West Coast Joins RAV Court Fight
 As drivers on Vancouver’s Cambie Street inch along past a long trench flanked by construction machinery, it seems that the Richmond-Airport-Vancouver transit line (RAV), now called the Canada Line, is a done deal. However, a legal battle in the BC Court of Appeal is shaping up that could determine not only the future of the rapid transit system, but also the future of BC’s environmental assessment legislation. West Coast Environmental Law will be there to make sure that environmental perspectives are heard.
On February 8, West Coast Environmental Law Staff Lawyer Andrew Gage convinced Madame Justice Southin of the BC Court of Appeal to grant intervener status to West Coast – meaning that our lawyers will be able to file written arguments in the court and may be able to appear when the appeal is heard. West Coast will be arguing that the
Environmental Assessment Act needs to be interpreted in a way that protects the public’s environmental rights.
The Do RAV Right Coalition, a coalition of businesses and residents affected by the RAV construction, has challenged the province’s environmental assessment of the transit line. The Coalition points out that the original terms of reference and public communications for the environmental assessment assumed that construction through the controversial Cambie Village stretch would use a “bored tunnel” technology, but that in the end the assessment adopted the more disruptive “cut and cover” construction methodology.
At the BC Supreme Court, the Coalition argued that the change in construction methodology without adequate notice to the public was unfair.
“One can debate whether or not the change in the construction methodology was unfair or not,” explained Gage. “However, to everyone’s surprise, Justice Baumann ruled that the Environmental Assessment Office’s process does not need to be fair.”
The trial judge wrote: “… [T]he common law rules of procedural fairness have been supplanted here by the consultation scheme envisaged by the legislature …. And that scheme is very much left up to the discretion of the [Environmental Assessment Office] to be designed on a project by project basis.” Justice Bauman dismissed the Coalition’s challenge.
The Coalition has appealed Justice Bauman’s decision to the BC Court of Appeal. After reading the court’s decision, West Coast Environmental Law decided that it had to intervene.
“When the new Environmental Assessment Act was before the Legislature, West Coast Environmental Law sounded the alarm that it could remove the public’s right to a fair and transparent process,” noted Gage. “Our analysis of the
Act was actually read in the Legislature and the Minister responded by assuring the MLAs that the new Act would protect the public’s right to a fair process. In its first test in court, however, the
Act has failed miserably.”
In his February 8 court appearance, Gage told the Court of Appeal’s Madame Justice Southin that West Coast Environmental Law wanted to argue that the requirements of the
Act should be read in light of the government’s obligations to ensure that public environmental rights are protected.
“We say that the whole point of the Environmental Assessment Act is to make sure that government decisions will only be made after any potential impacts on the public’s environmental rights have been fully considered,” said Gage. “In addition to considering the correct interpretation of that
Act, we hope to raise broader issues about the government’s responsibilities to avoid harm to the public’s rights to clean air, water and soil.”
After hearing submissions from Gage, lawyers for the Coalition (who supported the intervention) and lawyers for the Provincial and Federal Governments and RAV Project Management Ltd. (who strongly opposed West Coast Environmental Law’s intervention), Madame Justice Southin granted West Coast Environmental Law’s request to be heard, stating: “These cases are always very difficult and in my view the Court, when hearing an appeal of this consequence that matters so much to so many people, needs all the help it can get.”
Due to difficulties in scheduling, the appeal may not be heard until October, 2006 (although earlier dates are being sought). Construction on the controversial Cambie Village section of the RAV line is set to begin in January 2007.
— Andrew Gage
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