World Trade Organization Meeting in Seattle — Be There! On November 30 this year, delegations from more than 130 nations will convene in Seattle for the next ministerial meeting of the World Trade Organization (WTO). The meeting will provide an important opportunity to assess the impacts of international trade and investment rules that are now frequently being used to discourage, and even attack, government efforts to preserve biodiversity, foster community economic development, and protect ecosystems. Since the creation of the WTO nearly four years ago, the powerful trade dispute resolution system it presides over has been invoked successfully to challenge US clean air regulations, marine mammal protection legislation and European food safety laws. Canada, which employed these WTO procedures in a successful assault on Europe's ban on the sale and importation of hormone-fed beef, has recently filed another complaint — this time to challenge a ban on asbestos established by France. Yet the WTO is still an institution shrouded in mystique. Moreover, the highly secretive norms of international trade negotiations have done little to engage the broader community in debate about international trade rules that now exert enormous constraints on public policy options concerning everything from health care and culture,to environmental protection. West Coast is committed to developing a base of knowledge about, and an environmental analysis of, the threats posed by this global agendas a step to reforming trade policy and law to support rather than undermine the goals of environmental protection and resource conservation. If you want to know more about the WTO, you will find our Environmental Guide to the WTO on our website, at www.wcel.org.

 

Citizen Holden Champions the Chemainus On February 9, the federal Crown stayed, or ended, a private prosecution brought by Robert Holden against Fletcher Challenge. The Crown's intervention is the latest — but not last — effort by Holden to hold Fletcher Challenge's Crofton pulp mill accountable. Holden intends to appeal the Crown's stay. The Importance of this Prosecution For decades, the Crofton pulp mill has diverted water from the Cowichan River to its pulp mill. As part of that process, the plant filters out the sludge and then dumps it into the Chemainus Estuary with a two kilometre long pipeline. Holden says that the sludge has effectively killed twenty hectares of what was some of the most pristine estuary habitat in the Strait of Georgia; he says that it is a desert today. In many places, the sludge is one to three metres thick and has smothered all habitat. Holden, who served in the RCMP and is a retired logger, has lobbied for years to get the mill and provincial and federal regulators to stop the dumping and start cleaning up this valuable habitat. There has been no enforcement or remedial action. In fact, the province gave the mill a broad permit in 1991 to dump in the Estuary. Holden finally decided to launch a private prosecution in July 1998. He charged Fletcher Challenge for dumping deleterious substances into fish-bearing waters and destroying fish habitat under the federal Fisheries Act. The case is not just about a frustrated citizen taking on a pulp mill. Holden's prosecution questions the so-called "one window" policy which presumes that a provincial permit provides immunity in the face of a federal offence. This policy, Holden argues, is an aberration of Canada's constitution and is code language for deregulation. Holden says that obtaining a provincial permit does not excuse Fletcher Challenge's failure to obtain the necessary federal approvals. Fletcher Challenge should, as all citizens in Canada, comply with both federal and provincial law. Holden argues that [t]he prosecution, had it not been stayed, would have provided a rare view through the one-window talks held behind closed doors. We fully anticipated that the pulp mill would call federal and provincial regulators to testify on its behalf — a very unsavoury prospect for government. The Private Prosecutor's Evidence Holden had planned to call Otto Langer as a witness. Langer is a habitat specialist at the Department of Fisheries and Oceans. In the summer of 1997, Langer conducted a site investigation and wrote a scathing report about the widespread destruction of habitat caused by the sludge. Holden also had plans to call other experts and a local resident to testify about the effects of the sludge. The Stay on February 9 The federal Crown appeared in Duncan provincial court and announced that it was staying Holden's prosecution. The Crown has the right to do so under the Criminal Code. The Code, however, is silent on whether the Crown must give reasons for a decision to stay. The Crown did not give substantive reasons for the stay, other than to say that there was "no substantial likelihood of conviction." Holden's counsel requested the provincial court to require the Crown to give more substantive reasons. Holden's counsel argued, in part, that the administration of justice would be brought into disrepute if the Crown prosecutor did not give reasons for his decision to stay the proceeding. Holden's counsel also used the reasoning reflected in Commissioner Stephen Owen's 1990 report, Discretion to Prosecute Inquiry, in which he stated: …where the Crown intervenes to stay proceedings initiated under the lower test by the police or a private individual, on the basis of no substantial likelihood of conviction, then adequate reasons should be provided to the police, private prosecutor or public, as appropriate, to explain the standard applied and the inadequacy of the evidence to meet it [emphasis added]. The court denied Holden's request for reasons on jurisdictional grounds. Holden's Next Steps Holden has now instructed counsel to launch an appeal to the Supreme Court of British Columbia. He believes that the Crown, as any other statutory decision-maker, must provide reasons to support a decision to stay. He will also appeal the judge's ruling that he lacks jurisdiction to order the Crown to give reasons. Holden has filed an application under the federal access to information legislation to obtain all records and documents pertaining to discussions held between federal and provincial civil servants as well as discussions held with Crown Counsel. Holden is determined to unearth how decisions are made which allow the destruction of twenty hectares of prime estuary habitat. The Role of West Coast Environmental Law West Coast Environmental Law's Environmental Dispute Resolution Fund (EDRF) has long provided a supportive role for the Cowichan Estuary Preservation Society, of which Holden is vice-president. EDRF funding, for example, assisted the Society in obtaining a precedent-setting decision from the Supreme Court of British Columbia on the provincial government's duty to disclose information provided to it by industry. The EDRF then funded the Society's efforts to resolve matters prior to the private prosecution. It is currently providing funding for the private prosecution and appeal, recognizing the broad implications of this case. Waldemar Braul, Counsel to Cowichan Estuary Preservation Society Crematoria and Hovercraft: The West Coast Environmental Dispute Resolution Fund at Work With the generous support of the Law Foundation of British Columbia, the West Coast Environmental Dispute Resolution Fund (EDRF) has supported grassroots and community organizations by providing legal and expert assistance to resolve environmental disputes. EDRF funding has been instrumental in helping shape and address issues of local concern. Some of the cases funded by the EDRF in the past year include: Better Environmentally Sound Transportation (BEST) In June 1998, the Premier announced an immediate expansion of the SkyTrain, a single line that now shuttles between downtown Vancouver and the southeast suburbs of Surrey, with the proposed expansion travelling from Vancouver to the unserviced suburbs of Burnaby, Coquitlam, and Port Moody. To ensure that the Skytrain extension could be fast-tracked, the government amended the environmental assessment regulation that would have required an environmental review of the project. Instead, a Special Commission on Skytrain Review has been appointed as a substitute process for public consultation. BEST has been instrumental in organizing a coalition of environmental and transportation advocacy groups to influence this review. With EDRF funding, BEST has retained legal counsel to provide input into the review process, discussions with the Greater Vancouver Transit Authority, and public hearings. BEST's goal is to ensure that the Skytrain extension is undertaken in the most environmentally responsible manner. To date, the coalition has had a high degree of success in making the public aware of the implications of the project and in shaping the consultation process. Adeline Place Residents Group In September 1997 the provincial government granted First Memorial Funeral Services a certificate to operate its crematorium. First Memorial Funeral assured both government and local residents that the crematorium would be state-of-the-art and would not pollute yet, since beginning operation, the crematorium has regularly contaminated the neighbourhood with dense black smoke. The EDRF funded the Adeline Place Residents Group to obtain a legal opinion on options available to address the air quality problems associated with the crematorium emissions. As a result of the group's efforts, First Memorial was ordered to stop its emissions by the Ministry of Environment, but appealed the order to the Environmental Appeal Board. After pressure from the Attorney General's office, Ministry of the Environment, residents and with the help of MLA Andrew Petter, the crematorium voluntarily closed the unit while they upgraded their equipment, and ultimately dropped their appeal. Adeline Place residents also used their situation to lobby for an opportunity to review a draft regulation governing crematorium emissions, and in this case, the EDRF-funded lawyer was invited to comment on the draft regulation. Friends of the Stikine Friends of the Stikine (FOS) have been concerned about protecting the Stikine watershed for nearly twenty years. Their primary concern is the increasing levels of industrial development activity in the watershed, such as mining, logging, commercial recreation, and road building. With EDRF funding, the Friends were able to complete a scientific study on the effects of a hovercraft being used by Cominco to transport gold ore to Alaska. The study proved that Coho (and other fish) were being killed and their habitat was being destroyed, and resulted in Cominco withdrawing the use of the hovercraft. An EDRF-funded lawsuit was begun by Friends, but was subsequently denied because of "officially induced error" concerns by the Attorney General, even though both the Department of Fisheries and Oceans (DFO) and the Solicitor General's cover letters admitted damage to fish and fish habitat due to the hovercraft. EDRF also funded research by FOS into the prospects of launching a judicial review, under the NAFTA environmental side agreement, of DFO's apparent inability to enforce the Fisheries Act on the Iskut and Stikine rivers. The EDRF also funded FOS participation in the Land and Resource Management Plan process for the region before government participant assistance funding was made available. As part of this effort, the group has campaigned to increase public awareness about the effects of mining, road building, and industrial logging in the boreal forests of the region, including wildlife and water quality impacts. What We Do The EDRF has funded numerous other cases and activities in the past year, addressing a range of environmental and legal issues, including air and water quality concerns; the environmental impacts of land use and municipal planning practices; parks protection; private prosecutions; the adequacy of landfill siting processes; and, appeals of various permits issued by government ministries. The EDRF is available to assist community groups throughout the province in resolving environmental disputes and using the law to better protect the BC environment. If you are aware of any issues in your community, or if you work with an organization that would like to use the law in this manner, please get in touch with us, and we'll see if we can help. Legal mechanisms are often an effective means to ensure protection of our environment. To learn more or to make an application, contact Karen Campbell, EDRF Liaison Lawyer, at (604) 684-7378, 1 800 330WCEL if you are outside the Lower Mainland, or by email at kcampbell@wcel.org. Karen Campbell, EDRF Liaison Lawyer and Cynthia Linderbeck, Administrative Assistant WCEL's Guide to Forest Land Use Planning A comprehensive guide to the laws, regulations and policies governing forest land use planning in British Columbia Our Guide to Forest Land Use Planning provides a comprehensive reference for forest land use planning. It will be of interest to community groups, environmentalists, government, labour, First Nations, students, industry and other members of the public. The Guide addresses the multiple levels of forest land use planning. It explains how each of these levels of planning relate to one another and how they affect forest practices on the ground, such as timber harvesting. Both the theory and recent experience of strategic land use planning in BC are discussed. The Guide also includes summaries of regional land use plans and Land and Resource Management Plans. The Guide explains higher level plans under the Forest Practices Code. It also reviews operational planning, which includes forest development plans, silviculture prescriptions, stand management plans, range use plans and logging plans. The Guide examines over thirty land use designations that could be applied to public forest land in BC. Designations such as "park" or "ecological reserve" allow certain activities to occur, while explicitly restricting or prohibiting others. The final component of the Guide is a synopsis of the provincial and federal legislation that affects forest land use decisions. Examples in the Guide include the provincial Park Act and Wildlife Act and the federal Fisheries Act. Distribution The Guide to Forest Land Use Planning will be distributed free of charge to a number of libraries, post-secondary institutions, environmental groups, First Nations, government offices, labour groups and industry organizations this month. It will also be available to the general public. Additional copies of the Guide to Forest Land Use Planning can be ordered through our office for a nominal fee of $22 for West Coast members, $25 for non-members. It will also be available from our website at www.wcel.org. The Guide is one component of West Coast Environmental Law's outreach program on forestry law and policy. Combined, the Guide and our community outreach will provide you with accessible information about BC's land use planning processes. Our goal is to provide tools that you can use to facilitate your participation in forest land use planning. For further information or to order the Guide please contact us at (604) 684-7378 or toll free outside the lower mainland at 1 800 330WCEL, or by email at admin@wcel.org. Dear Reader: We're doing a survey of our newsletter readers and would be grateful to you if you can spend a minute answering a few questions. We've included a return envelope for you to mail us this survey. Thanks for your help. We are always interested in our readers' opinions. Is this the first time you've read News from West Coast Environmental Law? Yes. If yes, how did you get this copy?_____________________________ No. How long have you been receiving it?_____________________________ If you have received this newsletter before, do you know why you are getting it? I'm a member or subscriber ____ I'm a donor or supporter ____ Reciprocal arrangement ____ Other: ____ How would you describe how you read this newsletter: I read some, but not all, of it ____ I read most or all of it ____ I don't read it ____ What do you like most about this newsletter? __________________________________________________________________ __________________________________________________________________ What do you like least? __________________________________________________________________ __________________________________________________________________ What other environmental newsletters do you read? __________________________________________________________________ __________________________________________________________________ What other types of articles or issues should we cover in this newsletter? __________________________________________________________________ __________________________________________________________________ What do you see as the biggest threat(s) to your overall quality of life in the next three years? __________________________________________________________________ __________________________________________________________________ What do you think is/are the biggest environmental problem(s) facing us today? __________________________________________________________________ __________________________________________________________________ What action by the federal government would make the most difference to the environment right now? __________________________________________________________________ __________________________________________________________________ What action by the provincial government would make the most difference to the environment now? __________________________________________________________________ __________________________________________________________________ What values, characteristics or attitudes come to mind when you think of West Coast? __________________________________________________________________ __________________________________________________________________ Would you recommend to your friends or co-workers that they support West Coast? Yes ________ No ________ Why? __________________________________________________________________ __________________________________________________________________ Would you like to remain on our mailing list? Yes ______ No ______ Please include your name and address so we can update our list: __________________________________________________________________ __________________________________________________________________ Other comments: __________________________________________________________________ __________________________________________________________________ 1001 — 207 West Hastings Vancouver, BC, V6B 1H7 Phone: 604 6847378 Fax: 604 6841312 1 800 330-WCEL admin@wcel.org www.wcel.org Credit for Early Action or Real Action? Canada is looking for ways to reward companies that take early action to reduce greenhouse gases In a game that has high stakes for Canada's greenhouse gas emitters, industry, government and environmentalists are looking at ways of encouraging early action to reduce greenhouse gas emissions. The result may be that an asset worth three to five billion dollars will be given away as an incentive for early action. What actions will receive this reward, and whether the system will be effective in reducing Canada's steadily rising emissions trajectory, remain to be seen. At the 1998 meeting of Canada's federal, provincial and territorial Ministers of Energy and Environment, the Ministers tasked the National Climate Change Process with developing a credit for early action (CEA) system by the Spring of 1999, a date which is expected to slip. CEA is intended to begin shifting Canada's emission trajectory downward in the interim period prior to implementation of mandatory greenhouse gas emission requirements. But while Canada concentrates on how to encourage industry to voluntarily take early action, other nations are going ahead and requiring action. Key issues in the CEA debate include: Baseline protection Baseline protection means that, if in the future, emission allowances or regulatory standards are based on a firm's emissions in a historic "baseline year" they will not receive a smaller allocation of emission allowances as result of having taken actions in an earlier year to reduce their emissions. West Coast has supported giving firms baseline protection from 1999 forward in order to remove a disincentive for greenhouse gas emissions. What kind of credit? No decisions have been made on the form credit would take in a CEA system. One scenario is that the federal government will allocate a portion of Canada's allowable greenhouse gas emissions under the Kyoto Protocol as an incentive for early action. One proposal is that five percent of Canada's emission budget of 140 million tonnes of allowable carbon dioxide emissions will be used as credit for early action. With an estimated value of twenty to thirty dollars per tonne, this means that an asset worth three to five billion dollars may be allocated for early action. Other possibilities include direct government payment for emission reductions. West Coast has stressed the need for policy makers understanding that any option involves potentially high costs to Canadians. Reward for Pre-1999 Action Although most stakeholders have recognized that rewarding past action will not change the past, and despite the fact that CEA is supposed to change future actions, industry has argued that pre-1999 action should be rewarded either through credit for such action, baseline protection or both. To be fair to industry, not giving baseline protection will mean that — in some cases — companies would have been better off deferring emission reductions. However, if protection or credit is given for the 1990 to 1998 period many companies could reap windfalls: the total value of baseline protection alone could be over two billion dollars and most pre-1999 emission reductions were already profitable in their own right. West Coast has opposed squandering valuable assets whether they be a portion of Canada's allowable emissions or government revenue — on rewarding past actions. Measuring Reductions The most difficult aspect of CEA is setting the "baselines" from which credit is measured. Do you credit any absolute reduction in emissions? A reduction in emissions per unit of production? And how much do you have to reduce before you get credit? The answer to these questions will determine whether a CEA system has any significant impact on Canada's greenhouse gas emissions. There is a real risk that CEA could simply give credit for actions that would largely have occurred in the absence of CEA. While this is great for the companies that get the credit, billions of dollars are spent and little is achieved. Is CEA Realistic or Worthwhile? With these issues still unresolved, it is unlikely that a coherent plan for credit for early action will be decided upon in the next year. Increasingly, environmentalists, government officials and others are asking whether or not a cost-effective credit for early action system (beyond baseline protection) is realistic. With the exception of the US, no other nation is talking about credit for early action. Instead they are actually taking early action. The Danish Parliament recently passed legislation establishing a cap on greenhouse gas emissions from their electricity sector. New Zealand is developing a cap and trade system for the entire economy and is considering encouraging early opt-in by making non-participants subject to a carbon emission charge. Norway is aiming to implement a cap and trade system by the end of the year 2000. Unfortunately, Canadian governments have not yet summoned the political will to get equally serious about emission reductions. While Canada fiddles with CEA, other nations are reducing emissions. Chris Rolfe, Staff Counsel

Gifting Cash vs. Securities Did you know that preferential capital gains treatment is provided for gifts of publicly-traded securities, such as shares, bonds and mutual fund gifts, listed on certain stock exchanges, when donated to a registered charity such as West Coast Environmental Law Research Foundation? If you are considering selling your qualifying securities to raise money for charity, you may be better off to donate the qualifying security directly. For gifts of qualifying securities made between now and 2002, the taxable portion of the capital gain will be cut in half, reducing it to 37.5 percent from 75 percent. Consult your tax advisor or financial planner for more information.

 

If You See the Slide Show, You'll Speak Out For Species! Our comprehensive BC Endangered Species Slide Show is now ready to come to you! Positive, inspiring and empowering, this is one slide show you should see. With images donated from some of BC's best professional photographers and naturalists, this is a visual tour of "Beautiful British Columbia" you won't want to miss. Learn about BC's remarkable biological diversity, find out what's at risk in BC and why, and what you can do to help. We know you'll be moved to action once you see the show. With just four small presentations in two weeks, we've signed up nearly 100 supporters! A definite must see for anyone feeling dispirited or depressed about our environment. The slide show, made possible thanks to a grant from Mountain Equipment Co-op's Environment Fund, is now getting its finishing touches. The script is being reviewed for scientific accuracy by various species specialists and the final product should be available by late April for loan or purchase at cost. The slide show will come with an accompanying booklet with the text for each slide. This means that anyone, regardless of level of knowledge, can present the slide show. Given the considerable interest in our slide show, we're happy to present the show before the booklet is completed. If you live in the Lower Mainland or Victoria and can get at least 25 people out, Kate will come to you and present the slide show. The show takes about 25-30 minutes to present. We ask for a small honorarium to cover travel costs and staff time. To book a presentation, contact Kate Smallwood, the Coalition's Campaign Coordinator at (604) 601-2507 or by email at ksmallwood@wcel.org.

West Coast staff and project workers are: Steven Shrybman, Executive Director; Linda Nowlan, Chris Rolfe, Karen Campbell, lawyers; Kate Smallwood , Endangered Species Coalition coordinator; Christopher Heald, systems; Alexandra Melnyk and Cynthia Linderbeck, administrative assistance; Sandra Janzen, library; Dave Olsen, campaigner; and, Catherine Ludgate, administration & development.

We are grateful to the Law Foundation of British Columbia for core funding of West Coast Environmetnal Law.