West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterCanada's pulp and paper industry can afford proposed pollution control measures -- despite industry claims to the contrary, says a report by Environment Canada economist William Sinclair released January 10 by the West Coast Environmental Law Association.
The report -- to be published in the March issue of Canadian Public Policy -- states that, "it is both economically desirable and technically feasible for the pulp and paper industry to use the best known and available controls and treatments to safeguard the nation's waters."
The report says that the pulp industry's claims of economic hardship are often exaggerated and points out that, "(I)t is difficult to envision that the modest price increases which could be attributed to effluent controls would make any permanent difference to the international competiveness of an individual mill or the industry."
The report also reveals that, "(T)he total amount of capital investment on air and water pollution abatement as a percentage of total capital investment (by the Canadian pulp industry) declined continuously over the period 1971 to 1985." In 1984 British Columbia pulp mills were the lowest in Canada for the percentage of capital investment devoted to pollution control.
The report states, "(E)nvironmental authorities have failed to take into account adequately the enormous costs they may be imposing on present and future generations of Canadians as a result of concessions to pulp and paper manufacturers."
"To the degree that government environmental enforcement procedures encourage marginal mills to continue to operate without improvements in production efficiency, they also are encouraging overutilization and waste of Canada's timber, water, and energy resources."
Editor's comment: This study demolishes the Premier's assertion that B.C.'s pulp regulations should be relaxed in order to protect jobs. It is time for the federal government to listen to its own experts and impose tough regulations on pulp mills in B.C. and across Canada.
Pollution sentencing law took a dramatic step forward on January 4, 1991, as B.C. Provincial Court Judge R. Glen Skelhorne sentenced the FibreCo pulp mill in Taylor, B.C., to a fine of $5000 per day for each of forty days following conviction on a single charge under the Waste Management Act.
Section 34(13) of the Act allows separate fines for each day that an offence continues, but it had rarely been used.
The conviction stemmed from the failure of the mill's secondary treatment system for liquid effluent between November 1988 and January 1989.
The maximum fine for the charge was $50,000 because the charge arose prior to August 1989 when the maximum fine was increased to $1,000,000.
The total fine of $200,000 compares with recent fines totalling 275,000 imposed against Cariboo Pulp and Paper in Quesnel.
Other B.C. pulp mills currently facing pollution charges include Woodfibre, Port Mellon, Port Alberni, Harmac, Northwood (Prince George) and Kitimat.
Two pages of missing regulations have been found! When Order in Council No. 1941 approving the B.C. pulp pollution regulation was distributed in mid-December it was clear that the last two pages were missing! The missing pages listed eight pulp mills which were to receive waivers against prosecution for non-compliance with their existing water pollution permits in the interim period before slightly tougher new standards come into effect at various dates between 1991 and 1993. (More-stringent standards of 1.5 kg of organochlorines per tonne of pulp by the end of 1994 were vetoed by B.C. Premier Bill Vander Zalm following demands by the pulp industry in December.)
Three other mills were listed on the last page of the regulation. The media release accompanying the regulation -- and a previous draft of the regulation -- specified that eleven mills would receive the waivers.
Ministry officials had expected to have to take the missing pages through the time-consuming Cabinet approval process. But fortunately for the eight mills, someone decided that the two pages had been part of the signed original, and the missing two pages will be considered part of the regulation.
Naming Names
Without the waivers many of the mills would have been liable to prosecution -- five are categorized by the B.C. Ministry of Environment as being in "significant non-compliance" with their water pollution permits: Woodfibre, Cariboo Pulp & Paper (Quesnel), Gold River, Elk Falls and Port Alice. Four are categorized as being "a pollution concern to the Ministry" regarding water pollution: Powell River, Port Alberni, Castlegar and Harmac (Nanaimo).
Two pulp mills that did not receive waivers are also in significant non-compliance with water pollution permits: Northwood Pulp and Timber (Prince George) and Kitimat. One other mill listed as a pollution concern for water is Crestbrook in Skookumchuk.
The waivers apply only to water pollution. Five pulp mills are in significant non-compliance with air pollution permits: Skookumchuk, Kitimat, Crofton, Prince Rupert and Woodfibre. Another five are listed as a pollution concern for air: Gold River, Port Alice, Kamloops, Castlegar and Quesnel River Pulp (Quesnel).
Bill C-74, an Act to amend the Fisheries Act and the Criminal Code, received Royal Assent on January 18. It contains a number of changes to the Fisheries Act which will result in substantially increased penalties available under the Act.
Prior to enactment, three amendments were made to Bill C-74, all based on recommendations in a WCELA brief presented to a legislative committee by Ann Hillyer in November. The three changes made to the original bill provide that:
WCELA's brief contained numerous other recommendations for improving the Bill which were not incorporated before it was passed.
WCELA filed an Access to Information Act request last week for two important federal documents regarding pulp mill pollution. One is Environment Canada's detailed rebuttal of a major brief by the B.C. Council of Forest Industries claiming that an organochlorine limit of 2.5 kg AOX per tonne of pulp is adequate to protect the environment. The second document requested is a scientific analysis of Alpac's proposal to reduce organochlorine discharges in its proposed pulp mill in Northern Alberta. The government has 30 days to respond. Bill C-78, the proposed Canadian Environmental Assessment Act, will likely die on the order paper when the current session of Parliament is peroged in mid-February immediately prior to the opening of a new session, according to Ottawa sources. In this scenario the government would reintroduce a revised version of the Bill near the beginning of the next session. The revised version would include government amendments drafted during and following public hearings in the last months of 1990. The extent to which these amendments will reflect the numerous recommendations made by WCELA and others remains to be seen. The Information Rights Conference, March 16, 1991, Robson Square Media Centre, Vancouver. Sponsored by the Freedom of Information and Privacy Association. The cost is $50, or $75 at the door. This conference will address access to information and privacy rights across Canada and around the world. Speakers include Professor Murray Rankin and Ombudsman Stephen Owen. Contact: (604) 873-0868 for information. Howe Sound Environmental Science Workshop, September 30 to October 3, 1991, Bowen Island, B.C. Submit abstracts by March 1, 1991, for this multidisciplinary scientific workshop on the physical, biological and chemical processes of the Howe Sound Drainage Basin. The workshops, in conjunction with a series of public meetings, will be part of a public awareness program designed to asses the condition of Howe Sound. Contact: Brian Ricketts, c/o Geological Survey of Canada, 100 West Pender Street, Vancouver, B.C., V6B 1R8. Phone: (604) 666-6022; FAX: (604) 666-1124. BC Hydro recently acknowledged the success of environmentalists who have campaigned for the last decade against the proposed Site C Dam. At a January 7, 1991, press conference, BC Hydro announced that it will shelve megaprojects such as Site C, and will instead rely upon: In 1987, WCELA was involved in preparing a study that proposed just such an energy plan for BC Hydro. At the time, BC Hydro Head, Chester Johnson, denounced the study as "simplistic", and argued that building a Site C Dam was absolutely necessary. In contrast, Hydro spokesperson, Chris Boatman now gives partial credit for Hydro's new strategy to the environmentalists who opposed the Site C Dam. Mr. A new group called Sierra Legal Defence Fund: Advocates for the Environment (AFE) has opened an office four floors below WCELA/RF in the Dominion Building in Vancouver. AFE is intended to dovetail with WCELA/RF's services by conducting environmental litigation of cases that are too time-consuming for WCELA's lawyers to handle. AFE's Executive Director is long-time Kelowna litigator Greg McDade, an honorary member of the WCELA/RF Board of Directors. He is joined by lawyer Mark Haddock, an environmental advocate with many years of experience in B.C. forestry issues. Haddock worked as a summer student at WCELA and is a former WCELA Board Member. AFE has three-year start-up funding from the Law Foundation of B.C. and the U.S. Sierra Club Legal Defense Fund. The U.S. organization has been very successful at supporting environmental litigation through direct mail fundraising. Editor's comment: We welcome AFE to public interest environmental law in B.C. Best wishes for successful cases! Boatman states, "They [environmentalists] were on the right track. They were out there on the leading edge". Environmentalists anticipate that Hydro's radically changed approach to energy policy will save some of the most productive agricultural land in B.C. -- the Peace River Valley near Fort St. John. It will also obviate the need to dam such natural wonders as the Grand Canyon of the Stikine River. In addition, the policy will: WCELA AND SITE C West Coast has been involved in the Site C Dam issue for many years. In 1982/83 WCELA's Executive Director, Kim Roberts, represented the Peace Valley Environmental Association at the Utilities Commission hearings into Site C. The Utilities Commission ruled that at the time there was not sufficient electricity demand to justify building the dam. Last year, WCELA staff counsel Calvin Sandborn represented the PVEA before the Commission again, and won a statement from the Commission that Hydro had been inaccurate in their prediction that they would need the Site C Dam imminently. The Utilities Commission stated that the Site C Dam would not be necessary until at least some time after the year 2005. In late December, Federal Court Judge Collier dismissed the Western Canada Wilderness Committee's challenge to clearcut logging in the Walbran and Carmanah Valleys based on the federal government's failure to apply its Environmental Assessment and Review Process (EARP) regarding potential harm to the Marbeled Murrelet. The Court specified that the time for filing an appeal will begin to run only when written reasons are given. Surprisingly, the federal government argued that the Marbeled Murrelet is not a threatened species even though it is one of seven birds designated as threatened by Canada and other participants in the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). The Western Canada Wilderness Committee is represented by Joe Arvay, Q.C., and Greg McDade. In early January, the Fraser River Coalition appeared before the same judge to argue that the Department of Fisheries and Ocean's approval of the destruction of fish habitat for a dock expansion should be quashed because it failed to comply with the EARP process. The court dismissed the application but has not yet issued written reasons. The court rejected as hearsay evidence that Fisheries official Otto Langer told the Coalition's Will Paulik that federal files would prove that the approval resulted from political pressure exerted by the proponent. The Fraser River Coalition is represented by Geoff Gomery and Stephen Schachter. Meanwhile, the Friends of the Oldman River Society and the Rivers Defence Coalition are preparing for February hearings before the Supreme Court of Canada and the Federal Court, Trial Division, respectively. B.C. Supreme Court Judge Donald has reserved decision on the Boundary Bay Conservation Committee's application to quash the City of Delta's approval of golf course development on important wildlife habitat. A decision is expected shortly. Since the legal action began, the electors ousted Delta's pro-development Council and the new Council has stopped new golf course developments. The Committee is represented by Don Lidstone and Ray Young. Ira Zbarsky and the Branchflower Land Co-op managed to post financial security by an end-of-December deadline in order to preserve their temporary injunction pending a hearing by the B.C. Court of Appeal. Zbarsky alleges that a neighbour's proposed clearcut logging would damage his group's farm in the Shuswap area. Among the issues on appeal is the hearing judge's finding that the remedy of private nuisance does not apply where the damage is caused by natural factors such as erosion, even if the erosion is caused by the defendant's clearcutting. Geoff Gomery represents Zbarsky on the appeal. There is no hearing date yet. On January 4, 1991, WCELA submitted an application for $356,000 from the Law Foundation of B.C. to support the EDRF in 1991-92. The Foundation's Board of Governors will consider the request in March. Applications received by the first of the month will be considered by the Fund's Management Committee by the middle of the month. Please contact WCELA for more information and an application form. Swanson and Pever v. Canada, February 7, 1990, Walsh, D.J., Federal Court Trial Division., 32 FTR 129. The court held the federal government liable in negligence for failure to adequately enforce safety regulations against a small Alberta airline which subsequently had a fatal crash. The court refers to "a tendency to increase the responsibility of those charged with enforcement of regulations" (page 37). This case will be useful for those seeking redress from the government for environmental damages caused by negligent failure to enforce pollution standards. A Better Way: creating a sustainable development strategy for British Columbia, by the B.C. Round Table on the Environment and the Economy. This is the B.C. Round Table's first major statement. It briefly discusses key issues and poses a number of challenging questions to which citizens are invited to respond. Contact: (604) 387-5422. Federal Regulatory Plan 1991, Office of Privitization and Regulator Affairs. `Must reading' for environmental legal keeners. Environment Canada's initiatives address ozone depleting substances, PCBs, new substances, exports of toxics, contaminated fuel, exports and imports of hazardous wastes, federal facilities, diesel fuel, ocean dumping, boards of review, vinyl chloride, migratory birds, wildlife, wilderness in National Parks, and environmental assessment. A mysterious omission: no mention of pulp and paper regulations under the Fisheries Act or dioxin and furan regulations under the Canadian Environmental Protection Act. Environment Canada's explanation: these regulations were expected to have been completed in 1990. Renewed Renewals: Current members of WCELA/RF will be receiving renewal notices shortly. Annual membership fees are $10 for students and seniors, $20 for other individuals, $25 for libraries and other institutions, and $30 for law firms. Newsletter subscriptions are the same prices. Members receive the newsletter for free. This issue is a lot fatter than our usual style, but a lot has happened over the `holiday' season! Happy New Year and best wishes to you in your efforts to protect our environment in 1991! -- BA `Nothing but the FAX, Ma'am' Receive your WCELRF Newsletter by overnight FAX at cost -- free for local calls, $10 for 4 issues for long distance. THANKS THANKS THANKS THANKS THANKS THANKS THANKS THANKS We would like to express our appreciation to the following new members and donors: A Van Amerongen, TH Bassett, Board of School Trustees District 72, Ada Brown, Les Brownlie, Canadian Association of Smelter and Allied Workers -- Local 1, John Clark, Joyce Crist, Sallie Dabb, Douglas Reeve Consulting Inc., Friends of Cortes Island, Friends of Ecological Reserves, Donald Gamble, AJ & ME Hansen, John Johnson-Paterson, Murray Journeay & Carol Newell Journeay, Kwakiutl Territorial Fisheries Commission, Alfred Louie, Beverly MacLean, Rozlynne Mitchell, Nancy Morgan, David Morwood, Richard Paisley, Thomas Perry, PPWC Local 9, PPWC National, Alice Rix, Quadra Resort, Martin Roland, Harley Rothstein, Craig Runyan, Gerald Schreiber, Surrey Task Force, United Food and Commercial Workers, Whitewater Association, Ken Wile, and Rosemary Wilson. This issue of the WCELRF Newsletter, @ 1991, was produced and distributed by Bill Andrews, Morgan Ashbridge, George Collins, Ann Hillyer, Dianne Howland, Grace Jukes, Catherine Ludgate, Denice Regnier, Calvin Sandborn and Grace Tait. We welcome contributions to the Newsletter. Write us at the address below, or fax us at 684-1312. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to WCELRF are tax creditable. West Coast Environmental Law Research Foundation 1001 - 207 West Hastings Vancouver, BC V6B 1H7 Canada phone: (604) 684-7378 fax: (604) 684-1312INFO ACCESS REQUESTED
C-78 MAY DIE
CONFERENCES:
BC HYDRO ADOPTS ENVIRONMENTALIST AGENDA
GREEN LITIGATORS OPEN OFFICE
West Coast Environmental Dispute Resolution Fund:
EARP Cases in the Courts
Golf Course Ruling Soon
Appeal Saved
Funds Requested
RECENT CASE:
Publications Received:
Editor's Note
End of West Coast Environmental Law Research Foundation Newsletter Vol 15:3, January 21, 1991