West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterSince change is what everyone seems to be looking for and offering in this election, here are the environmental policy statements for some of the contenders:
Not surprisingly, all of the parties endorse the principle of sustainable development, the buzz-phrase of this generation's politeco-speak. Written by Nancy Davison; reprinted with permission from EnviroLine 4:17, with additions.
On September 13, 1993 the text of the North American Agreement on Environmental Cooperation (the "NAAEC") was released. This is the environmental side deal to the North American Free Trade Agreement which United States President Clinton insisted was required. The NAAEC is an abysmal failure at remedying the environmental issues arising out of NAFTA, despite a few positive provisions.
Canada, the U.S. and Mexico agree to ensure their laws provide for high levels of environmental protection, to enforce those laws, to assess environmental impacts, ensure private persons have rights to seek injunctions against violators of environmental laws and to provide for notice and comment on proposed environmental measures. These qualified commitments will not likely lead to any substantial changes in Canada. For instance, environmental assessment must be done "as appropriate", and access to legal remedies is only for "persons with a legally recognized interest" and "in accordance with the Party's law".
Mexico, Canada and the United States agree to establish the Commission for Environmental Cooperation ("CEC"). CEC, is composed of a governing council made up of the Ministers of Environment for the three nations, a joint public advisory committee and a central independent secretariat. The Secretariat will likely be located in Montreal, Toronto or Vancouver.
CEC has a broad mandate to report on environmental matters ranging from transboundary environmental issues to protection of threatened species and establishing ecologically sensitive national accounts. Unfortunately, any recommendation for change must have the support of all three parties.
CEC will publish an annual report which will include some data on environmental law enforcement activities. The Secretariat cannot, on its own initiative, report to the Council on non-enforcement issues.
The Secretariat can only look into a non-enforcement problem where it receives a complaint from a citizen or non-governmental organization. The Secretariat can dismiss the complaint if the complainant suffered no harm. This raises the spectre that the Secretariat will not look into complaints of general degradation of the environment.
The Secretariat can consider a non-enforcement complaint only if two of the three Council members agree. The Ministers are under no obligation to explain why they decline consideration. The potential for political interference is obvious.
Even where two of the three ministers agree to proceed, the Secretariat can only develop a "factual record" on non-enforcement. A factual record, devoid of analysis and conclusions, will do little to clarify issues. The factual record will only be released to the public if two of the three ministers agree.
Sanctions are available only where a party has a "persistent pattern of failure to effectively enforce its environmental law". Environmental law is narrowly defined to exclude natural resource management regimes. "Persistent pattern" is defined so that a country cannot be sanctioned for non-enforcement if it was not enforcing its laws when the NAAEC came into force.
There are no sanctions available for failing to provide for a high level of environmental protection. Environmental groups had called for the use of trade sanctions against an import where an internationally significant natural resource is threatened by the production of the import or where the import has an unfair trade advantage caused by low environmental standards in the country producing the product.
A party can repeal its environmental laws to avoid sanctions under NAAEC for non-enforcement. NAFTA does not cure this problem.
Once a complaint of non-enforcement has been made an arbitration panel will be struck only where two of the three parties agree (one will likely always disagree). Sanctions are not immediately available even if the panel finds a persistent pattern of non-enforcement. Such a finding is followed by a convoluted process where the party or, if necessary the arbitration panel, develops action plans to enforce its environmental laws.
If these action plans are not implemented monetary sanctions of up to 20 million U.S. dollars can be levied. Given the length of the process it seems unlikely that any country will ever be forced to pay fines. A country has little incentive to enforce its laws until this last step is reached.
Trade sanctions are only available where a country fails to pay a fine. Canada is not subject to trade sanctions, but monetary fines will be payable in our courts.
NAAEC will only apply to a province which agrees to be bound by the Agreement. Unless provinces representing 55% of Canada's GDP sign on to the agreement, Canada will not be able to enforce the agreement against Mexico or the United States if the Mexican or American law not being enforced would be under provincial jurisdiction in Canada. This could virtually exclude many sectors of the Canadian economy from application of the NAAEC and may severely limit Canada's ability to use the agreement to encourage compliance in the U.S. or Mexico.
The provinces could refuse to sign on unless the Agreement is improved.
The provinces could demand that the NAAEC clarify their powers to implement high environmental standards made in good faith. Under NAFTA parties agreed to, "without reducing levels of environmental protection", make their environmental standards more compatible. They are still free to adopt higher standards, but only if the standards are based on risk assessment (for pesticide residue standards), are "scientifically justified" and are necessary to provide "the level of protection the party considers appropriate". WCELA and other environmental groups have called on the government to affirm the rights of countries to adopt standards adopted in good faith in face of scientific uncertainty. They also called for a clarification of risk analysis arguing that the quantitative risk assessment used in the United States lends a false air of objectivity to a subjective process which consistently underestimates environmental risks.
The provinces should also demand that NAAEC improve on the weaknesses noted above and not place further roadblocks in the way of developing effective environmental regulations. CEC is to establish a process for recommending more compatible technical environmental regulations. It is essential that any harmonization process not block higher innovative environmental standards.
For further information, please contact Chris Rolfe at West Coast Environmental Law Association, (604) 684-7378.
Feds fail to follow multi-stakeholder recommendations
On September 18, 1993, the federal government released four draft regulations under the Canadian Environmental Assessment Act (the "Act"). The regulations define what projects will be assessed and how extensive the assessments will be. The regulations' weakness and the federal government's failure to follow the recommendations of a multi-stakeholder committee comprised of industry, environmentalist and aboriginal representatives have sparked the ire of environmental organizations across Canada. Only half of the recommended number of federal decisions which will lead to environmental assessment are included in the regulations.
The Act and regulations could replace the current federal environmental assessment regime established under the Environmental Assessment Review Process Guidelines Order (EARP) as soon as November 17. Both Liberals and Conservatives have said they will proceed with the regulations, but neither party has committed itself to necessary changes.
Among other things under the proposed regulations federal decisions:
The four regulations are known as the:
Inclusion List. Under the Act environmental assessments are only made for projects. Assessments are not made for government programs, policies or agreements even though these may have very significant environmental effects. Something is only a project if either it is an activity listed on the Inclusion List or an "undertaking [e.g. construction, operation, modification] in relation to [a] physical work." A physical work is a thing which is constructed and has a fixed location. Thus low level flying of an airplane across the Labrador wilderness and remediation of contaminated sites are not projects unless they are listed; building of dams, bridges or roads need not be listed. A few of the omissions from the Inclusion List include:
Exclusion List. Under the Act environmental assessment is not required for any projects, deemed environmentally insignificant by Cabinet and listed in the Exclusion List Regulation. Among the projects excluded as "environmentally insignificant" are modification and operation of pulp mills, mines, oil and gas facilities and factories even if the operations after the modification involve a doubling or tripling of discharges such as suspended solids or organic material (any material not regulated under the Canadian Environmental Protection Act or the Transportation of Dangerous Goods Act).
Law List. Under the Act, even if something is a project and is not on the Exclusion List it will only be subject to assessment if there is a "federal assessment trigger". Projects will only be assessed if the federal government
Thus the Law List is essential for ensuring that private projects are subject to federal environmental assessment. The federal government whittled down the list of almost 300 federal decisions recommended by a multi-stakeholder committee of environmental, industry and aboriginal representatives to a mere 145 decision points. It should be noted that the Law List does include some important decision points which are not triggers under EARP. Among the most important of these is section 35(2) of the Fisheries Act (which authorizes projects that harmfully alter fish habitat).
Unfortunately, many essential provisions have been omitted. For instance, dam expansions such as those involved in the Kemano Completion Project require an authorization under the Navigable Waters Protections Act stating that the dam raising will not interfere with navigation. This provision is not, however, listed. It is possible that a major project like a dam expansion that floods a whole valley would not be assessed under the legislation. Similarly, construction of a new dam which initially proceeds without proper permits continue without assessment. Project proponents may be tempted to avoid assessment merely by delaying when they seek federal permits. Other federal permitting decisions which will not lead to assessment include all import-export permits, fisheries permits for foreign draggers, permits for drainage tunnels from Yukon placer mines and permits to hunt narwhals and other marine mammals.
Comprehensive Study List. The Comprehensive Study List Regulation lists projects that will require a more in-depth assessment that considers alternative means of carrying out the project, the need for a follow up program, and the capacity of natural resources that are likely to be significantly affected by the project. A comprehensive study does not necessarily require a public panel review or even public involvement. Nonetheless, the federal government was apparently afraid of comprehensive studies for major projects. The federal government failed to follow consensus recommendations on several key points. For instance, the size of mine which triggers a comprehensive study was more than doubled from 3000 tonnes per day of ore to 7000 tonnes per day. The result is that the Windy Craggy mine, if it had proceeded, would not have been subject to comprehensive assessment.
WCELA is continuing to study the implications of the regulations. One implication is already apparent: environmentalists feel betrayed by the one-sided, pro-industry changes made to regulations recommended as a result of consensus building by environmentalists and industry representatives. This will make the environmental community skeptical of future multi-stakeholder processes.
For further questions regarding the Canadian Environmental Assessment Act please contact Chris Rolfe at West Coast Environmental Law.
On October 4th, B.C.'s long-awaited information rights legislation came into force. The Freedom of Information and Protection of Privacy Act, S.B.C. 1992, c. 61, is the culmination of years of hard work by WCELA and others lobbying for a right of access to government information.
Readers will recall that a few years ago WCELA had to force the hand of the government of the day to get it to disclose pulp mill emissions monitoring data routinely collected by the Ministry of Environment (MOE). The data disclosed an extremely high degree of serious non-compliance by B.C.'s pulp mills with their emissions permits.
This incident underscored the need for legislated access to information rights in B.C., something for which WCELA had been lobbying for many years. Recognition by the newly elected NDP government that it was behind the times in this area -- and strong lobbying by WCELA and groups like the Freedom of Information and Privacy Association -- resulted in enactment of the Freedom of Information and Privacy Act.
Legislation of this kind has for many years proved invaluable to environmental and other public interest groups in the U.S. and in Canada. The new B.C. Act promises to be very useful to WCELA and others in our efforts to protect the environment.
The Act gives citizens a right of access to records in the custody or control of the provincial government, government agencies and boards and Crown corporations. (The Act will also be extended to local governments late in 1994.) Citizens need only determine which agency has the record and request it in writing. The record must be released within 30 days -- although extensions are possible -- unless the government can prove that one of the exceptions to the right of access applies.
A few observers believe some of the access exceptions will allow too much to be kept secret. Most people accept, however, that a proper balance has been struck, although only experience with the Act will tell. For example, the Act allows a record to be withheld if it would reveal draft, untabled legislation or Cabinet confidences.
One exception to the right of access that may both help and hinder protection of the environment is designed to withhold information that would "result in damage to, or interfere with the conservation of, ... an endangered, threatened or vulnerable species, subspecies or race of plants, vertebrates or invertebrates, or ... any other rare or endangered living resources."
Despite the exceptions, the basic premise of the Act is that all information must be disclosed. This will mean that all MOE monitoring data will be available as right, as will all routine audits, surveys, studies and investigations (unless, perhaps, they relate to non-routine law enforcement). Business information in the government's hands will also be accessible, unless it is confidential commercial information and its release would cause undue loss to the business that owns the information.
One provision that distinguishes the B.C. Act from others is the overriding obligation for the government and any other covered body to disclose information in the public interest "without delay". This duty -- which exists even if an access request has not been made -- applies where the information is "about a risk of significant harm to the environment or to the health or safety of the public or a group of people". This duty also applies where disclosure "is, for any other reason, clearly in the public interest". It remains to be seen if this section will actually result in any public interest disclosures, but it has promise.
The Act also introduces extensive privacy protection measures designed to regulate how the government collects, uses and discloses personal information about British Columbians. This aspect of the Act will not bear directly on environmental protection.
The Act provides a right of appeal by disappointed access applicants to an independent Information and Privacy Commissioner. The Commissioner is appointed for one 6 year term only by the Legislative Assembly, not the government. The Act gives the Commissioner extensive powers to investigate matters and to overrule access decisions by government agencies. The first Commissioner is David Flaherty, who is extremely well qualified for the post.
WCELA staff are pleased that the Act has come into force and are anxious to start using it in their efforts to protect the environment. WCELA will monitor how well the government adheres to the letter and spirit of the Act -- and early signs at least are generally good -- and will lobby for any changes that are needed. It is safe to say, however, that the Act is a powerful new tool for WCELA in its work. Readers are invited to contact WCELA if they have any questions about the Act. An article outlining how to use the Act follows.
-- David Loukidelis, WCELA/WCELRF Board Member
B.C.'s new Freedom of Information and Protection of Privacy Act is now in force. The Act is an important new tool for those of us who are seeking information necessary to protect the environment. However, it is a "tool of last resort," and will be used most effectively as one part of a larger strategy for getting the information we need.
Here is one (very) simple strategy for getting information, recognizing that there are other legitimate approaches.
1. Figure out as precisely as you can what information you want. Note whether it's a specific document(s) you're after (e.g., a report by Smith done in June 1992), or whether you are "fishing" for information you aren't sure exists (e.g., any report by Smith in 1992).
2. Go first to the company or government office that you think is primarily responsible for the information.
3. If you get the information you need, great. If not, ask yourself who else might have the information you're after: a government agency that received a copy of a report done for a company, for example. Repeat the steps above.
4. Still unsuccessful? Remember, when it comes to getting what you want from bureaucracies, PERSISTENCE PAYS!!
5. Each ministry has a Freedom of Information director or manager. It's not strictly necessary, but usually it would be useful to call them to discuss the request before putting it in writing. Ask if he or she can get you the information without a formal request. Ask him or her to help you with the description of the information you are after. Find out what section of the Act he or she gives as the likely grounds for refusing the request (so you can rebut those points in your request). Their names and numbers are listed below. (If you are calling from outside Victoria, remember you can call government numbers in Victoria for free: in Vancouver call 660-2421, elsewhere call 1-800-663-7867.)
6. A request under the Act is very simple:
7. Unlike the federal Access to Information Act, you do NOT have to be a resident of Canada. Nor do you have to send any money with the initial request. If searching or copying will be time-consuming, the Act and regulations allow the government to charge you. Fees of less than $50 are waived, though.
8. If you want, you can include your phone number in the letter so a ministry employee can call you to discuss what information you really want and how you are going to have access to it (looking at it in a government office, having copies sent by mail, etc.) Also, if you want (this is not a requirement), you can include in the letter the reason you want the information. This could help the government employees narrow their search to information you really want. It could also be helpful in establishing a case for a public interest waiver or reduction of fees.
9. Once the government receives your request it has 30 days to respond to you. If you get what you wanted, great!
10. If you DON'T get the information you are seeking, you can make a written complaint to David Flaherty, Information and Privacy Commissioner, Room 224, Parliament Buildings, Victoria, BC, V8V 1X4, Phone: 356-8172, FAX: 356-8172.
11. To get very far in a dispute about access to information you will need a copy of the Act, a 1993 amendment, and the regulations. The Act (and the amendment) is $5.75 plus GST and the regulations are $2.60 plus GST from Crown Publications, 546 Yates Street, Victoria, BC, V8W 1K8, Phone: 386-4636, FAX: 386-0221.
12. Also, a two volume Policy and Procedures manual is being sold for $75 by the Freedom of Information and Protection of Privacy Branch, 553 Superior Street, 2nd Floor, Victoria, BC, V8V 1X4, Phone: 387-1992, FAX:387-1358. A shorter version, called a handbook, will soon be available for $25.
13. Last but not least, the Act requires the government to publish a directory of government information, and this is now being prepared for publication.
14. If you want help with getting environmental information, do not hesitate to contact WCELA at (604) 684-7378 or fax 684-1312. JUSTICE OR JUST US?
Clayoquot protesters were sentenced to jail terms of 45 days or more and fines ranging from $1,500 to $3,000 by the Honourable Mr. Justice Bouck on October 14th, 1993. The judgment says that the protesters "dramatized their concerns by throwing an illegal public tantrum". Here is an excerpt from the reasons for sentencing.
"Democratic rights are not absolute. They are limited by responsibilities. For example, the right to freedom of speech imposes upon citizens the responsibility of avoiding breaches of the laws on libel and slander. Similarly, the right to peacefully protest brings with it the responsibility of avoiding interfering with the rights of others. These concepts come from an age-old biblical commandment: do unto others as you would have them do unto you.
For its survival, democracy asks every individual to behave towards others in a mature and thoughtful way. Individuals caught up in the emotion of a particular issue sometimes to fail to appreciate the significance of their actions because they lose sight of their responsibilities.
"Preserving the dignity of the court is only a minor part of contempt proceedings. The fundamental issue is much deeper. Underneath it all, contempt proceedings are taken primarily to preserve the rule of law. Without the rule of law democracy will collapse. Individuals will then decide which laws they will obey and which ones they won't. Government by the rule of law will disappear. People will then be controlled by the rule of the individual. The strongest mob will rule over the weak. Anarchy will prevail.
"Mr. Justice Wood expressed the idea far more eloquently than me in: Regina v. Bridges (1989) 48 C.C.C. (3d) 545; app. dis. 54 B.C.L.R. (2d) 2723 (B.C.C.A.). That was a case where individuals refused to obey an injunction restraining them from blocking access to an abortion clinic. They were convicted of criminal contempt of court.
"When sentencing for criminal contempt of court, a judge should always consider any apology that is made. That is often referred to as "purging the contempt". Similarly, remorse is a factor in reducing a sentence for contempt. Many of the defendants continued to argue that their actions were justified. They made no apology nor showed any remorse. They were defiant in support of their cause."
It is ironic that Mr. Justice Bouck referred to the anti-abortion protesters case. As in the Clayoquot case, protesters acted from moral conviction. They told the court they were following a higher law. None of the anti-abortion protesters acknowledged that they erred, and none offered the court any assurance that they would not err again. Many of the protesters did not understand the consequences of their actions. Yet the judge in that case imposed suspended sentences. The anti-abortion protesters did not go to jail.
An individual convicted for the first time of a wide variety of criminal offences, including impaired driving, simple drug possession, property offences such as theft and breaking & entering, will not be sentenced to serve time in jail.
Some members of the government are now trying to distance themselves from the convictions and jail sentences resulting from the Clayoquot trial. MLAs Robin Blencoe, Gretchen Brewin, Elizabeth Cull, Andrew Petter and Moe Sihota wrote an open letter to "Constituents of Lower Island" saying that "it was the courts that commenced and conducted action against the Clayoquot protesters, not the government".
But the government is responsible for creating the conditions leading to the protests. The decision to allow logging in such a large part of Clayoquot Sound is not acceptable to many British Columbians. Little is known about the region's unique biodiversity. New improved forestry practices have been promised, but not implemented.
The conflict over Clayoquot demands a political solution acceptable to a wide range of citizens including environmentalists and First Nations, as well as industry representatives.
Rather than trying to absolve themselves of responsibility for jailing the peaceful protesters, the government could take some positive steps. A moratorium on logging should be declared immediately. A representative group of affected parties should be chosen to try to come up with a solution. Environmentalists and First Nations representatives will likely participate in negotiations if logging is halted. And some members of the concerned public, not associated with any specific interest group, should also take part in the negotiations. Government members must realize by now that the letters of protest over Clayoquot that have flooded their offices come from individuals of all political stripes. The people of B.C. want this decision changed.
WCELRF Newsletter, copyright 1993, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Morgan Ashbridge, Glenna Forrest, Ann Hillyer, Catherine Ludgate, Linda Nowlan, Carol Reardon, and Chris Rolfe. Subscription information is below. 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.