West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterA landmark environmental assessment report was issued on January 31 by the Port Hardy Ferrochromium Review Panel. The Panel concluded that the Hardy Bay site for the proposed smelter on northern Vancouver Island is: (1) not ideal, because of its environmental sensitivity, and, (2) unacceptable because of unresolved native land issues.
However, the Panel stated that the innovative smelter proposal itself is technically feasible, and could have acceptable impacts (at a different site) if approximately 100 stringent conditions are met.
Sherwood Metallurgical Ltd. is now reportedly searching for a different site for the smelter, possibly in Quatsino Sound on Vancouver Island, or in Bayside, New Brunswick. This news is a relief to those concerned about the future of Hardy Bay, which contains ten percent of the total estuarine habitat on Vancouver Island. Estuaries are among the most biologically productive habitats on earth, and are critically important to both fish and birds.
The Concerned Residents of the North Island, represented by WCELA's Calvin Sandborn, have now asked the federal and provincial ministers of environment to adopt the report's recommendations. The Residents have also called on the ministers to reconvene the Panel if the Proponent decides to proceed at a different site in B.C. -- and to adopt the numerous restrictive conditions that the Panel recommended should apply at any new site.
The Panel made the following key recommendations:
In other findings, the Panel recommended that the B.C. government review its decision to provide up to "tens of millions" of dollars in electricity subsidies to the smelter, since the government's decision runs contrary to B.C. Hydro's current energy conservation policy. Also, the Panel stated that the federal subsidy offered to the smelter "appears to have been based on questionable analysis."
The Panel concluded that public confidence in Sherwood has been shaken by statements made by the President, J. Wooding. The Panel stated: "There seems to have been a tendency to mislead through exaggeration.... Such matters... have undermined the Proponent's credibility with the public...."
The Panel was appointed under the federal Environmental Assessment Review Process and the B.C. Environment Management Act. Vancouver lawyer Bryan Williams, Q.C., chaired the Panel, which also included Dr. Paul West, Director of Environmental Studies at the University of Victoria, and George Davies, a Vancouver engineering consultant.
The Panel's report breaks new ground in a number of areas, and persons doing environmental assessment hearings may wish to obtain a copy. For copies, contact: Pia Archibald, B.C. Ministry of Environment, (604) 387-9676.
On January 31, WCELA urged the governments of Canada and British Columbia not to enter a free trade agreement with Mexico unless they ensure that Canadian environmental standards will be protected.
Both federal international trade minister John Crosbie and B.C.international business minister Elwood Veitch were asked by letter to commit their governments to opposing any trade agreement with Mexico unless it:
1. guarantees Canada's ability to set relatively high environmental standards;
2. specifies that failure to establish and enforce reasonable environmental standards is considered to be a trade subsidy; and
3. includes mechanisms for public participation in decision-making under the agreement.
WCELA also asked Mr. Crosbie to release the government's environmental assessment of its decision to enter the Mexico free trade negotiations, noting that the federal government has promised to do an environmental assessment of all cabinet policies.
Editor's Comment: We should not rush into a trade deal with Mexico without knowing the full environmental consequences. It would be better for Canada to help Mexico improve its environmental standards than to `harmonize' our standards down to Mexican levels.
Contact WCELA for a background paper by Chris Rolfe.
WCELA expressed its deep concerned to federal industry minister Benoit Bouchard about his recent announcement that the long-awaited federal pulp and paper effluent regulations will allow delays in their effective date from 1993 to 1995. WCELA's Bill Andrews wrote on behalf of fifty-three organizations with over 250,000 members concerned about pollution from pulp and paper mills.
As the minister cited industry's current economic difficulties for this reversal of earlier government commitments (e.g., in the Green Plan), WCELA asked if he had received any written analysis of the financial impact of imposing the forthcoming Pulp Paper and Effluent Regulations according to the previously-proposed timetable.
The minister was also provided with a copy of Environment Canada economist William Sinclair's article (see Newsletter January 21). Sinclair states:
"During lows in the business cycle, mill representatives merely have to claim economic hardship. ...When economic conditions improve, mill representatives are in a position to claim any of a number of different reasons for avoiding controls."
B.C. pulp mills are now subject to provincial pollution regulations with more stringent deadlines than those the federal government is imposing. But Bouchard's announcement is a setback for environmental protection in B.C. because:
The proposed "Ecologo" guideline for unbleached paper products is moving forward, despite opposition from some industry representatives. This guideline, and another one for low-organochlorine bleached paper products, is being examined by a task force of the federal Environmental Choice Program. WCELA's Ann Hillyer has been participating in the task force for some months.
Unbleached paper products are not bleached with chlorine or chlorine compounds, so they do not cause organochlorines to be discharged into the environment during production.
The Environmental Choice Program was created to help consumers identify products which diminish the burden on the environment. All draft guidelines receive a 60-day public review. Anyone interested in commenting on the unbleached paper product guideline or any other draft guideline should contact: Mr. Ahmad Husseini, Environmental Choice Program, Canadian Standards Association, 178 Rexdale Blvd., Rexdale, Ontario M9W 1R3.
The appropriate "Waste Discharge Criteria" for persistent toxic contaminants is zero, not the Best Available Control Technology (BACT), WCELA told the B.C. Ministry of Environment on January 31. WCELA's recommendation was in response to the Ministry's draft policy aimed at using BACT to revise the out-dated B.C. Pollution Control Objectives.
For other toxics WCELA said that the Waste Discharge Criteria should be based on the Lowest Achievable Discharge Rate -- a concept used on Ontario's air pollution control program.
The Ministry proposes that the new Waste Discharge Criteria be used as guidelines to set enforceable standards in pollution permits and approvals under the Waste Management Act. Standards tougher than the guidelines could be adopted for a particular project if environmental impact assessment shows they are necessary.
Contact WCELA for a copy of its brief.
Anyone wanting to comment on Orenda Forest Products Ltd.'s proposed 500 tonne per day pulp and paper mill in the Stewart/Cassiar area must do so before the end of February, an extension of the previous deadline. Under B.C.'s Major Project Review Process (MPRP), the proposal could conceivably be granted approval in principle without any further environmental impact assessment.
WCELA's Ann Hillyer has given the government a number of recommendations based on the company's Prospectus for the project, including:
Comments about the proposed mill and the need for a full environmental impact assessment should be sent to: Mr. David Parsons, MPRP Coordinator, B.C. Environmental Assessment Branch, 3rd Floor, 777 Broughton Street, Victoria, BC, V8V 1X5. For a copy of WCELA's letter outlining our initial concerns or for more information about the MPRP, contact WCELA.
Regina v. Fibreco Pulp Inc., Fort St. John Registry, No. 13132C, December 19, 1990, B.C. Provincial Court, Judge R.G. Skelhorne, Reasons for Decision.
The court found the defendant company guilty of one count of breach of a permit under section 34(5) of the Waste Management Act. The court rejected the defendant's defence of "officially induced error" and "due diligence". The court found that the company designed a secondary wastewater treatment facility for its new pulp mill that would operate properly only if the mill itself was operating properly. The court rejected the company's assertion that this was "sound engineering practice", referring to the fact that Canadian Pacific Forest Products Ltd. recently pled guilty to a charge under the Act (and was fined $50,000) as the result of start-up problems with its new paper-making machine. The court states that, "Planning to minimize pollution is not the same thing as planning for no pollution. There is an ever-increasing push by the public through the regulatory authorities for lessened industrial pollution and mill design must change to accommodate that" (p.8). In our January 21 issue, we reported that the mill in this case received fines of $50,000 per day for each of 40 days for a total fine of $200,000 in relation to this offence. We have not yet received the Reasons for Sentence.
Regina v. Daishowa-Marubeni International and Weldwood of Canada, Provincial Court of B.C., Judge J.S. Devilliers, December 12, 1990, Information Nos. 14204 and 14256. The defendants pled guilty to two counts under the Waste Management Act. A gas leak of turpentine compounds occurred in May, 1989, prior to the raising of the maximum fine from $50,000 to $1,000,000 in August, 1989. A white liquor spill occurred in February, 1990. The court stated that, "Today all corporations and citizens are required to exercise a high degree of responsibility to ensure that no harm is done to the environment. Mr. Butler, who appeared on behalf of the accused corporations, frankly acknowledges that the days are past when profits come before protection of the environment. Therefore the courts ought to give effect to the current collective will of the community as reflected in our legislation and punish those who commit offences against the environment with severity" (p.5). Having set out a number of important mitigating factors the court imposed a fine of $25,000 for the first count and $250,000 for the second count.
Editor's comment: The large size of the fines in this case, especially considering that the court found that there were mitigating circumstances, reflects a dramatically new approach to the appropriate size of fine under the Act.
New discretionary orders available to the court upon conviction, similar to orders available under the Canadian Environmental Protection Act, include:
The amendments also include a requirement that the Minister report annually to Parliament on the administration of the fish habitat and pollution prevention provisions of the Act.
OUR MISTAKE: In our January 21, 1991, issue we listed the Kitimat pulp mill as being in significant non-compliance with both its air and water pollution permits. In fact, it is listed in the Ministry of Environment's December 10, 1990, report as being in significant non-compliance with its air pollution permit only. For liquid effluent and landfill leachate the mill is listed as a "pollution concern to the Ministry." It is the Alcan Aluminum Smelter in Kitimat that is listed by the Ministry as being in significant non-compliance with its water pollution permit.
LEGAL QUESTIONS AND ANSWERS: A workshop will be presented by WCELA at the B.C. Environmental Network annual meeting on Saturday, March 9, 1991, at the Faculty of Law, UBC.
WCELA lawyer Bill Andrews will answer questions about the legal aspects of specific environmental issues raised by workshop participants. The emphasis will be on developing an advocacy strategy in relation to particular problems. Topics addressed will include: analyzing the environmental issue, identifying the key parties, assessing rights and responsibilities, finding allies, assessing legal and advocacy options, and working with a lawyer as part of the advocacy team.
For information, contact WCELA at 684-7378.
Memberships: 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 of the WCELRF Newsletter, @ 1991, was produced and distributed by Bill Andrews, Morgan Ashbridge, Ann Hillyer, Dianne Howland, Catherine Ludgate, Denice Regnier, Carlos Rockhill, and Calvin Sandborn. We welcome feedback on 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 est 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) 684-1312