West Coast Enviornmental Law Research Foundation Newsletter

ACTION ALERT -- Community-Right-to-Know and the National Pollutant Release Inventory

Imagine having free access to the most up-to-date information on industrial polluters in your community. Imagine being able to easily find out the composition and volumes of chemical emissions into the air, water and soil; the names and locations of the worst polluters in the country; and the extent of waste reduction efforts in Canada. Imagine having at your fingertips the kind of information that can pressure industry to reduce emissions and lobby politicians to pass better environmental legislation.

The National Pollutant Release Inventory (NPRI) is an Environment Canada initiative (promised in the Green Plan) that would establish an extensive database on the release of specified toxic substances into the air, water and soil. By making emission data on some 180 specified pollutants available to the public, the NPRI would be a powerful tool for community activists.

Over the last year a Multi-Stakeholder Advisory Committee (the "Committee") has been developing the outlines for the NPRI including who should report, what chemicals should be reported and the extent of the obligation to report. The Committee did not agree on a number of key issues that Jean Charest, federal Minister of the Environment, will be deciding upon very soon.

Key issues facing the Minister include:

The extent of the obligation to report -- The Committee could not agree, as environmentalists had argued, whether large volumes of toxic substances stored, treated, incinerated or recycled on-site should be reported. As well, environmental and labour representatives on the Committee argued that the use -- as opposed to the emission -- of substances at a facility should be reported so as to be able to track the reduction of reliance on toxic substances generally.

Trade secret and confidentiality claims -- Unlike most freedom-of-information provisions where the onus to prove confidentiality rests on industry, the Canadian Environmental Protection Act (CEPA) requires that the government prove that an industry's claim to confidentiality is not warranted. As CEPA will be used as the legislative basis for the NPRI, environmentalists on the Committee fear that industry may use this reverse onus approach to block access to NPRI site specific data. Minister Charest is on record as supporting NPRI on the basis of a "community-right-to-know". The NPRI will require either separate legislation or amendments to CEPA to guarantee a public right to access information reported by industry.

The Minister is presently considering the Committee's report and will be making decisions on these and other issues where no consensus was reached by the Committee. There is an urgent need for concerned citizens to write the Minister to express their opinions. Your letter can make a difference.

You can obtain more detailed information on the NPRI and a sample letter to the Minister by contacting Murray Mollard at WCELA.

ELECTRONIC CROSSROADS

A Special Project on Computerized Environmental Legal Information

Computerized environmental legal information is the focus of a special project of the West Coast Environmental Law Research Foundation that started on March 1. The first phase is to install multi-user library/bibliography software for WCELRF's library. The second phase will be to prepare a selected, annotated bibliography of the current and emerging sources of computerized environmental and land use information, as well as policy and policy analyses on this subject. The third phase will be a policy analysis report aimed at ensuring that information technology actually improves -- rather than hinders -- public access to this information.

Bill Andrews has taken a leave of absence as executive director in order to work on the project on a full-time basis. Staff counsel Linda Nowlan has assumed the post of acting executive director while the project is underway.

To contact Bill about the information project, please use the project's new phone number: 689-3235, or the usual address (1001 - 207 West Hastings Street, Vancouver, BC V6B 1H7) or fax number (684-1412).

WELCOME TO WCELA

We are pleased to welcome Chris Rolfe and Murray Mollard as new staff counsel at WCELA. Chris joins us as full-time staff counsel while Bill Andrews is working on the computerized environmental legal information project. Chris, a long-time volunteer at WCELA, has been practicing environmental law in Vancouver. Murray, who worked with us last year, is back providing summary advice and law reform analysis on a part time basis. Welcome!

Comments On The Schwindt Report On Government Compensation

Should the government pay resource companies if it cancels their resource extraction licences!

The Commission of Enquiry into Compensation for the Taking of Resource Interests (the Schwindt Commission) was formed in 1992 to examine whether, in what circumstances, and how much compensation should be paid to the holders of resource interests when the government takes away those interests. Owners of lands expropriated for public purposes are not entitled to compensation unless they can establish a statutory right. The provincial government plans to introduce legislation soon that defines the right to compensation for loss of resource use. The report of the Schwindt Commission was released in August of 1992. The provincial government is presently coordinating its follow-up to the report. As part of this follow up, WCELA presented a number of comments on the report.

A brief summary of WCELA's comments follows:

• Although the report furthers the discussion into this complex area of law and policy, it is unsuitable on its own as the basis for establishing provincial legislation or policy.
• The Schwindt Commission report fails to address the need to find a workable scheme for compensating holders of private interests (such as trapline holders and water licensees) who suffer harm from the activities of forest, mining and other industries in BC.
• The report ignores WCELA's previous recommendation that the determination of compensation must accommodate the principle that the original grant of any interest is subject to government authority to (a) take future action to protect the environment and, (b) balance the legal rights of all resource users and owners.
• The report fails to incorporate the polluter pays principle. Resource interest holders must be responsible for the costs of environmental protection.
• Contrary to its mandate, the Schwindt Commission declined to provide clear guidelines for stating when the government should compensate for the taking of resource interests. Instead, the report recommends that this question be answered on a case-by-case basis, despite acknowledging that " ... this is one legal area in which almost any consistent, publicly articulated approach is better than none."
• The Schwindt Commission fails to include political and moral considerations in its recommendations concerning other values and other uses for resources.
• The report is ambiguous. It fails to clarify whether compensation is payable if and only if there has been a compensible expropriation.
• There is no clear distinction made between the expectation that a resource interest will continue and a legal right to have that interest continue. The report assumes that investments to acquire forest tenure should automatically be compensated.
• The Schwindt Commission's recommendations regarding compensation to timber interest holders appear to disregard the potential for impact on other forest resource interest holders such as trapline and water license holders.
• Contrary to the report's recommendation, there should be a public right to notice and a public right to participate in decision-making regarding compensation.
• The Schwindt Commission's recommendations for more frequent renewal of timber tenures and the proposal to distinguish more clearly between mining claims and mining leases warrant serious consideration.

If you require further information or would like a copy of the full text of these comments, please contact the West Coast Environmental Law Association at 684-7378.

WEST COAST ENVIRONMENTAL DISPUTE RESOLUTION FUND

Organizations named in bold have received EDRF grants. The West Coast Environmental Dispute Resolution Fund is used to help individuals and groups resolve environmental disputes through participation in litigation, environmental assessments, administrative tribunals and alternative dispute resolution. Contact WCELA for information.

Since the New Year, the West Coast Environmental Dispute Resolution Fund has provided financial assistance to the Forest Independents, the Outdoor Recreation Council, the Conservation Sector, and GRYFIN - the Youth Sector, for citizens' environmental participation in the Vancouver Island CORE process. Grants also were made to the Slocan Valley Watershed Alliance and the Valhalla Society for participation in a CORE regional pilot project in the Slocan Valley.

As well, the EDRF provided funding to Energy Probe for expert assistance with their challenge to the Nuclear Liability Act; to the Malcolm Island Environmental Protection Society and the Green Islands Environmental Protection Society for assistance with their pesticide permit appeal hearings; and to Friends of Beacon Hill Park for participation in an ADR process aimed at protecting native plants.

WCELA received in-house funding for expert assistance in connection with a submission to the BC Energy Council and the Pulp Pollution Campaign received funding for expert assistance in connection with consultation processes on pulp pollution issues and the provincial AOX regulation.

Publications Received:

Toward Sustainable Communities: A Resource Book for Municipal and Local Governments, by Mark Roseland for the National Round Table on the Environment and the Economy. An excellent resource book for citizens, elected officials, municipal staff and others interested in the current range of municipal and local government initiatives aimed at creating sustainable communities. Includes discussion on air quality, transport, land use, growth management, energy conservation, waste management and economic and community development in the context of achieving a sustainable community. Filled with useful references and resources. Free from the National Round Table on the Environment and the Economy, 1 Nicholas Street, Suite 1500, Ottawa, Ontario K1N 7B7

You Can't Give It Away: Tax Aspects of Ecologically Sensitive Lands, by Marc Denhez, published by the North American Wetlands Conservation Council (Canada). Examines how the Income Tax Act (Canada) and the provincial and territorial property tax systems affect the setting aside of ecologically significant lands for conservation purposes and makes recommendations for change. Includes a number of case studies. This very readable report is a useful and much-needed addition to the literature on conservation issues. Available from: Secretariat, North American Wetlands Conservation Council (Canada), Suite 200, 1750 Courtwood Crescent, Ottawa, Ontario K2C 2B5