Empowering Citizens to Become Environmental Champions
The phone rings at West Coast. Or an e-mail arrives. It’s from someone worried about logging upslope from their water source, or who suffers from asthma as a result of poor air quality; or a community group that is upset about a mine polluting a local stream or a development planned in an environmentally sensitive area.
The callers often aren’t sure whether there is a legal issue – a law that’s being broken, or a right that they can claim – but something just doesn’t seem right. Perhaps, they wonder, there’s something a lawyer can do about it.
These initial calls or emails are typically addressed by Andrew Gage, lead lawyer for West Coast Environmental Law’s Empowering Citizens program. His job is to provide legal help to individuals, activists and groups embroiled in environmental conflicts: seeking to right a wrong or to prevent environmental damage from happening in the first place. The program’s overall goal is to facilitate meaningful law reform that considers the principles of ecological sustainability and democratic decision-making in laws and regulations affecting the environment.
Summary Legal Advice
There are two main ways in which West Coast provides legal assistance.
First, an initial conversation with a lawyer can clarify the legal issues. There may be simple steps that can be taken to deal with the environmental problem: government officials to call or laws or regulations that can be applied. If it is appropriate, he will write a letter or opinion, or do a bit of extra legal research, to try to help the caller.
In the right cases, these brief conversations or quick letters can resolve the problem. The original Health Act complaint that resulted in the Sunshine Coast Regional District’s recent landmark ruling was a result of this type of conversation. (More on this issue on page three.) In another case, a letter from West Coast prevented the sale of environmentally sensitive public land near Nanoose Bay on Vancouver Island. Similarly, an aggressively threatened lawsuit to force land owners to cut down trees never materialized after West Coast sent a letter. In yet another case, West Coast’s legal perspective was credited with showing a community group how to successfully reframe its opposition to a proposed highway, making it a central issue in the municipal election.
Other times, however, there are no readily available legal solutions. In these heart-breaking cases, which emphasize the holes in our environmental laws, West Coast can only provide a sympathetic ear, while noting the details of the case, to take advantage of potential future opportunities to change the relevant law.
EDRF
When there is a legal hook, and a clear role for a lawyer, then West Coast offers a second, powerful tool: the Environmental Dispute Resolution Fund (EDRF).
Funded by the Law Foundation of British Columbia, the EDRF has provided over $3.5 million dollars of legal aid for lawyers and experts since its inception almost 20 years ago. This year, West Coast will provide more than $200,000 to community groups throughout the province. Since 1989, the EDRF has helped more than 400 citizen groups, First Nations and individuals who needed legal help in dealing with an environmental conflict.
The EDRF has been responsible for a series of impressive legal victories, both large and small. In some of those victories West Coast’s role was purely as a funder, paying legal or expert fees and costs. For example, an expert report funded by the EDRF for the Living Oceans Society resulted in the federal government retracting its report for seismic testing off the BC coast. More often, however, West Coast has a dual role, as a funder and an advisor, providing legal suggestions and client support.
The case of Josette Wier, a French pediatrician from Smithers, is a striking example of how the EDRF can be a powerful tool. Long-time readers of this newsletter may remember Josette’s campaign against the arsenic-based pesticide, monosodium methylarsenate (MSMA), used to fight the mountain pine beetle. While no one disputes the importance of fighting the pine beetle, MSMA was entirely ineffective against a large scale epidemic, and Josette had evidence that MSMA broke down in the environment into a more toxic compound.
West Coast put Josette in touch with Smithers lawyer Tom Buri. Tom and Andrew discussed how Josette’s case could best be argued before the Environmental Appeal Board (EAB). At the same time, the Seattle-based Bullitt Foundation decided to fund West Coast to launch a campaign, informing the public about the risks of MSMA, which was done in conjunction with Josette and several other organizations.
Josette’s case was long and complicated, ultimately resulting in a precedent-setting court decision that required the EAB to reconsider the risks of MSMA. Josette used the court case as a springboard to continue pressing the province to stop using MSMA. She achieved her goal in 2004 when the province designated MSMA as a “permit restricted” pesticide, a category reserved for the most dangerous chemicals. Josette currently has a new grant from the EDRF to press the federal government’s Pest Management Regulatory Agency to review the impact of certain pesticides on amphibians.
The EDRF also played an active role in fighting to protect Grohman Narrows Provincial Park, near Nelson. The Minister of Water, Land and Air Protection at the time, Bill Barisoff, ordered park staff to build a new entrance road into the park to accommodate an adjacent developer. Working with the Nelson-based West Kootenay Environmental Society, and its lawyers, Joanna Cowen and Don Skogstad, West Coast helped develop the legal arguments it would use to win the case. As part of that strategy, we helped to bring the story to the attention of provincial media.
Similarly, when a group of residents of Charlie Lake, near Fort St. John, were dealing with a proposed sour gas well just down the street, we found a lawyer in Fort St. John, Randolph Smyth, and worked with him to develop a case. In that case, the well turned out to be uneconomical, but the group used EDRF funding to press the province to develop rules around locating sour gas wells near houses. Rick Koechl, one of the group’s leaders, has continued to collaborate with West Coast and is one of the province’s most outspoken critics of unregulated oil and gas development.
The Empowering Citizens program helps people in every region of the province, on almost any issue where there is a clear nexus between the environment and the law. Most importantly, it enables citizens to better understand and use the law in their own communities.
Our website has a host of information on this program and on many of the cases we have worked on over the years:
www.wcel.org or if there is a pressing issue in your community, please do not hesitate to contact us at admin@wcel.org or 1-800-330-WCEL (9235).
– Andrew Gage
Andrew Gage
Andrew Gage’s love of the environment from an early age dictated the course his life would take. Concerned about logging in the old growth forests of Clayquot Sound, Andrew was curious as to why logging companies seemingly had no trouble obtaining injunctions to stop protestors, while protestors, on the other hand, were unable to obtain injunctions to stop logging. He posed the question to fellow activist, Joan Russow, and the two of them spent an afternoon in the University of Victoria Law School library, trying to find the answer. He discovered that not only did he find legal research interesting, but strongly suspected that he would be very good at it.
In his first year at the University of Victoria law school, Andrew joined with several other students interested in volunteering in the field of environmental law. They carried out research on a case involving the lack of an environmental assessment regarding nuclear warships in Esquimalt Harbour. While ultimately losing that case, the students went on to form the UVic Environmental Law Centre and to convince faculty to offer Canada’s first environmental law clinic course.
One of the highlights of his years at law school was the opportunity to participate in a seven-month co-op placement in India with the esteemed M.C. Mehta, one of the world’s leading environmental lawyers. This experience shaped Andrew’s attitude to environmental law in Canada, which has taken a more cautious view towards the public’s rights to a healthy environment than the Indian courts.
As a father, Andrew is instilling a love for nature in his daughter, taking her on walks where they discuss the plants and trees around them. In keeping with his environmentally-friendly lifestyle choices he does not own a car.
Andrew particularly likes the intellectual challenges of environmental law and often works on research projects on his own time, many of which complement his work at West Coast. He has developed a significant body of work on the concept of public rights in environmental decision-making, most recently publishing an article in the Journal of Environmental Law and Practice, entitled “Parks, Highways and the Public Trust Doctrine.”
– Andrea Wilkinson
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