West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterWCELA asked recently-appointed B.C. Premier Rita Johnston to take immediate steps on three key environmental issues:
Environment 2001 is a government-wide package of environmental policies first promised in the 1990 Throne Speech. It was originally intended to be released prior to the federal Green Plan, which was unveiled in late-1990 following numerous delays.
Ever since May of 1989 the B.C. government had been committed to imposing a limit of 1.5 kg of organochlorines (AOX) per tonne of pulp by the end of 1994. Ms. Johnston was reported to have supported the decision of the cabinet committee on sustainable development, which approved the regulation prior to the unprecendented intervention of then-premier Bill Vander Zalm.
A provincial official is reported to have said that Celgar's permit would be issued by cabinet in order to circumvent the public's right to appeal. The mill expansion was given approval-in-principle following an environmental impact assessment under the B.C. Major Project Review Process (MPRP) and the federal Environmental Assessment Review Process. According to the MPRP Guidelines the project should now go to stage three, the normal permiting procedures. The Celgar mill has recently been linked to dioxin and furan contamination of fish in Washington State's Roosevelt Lake, downstream of the mill on the Columbia River.
WCELA has recently made representations to the Ministry concerning the proposed regulations for upgrading and replacing of leaking underground storage tanks (L.U.S.T.).
Leaking underground storage tanks represent a major source of soil contamination in Canada. Environment Canada has estimated that there are approximately 200,000 underground storage tanks in Canada, half of them in retail service stations. It has been estimated that between five and ten percent of the tanks are currently leaking, and that an additional 28,000 tanks could start leaking in the next five years, thus creating significant risks for further soil and groundwater contamination.
Among other things, WCELA has recommended that the regulations be altered to require the following:
1. All owners of underground storage tanks must carry liability insurance.
2. Installers of underground storage tanks must be subject to examinations before they are certified to operate in the province. Improper installation of underground storage tanks is one of the major causes of tank leakage.
3. All new tank systems should include secondary containment structures, unless a hydrogeologist has certified that such secondary containment is not necessary because of local soil and groundwater conditions.
4. Vendors of property should be required to give advance notice of the presence of underground storage tanks to potential purchasers.
5. A small tax (perhaps one tenth of a cent per litre) should be imposed on fuel, to fund:
(a) the administration of the underground storage tank regulation;
(b) the clean-up of orphan sites; and
(c) subsidies for upgrading and replacing old tanks for businesses that would otherwise not be able to comply with the regulation.
Contact WCELA for details.
On June 2, 1991, The Bicycle People will open Environment Week with the first annual "Ride for the Environment" through the streets of Vancouver. The 15 km ride will begin at 9 a.m. at Trout Lake Park, at 15th and Victoria. Following the ride there will be an environmental festival at Trout Lake Park with speakers, musical entertainment and booths. For more information, contact Richard Campbell at 291-3610 or 251-6471 or Marilyn Pollard at 873-2384.
The Law Foundation of B.C. made a grant of $300,000 to WCELA's Environmental Dispute Resolution Fund for 1991-92. The Law Foundation provided grants of $200,000 and $65,000 in 1990-91 and 1989-90, respectively.
The Fund is used to assist individuals and groups to resolve environmental disputes through participation in litigation, environmental assessments, administrative tribunals, and alternative dispute resolution. It also pays experts for WCELA in-house cases. The Fund pays a maximum of $50 per hour for lawyer's fees, but citizens can `top up' the fee as long as the total fee is less than the lawyer's usual rate.
From April to December of 1990 the Fund supported 27 projects involving a wide range of environmental and legal issues throughout B.C. Ninety-two percent of the grants were for projects outside the Lower Mainland. The average grant was approximately $6000.
Contact WCELA for information about the EDRF. Applications received by the end of the month will be considered by the Fund's Management Committee by the middle of the following month.
The Fraser River Coalition has persuaded federal court Judge Collier to reconsider his interim decision to dismiss the Coalition's application to quash federal approval of a dock expansion project in the lower Fraser River. The court will consider copies of documents the Coalition's lawyer Geoff Gomery obtained from the Department of Fisheries and Oceans under the Access to Information Act. The Coalition alleges that the federal government failed to follow its Environmental Assessment Review Process (EARP). The judge had said he would dismiss the application but had not yet given reasons. The new evidence includes a memo from a Fisheries official stating that, "...no proper EIA was ever done...". Gomery has asked the court to consider an order for costs against the government on a "solicitor and client basis" (higher than the usual rate) because of its failure to disclose the documents prior to the original hearing. The federal government has appealed the trial court's decision to allow the additional evidence.
The Outdoor Recreation Council of B.C. published a Recommended Action Plan on cave management issues resulting from a three day meeting of recreation, government and industry representatives in February. The Ministry of Forests agreed to seven specific recommendations aimed at protecting caves against damage from logging.
It is the Supreme Court of Canada decision on the Oldman River Dam case that is not expected before the Fall of 1991. A decision by the Federal Court Trial Division on motions by the government and Alcan to quash the River's Defence Coalition's case is expected shortly. A sentence migrated to the wrong paragraph in our March 14th issue.
We are delighted to thank the following lawyers who have generously donated their time and services to EDRF-funded projects:
Sustainable Development and Environmental Assessment: Perspectives on Planning for a Common Future, edited by Peter Jacobs and Barry Sadler, Canadian Environmental Assessment and Research Council, undated, 182 pages, Bib. This is a timely collection of papers by Canadian experts. The editors conclude by calling for "second generation" assessment processes ("Sustainable Development Assessments") which would explicitly address the economic, social and ecological interdependencies of policies, programs and projects. Contact: CEARC, 13th floor - 200 Sacre Coeur Blvd., Hull, Quebec, K1A 0H3.
Still going to B.A.T. for Water Quality? A four-year review of the (Ontario) Ministry of Environment's Municipal/ Industrial Strategy for Abatement (MISA), by Burkhard Mausberg, Canadian Institute for Environmental Law and Policy, August, 1990, 97 pages. After analyzing MISA's accomplishments, this report calls for more attention to air pollution, non-point sources and household hazardous wastes. The cost is $10. Contact: (416) 923-3529.
rief on the Pulp and Paper Industry: Chemical Warfare in Ontario, by Burkhard Mausberg, Pollution Probe, February 6, 1991, 15 pages. This is a response to a recent Ontario MISA report on water pollutants from pulp and paper mills. Contact: (416) 923-3529.
Rare Vascular Plants in Canada: Our Natural Heritage. George W. Argus and Kathleen M. Pryer; Canadian Museum of Nature, 1990. A comprehensive index produced to promote an awareness of rare plants in Canada. "We are focusing on rare plants not simply to encourage the preservation of individual species, but rather to emphasize the need to preserve what is left of their essential habitats and ecosystem." Available by prepaid order $12.95 (+ GST) and $6 for shipping and handling from the Canadian Museum of Nature, Direct Mail Section, PO Box 3443, Station D, Ottawa, Ontario, K1P 6P4.
Security of Title in Canadian Water Rights. Alastair R. Lucas; Canadian Institute of Resources Law, October 1990. Available for $10 from the publisher, Room 430, BioSciences Building, Faculty of Law, The University of Calgary, Calgary, Alberta, T2N 1N4.
The Environmental Imperative: Market Approaches to the Greening of Canada, G. Bruce Doern, editor, papers presented at a conference on "Environmental Policy in the Energy Industries in Alberta", Calgary,
Alberta, January 18-19, 1990, C.D. Howe Institute. This is a mixed bag of papers on environmental policy. Dr. Kenneth Hare has an excellent synopsis of the need to take action on global warming despite the scientific uncertainty. The editor joins environmentalists in calling for legislated environmental assessment of proposed Cabinet policies. Much of the discussion is about using "market based" mechanisms such as tradeable emissions credits in addition to or in place of the traditionas "command and control" approach. Available from Renouf Publishing: (613) 741-4333.
Alberta's Wetlands: Water in the Bank! A Discussion Paper prepared for the Alberta Conservation Strategy Project, October 1990. Available at no charge from The Environment Council of Alberta, 8th Floor Weber Centre, 5555 Calgary Trail Southbound NW, Edmonton, Alberta, T6H 5P9.
Alberta Conservation Strategy: A Framework for Action, A draft for public discussion, October 1990. Available at no charge from The Environment Council of Alberta, 8th Floor Weber Centre, 5555 Calgary Trail Southbound NW, Edmonton, Alberta, T6H 5P9.
"Creating the Future" A Strategic Plan for the Environment Industry of B.C., prepared by the Environment & Waste Management Committee of the Science Council of British Columbia, January 1991. This document outlines a comprehensive action plan for fostering a strong B.C. environmental technology industry -- including recommendations for government legislative and procurement policies, government-industry joint marketing initiatives for B.C. pollution control technologies, technology transfer programs, workforce education programs, and an alliance of provincial environment companies. Contact: Suite 100, 3700 Gilmore Way, Burnaby, B.C., V5G 4M1.
A Wildlife Policy for Canada, Wildlife Ministers' Council of Canada, 1990. The Council presents strong recommendations for expanding wildlife policy in Canada to emphasize ecosystems and biodiversity. Contact: Canadian Wildlife Service, Environment Canada, Ottawa, K1A 0H3.
Balancing on the Brink of Extinction: The Endangered Species Act and Lessons for the Future, edited by Kathryn A. Kohm, Island Press, Washington, D.C., 1991. This is a lengthy collection of essays on the US Endangered Species Act.
"Interim Acid Deposition, Critical Loadings for Western and North Canada", prepared for Technical Committee Western and Northern Canada Long-Range Transport of Atmospheric Pollutants by Interim Acid Deposition Critical Loadings Task Group, August 1990. Despite its cumbersome title, this is a useful report on the areas most vulnerable to damage from acid rain. Contact: Mr. D. Marshall, B.C. Ministry of Environment, 810 Blanshard, Victoria, B.C., V8V 1X5.
Delgamuukw v. the Queen, Smithers Registry, No. 0843, B.C. Supreme Court, March 8, 1991. Trial Judge Allan McEachern (now Chief Justice of the Court of Appeal) dismissed the plaintiff Indians' claims for declarations that they owned their territory, are entitled to govern it, have various aboriginal rights and are entitled to damages for the loss of lands and resources transferred to third parties by the Crown. The Court did hold that there is a legally enforceable trust-like duty on the provincial government to ensure that there will be no arbitrary interference with "aboriginal sustenance practices". But it held that non-Native settlement and development of non-reserve lands and the harvesting of resources "does not ordinarily offend against the honour of the Crown".
Case Comment: Three main issues arise from the decision. First, the decision will almost certainly be appealed. Second, the decision will likely reduce the Indians' bargaining power in land claims negotiations. Third, the decision may undermine approximately half a dozen temporary injunctions granted to Indian groups across B.C. to stop resource development activities pending court decisions on land claims. -- B.A.
Herb Hammond v. Association of British Columbia Professional Foresters, Vancouver Registry No. A901332, B.C. Supreme Court, February 4 and 5, 1991. The Chief Justice of the B.C. Supreme Court quashed a decision of the Association of British Columbia Professional Foresters to proceed with professional disciplinary charges against Herb Hammond. Hammond, a professional forester who is frequently retained by B.C. environmental groups, faced disciplinary charges because of evidence he had given at an Environmental Appeal Board hearing considering a pesticide use permit appeal. The Court held that the Association's investigating committee violated its obligation of fairness to Mr. Hammond, by failing to give him an opportunity to meet with the committee and give it detailed information. The Association's handling of the complaint has gone on for three years. Two other complaints regarding Hammond's reports on forestry management in the Nass Valley and the economics of proposed logging in Khutzeymateen Valley were dismissed as unfounded. Hammond's affadavit in the Supreme Court action indicates that he sees the current complaint as harassment for expressing opinions contrary to mainstream timber management.
Environmental Data Quality Assurance Regulation, BC Reg. 301/90, under the Environment Management Act: provides for monitoring and auditing of environmental information required to be submitted to the government.
Chlorobiphenyls Regulations SOR91-52, under the Canadian Environmental Protection Act (CEPA): consolidate existing PCB regulations.
Secondary Lead Smelter Release Regulations, SOR/91-155, under the CEPA: "rolls over" a very similar regulation under the former Clean Air Act.
Draft Contaminated Fuel Regulations., under CEPA, Canada Gazette part one, March 16, 1991, page 882: intended to replace the Interim Order Respecting the Import and Export of Contaminated Fuel, which was adopted on May 12, 1989, following media articles about hazardous chemical wastes being secretly mixed in fuels and sold to Canadian customers.
WCELRF Newsletter, copyright 1991, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews (editor), Morgan Ashbridge, Ellen Halliday, Ann Hillyer, Catherine Ludgate, Susan Moor, Denice Regnier, Calvin Sandborn, and Tim Welsh. Subscription information is on page 3. WCELRF does research and education and maintains an environmental law library. The West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of WCELRF and WCELA is to provide legal services to protect the environment and to foster public participation in environmental decision-making. 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) 684-1312