Contaminated Sites Legislation at Last

Provincial Government Quietly Varies EAB Decision In our September 1996 issue, we reported that the Nechako Environmental Coalition had succeeded in its appeal to the Environmental Appeal Board (EAB), resulting in substantial amendments to Canadian Forests Products’ (“Canfor”) air emissions permit. The EAB decision imposed substantially increased monitoring requirements. The Board also held that the monitoring results must be made available to the public and that Phase II of the project could not go ahead until the modelling done by Canfor was redone using the actual data from Phase I. Late last week, we learned that by Order in Council No. 1304, dated November 14, 1996, the Board’s decision had been varied, with no notice to the Nechako Environmental Coalition. The variation from the decision was done pursuant to the rarely used Section 12 of the Environment Management Act. This section allows the Lieutenant Governor in Council to vary a Board order in the public interest. The legal counsel for the Coalition, Wendy Baker, and the EDRF Liaison Lawyer, Patricia Houlihan, are currently examining the ramifications of this Order in Council and are considering a potential judicial review of the decision.

Dear members, This is a big year of change for West Coast. Bill Andrews has resigned after 12 years as Executive Director of West Coast. The search for a new ED has started, and the Board of Directors expects that the new individual will begin work in late spring 1997. We are accepting applications for this position until February 28, 1997. For a job description, please contact Catherine Ludgate at 604 601-2513. I am now serving as the Acting Executive Director. Our dedicated and capable team of lawyers includes Chris Rolfe, Patricia Houlihan, and Kate Smallwood, the BC Endangered Species Coalition Coordinator. Our able office staff remains the same: Catherine Ludgate, Morgan Ashbridge, Alexandra Melnyk and Chris Heald. We want to keep our members informed and up-to-date about changes at West Coast. We are always interested in hearing from you about the environmental legal issues of concern in your community. Please contact me or any of the other staff at West Coast at any time. We appreciate your support and look forward to another year of progress in environmental law. Linda Nowlan Acting Executive Director

Dear newsletter readers, There have been a lot of changes (for me at least!) since the last newsletter. I’ve resigned as executive director of West Coast Environmental Law. After 12 years, it’s time for a change! I’m reactivating my private legal practice. I will focus on environmental law, access to information, and policy analysis, from a public interest perspective. I’m setting up an office in our home in Deep Cove (1958 Parkside Lane, North Vancouver, BC, V7G 1X5). My office phone number is 604 924-0921; fax: 604 924-0918; and email: bandrews@direct.ca. The phone and email now work; hopefully, by the time you read this, the fax will too! If anything comes up regarding West Coast files, please contact Linda Nowlan, who is the acting executive director, at 604 684-7378, or by email at lnowlan@wcel.org. I’d like to let you know about a few of the projects I’m now working on. First, I’m giving a presentation on environmental law with a live Internet demonstration at Douglas College on Tuesday, March 18, at 7:00 pm. The general public is welcome. Please contact me for more info. Second, I’m preparing for a March 6-7 meeting of the Canada National Advisory Committee regarding the Commission for Environmental Cooperation (the environmental side agreement to NAFTA). A key issue concerns the agreement on environmental assessment (EA) that Canada, Mexico and the US are now negotiating. Canada and Mexico want transboundary EA to be mandatory. But some of the US states are pressing for the agreement to non-binding. Unfortunately, it will be awkward for Canada to get too high on its horse about the need for a binding agreement when the environmental side agreement itself is not binding on the 8 out of 10 provinces that have not yet ratified it. The third project I want to mention is a report I’m doing for our local school’s stream conservation project. The report will be on how to get affordable copies of the official BC digital base maps of the watershed. (The BC government still hasn’t released its response to the recommendation of the Commissioner of Information and Privacy in the Western Canada Wilderness case that non-profit groups should get a fee waiver.) The base maps will be used as the basis for the planned in-school and out-of-school creek monitoring program. It’s been a privilege for me to have been able to practice law at West Coast Environmental Law. I’d like to thank all of you for your support and your enthusiasm for environmental protection. I look forward to working with you in the future. Regards, Bill Andrews

Bill C-65 – The Canada Endangered Species Protection Act On January 27, 1997, WCELA made a submission on Bill C-65, the draft federal endangered species law, to the Standing Committee on Environment and Sustainable Development in Vancouver. Staff lawyer Linda Nowlan argued that unless a number of crucial amendments are made, the law will not achieve its purpose of saving species. The two main changes we called for were strengthening the Bill’s habitat protection powers and the creation of an effective advance review process to ensure that proposed projects do not harm species or their habitat. Protecting habitat is the key to saving species Habitat loss is the single most important factor affecting species loss in BC. The more habitat that is lost, the more likely it is that species will decline. One of the best ways to protect habitat is to prohibit anyone from disturbing, damaging or destroying the critical habitat of a listed species. Yet the bill does not take this clear step to protect habitat. The main habitat protection provision, Section 32, now states: 32. No person shall damage or destroy the residence of an individual of a listed endangered or threatened species. Residence is defined as “a specific dwelling place, such as a den, nest or other similar area habitually occupied by an individual during all or part of its life cycle” (section 2). Yet many species do not have a specific dwelling place. Habitat is a much broader concept — it is the physical and biological setting in which organisms live and in which the other components of the environment are encountered. Critical habitat is the minimum amount of habitat that is essential to the continued survival and recovery of a species. Without preservation of this habitat, the species will decline, and if no steps are taken to help the species recover, it will become extinct. Saving a species’ “residence” will not save the species. For example, most aquatic species have no specific residence. And only the federal government has the power to protect marine aquatic species, so even improved provincial endangered species laws cannot address this problem. An example of a marine species requiring habitat protection is the endangered North Pacific Right Whale, whose population is believed to be declining. And many specific salmon stocks also require more habitat protection. Currently, experts estimate that 624 stocks are at high risk, and 142 stocks have already been lost in BC. Endangered migratory birds, another type of wildlife that is clearly a federal responsibility, also need more habitat protection. The Migratory Birds Convention Act 1994 protects the nests, eggs, and shelters of the birds, but does not protect the broader range of habitat required by these species. And many migratory birds are not listed under that Act (such as bald eagles, spotted owls and falcons) and so will have no additional protection from Bill C-65. Endangered plants are another example of species requiring critical habitat protection. It is impossible to protect the “residence” of a plant. To remedy this problem, the definition of “residence” should be deleted from Section 2, and the term “residence” should be replaced with “critical habitat” in Section 32. Advance review is the key to cooperative solutions for endangered species As many witnesses at the Vancouver hearings explained, it is important to use a cooperative approach to species protection whenever possible. One of the best ways to do this is through an “advance review” process, whereby proposed projects that may jeopardize the continued survival of endangered species, or result in destruction of critical habitat, are subject to review to see if these projects should proceed or if alternatives are available. But Section 49, the Project Review, does not take this cooperative approach. The process proposed by Bill C-65 is too restricted — it will not apply to many, if not most, of the proposals that may harm a species at risk or its habitat. West Coast Environmental Law argued that this section should be amended so that any proposal which has the potential to harm listed species or their habitat undergoes advance review. Section 49 currently requires any project that is already subject to a federal environmental assessment review under the Canadian Environmental Assessment Act (CEAA) “to identify the effects of the project on the wildlife species and its critical habitat, to lessen the effects and to monitor them.” But this is not an obligation to avoid harmful effects. And, more important, activities which are subject to review under CEAA are not the only activities which will harm an endangered species or its habitat. New urban developments, logging practices, wetlands destruction, agricultural practices and road building, for example, are all activities which can harm species and destroy habitat but are not subject to either federal or provincial environmental assessment procedures. The simplest way to accomplish advance review of all projects that may jeopardize endangered, threatened or vulnerable species or their habitat, is to require a permit for any federal activity or project that has the potential to harm listed species or their habitat and to then add Sections 46 and 47 of this Act to the Law List Regulations under CEAA, so that an environmental assessment review takes place before a permit is granted. The Committee will consider making amendments to the Bill this week. For more information on Bill C-65, or for a full copy of WCELA’s brief, please call Linda Nowlan at 604 601-2509.

BC Endangered Species Coalition Comes Out in Force at Vancouver Hearings On January 27, 1997, the BC Endangered Species Coalition and several of its member organizations made submissions to the federal Standing Committee on Environment and Sustainable Development. The Standing Committee was in Vancouver to conduct public hearings on Bill C-65, the Canada Endangered Species Protection Act. Coalition members started the Vancouver hearing with submissions from Kate Smallwood (the Coalition’s Campaign Coordinator), Linda Nowlan (West Coast Environmental Law) and David Boyd (Sierra Legal Defence Fund). Later in the day, submissions were also made by Anne Murray (Federation of BC Naturalists) and Vicky Husband (Sierra Club of Western Canada). Key concerns raised included: the bill’s failure to protect critical habitat; the fact that scientists, rather than politicians, will make the final decision on listing species; the failure to include any requirement to implement recovery plans for listed species; no automatic protection for trans-boundary species; the limited geographic scope of the Bill; and, the failure to provide for advance review of projects which will affect a listed species or its habitat. The submissions were extremely well received, and several matters raised were then cited to forest, industry and hydro presenters later that day. In making their submissions, Coalition presenters focused on how Bill C-65 will affect BC. As currently drafted, the federal bill will do little to protect species at risk in British Columbia. Aside from aquatic species and certain migratory birds, the bill is restricted to federal lands, which account for only 1.1 per cent of lands in the province. BC species like the burrowing owl (endangered), the Vancouver Island marmot (endangered), Pacific Giant Salamander (endangered/threatened) and woodland caribou (vulnerable) will not be protected unless they wander onto federal lands. Other news: a recent opinion poll (December, 1996) showed that support for federal endangered species legislation is uniformly strong across Canada, with almost 95 per cent of Canadians in support. Rural communities are consistent with the rest of Canada in expressing a high level of support (92 per cent). The poll also showed strong support for listing decisions made solely by scientists; mandatory habitat protection; protection of species at risk on all lands, not just federal lands; and, federal government protection of cross-border species. Finally, in a statement to the Prime Minister released on February 4, over 300 scientists across Canada have asked the federal government to strengthen Bill C-65. The list of scientists included over 100 scientists from BC. For further information on these matters or endangered species legislation in general, please contact Kate Smallwood, the Coalition’s Campaign Coordinator, by phone at 604 601-2507, or via email at ksmallwood@wcel.org.

Thank you to donors West Coast Environmental Law Research Foundation wishes to extend its gratitude to the following donors who have made a financial contribution between May and December 1996. They are: Benefactors – $500 + Concerned Citizens for Allison Lake, Chris Rolfe, John Taylor Supporters – $250 – $499 Myrna Bosomworth, William and Joan Paterson, Totem Flyfishers Contributors – $125 – $249 William Bahen, Wally Braul, Virginia Glover, Nina Raginsky, Murray Rankin, Mary Reid, PPWC - National, Basil and Gillian Seaton, Susan Washington-Smyth Friends – up to $125 Allan Alderson, Lawrence Alexander, John and Dorie Andrews, Barbara Atkins, Ellen Baar, Wendy Baker, Warren Bell, June Binkert, Gurmeet Brar, Paul Breen, Bob Brett, Myriam Brulot, J.J. Burgerjon, Charles Caccia, Jean Crowley, Allen Darling, Robert & Ruth Ann Darnell, Dorothy Field, Catrina Fortune, Joan Green, Sarah Groves, Thomas Hackney, John J. Hague, Carol Hartwig, Christopher Harvey, Chris Hilliar, Tim Howard, Jason Jakubec, Thea Jensen, John Johnstone-Paterson, Eric Kaufmanis, Inger Kronseth, Keith Lay, Thomas Manson, Patricia Marchak, James R. Miller, James W. Miller, John Milne, Nancy Morgan, Neck Point Park Society, Monica Oldham, Ralph Osterwoldt, Adrienne Peacock, Pender Island Conservancy, Richard G. Pope, PPWC - Local 9 - Prince George, Alan Prenty, John Rich, Harley Rothstein, Frank Seier, Joan Sell, Katharine Steig, Elizabeth E. Wallach, Paul Wickland, Steve Zablosky EDRF Update Friends of Cypress Provincial Park Society The Friends of Cypress Provincial Park Society has received funding from the EDRF for a legal opinion and expert assistance with ongoing negotiations on the Master Plan for Cypress Provincial Park. Friends of Cypress also plans to complete an ecological assessment of old growth within the Controlled Recreation Area. In August of 1995, a draft Master Plan for Cypress Provincial Park was created based on a Special Commissioner’s recommendations for commercial recreational development proposed by Cypress Bowl Recreations (CBR), the development proponent. CBR’s proposed plan would double ski capacity, (from 3,000 to 6,000 skiers a day), and develop a year-round resort. While the new Master Plan will protect 50 acres of previously threatened old-growth forest on Hollyburn Mountain outside CBJ’s permit area, more than 50 acres of ancient forest within their permit area will be logged and 25 acres will be cut on Mount Strachan for downhill runs and a gondola lift. These ski runs will cut through the meadows, wetlands and forests in an area that BC Parks has previously zoned as a “special feature.” Friends of Cypress is attempting to have the government reconsider the Master Plan or, at least, mitigate the impact of the proposed development. Environmental Watch Environmental Watch, which was founded in 1985 to address environmental protection concerns, has focused primarily on pulp mill issues along the BC Coast. Environmental Watch’s current project involves the Howe Sound Pulp and Paper Mill in Port Mellon. Howe Sound Pulp and Paper has applied for an air emissions permit amendment that would increase its sulphur dioxide emissions by 300 per cent and nitrogen oxide emissions by over 80 per cent. If allowed, this amendment would have a significant impact on air quality by increasing fine particulate, which is a major factor in lung diseases and illnesses. A decision on the permit amendment is expected shortly. Funding for Environmental Watch has allowed the group to retain legal counsel to make submissions on the application to increase emissions and appeal the permit, if the amendment is granted. Friends of the Stikine (FOS) The Stikine River is BC’s fifth largest river by flow volume. It is one of the west coast’s last healthy salmon and steelhead rivers and its watershed is home to major populations of grizzly bears, woodland caribou, mountain goat, Stone’s sheep, moose and a broad range of birds and rare plant species. Currently, three major government-based land use planning processes are underway. Non-governmental organizations (ENGOs) such as Friends of the Stikine are not funded for their participation in these consultation processes. The FOS is the only ENGO working exclusively to prevent declining numbers of wildlife and habitat degradation. This EDRF grant will provide continued legal assistance in ongoing communications with government and stakeholders and enable FOS to participate in the assessment process and important regional consultation meetings. Meziadin Lake Fellowship Association Meziadin Lake residents are concerned that development in the Meziadin Lake Provincial Park campground (just east of Stewart) resulted in heavy silt run-off damaging sensitive salmon spawning grounds. The Department of Fisheries and Oceans was concerned that work violated Section 35(1) of the Fisheries Act (which deals with the destruction or degradation of fish habitat). As a result, the DFO ordered that work cease. Three days later, work resumed. In an attempt to protect fish habitat, the Association has met with representatives of DFO, the Ministry of Environment, Lands and Parks and the developer. EDRF financial assistance has provided legal assistance and an expert opinion. If these steps are unsuccessful, the group may launch a private prosecution. Friends of Boundary Bay/Fraser for Life Society The Society had received previous EDRF funding to assist in their efforts to protect the Roberts Bank saltmarsh threatened by construction of a sewage treatment plant in the Tsatsu Shores development. In August 1996, the Department of Indian Affairs and Northern Development refused to approve the sewage treatment plant on the grounds that the use of the site could cause significant environmental impacts. Nearly five months later, the Tsawwassen First Nation appealed to the court for an extension of the deadline to seek judicial review of DIAND’s August decision rejecting the water and wastewater treatment plant. EDRF funding will allow the Friends to apply for standing to participate in the court challenge. CANDU Reactor Decision Challenged The Sierra Club of Canada, with funding assistance from the EDRF, has launched a legal challenge of the sale of CANDU nuclear reactors to China, a deal made possible by over $1.5 billion of Canadian government financial assistance. The group will argue in Federal Court that the decision to sell the reactors must be assessed under the Canadian Environmental Assessment Act (CEAA). Despite the fact that the Regulatory Advisory Committee to CEAA had drafted a consensus regulation to address environmental assessment procedures for overseas projects with Canadian government involvement, including those funded by Canadian tax dollars, the federal Cabinet met the evening of November 6th and brought in a different regulation which exempts the sale of the CANDU reactors from any assessment. This regulation came into force on the very next day, November 7th. This complete disregard for the work of the Regulatory Advisory Committee was further exacerbated by the regulation not being made public until it was published in the Canada Gazette on November 27th. This aspect of the case is particularly troubling, since West Coast lawyers have participated in the Regulatory Advisory Committee for CEAA since its inception. This case should be of concern to all Canadians, since the federal government has made a mockery of the extensive consensus-based regulation-making process that has been an integral part of CEAA . Significant issues that the case will address include: how CEAA will be applied to projects physically located outside Canada, the nature of the “financial trigger” for federal environmental assessment, the timing of the requirement for environmental assessment — when is “as early as is practicable in the planning stages of the project,” and, potentially the effect of the exemption of Crown Corporation activities from environmental assessment. Donations to the West Coast Environmental Dispute Resolution Society are tax deductible and go to support work on issues such as those in this summary. For more information regarding any EDRF cases or how you can make a donation, please contact Patricia Houlihan at 604 601-2508 or at 1 800 300-WCEL, or by email at phoulihan@wcel.org.

From the lawyers' desktops Linda Nowlan presented a brief to the Federal Standing Committee on Environment and Sustainable Development on Bill C-65, the Canada Endangered Species Protection Act. Linda is also completing a project on fish, fish habitat and fisheries management for the provincial Ministry of Environment, Lands and Parks with Hillyer Atkins in Victoria. She joined the Habitat Loss Working Group of the Puget Sound-Georgia Basin International Task Force and is assisting with preparation of a work plan for the group. Linda will also be temporarily in charge of most of Bill Andrews’ files, and is working with the Board Search Committee to hire a new Executive Director and to hire a junior contract lawyer for a 6 month period. Chris Rolfe has been active in a number of arenas including the Steering Committee of the BC Greenhouse Gas Forum and the Canadian Global Change Program’s workshop on Economic Instruments and Greenhouse Gases. Chris presented a paper on the use of administrative penalties for environmental law enforcement to a Canadian Council of Ministers of Environment workshop on economic instruments; spoke to Vancouver City Council on its Draft Transportation Plan; and, was a member of a panel at the UBC Environmental Law Conference on corporate environmental voluntarism. He has completed briefs on federal approaches to vehicle emissions standards and the Canada-BC Environmental Assessment Cooperation Agreement. He assisted the CAN Cooperative Auto Network in establishing its innovative program for reducing car use. Patricia Houlihan has been working with Wendy Baker, counsel for the Nechako Environmental Coalition, in determining the best course of action with regard to the Order in Council varying the Environmental Appeal Board decision in the NEC appeal, an EDRF file discussed in this Newsletter. She has also been working with another environmental group on a file which has not yet received EDRF funding, but which involves important issues of public notice and standing. Work on the environmental protection issues associated with pulp mill sludge usage also continues. Kate Smallwood, the Campaign Coordinator for the BC Endangered Species Coalition, has been very active organizing member submissions and writing the Coalition’s submission to the federal Standing Committee on Environment and Sustainable Development on federal endangered species legislation. The Committee recently held hearings in Vancouver on Bill C-65, the Canada Endangered Species Protection Act. Kate also made a verbal submission at the Vancouver hearing, along with West Coast’s Acting Executive Director, Linda Nowlan, David Boyd (Sierra Legal Defence Fund), Anne Murray (Federation of BC Naturalists) and Vicky Husband (Sierra Club). The federal legislation is expected to be tabled for third reading in the next month.

WCELRF, 1001 ­ 207 West Hastings, Vancouver, BC, V6B 1H7, Canada. Phone (604) 684­7378; fax (604) 684­1312; 1-800-330-WCEL; email: admin@wcel.org; home page: http://vcn.bc.ca/wcel/ NEWS from West Coast Environmental Law (ISSN #1204-4326), copyright 1997. Printed on 100% recycled paper (not secondarily bleached or de-inked). Published by the West Coast Environmental Law Research Foundation and represents the work of the non-profit West Coast Environmental Law Groups: West Coast Environmental Law Research Foundation (WCELRF) does research and education and maintains an environmental law library. West Coast Environmental Law Association (WCELA) provides legal representation and promotes law reform. The West Coast Environmental Dispute Resolution Fund Society (WCEDRFS) provides assistance and funding to citizens to help solve environmental problems in their communities. The mission of the West Coast Environmental Law groups 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. West Coast staff and project workers are: Morgan Ashbridge, Chris Heald, Patricia Houlihan, Catherine Ludgate, Alexandra Melnyk, Linda Nowlan, Peter Ridder, Chris Rolfe, and Kate Smallwood. ___ Yes! I want to be a member and receive NEWS from West Coast Environmental Law. Here's $20. ___ Yes! I want to make a tax-creditable donation. Here's my cheque for: ___ $50 ___ $75 ___ $100 Name: ______________________________ Address: ____________________________ City, Prov: ___________________________ Postal Code: _________________________ [ Volume 20 Newsletter Index ]