statement you 22 signed on July 20th, 2011. 23 I would like to -- you also signed 24 another witness statement, a supplementary witness 25 statement. Could you advise the Tribunal as to 00010 1 whether or not there are any corrections in your 2 witness statements. 3 A. Yes. Paragraph 14 has a 4 couple of words missing.
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