We hope to see you next year!
Ecojustice recently defended a small community group against a “SLAPP Suit” (Strategic Legal Action Against Public Participation) brought by a developer. The group voiced concerns about a large fill site proposed for its community. The group was concerned that the fill would erode into the stream and damage the sensitive fish habitat. It voiced these concerns in letters to politicians and at a town council meeting. The developer sued the group and two citizens (neighbours) for speaking out, claiming they had, amongst other things, defamed him. The trial judge dismissed the developer’s action summarily decision and ruled that the Society’s public statements about what could happen to the environment were not defamatory statements, but were “opinions on a matter of public interest.” As stated on Ecojustice’s website “[T]he decision confirms the public’s legal right to speak up when the environment is put in jeopardy. However, most people in the same situation are denied this justice. The cost to defend against these law suits can be prohibitively high, even when just seeking a quick dismissal.” The developer has appealed.
by DEBORAH CARVER
Published: 2011-07-14 The Chronicle Herald, Halifax, Nova Scotia
During the last month, we have heard the objections of communities on Digby Neck to the development of large salmon farms in the waters of St. Mary's Bay. They have now appealed to the Nova Scotia Supreme Court to challenge the fisheries and aquaculture minister's decision to permit the farms. Also recently, there has been discussion of the Nova Scotia government's partnership with Newfoundland and Labrador to land the southern end of an electric transmission line, carrying power from the Lower Churchill hydro project, in Cape Breton. In the Annapolis Valley, the siting of a large number of wind turbines is running into complaints from cottage owners and from the military at CFB Cornwallis.
Each of these projects has been or is currently the subject of a process called environmental assessment (EA). This process examines the potential impacts of a project on the environment and predicts whether the impacts are unacceptable (in which case the project will not go ahead) or can be accommodated (in which case the project will proceed). Both the federal and provincial governments are required by legislation to use EA before approving new projects.
In each of these projects — salmon farming, a hydro transmission corridor, and wind turbines — the federal government is involved in the EA, despite their location within Nova Scotia. This is a result of our Canadian division of constitutional powers which means that some activities are under federal jurisdiction and require federal permission, even though the activity takes place within one province. Sometimes both levels of government are involved and decide whether they will co-operate or conduct the EA separately.
A curious aspect of these projects is that until a private-sector company made a specific proposal, having in each case chosen a location that suited its business interests, there was no opportunity for communities to be involved in making choices about their location and whether they are compatible with traditional occupations and the local environment. Although the EA process does allow opportunity for public consultation, it is limited in almost all EAs to submission of written comments.
More curious is that the province has not analyzed, with public input, the broad panoply of environmental, social and economic issues that surround these projects. The public has not been engaged in a discussion around how these industries can best contribute to a sustainable Nova Scotia. Should the province develop a sector of our economy that is based on ocean cage aquaculture, given the potential environmental risks and displacement of the traditional lobster fishery? Although wind generation is part of the necessary mix of renewable energy that we need in Nova Scotia, where can we best locate the projects?
It is equally unfair to the private-sector proponents as to the public that there has not been a dialogue at this level. The lack of discussion means that the proponent is the stalking horse, a target of public displeasure.
We have another approach available to us: strategic environmental assessment (SEA). This process is used globally to take a high-level planning approach rather than a project-by-project one to examining environmental impacts. However, SEA has been used only once in Nova Scotia: to analyze the opportunities for tidal power development in the Bay of Fundy.
In that case, a round table of stakeholders, after hearing from communities, scientists and industry, recommended that pilot tidal energy projects proceed. As a result, four turbines will be placed in the Minas Passage over the next year and their performance will be analyzed before next steps are taken.
The SEA process would be an equally effective one for thorough consideration of a variety of other new resource-based industries — wind energy, aquaculture, intensive agriculture, shale gas exploitation and coastal development. In each of these, there is a major juggling act required among new and traditional occupations; community self-determination and provincial leadership; short- and long-term economic benefit for the province; and the potential harm to wildlife, diversity and water quality. SEA could help address these big-picture issues before more projects are proposed and approved — and involve the public in the discussion.
Nova Scotians deserve to be asked the big questions and to be closely involved in how we accommodate the challenges presented in moving our economy forward while protecting the environment and the values and ways of life so precious to us.
Deborah Carver is executive director of East Coast Environmental Law Association. Environmental assessment, including SEA, is the subject of workshops in Halifax, July 20; Yarmouth, July 21-22; and Tatamagouche, July 25. For more information, visit www.ecelaw.ca.
ECELAW will be bringing you monthly updates on developments in environmental law. Further detail on any new cases or legislation can be found in our information library.
Case Law: Federal
David Suzuki Foundation v. Canada (Minister of Fisheries & Oceans)
Federal Court rebukes DFO for “reprehensible, scandalous or improper conduct”
In December 2010, Ecojustice won a precedent setting case that confirmed the federal government’s responsibility to protect everything that makes habitat healthy for whales, from pollution-free water to plentiful amounts of the salmon they need for food.
Ecojustice represented a consortium of environmental groups that brought two judicial review applications seeking to overturn DFO’s protection statement and protection orders for the Northern and Southern Resident Killer Whales. Ecojustice argued that the intention of the Species At Risk Act (“SARA”) was that once a species was designated as “endangered species” or a “threatened species”, DFO was required to protect the species’ critical habitat of species by law — not by government discretion. DFO argued that it should be allowed to rely on discretionary provisions. The Federal Court Judge found that DFO had acted unlawfully in limiting the application and scope of the protection orders made pursuant to s. 58(4) of SARA as DFO was required to protect the orcas’ critical habitat.
DFO has appealed one aspect of the ruling – which has not yet been decided. However, the Federal Court recently issued its judgment with respect to costs for the judicial review hearing and awarded the environmental groups represented by Ecojustice $80,000 in costs on a solicitor-client basis. Russell, J. found that the government “displayed reprehensible, scandalous or improper conduct that is deserving of reproof or rebuke” in the manner it conducted itself throughout the process of the judicial review applications.
Case Law: Nova Scotia
Parker Mountain Aggregates Limited v. Nova Scotia (Minister of Environment) et al., 2011 NSSC 134
Judicial Review under s. 138 Environment Act – Minister’s decision to suspend quarry approval upheld
Parker Mountain Aggregates Limited (“PMAL”) appealed the Minister of Environment’s decision to issue temporary approvals for the quarry and to then suspend the approval by stop-work order on October 30, 2009. Robertson, J. upheld the Minister’s decision finding that there was no breach of procedural fairness and the Minister had the discretion to issue temporary permits and stop-work orders given the duty to take action to manage and protect the environment.
PMAL received approval for the quarry in 1999 for 10 years but it was conditional on PMAL submitting a “legal property boundary survey outlining the area of the site… within two calendar months from the date of the issuance of the approval”. PMAL never submitted the survey and when they started preparing for blasting in 2009 neighbours complained that the site for the quarry had changed since the 1999 approval – which required the consent of adjacent neighbours. PMAL argued that its 1999 approval did not specify a particular active area for the quarry but NSE argued that it did because the consent of landowners within 800m was required and obtained. Since the survey was never submitted and PMAL was now changing its active site to a location nearer to the public road and neighbours, the NSE suspended its approval and required an amended application rather than a renewal. The Supreme Court of Nova Scotia upheld the Minister’s decision.
Legislation: Nova Scotia
The Nova Scotia Legislature is sitting this month and considering the following Bills of interest:
The East Coast Environmental Law (ECELAW) on line resource library has been redesigned to make searching for environmental cases, legislation and publications much easier. Residents of PEI, New Brunswick and Nova Scotia can now directly access relevant legal materials for their province from the home page of the ECELAW website at www.ecelaw.ca. Visitors to the main Information Library page can also browse by province, by various environmental themes, alphabetically or by creating their own advanced search. We encourage users to let us know if there are materials that should be added to the Library by email to [email protected] ECELAW’s environmental law library is a unique resource containing current environmental law information that is of interest to all Atlantic Canadians.
Our thanks to the Law Foundation of PEI for making these improvements possible.
In November 2010, ECELAW successfully presented workshops in Charlottetown and Moncton on the subject of Environmental Law for Land and Sea. Companion publications for each province have also been produced.
We were fortunate to have 35 participants in Charlottetown and 14 in Moncton, all of whom were highly engaged with our subject. ECELAW's website now includes all documents from these workshops. See: Our Resources / Current Workshops for power point presentations and the Information Library for deeper research needs.
A special thanks to our funders and partners, The Law Foundations of PEI and New Brunswick, Island Nature Trust and the New Brunswick Environmental Law Society. Also thanks to all the presenters who worked hard to develop and deliver the content of the workshop and others for assistance on the publications.
Presenters, writers and key participants included:
Thanks also to the publication writers:
Our Advisory Group in PEI included Jacinta Gallant, Jackie Waddell and Gary Schneider.
We hope to see you next year!
Ecojustice will continue to defend the environment, one case at a time
By TAMARA LORINCZ and DEVON PAGE
The Chronicle Herald, Halifax: Published: 2010-10-27
Last week, the largest fine in Canadian history was issued against a corporation for an environmental offence.
Oilsands giant Syncrude Ltd. was fined $3.2 million by the Provincial Court of Alberta for failing to prevent the death of 1,600 migratory waterfowl that landed on the company’s toxic tailings pond in Fort McMurray in 2008.
It was Ecojustice Canada that initially launched the private prosecution against Syncrude, which pushed the provincial and federal governments to finally act and led to this environmental victory.
Ecojustice (formerly Sierra Legal Defence Fund) is celebrating its 20th anniversary this month as the country’s leading non-profit that uses the law to defend Canadians’ right to a clean and healthy natural environment ( www.ecojustice.ca).
In 1990, Harvard-educated lawyer Stewart Elgie co-founded Sierra Legal with a board of passionate young lawyers.
From an office in Vancouver, they offered free legal services to the environmental community.
Within a month of opening, the environmental lawyers were taking logging companies to court to protect old-growth forests and safeguard endangered species in British Columbia.
Today, Ecojustice has offices in Vancouver, Calgary and Toronto, with an expert staff of lawyers and scientists.
It also has an environmental legal clinic at the University of Ottawa and a partnership with the Halifax-based East Coast Environmental Law Association ( www.ecelaw.ca).
For two decades, Ecojustice has represented the public interest and won precedent-setting cases at all levels of court. It has also shaped public policy and initiated law reform across Canada.
For example, in 2001, Elgie argued before the Supreme Court of Canada that the precautionary principle should be used to allow the Town of Hudson to pass a municipal pesticide ban. The court agreed and enshrined this principle in Canadian law in its pioneering decision, Spraytech v. Hudson.
Now, there are 156 municipalities around the country that have relied on the Hudson decision and have passed bylaws banning the use of cosmetic and ornamental pesticides.
This year, Nova Scotia joined Quebec and Ontario and proclaimed a provincewide Non-essential Pesticide Control Act.
Over the past decade, Ecojustice has produced national report cards on drinking water and sewage that have exposed the country’s lax regulations.
In its most recent report, Seeking Water Justice, Ecojustice found that there are currently 1,776 drinking water advisories and is calling for binding federal water standards.
In major mining legal battles this past year, Ecojustice lawyers won cases that forced mining companies in Canada to report their toxic output on the National Pollutant Release Inventory, to adequately consult stakeholders, and to broadly scope projects in environmental assessments.
Ecojustice has achieved significant success for species at risk.
In two recent, ground-breaking court challenges, Ecojustice forced the federal government to identify critical habitat in the recovery programs for the greater sage-grouse, an endangered prairie bird, and Nooksack dace, a threatened pacific minnow.
These legal wins have implications for all of Canada’s 579 imperilled species, as the federal government will have to identify and protect adequate habitat for their survival.
For Nova Scotia’s threatened species and forests, Ecojustice supports the recommendations for law reform, for improved compliance and for new legislation outlined in the report A Natural Balance: Towards a New Natural Resource Strategy for Nova Scotia.
Ecojustice further calls on the government of Nova Scotia to follow the lead of Ontario and develop an Environmental Bill of Rights for citizens.
In her report A Natural Balance, Constance Glube, chair of the steering committee and former Chief Justice of Nova Scotia, stated that "the status quo is not an option" for our natural resources.
Ecojustice agrees and will continue to fight in the courts to protect the environment one case at a time.
Tamara Lorincz is a board member and Devon Page is executive director of Ecojustice Canada.
by RALPH SURETTE, The Chronicle Herald, Halifax NS
The devastation is astounding in a place where the once-cold waters of the North Atlantic used to break up hurricanes into post-tropical depressions by the time they made landfall. Towns cut off, great chasms in roadways, the army and navy to the rescue — and people struggling to make sense of it all.
There’s a message in Igor’s assault on Newfoundland. Something to pick up our attention that has wandered since hurricane Juan smacked Halifax in 2003, since Katrina destroyed New Orleans in 2005 and even as behemoths of unprecedented enormousness keep either roaring by unpredictably or taking random potshots at the east coast of North America.
The point is that we are vulnerable to "100-year storms" more or less every year now — Newfoundland to Category 1 storms, the Maritimes to Category 2s, farther south to worse, with the ultimate nightmare being a direct hit by a monster on low-lying New York City.
The question is, what are we doing about it? "Is Lady Luck our policy?" asks an article I picked up on the Ecology Action Centre website. The author is Jennifer Graham, EAC’s coastal co-ordinator, who’s on a campaign to raise awareness about our coastal vulnerabilities and to prod action, with the message that it’s going to be cheaper to address this now than later.
Not that awareness is lacking. The rising seas; the uncontrolled development that goes on in some counties of Nova Scotia over wetlands, cobblestone beaches and sand dunes; the vulnerable roads and other coastal structures, including in low-lying areas behind dykes; the exposure of entire towns like Truro, or of entire infrastructures like the Trans-Canada Highway and the main rail line at the top of the Bay of Fundy — all this is well-enough known, officially and otherwise.
The problem, rather, is with the action part. In Nova Scotia, there’s a great, clunking bureaucratic thing theoretically moving towards a coastal strategy. But it involves some 15 federal and provincial departments and agencies, plus the municipalities — all with their different laws and points of view, some in conflict with each other. The whole thing lacks urgency, political direction, and even a mission statement to protect coastal areas, says Graham. Its scope is too limited and the fact that it’s co-ordinated out of the small and cloutless fisheries department is an indication of its low priority, she says.
Some bits and pieces are happening. Halifax Regional Municipality has laid down setbacks for development — 30 metres back from the high water mark and 2.5 metres above it. Graham says even if the province cut through the red tape and imposed this province-wide, or if other municipalities did it on their own, "it would be a great first step."
There’s been federal money trickling through for some pilot projects, mostly marshland reclamation — the Geological Survey of Canada having estimated that damage to shorelines and property was less during hurricane Juan where salt marshes and barrier beaches were intact. At Pointe-du-Chêne, N.B. near Shediac, they’ve actually hauled some houses to higher ground. Meanwhile, the Insurance Bureau of Canada has also been funding projects.
Some municipalities other than HRM have also been working at it. In fact, Graham has been on a round of presentations to municipalities — talking up points like building standards, community emergency plans, construction setbacks, hazard mapping, sewers, dykes and others.
Although municipalities are on the front lines, they’re the ones with the least money and jurisdiction. Nevertheless, having the municipalities primed will make "the process go farther faster when it does get going," she says.
As the TV images flow in from Newfoundland showing the effort to construct temporary bridges and roads, the disquieting question is this: How much of this should actually be rebuilt, at least as it was before, if there an even chance that it’s going to be whacked again?
In New Orleans, it was the fifth anniversary of Katrina. It was a celebration of rebuilding, but the joy was ambiguous (all the more so as the news was dominated by the BP oil spill). There too, the question hovers: what about the next hit?
It’s a question everywhere there’s coast. In Nova Scotia, the least we can do is get this bureaucratic process moving faster.
Ralph Surette is a veteran freelance journalist living in Yarmouth County.
Environmental Groups call on Newfoundland and Canada not to Approve Seismic Blasting
As a growing number of individuals and organizations call for a moratorium on testing and drilling for oil in the Gulf of St. Lawrence, Atlantic Canadian environmental groups are calling on the Newfoundland and Canadian governments not to allow an imminent seismic blasting survey.
Plans are underway to proceed with seismic blasting off Western Newfoundland in the habitat of the endangered blue whale and other sensitive species. An application from Corridor Resources to conduct a geohazard survey is currently before the Canada-Newfoundland Offshore Petroleum Board-http://www.cnlopb.nl.ca/env_active.shtml
“Seismic surveys have negative impacts on marine life, but more crucial in this case, is that they are an early step in the oil and gas development cycle. As more and more organizations say no to oil and gas in the Gulf or raise concerns, we respectfully ask that the Government of Newfoundland not issue the requested permit to Corridor Resources,” says Mark Butler of Nova Scotia’s Ecology Action Centre.
“Important environmental, legal and jurisdictional issues are triggered by the proposed impacts and location of the blasting, so we’re also asking the federal government to get off the side-lines and protect our Gulf”, Butler added.
A seismic survey involves the blasting of very loud sounds toward the ocean floor with the reflected signal providing oil companies with a picture of the geology up to several kilometers below the ocean floor. The problem is that between the seismic vessel and the ocean floor lies a lot of water which is home to fish, mammals and turtles all of which are extremely sensitive to sound.
“We share the concerns raised by DFO in their response to the Corridor environmental assessment about the impact of the survey on the endangered blue whale” says Julie Huntington of the Newfoundland Chapter of the Canadian Parks and Wilderness Society. “The seismic survey will be taking place in the migration corridor of the blue whales as they leave the Gulf of St. Lawrence in the fall and has the potential to disrupt their migration and distress the whales.”
The blue whales that enter the Gulf of St. Lawrence spend most of their time feeding along the North Shore of the Gulf of St. Lawrence in areas like the Mingan Islands. These are Quebec waters. When the whales leave the Gulf in the fall they pass through Newfoundland and Nova Scotia waters on their way back to the Atlantic Ocean. Thus oil and gas activity in Newfoundland waters could have consequences for other provinces.
“The Gulf of St. Lawrence is a national treasure. The provinces surrounding the Gulf should be working together to conserve its natural diversity and beauty--all provinces, the federal government and First Nations should be involved in decisions that could affect shared marine resources", comments Gretchen Fitzgerald, Director of the Atlantic Chapter of the Sierra Club.
Seismic blasting can also have impacts on marine invertebrates and fish. The fishing industry in Quebec and Newfoundland has raised concerns about the impact of the Corridor survey on redfish, cod, lobster and snow crab.
Canadians watched with horror as millions of gallons of oil gushed into the Gulf of Mexico and the entire machinery of the oil industry and United States government tried repeatedly but failed to stop the flow.
The Gulf of St. Lawrence is 6 times smaller than the Gulf of Mexico. The area where the oil company wants to drill is 400 to 500 metres deep – depths that present many of the same challenges facing emergency responders in the Gulf. This would make it a deepwater well and hence the risks of drilling and the probability of catastrophic spill increase.If the Gulf of Mexico spill is superimposed on the Gulf of St. Lawrence the spill, depending on where it is placed, extends to all five provinces.(See end of attached release or http://www.ifitweremyhome.com/disasters/bp).
For more information contact:
Mark Butler-Policy Director, Ecology Action Centre, 902-429-5287/[email protected]
Julie Huntington- Julie Huntington- CPAWS- NL 709 726-5800
Gretchen Fitzgerald, Director, Atlantic Chapter, Sierra Club of Canada-902-444-3113
In 2007, our provincial government gave Nova Scotians something to be proud of — an ambitious and unique piece of environmental legislation, the Environmental Goals and Sustainable Prosperity Act (EGSPA). Ambitious because the government set a clear, overarching goal of being one of the cleanest and most sustainable environments by 2020. Unique because EGSPA enshrined 21 detailed targets in legislation that established the steps necessary to achieve the main goal, with timelines for keeping the government on track.
The purpose of enacting EGSPA was to raise the level of government commitment to the environmental targets beyond mere policy statements, which can be easily dismissed. The reason for enshrining targets in legislation grew from one of Nova Scotia’s environmental success stories, solid waste management, where the government took its legislated targets seriously and reached its goal.
By setting goals for environmental prosperity rather than concrete obligations, the government asked Nova Scotians to have faith because it provided no legal mechanism in EGSPA to enforce its targets. Changes to targets can be expected. However, when the government misses, disregards or moves timelines for its targets late in the process and without public consultation, it undermines EGSPA and our faith in the government’s commitment to sustainable prosperity.
We have now seen the government decide to ignore its targets on several occasions without amending EGSPA and without consulting the Round Table on Environmental Sustainability, a multi-stakeholder committee set up to oversee the act’s implementation. As examples: The Energuide labelling goal for all new residential dwelling units by 2008 was ignored; and as recently announced, the target for reducing mercury emissions by 70 per cent by 2010 to pre-2001 levels has been significantly delayed.
The EGSPA targets don’t come out of thin air — they are often set according to the province’s national and international environmental commitments. This is the case for the mercury emission target, which relates to our government’s commitment to the Canadawide standards for mercury emissions, established in 2000 by the Canadian Council of Ministers of the Environment (CCME). The mercury target is also linked to the federal government’s efforts to reduce mercury emissions through regional and international initiatives, such as the North American Commission for Environmental Co-operation’s Regional Action Plan on Mercury.
When the government links its targets to national and international commitments and ignores them, what does this say about the government’s ability to meet targets that have no external gauges?
It is no excuse that EGSPA was enacted under another government, as the goals were endorsed by all three parties. There were no changes made to the goals during the legislative committee process for EGSPA. Accordingly, every political party in Nova Scotia should be committed to the targets and held accountable.
EGSPA has the potential to be a very powerful guide on Nova Scotia’s road to sustainable prosperity. Where there is adherence to the targets, as in the case of nitrogen oxide emissions which were reduced by 20 per cent by 2009 relative to 2000 levels, we can all celebrate our government’s initiative. But in order for EGSPA to have any value, the commitment to sustainable prosperity must be matched with a commitment to due process and transparency. The government must meet the targets or provide clear rationale for moving the targets based on public input.
Two mechanisms for input include seeking advice from the multi-stakeholder round table and amendment to the act. Alternatively, establishment of an environmental auditor is an effective and efficient way of holding governments accountable.
In 2012, EGSPA is up for a five-year review which could result in amendment or additions to its environmental and economic goals. The creation of the office of environmental auditor could signal the seriousness of the commitment to the EGSPA objectives. In that way, Nova Scotians can have faith that our government is leading us towards sustainable prosperity.
Deborah Carver, Executive Director, East Coast Environmental Law Association.
Chronicle Herald, Halifax, August 15, 2010