Island News & Views
Go to Site Index See "Island News & Views" main page
Expired · 2nd February 2010
Ray Grigg
Not only are lawyers essential to any modern society's legal system, they are becoming a powerful force in the pursuit of environmental justice. Several recent cases have highlighted the importance of lawyers as their arguments on points of law have won court victories that will yield dramatic environmental benefits, either immediately or in the future. And behind these victories are hard-working lawyers, sometimes working for reduced fees, sometimes pro bono.

The first noteworthy case was a challenge to the authority of Canada's Department of Fisheries and Oceans (DFO) to transfer regulatory responsibility for salmon farming from federal to provincial jurisdiction. In a victory for lawyers and environmentalists, the Supreme Court of British Columbia ruled that DFO did not have this authority, and gave it one year to assume its rightful responsibilities. When this supervisory authority is returned to its proper place in February, 2010, DFO will be forced to confront and perhaps fulfil its legislated mandate to protect wild salmon.

Another case entailed court action taken by Ecojustice, a Canadian legal public interest group acting on behalf of two environmental organizations. Ecojustice challenged Environment Canada's practice of exempting the mining industry from disclosing the quantity and quality of its waste materials. Environment Canada's defensive argument was that this waste was potentially available for further mineral extraction so was being stored rather than discharged (Globe & Mail, Apr. 25/09). The Federal Court ruled against Environment Canada, a decision that ended 16 years of legal struggle by concerned citizens who wanted public disclosure of waste discharge. The court decision will affect all mines in Canada, including the tar sands projects in Alberta. (This disclosure has been required for a decade in the United States, where the mining industry makes up less than 1% of the country's industrial sector but accounts for nearly 25% of all pollution.)

Three other cases won by Ecojustice – West Coast Environmental Law does similar, outstanding work – were also precedent setting with wide implications beyond the immediate cases. Two cases involved SARA, specifically subsection 41(1)(c) of Canada's Species at Risk Act. In the first case, the federal Minister of Environment (Environment Canada) took steps to protect an endangered species, Alberta's Greater Sage-grouse, without taking measures to protect the habitat that was essential for the bird's survival. The Minister used the defense that he "failed to identify any habitat because he could not identify all of it," notes The Lawyers Weekly (Oct. 9/09). The Federal Court ruled that the Precautionary Principle, explicitly cited in section 38 of SARA, "requires that the Minister identify in a recovery strategy document as much critical habitat as it is possible to identify at that time, even if all of it cannot be identified, and to do so based on the best available information then available" (Ibid.).

Ecojustice's second but similar case involved Fisheries and Oceans Canada (DFO) and a little fish, the Nooksack dace, found in only four streams in BC's Fraser Valley. Although the fish's critical habit was meticulously mapped, DFO issued a "policy" directive that the "critical habitat should be removed from all recovery strategies." Again, the Federal Court ruled that the inclusion of habitat was "absolutely necessary" to any recovery strategy, and that "the creation and application of policy by the Minister [of Fisheries and Oceans was] in clear contravention of the law..." (Ibid.).

In a third and very recent Ecojustice victory with huge implications, the Supreme Court of Canada ruled that the federal government violated environmental law by failing to adequately assess the impact of the proposed Red Chris Mine in northern BC. Federal authorities cannot split such projects into artificially small parts to avoid rigorous and comprehensive environmental assessments.

The success of these cases should be instructional to those who seem to believe that laws are political documents rather than legal ones. And this flouting of the law must be agonizing for those scientists and conservation officers in the ministries who conscientiously try to save natural places and species only to have their efforts subverted by the politicization of very explicit environmental legislation.

More legal cases won by lawyers are also worthy of mention. Another involved the town of Hudson, Quebec. It had to challenge the federal government for the right to ban the use of pesticides within its community. Hudson's lawyers successfully argued that the town had the legal obligation to protect the health and well-being of its citizens, and that this right superseded federal regulations deeming pesticides to be safe. Because of this court decision, many Canadian municipalities have been able to ban the cosmetic use of pesticides.

In the United States, two "momentous" court decisions won by lawyers have "arguments and responses [that] are equally applicable in Canada," notes The Lawyers Weekly (Ibid.). The first case is a Second Circuit of Appeals ruling that "victims of climate change can sue coal-fired electric utilities in common law nuisance." The decision is based on the principle that even though the same tort (a wrongful act, injury or damage that is subject to a civil action) "may be committed by many emitters... this does not immunize them all from legal responsibility." The complaint carefully avoided the political complexities of global climate change by focussing on the specific nuisance and injury caused by one industry on specific persons. As a result of this win, "major emitters may now prefer legislation to the risk of civil lawsuits" (Ibid.).

In the second "momentous" US decision, after 30 years of legal struggle, a similar court ruled that the US Environmental Protection Agency could deem carbon dioxide and five other greenhouse gases hazardous to human health and, therefore, could impose emission regulations on American industries.

All these cases indicate a shift of legal power toward common citizens with environmental concerns. So, if you are a concerned citizen frustrated by government inaction or corporate abuse, consider legal action. With the right lawyer, you may have far more power than you ever imagined.