Vol 18:6
Jan 20, 1995
West Coast's Environmental Legal Information Base — ELIB — can now be accessed by anyone in the world via the Internet, announced WCELRF lawyer Bill Andrews at a January 10 meeting of the Environmental Law Section of the Canadian Bar Association, BC Branch. Previously, a single user at a time could dial directly into the WCELRF office to use ELIB by modem. Now, an unlimited number of people can use ELIB at once, without incurring long distance phone charges. In addition, ELIB has direct links to dozens of other sources of environmental legal information on the Internet.
Currently ELIB on the Internet contains WCELRF publications and newsletters. Over the next few weeks, the rest of ELIB's collection of statutes, catalogue references and publications of other organizations will be put on the Internet, along with interactive collections on protection of private land and environmental assessment.
ELIB is a World Wide Web site hosted by the Vancouver Regional FreeNet Association (VRFA). ELIB's URL (location) is "http://freenet.vancouver.bc.ca/local/wcel/". Using a World Wide Web browser such as Mosaic, Netscape or Lynx, select File, Open or GoTo to browse this URL. Users are encouraged to send an e-mail message with comments and suggestions to WCELRF, using the link on the ELIB home page.
Getting Access to the Internet
To use the Internet you need to have a computer and a modem to connect your computer to a phone line. You also need the services of a company or a university that provides Internet access. Shop around, because the prices, price structure and level of user support vary considerably. If you already use the Web environmental computer network, you can now access the Internet from the Web menu.
Another alternative is to use one of the FreeNets — such as the VRFA — that provide access to the Internet (not all do). To reach the VRFA, use your modem to dial 604-222-4723. You'll have to mail in a signed user agreement to get Internet access. It's free to use, but you are encouraged to join the VRFA to help support it.
At first glance, nuclear power might seem an attractive alternative to China burning its vast coal reserves to fuel its burgeoning economy. If China were to burn all of its coal, it could lead to environmental disaster. The reason? Burning coal not only causes air pollution; burning coal, or any other fossil fuel, inevitably releases carbon dioxide, the major contributor to global climate change.
China is already the world's third largest carbon emitter. If China's 1.1 billion people used as much energy per capita as Canadians, the earth's atmosphere simply could not handle the increased carbon dioxide emissions.
But selling nuclear to China is not the answer.
Advocates of nuclear argue that increasing power generation from nuclear sources will reduce greenhouse gas emissions. Even so, nuclear is not the solution.
First, the economics make no sense. Nuclear is dying technology because it is simply too expensive. Even if one ignored all the costs of waste storage and cleaning up used reactors, increasing energy efficiency — such as replacing outmoded, polluting technology with efficient machinery — and investing in truly clean sources of electricity are far cheaper than nuclear.
And, second, the environmental problems are abundant — risk of accidents, long-lived dangerous wastes, threats to human health, uncertainty about decommissioning -- not to mention the dangers of having nuclear technology used to develop weapons.
The better alternative — that provides huge business opportunities for Canada — is to aggressively develop energy efficiency technology and vigorously market the technologies already proven successful. Much of it can be installed quickly with minimal risk and relatively cheap initial investment, achieving dramatic reductions in carbon dioxide emissions within the time it takes to build a nuclear reactor. Improved efficiency allows both industrialized and developing countries to develop their economies without increasing greenhouse gas emissions. Technologies for truly renewable sources of energy — wind, solar, and geothermal — also must be supported.
This is what we should be selling as the alternative to fossil fuels. And we could save money by using the technology, make money selling it, and solve a major global environmental problem, all at the same time. So why is Team Canada selling the wrong product?
— Ann Hillyer
Final Argument by Rivers Defense Coalition at Phase IV Hearings on the Kemano Completion Project.
This Commission clearly has jurisdiction to recommend that water be released from Kenney Dam in excess of the minimum flows provided for in the 1987 Settlement Agreement. Should such a recommendation lead to Alcan asserting claims for compensation against the Provincial Government, that is a matter to be dealt with by the Government. It is not a matter to be considered by this Commission. The members of this Commission must address the issues of minimum flows required for the protection of fish and other values with all thoughts of the legal effects of the various agreements with Alcan erased from their minds.
Should such thoughts nevertheless intrude, then it must be remembered that there are serious challenges to the legal validity of the 1987 Settlement Agreement. Consequently, the extent to which Alcan can rely on the Settlement Agreement to assert compensation claims against the Government of British Columbia is doubtful.
As to the Federal Government, there is confusion on behalf of the Minister and his legal advisors as to just what the 1987 Settlement Agreement means. Mr MacDonnell says that section 6.15 of the 1987 Settlement Agreement means that the Minister of Fisheries and Oceans can exercise his jurisdiction under section 20(10) (now section 22(3)) of the federal Fisheries Act to require the release of more water for the protection of fish even if, at the time, Alcan is in full compliance with all its obligations under the 1987 Settlement Agreement. All that would be necessary to get the Minister to make an order requiring the release of more water than the 1987 Settlement Agreement calls for would be evidence convincing him that more water needs to be released from Kenney Dam for the protection of fish. The Rivers Defense Coalition believes that this Commission will have to find that the evidence before it establishes that the minimum flows provided for in the 1987 Settlement Agreement will have a harmful effect on fish that will not be offset by mitigation measures. Such a finding by this Commission would surely prompt the Minister of Fisheries and Oceans to reconsider the letter of September 14, 1987, to David Morton of Alcan in which the Minister of Fisheries and Oceans stated that he was at that time satisfied with the fish protection measures contained in the 1987 Settlement Agreement.
If Mr MacDonnell was wrong, and if section 6.15 of the 1987 Settlement Agreement preserved the Minister's power to order the release of more water for the protection of fish only if Alcan were in breach of the provisions of the 1987 Settlement Agreement, then the Minister of Fisheries and Oceans faces a dilemma. In this event, the 1987 Settlement Agreement truly has brought about a fettering or an unlawful delegation by the Minister of his section 22(3) powers.
With these legal considerations out of the way, it is appropriate to deal with economic considerations. Just as the Commission should put aside legal constraints, so too it should ignore economic considerations. It is not within the Commission's mandate to evaluate tradeoffs between the value of lost fish production on one hand and of lost power production on the other. Even if it were, there is absolutely no evidence to the effect that energy values outweigh the value of water flows for the Nechako watershed. In fact, the evidence goes in the opposite direction. Alcan made no attempt to provide a comprehensive weighing of social costs and benefits as an offset to energy values. Rivers Defense Coalition evidence, on the other hand, was that a full cost accounting would more likely favour the Nechako's interests than Alcan's. The reason why Rivers Defense Coalition led evidence to show how a proper cost accounting should be carried out was to counter any attempt by Alcan to argue that power benefits themselves would justify the Kemano Completion Project.
However, in the end, it is not the legal and economic considerations that the Commission must evaluate. The important issue -- in fact the only issue -- is whether the Commission can accept a project that puts fish stocks and other ecosystem values at risk with so little assurance that an untried combination of mitigation measures can offset this risk. Alcan says that it guarantees the survival of the fish. This is a gross example of the anthropocentric view that mankind can and should bend nature to its will. Certainly there will be fish. But will they be like the remnant salmon of the Columbia River or the decimated cod of the East Coast?
East Kootenay Environmental Society and Lake Windermere Resorts Ltd
WCELA's Environmental Dispute Resolution Fund recently assisted the East Kootenay Environmental Society (EKES) in attempting to protect a wetland in Invermere. The wetland in issue was a fifteen acre parcel of crown land at the north end of Windermere Lake which had been sold to a development company. The difficulties encountered illustrate numerous legal deficiencies which exacerbate problems associated with protection of wetlands.
Prior to the disposition of the land, a restrictive covenant was registered against the land. The covenant required a development plan to be in place prior to improvement of the land. The development plan was expected to be prepared following the completion of studies of the environmental risks associated with developing the site. No such plan was ever prepared and apparently no studies were undertaken to assess the suitability of the land for intensive development.
Lack of Action by the Water Management Branch and the District: In the absence of a permit, the developer began dumping fill onto the land. Although the land is privately owned, a permit was necessary because the provincial government retains control over water in the province. Initially, the Water Management Branch took the view that the water on the land was not water regulated under the Water Act. Therefore, the Water Management Branch did not require that the developer have a permit of any kind to infill.
EKES requested that the developer be required to obtain a permit. Pressure was exerted on the office of the Comptroller of Water Rights, and an approval to fill was eventually issued.
The District of Invermere, by council resolution, had endorsed the infilling of the land. The approval at the provincial and district levels had been given without assessment of the potential environmental impacts and in the absence of sufficient public notice and consultation.
Appeal of the Approval: EKES obtained funding from the Environmental Dispute Resolution Fund to hire a lawyer to assist in challenging the issuance of the approval for the filling of the wetland.
The appeal of the Regional Water Manager's decision was to the Comptroller of Water Rights, however the Comptroller refused to consider the matter until submissions had been received as to EKES's standing to appeal. EKES asked the Comptroller to reconsider, however this request was denied. EKES appealed the Comptroller's decision to the EAB and requested a stay. Pending the appeal, the EAB issued a stay to stop the filling of the wetland area.
Difficulties in Enforcing the EAB Stay: The developer, upon receiving a copy of the stay order, confirmed in writing that the developer had no intention of complying with the stay and would be challenging the jurisdiction of the EAB to issue the stay.
EKES applied to court for an injunction restraining the developer from continuing to deposit fill on the site in contravention of the stay. The court dismissed the application, deciding that it did not have jurisdiction to enforce the stay issued by the EAB. The judge stated that if the EAB had the power to order the stay, it must also have the power to enforce noncompliance. Therefore, the court held that the problem should be resolved outside of the court system.
EKES continued its efforts to determine whether the Comptroller would take steps to prevent the developer from continuing the fill, in light of the fact that the approval had been stayed. The applicable statutes (the Water Act and the Environment Management Act) do not specifically provide enforcement powers to the EAB. However, the powers given to the EAB are without significant force if the EAB is unable to ensure compliance with its orders.
Counsel for the EAB applied to the court for an injunction enforcing the stay. The EAB's injunction application was successful. An interim injunction was issued pending hearing of the matter before the EAB.
On the same day that the injunction application was heard, a letter from counsel for the Comptroller of Water Rights was received by counsel for EKES. The letter indicated that the Comptroller did not intend to enforce the stay ordered by the EAB. The Comptroller had the power under the statute to stop the filling of the wetland but decided to allow it to continue despite the EAB order. This failure of the subordinate decision-making authority to act required the EAB to obtain a court order enforcing its decision.
The Hearing before the EAB: The EAB held a hearing at which the developer and the Ministry of the Attorney General (representing the Water Management Branch) argued that the EAB had no jurisdiction to issue a stay; that EKES had no standing to appeal under the Water Act; that no appealable decision had been made and that the stay should be lifted. The Chair of the EAB decided that while the EAB had jurisdiction to issue the stay and the applicant had standing , the stay should be vacated based on the developer's assertion that the wetland was already substantially filled and that there was nothing left to protect. The decision to vacate the stay for this reason was disappointing because the evidence presented by EKES indicated that a substantial amount of the fill was placed on the site after the stay had been issued, as a result of a decision by the developer to disregard the stay. The EAB also decided that any damage caused by the filling could be compensated through the payment of damages by the developer. However it is difficult to determine to whom damages would be payable. It would also be hard to calculate appropriate damages as it is uncertain how the value of habitat on the site would be determined, particularly in the absence of an environmental assessment of the site prior to commencement of the filling.
Further Court Action: On November 24 and 25th, the office of the Attorney General argued that the developer should be held in comtempt of court for refusal to abide by
the EAB's order. At the same time, and in spite of the fact that the EAB had vacated its earlier stay order, the developer brought an application for judicial review of the EAB's decision in the case. Although the developer's letter indicating refusal to obey the stay was entered in evidence, the court refused to find the developer in contempt of the EAB order. The court was not convinced that fill had actually been deposited in contempt of the EAB order. The developer's petition for judicial review of the EAB's order was dismissed.
Implications of the Decision: The wetland was not protected despite the substantial efforts made by EKES. However this decision could be important with regard to the usefulness of the Water Act to environmental protection issues. It may be the first time that a public interest group has ever been granted standing under the Water Act. The decision also reverses the EAB's policy against granting stays of permits issued by the Water Management Branch. At the contempt and judicial review hearing held in BC Supreme Court, Justice MacKinnon, in considering the review of the EAB's decision commented that when the EAB vacated the stay, the findings of fact and law made would no longer have any force nor effect. However, the court did not find that the EAB did not have jurisdiction to issue a stay or that EKES should not have been given standing. The EAB may therefore choose to continue to follow the EAB Chair's findings regarding the issues of standing and jurisdiction.
In addition to the comments made regarding standing and jurisdiction, the EAB was critical of the actions of the Regional Water Manager. This may be of significant assistance when the Water Management Branch is considering the issuance of permits to fill wetlands in the future. The decision may make it unlikely that the Water Management Branch will issue this type of permit in the future without first seeking public comment. The decision could also result in the Water Management Branch requiring environmental assessments prior to issuing permits. Although the wetland was not protected on these facts, the efforts made in this case could provide long term benefits to the environment of British Columbia, and to those seeking to protect it, for years to come.
The EAB's Existing Powers: The case illustrates the current inadequacies in the statutory provisions outlining the EAB's powers. It is imperative that this problem be rectified in order to clarify the role and powers of the EAB. Some of the concerns which arose in this case have been addressed in the draft B.C. Environmental Protection Act ("BCEPA"). However it is uncertain when or if BCEPA will become law. Further, BCEPA does not apply to the Water Act. WCELA has written to the Minister of the Environment requesting that the proposed changes to strengthen the EAB's powers be brought into effect without delay and that the changes be applicable in all cases where matters are appealable to the EAB.
— Patricia Houlihan
WCELRF, 1001 - 207 West Hastings, Vancouver, B.C., V6B 1H7, Canada. Phone (604) 684-7378; fax (604) 684-1312; email wcelrf@unixg.ubc.ca. Printed on 100% recycled paper (not secondarily bleached or de-inked).
WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, John Gibb-Carsley, Chris Heald, Ann Hillyer, Patricia Houlihan, Matt Jackson, Catherine Ludgate, Linda Nowlan, Denice Regnier, and Kim Stanton. Subscription information is above. West Coast Environmental Law Research Foundation does research and education and maintains an environmental law library. West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of West Coast Environmental Law Research Foundation and West Coast Environmental Law Association 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 West Coast Environmental Law Association and West Coast Environmental Law Research Foundation. Donations to West Coast Environmental Law Research Foundation are tax creditable.