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A Land and Environment Court for BC

February 22, 2011

One of the highlights of this month’s Renewing Environmental Law Conference was the opening Keynote Speaker, Chief Judge Brian Preston, of the New South Wales Land and Environment Court.  At the reception following the Keynote Speech the room was abuzz with discussion of how can we get a land and environment court for British Columbia (and/or Canada)?

globe_gavel.jpgI was fortunate enough to have a short interview with the Chief Judge after the conference, in which he explains the court and how it works.  It was recorded, so feel free to watch the interview, and this blog post also summarizes what I think are some of the important points of Judge Preston’s presentation, while also giving some thoughts on whether BC is ready for a Land and Environment Court.

So what is a Land and Environment Court?

The Honourable Mr. Justice Preston explained that for the past 30 years the Australian state of New South Wales (NSW) has had a specialized court dedicated to hearing cases related to land and environment related issues, from challenges to mining all the way down to next door neighbour disputes over tree cutting. 

The NSW Land and Environment Court (or LEC) has 6 full time judges, as well as a large number of full and part-time “commissioners” – non-lawyers with special scientific or other expert training related to the environment.  The LEC hears about 2,000 cases a year.  It is not merely a tribunal (like our Environmental Appeals Tribunal).  Rather, it is a superior court - equivalent in power and stature to our BC Supreme Court. 

So how does it work?

The LEC hears a wide range of cases, from many different environment-related statutes. Without listing the statutes (go to the LEC website for that), types of cases include:

  • Appeals from environmental statutes (similar to the appeals heard by BC’s Environmental Appeal Board);
  • Reviews of decisions made under a range of land use planning laws, including local government legislation;
  • Appeals from convictions under environmental laws;
  • Civil litigation related to land and environment matters, including Aboriginal title claims. 

When a case is brought before the LEC, the Chief Judge will appoint a panel consisting of judges and/or commissioners, based on setting the right balance of legal, scientific and other expertise to understand the particular issues of that case.  In addition, as the judges hear environmental cases on a regular basis they develop a particular expertise in the area, resulting in more consistent and informed judicial decisions on environmental issues. 

So why is this a good thing?

One of the most tweeted comments during the Renewing Environmental Law Conference was Chief Justice’s comment that by creating a superior court specifically to hear environment related matters, New South Wales had affirmed the importance of environmental issues. 

But there are very real and practical benefits as well.  Chief Justice listed 12 in his presentation, but here’s just a few that strike me as particularly important:

  • The LEC is able to shape its rules and practices to deal with the unique challenges of environmental cases.  Notably, the court is very sensitive to removing barriers to access to justice, recognizing the challenges of bringing environmental cases.  Its practices include holding court in the communities affected (including actually bringing all players involved in the court – judges, witnesses, scientific experts, etc.  to the conflict/lands in question to take samples, question witnesses and view the situation first-hand), and extensive information resources to assist self-represented parties through the court process.  It also has a special case management process to address Strategic Lawsuits Against Public Participation (SLAPPs)
  • By having its own scientific expertise, the LEC is not solely dependent on experts bought and paid for by one party or the other.  This removes a barrier experienced by members of the public or less financially endowed parties who cannot pay for their own experts, as well as generally increasing the quality of environmental decisions. 
  • As the LEC’s judges develop a detailed expertise on environmental matters, the court is well placed to expand on environmental jurisprudence, building the common law in ways that are responsive to the serious environmental problems facing the world.
  • Better expertise and familiarity with environmental files results in greater efficiency, allowing cases to be resolved more quickly and more fairly. 

In the embedded interview, Judge Preston summed up the benefits:

By having this sort of one stop shop … the Land and Environment Court, and having that specialization, the expertise there, you can better understand environmental disputes, better resolve them, do it quicker.  But also be able to develop environmental jurisprudence.  We’re able to understand the principles so that the body of environmental law is developed and is progressed over time.  And that’s an important contribution that the court makes. 

I don’t mean to knock BC’s judiciary, but since many of them may go years without hearing an environment-related case, it is true that there is a wide range of knowledge and abilities on environmental issues and the related law among the judges sitting on the Bench. 

And BC’s environmental tribunals, while specialized, lack the inherent jurisdiction, stature, or independence of a Superior Court.  A recent report by the UVic Environmental Law Centre (Environmental Tribunals in British Columbia by Mark Haddock) outlined the strengths and weaknesses of ten tribunals hearing environmental matters in BC.  Many of Haddock’s recommendations to strengthen environmental tribunals in BC might be addressed  through a Land and Environment Court including:

  • consolidating tribunals with similar mandates;
  • expanding tribunal mandates for increased accountability;
  • making standing rules consistent and fair;
  • providing a clear mandate for environmental protection;
  • modernizing tribunal procedures to meet best practices;
  • improving tribunal investigative powers;
  • improving the tenure and appointments system; and
  • eliminating unnecessary levels of appeal.

An environment court for BC?

So would it make sense to create a land and environment court for British Columbia (or perhaps federally in relation to federal environmental laws and offences)?  Do we even have enough cases to warrant such an approach?

We certainly don’t have anywhere close to 2,000.  However, I suspect that we could have a decent number if you were to aggregate:

  • Appeals under a range of environmental statutes.  Appeals under four different environmental statutes are currently heard by the Environmental Appeal Board (EAB).  In 2010 the EAB issued 29 decisions over the year.  However, this figure is down substantially from earlier years (over 100 in 2000).  However, other appeal tribunals hearing environment-related files include the Forest Appeals Commission, the Farm Industrial Relations Board, the Mediation and Arbitration Board and the Oil and Gas Appeal Tribunal.  A BC Land and Environment Court might hear appeals related to some or all of these tribunals.  In addition, as Mark Haddock has recently pointed out in his review of environmental tribunals, there are a wide range of environmental statutes which do not currently provide for appeals, but which could. 
  • Aboriginal rights and title related litigation.  In 2010 there were about 10-15 court decisions issued by the BC Supreme Court (BCSC)related to aboriginal land use – the actual number of cases is actually higher since not all cases brought to BCSC result in decisions;
  • Local government land use disputes.  In 2010 there were a little fewer than 40 court decisions in the BCSC involving consideration of the powers of local governments under the Local Government Act. Again, this would not reflect actions which were initiated but dropped.
  • Environmental offences.  Unfortunately enforcement of environmental laws in BC, especially through the courts, have crashed in recent years, with only 35 convictions in 2009 (the most recent year for which data is available).  However, we are hopeful that recent changes to the Conservation Officer Service (COS) may help to improve this situation, although they are unlikely by themselves to return us to the early 1990s enforcement levels of about 600 convictions a year. 
  • Other civil litigation related to land disputes.

That may not at present be enough for a dedicated land and environment court but it certainly could give a judge or two and a number of part-time expert commissioners (brought in as required to assist in a particular case) enough work to begin to build expertise and develop some environmental jurisprudence.  This number could grow quickly if efforts were made to:

  • Adopt court rules (following the example of the NSW Land and Environment Court) to enhance access to justice to enable more people to bring legitimate cases that aren’t currently pursued, including supporting lay parties and protecting public interest litigants from court costs;
  • Give Conservation Officers the resources and tools they need to enforce BC’s environmental laws; and
  • Restore and expand the public’s right to appeal and challenge government decisions that negatively affect the environment. 

That might suggest that we not immediately adopt a Land and Environment Court model, but rather a system in which a small group of judges within the existing court system are assigned the bulk of the environment and land cases.  Several countries judiciaries have adopted this model, creating what is known as a “green bench” of judges.  This could be done in the BC Supreme Court and/or the Federal Court either through legislation or through a decision of the Chief Justice(s). 

Appointing expert (non-lawyer) Commissioners to such a “Green Bench”, on the other hand, would probably require legislation.  That being said, a judge could invite or even require experts to assist it under its inherent jurisdiction. 

I, and many other of the lawyers at the Renewing Environmental Law Conference, were sold on the idea by Chief Judge Preston.  But what do you think?  Would/could a Land and Environment Court or a Green Bench result in better access to justice on environmental cases or interpretation of environmental laws?  Or are calls for an environment court a distraction from real environmental issues?  What would help such a court work, and what are the downsides (if any)?

Andrewblogphoto.jpgBy Andrew Gage, Staff Lawyer