I. INTRODUCTION
The purpose of this paper is to provide an update on the latest "civil" environmental law jurisprudence (including applications for judicial review) in British Columbia and other jurisdictions. Other papers presented at this conference will explore specific developments in the areas of contaminated sites and aboriginal law. Given the significant cases in those areas this year, the interested reader looking for a comprehensive review of civil environmental jurisprudence should review the other papers included in these conference materials.
II. CASE REVIEW
It is safe to say that the Supreme Court of Canada does not consider a particularly high volume of environmental law cases in any given year. This year, the Court handed down one decision in the area, and heard a second appeal in the fall. Both cases are discussed below.
A couple of other 2003 decisions of our highest Court deserve mention. First, in Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, the Court held that those administrative tribunals statutorily empowered to consider constitutional law questions can hear and determine aboriginal rights questions. This of course has implications for environmental tribunals such as the Forest Appeals Commission’s sister tribunal, the Environmental Appeal Board.
Second, in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, the Court upheld the Court of Appeal’s award of interim costs to the Okanagan Indian Band. While the Court certainly went to great lengths to emphasize the uniqueness of the case before them, the decision, in my view, has implications for other cases, including environmental cases of "public importance".
I will first summarize the two SCC cases referred to above, then consider two 2003 decisions from the British Columbia Courts, and then briefly reference a number of other decisions worth noting from across the country.
A. Imperial Oil Ltd. v. Quebec (Minister of the Environment) 2003 SCC 58
This decision comes out of a "contaminated sites" context, where Quebec's Minister of the Environment ordered Imperial Oil to prepare at its own expense a site characterization study (of a contaminated site operated by Imperial), which would also include appropriate decontamination measures, and submit it to the Minister. After an unsuccessful challenge of the order to the Administrative Tribunal of Québec ("ATQ"), Imperial found success in the Quebec Superior Court, where the Court held that the Minister had made unreasonable errors in interpreting the Environment Quality Act, R.S.Q., c. Q-2 ("EQA"). In addition, the Court held that the Minister was in a conflict of interest insofar as he had been involved in supervising earlier decontamination work at the site and a number of purchasers of parts of the site had brought action against him in civil liability. Thus, the Court held that he did not have the appearance of impartiality required by the rules of procedural fairness applicable to his decision. The Quebec Court of Appeal set that judgment aside, and Imperial successfully obtained leave to Ottawa.
By the time the case arrived in Ottawa, the sole issue was in respect of the alleged breach of the duty of impartiality. The Court ultimately dismissed the appeal, relying on a "contextual" approach2 to the duty of procedural fairness, in which the Court placed considerable emphasis on the fact that the Minister was acting in the public interest in applying the polluter-pay principle to protect the environment. The following passages from the analysis are worth noting:
The Quebec legislation reflects the growing concern on the part of legislatures and of society about the safeguarding of the environment. That concern does not reflect only the collective desire to protect it in the interests of the people who live and work in it, and exploit its resources, today. It may also be evidence of an emerging sense of inter-generational solidarity and acknowledgment of an environmental debt to humanity and to the world of tomorrow (114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Ville), [2001] 2 S.C.R. 241, 2001 SCC 40, at paras. 1, per L'Heureux-Dubé J.).
* * *
Section 31.42 EQA, which was enacted in 1990 (S.Q. 1990, c. 26, s. 4), applies what is called the polluter-pay principle, which has now been incorporated into Quebec's environmental legislation. In fact, that principle has become firmly entrenched in environmental law in Canada. It is found in almost all federal and provincial environmental legislation [statutory cites omitted]....That principle is also recognized at the international level. One of the best examples of that recognition is found in the sixteenth principle of Rio Declaration on Environment and Development (1992). 3
To encourage sustainable development, that principle assigns polluters the responsibility for remedying contamination for which they are responsible and imposes on them the direct and immediate costs of pollution. At the same time, polluters are asked to pay more attention to the need to protect ecosystems in the course of their economic activities. (paras. 19, 23-24)
In sum, the Court certainly seemed be sending a strong message at to the importance of environmental legislation incorporating the polluter-pay principle, and that the Court is prepared to give governments some latitude in pursuing that principle.
B. British Columbia v. Canadian Forest Products Ltd. - The "Stone Fire" Case
In June of 1992, a fire destroyed approximately 1,500 hectares of Crown forest located near and around Stone Creek in the Prince George Forest District in northern British Columbia. The fire consumed trees located in an environmentally sensitive area ("ESA") along the creek that was shielded from commercial logging in order to protect drinking water quality and fish habitat, as well as to control floods and erosion.
The provincial government sued Canadian Forest Products ("Canfor") in negligence for starting the fire. In a 1999 judgment, Mr. Justice Wilson of the BC Supreme Court held that the government and Canfor were equally liable in negligence - Canfor for starting the fire and the government for failing to adequately fight the fire. On appeal, the Court of Appeal upheld the finding of contributory negligence, but reduced the Province’s liability to 30%.
The interesting issue arising out of this case, however, concerns the Province’s damages claim. At trial, the parties agreed that the government’s direct damages claim amounted to $3.5 million, including fire suppression and restoration costs. Things got more interesting when the Province asserted a claim for additional damages for the loss of the trees in the ESA4. The trial judge said this about that claim:
There is no doubt that the trees in these areas had value. It was more than an aesthetic or amenity value. It was a pecuniary, utilitarian value. Mr. Gairns said that, "Stone Creek provides both fish habitat and water supply to local residents.".... The retention of the trees in those areas was simply the application of ecological and environmental sanity....
.....The remedy for the loss of trees in the sensitive areas should be based upon a restoration of those areas as soon as practicable.
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Surely the plaintiff in this case would be entitled to damages, so far as money can do, computed on the cost to replant and husband the area to ensure that it would regain its former self. (paras. 130-131, 133)
The trial judge ultimately concluded that there was no specific claim or
evidence adduced at trial
concerning a damages claim for the loss of the protected trees other than
what the parties had agreed to in the specific damages claim for restoration
and rehabilitation of the ESA.
The Court of Appeal took a different view of the matter, concluding that the trial judge was mistaken in his view that the claim for the loss of the trees in the ESA was included within the specific damages claim. However, the Court was not overly impressed with the government’s argument that the loss of the trees in ESA was greater than their commercial value:
Where one is using as a comparator of value, an article of commerce that has a definable value and known value in the stream of commerce, in order to try to identify the value of another physically similar commodity that will never enter the stream of commerce, the analysis seems on the fact of mater to be out of accord with commercial reality. (para. 65)
The Court decided to proceed in the following fashion:
Here, the Crown estate has suffered ecological damage by reason of the destruction of valuable tree habitat. The trial judge found that fish habitat and water supply to local residents had been damaged. This is a pecuniary and physical loss as well as the loss of a healthy environmental setting. However, it must be acknowledged that setting a monetary valuation on this loss is not easy. Foregone revenue is one measure of the economic loss, on the theory that the value of the habitat was equal to revenue forgone to preserve it. The Crown appellant argued for the full value of the destroyed trees but it must be noted that the habitat, while damaged, was not totally destroyed and in time the area will be restored. There was virtually no evidence adduced at trial concerning valuation of the damage to the habitat.
In a case where a proper assessment of damages is as fraught with uncertainty as it is here, I think that a court should exercise caution in deciding on an appropriate award of damages for the proven loss suffered. For the reasons I have enunciated above, to award damages equivalent to or greater than the valuation of the commercial timber would not seem right to me. In this case, I believe it would not be unfair, however, to award a proportion of that value as a fair estimate of the loss suffered by the appellant. I would therefore order that the appellant recover on account of the timber destroyed in the E.S.A.s a sum equivalent to one third of its value. If the parties are able to agree on the commercial timber valuation, no problem should arise in computing these damages since the exercise will be purely mathematical. However, as I have noted above, because the trial judge concluded he ought not to make any award of damages for commercial timber destroyed, he was not required to decide which of the valuation methodologies used by the parties' respective experts he preferred. If the parties are unable to agree on an appropriate figure for valuation purposes, I should think the matter will have to be referred to the trial court for resolution. (paras. 75-76)
On its face, the case provides an opportunity for the Supreme Court of Canada to deal with the fascinating issue of the valuation of ecological loss (there is a large body of jurisprudence and economic theory in the United States that has wrestled with this very issue5). Certainly, that opportunity was recognized by a number of organizations who applied for and were granted intervenor status, including the Forest Products Association of Canada and the David Suzuki Foundation.
As above, however, there appears to be a real issue as to whether the Province put forward the requisite claim and evidence to allow the Court to fully descend into this issue. In his trial judgment, Wilson J. cited the following passage from Canfor’s argument6 in concluding, as above, that any damages claim in relation to the ESA was covered in the specific damages claim:
It should also be noted that if there was environmental damage that required expenditure, that would have been an item that could have been claimed. The only claim put forward by the Plaintiff in this regard was the rehabilitation costs which included amounts expended on the Environmentally Sensitive areas. Those costs have been agreed to by the parties. Accordingly, there is no possible claim based upon remediation of environmental damage.
Accordingly, we have to wait to see whether the Court does actually seize the opportunity to dive into this issue.
C. Western Canada Wilderness Committee v. British Columbia (Ministry of Forests, South Island Forest District) 2003 BCCA 403
This appeal was brought by the Western Canada Wilderness Committee ("WCWC") from a lower Court decision dismissing WCWC's Petition for judicial review of the decision of a Ministry of Forests District Manager ("DM"). The DM was charged with deciding whether four logging cutblocks referred to in a Forest Development Plan ("FDP") submitted by Cattermole Timber met the requirements of s. 41(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159 (the "Code"), as it related to the spotted owl. Section 41(1) provides as follows:
41 (1) The district manager must approve an operational plan or amendment submitted under this Part if
(a) the plan or amendment was prepared and submitted in accordance with this Act, the regulations and the standards, and
(b) the district manager is satisfied that the plan or amendment will adequately manage and conserve the forest resources of the area to which it applies.
The DM ultimately decided that Cattermole's FDP for cutblock 37-1 would "adequately manage and conserve the forest resources of the area to which it applies" (specifically, the spotted owl), but that the FDP with respect to the other three cutblocks would not. The chambers judge upheld her decision.
While WCWC framed the issue on appeal as one of the interpretation of section 41(1)(b), the Court of Appeal thought the substance of their case was somewhat different:
...the fundamental issue here is one of the application of s. 41(1)(b) to the facts, rather than the interpretation of that section per se. The import of WCWC's submission is that it was patently unreasonable for Ms. Stern to approve Cattermole's FDP where Cattermole's proposed harvesting method was untested, where the effects of such harvesting in terms of enhancing spotted owl habitat were unknown, and where there was an unspecified degree of risk that further harvesting in the four cutblocks under consideration might contribute to extirpation of the spotted owl. In effect, WCWC's submission is that it is patently unreasonable for a DM to approve an FDP where to do so gives rise to any risk to an already endangered species, as here. (para. 50)
The Court of Appeal ultimately concluded that the DM’s decision was not patently unreasonable. Of particular interest was WCWC’s argument that the DM’s decision did not properly take into account the "precautionary principle", which the Court of Appeal discussed in the following passages:
The only decision to which we were referred which makes any reference (albeit fleeting) to the precautionary principle is 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241. There, Madam Justice L'Heureux-Dubé, speaking for the majority, observed that the pesticide by-law in issue in that case respected the precautionary principle. She went on to note (at para. 31) that the precautionary principle was defined in the Bergen Ministerial Declaration on Sustainable Development (1990) at para. 7, as follows:
In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
WCWC seeks to incorporate that principle here by emphasizing the fact that the harvesting method proposed by Cattermole for cutblock 37-1 was untested and did not admit of any certainty as to whether it would enhance owl habitat. WCWC submits that, because of the scientific uncertainty surrounding Cattermole's proposed method of harvesting, and the endangered status of the spotted owl, the precautionary principle would operate to foreclose all harvesting in the cutblocks under consideration. (paras. 75-76)
The Court reached the following conclusion in respect of WCWC’s argument on this point:
Although Ms. Stern did not specifically refer to the precautionary principle in her analysis, she acknowledged the concerns expressed by WCWC concerning the effect of Cattermole's proposed method of harvesting on a declining owl population. She dealt with this information "by taking a cautious approach to enhancing [owl] habitat in SRMZ's and monitoring effectiveness." In other words, she recognized that the question of whether this method of harvesting would enhance owl habitat was not susceptible to strict proof and that caution was, therefore, required. Her concerns in that regard played a significant role in her decision not to permit logging in the other three cutblocks and to limit harvesting to cutblock 37-1, which was considerably smaller in size and easier to monitor.
Thus, although Ms. Stern may not have given full effect to the precautionary principle, in that she granted approval of Cattermole's FDP in the face of some risk to the spotted owl, I conclude that her decision reflects a degree of caution akin to that reflected in the precautionary principle. Since the precautionary principle was not incorporated in the Code, and since I am satisfied that s. 41(1)(b) does not preclude the approval of an FDP if there is an element of risk to a forest resource, I am unable to find that Ms. Stern's failure to give full effect to the precautionary principle in her decision renders an otherwise reasonable decision, patently unreasonable. It follows that the chambers judge did not err in upholding her decision. (paras. 79-80)
Hence, the appeal was dismissed in the result.
D. Wier v. British Columbia (Environmental Appeal Board) 2003 BCSC 1441
The "precautionary principle" was also raised in this application for judicial review from a decision of the Environmental Appeal Board concerning the issuance of a Pesticide Use Permit to the Minister of Forests, Morice Forest District (the "Permit Holder"). The permit authorized the Minister to use Monosodium Methane Arsenate ("MSMA"), sold under the trade name "Glowon", to control Spruce Bark beetles and Mountain Pine beetle in the Morice Forest District and Tweedsmuir Provincial Park.
Josette Wier, a concerned local citizen, appealed the decision to issue the permit to the EAB, arguing that the use of MSMA in accordance with the Permit would result in adverse effects on the environment and human health.
The Court defined the issues before it as follows:
The issue in this application for judicial review is whether the Board erred in its application of the test articulated in Earthcare, supra, by:
(a) improperly limiting its consideration of evidence concerning toxicity to evidence in relation to site specific considerations; and
(b) concluding that there was some risk but that the risk was not unreasonable without undertaking the appropriate analysis.
The "two-step test" referred to by the Court was articulated by the EAB in its decision below (based on the Court of Appeal’s decision in Canadian Earthcare Society):
The British Columbia Court of Appeal has ruled that the Environmental Appeal Board can consider a registered pesticide to be generally safe when used in accordance with the label (Canadian Earthcare Society). However, it is also clear that the fact that a pesticide is federally registered does not mean that it can never cause an unreasonable adverse effect. It is clear that the test for "unreasonable adverse effect" is site specific and application specific.
While the Court ultimately rejected Ms. Wier’s argument on the first issue, Ross J. nonetheless made these comments regarding the precautionary principle:
Thus, consistent with Spraytech, the precautionary principle, as articulated in that decision should help to inform the process of statutory interpretation and judicial review. In the circumstances of the case at bar, application of the precautionary principle would favour an interpretation that permitted the Board to consider evidence of toxicity beyond that limited to site specific and application specific concerns. An interpretation that precluded the Board from considering such evidence in any circumstance does not reflect the precautionary principle. (para. 38)
Ross J. concluded, however, that the EAB had in fact considered the relevant
evidence, and, taking into account a healthy degree of deference to their
specialized jurisdiction in this area, she was not prepared to interfere
with their decision. It is worth noting the decidedly higher degree of enthusiasm
towards the precautionary principle on the part of Ross J. (who did not seem
perturbed by the fact that the precautionary principle was not explicitly
enshrined in the legislation) as compared to the panel deciding the Western
Canadian Wilderness Committee appeal.
On the second issue, the Court did find that the EAB had erred in its analysis
of the two-step test. After reviewing passages from the EAB’s decision,
Ross J. said this:
In my view, the Board, as evident from the passages set out above, did find that there was an adverse effect in the sense of the term as used by Lander J. in Earthcare, "some risk" (supra at para. 15). The Board then took steps to make this risk of adverse effects reasonable through modification of the terms of the Permit. It then reached the ultimate conclusion that with these modifications there is no unreasonable adverse effect. However, the Board in undertaking this analysis did not consider the evidence of Dr. Partridge and Dr. Safranyik [which pertained to alternatives].
I agree with the petitioner in so doing the Board fell into the same error as the Board in Earthcare. It failed to apply the second step of the two-step test articulated in Earthcare. The Board excluded from its consideration evidence relevant to the question of whether the risk it had identified was reasonable or unreasonable.
Accordingly, the matter must be remitted to the Board so that it may approach the question of unreasonable adverse effects taking into consideration viable alternatives disclosed by the evidence. (paras. 48-50)
This case should be reviewed by any practitioner whose clients are involved with the application of pesticides in this province.
E. Other Cases of Interest
1. Sierra Club of Canada v. Canada, [2003] F.C.J. No. 366
This case involved an application by the Sierra Club of Canada for judicial review of a decision of the Minister of Fisheries and Oceans approving a request by Bounty Bay Shellfish and 5M Aqua Farms to operate mussel aquaculture facilities. During the statutory procedure for public consultation, Bounty and 5M advised the Minister that information in the requisite environmental impact statement stood to disclose their commercially-sensitive information to competitors. To help alleviate the problem, it was decided to make five copies of the statement available at public areas, with the stipulation that none of the copies was to be reproduced or removed. The Club asked for a copy of the statement so that it could be reviewed by the Club's marine experts. The Minister advised that the material was copyrighted and could be viewed only at the five locations. The Club objected and asked for an extension of five weeks of the review period to allow it to make an appropriate study of the statement. The Minister replied that an environmental screening was on-going and that he welcomed her comments. However, he did not extend the review period. About ten months later, the screening report supplied to the Minister by his officials determined that the proposed project was not likely to cause significant adverse environmental effects. Relying on the screening report, the Minister approved the project on the condition that Bounty and 5M undertake measures to reduce environmental impacts. The Club objected that the Minister breached its right to procedural fairness and committed reviewable error in granting the approval.
The application was allowed and the Minister's decision was quashed. The Court held that the Minister acted incorrectly by breaching the Club's right to effectively review the impact documents. While the Minister respected the Club's legitimate expectation of its right to review and comment, the limited access to the statement did not permit the Club enough time to properly undertake its review. The Minister unreasonably relied only on the screening report without soliciting public review and comment on it.
2. Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), [2003] F.C.J. No. 703
This was an appeal by the Parks and Wilderness Society from the dismissal of its application for judicial review. The Minister approved a proposal to establish a winter road in Wood Buffalo National Park which was to be used to connect residents of communities. The Society argued that the Minister had no power to approve the construction of a road for non-park purposes. The Minister did not expressly take into account the maintenance of ecological integrity as the first priority (as the legislation explicitly required), but referred only to the absence of significant adverse environmental effects. The Society argued that the Minister had thus erred in law in the exercise of her discretion by failing to take into account a relevant factor. The Society argued that, since the proposed road would not serve park purposes, there was no power to issue a permit to authorize the destruction of flora necessary to construct the road.
The appeal was dismissed. The Court held that the Minister's responsibility for the administration, management and control of parks included meeting the transportation needs of the residents of the isolated communities in the Park. There was nothing in the relevant statutory provisions prohibiting the construction of the road. Even though the Minister did not specifically state that she had applied her mind to the concept of ecological integrity itself and to her duty to afford it the first priority, the material before her, and the analysis of it in the reasons for decision, amply demonstrated that the approval of the road was not unreasonable, either patently or simply. While the road was not for the purposes of Park management, once a decision was taken to approve the road pursuant to the powers implied in the Minister's statutory responsibility for the administration, management and control of national parks, park management purposes were expanded by the decision itself so as to include whatever was necessary to implement that decision.
3. Mr Shredding in Waste Management v. New Brunswick, [2003] N.B.J. No. 237
This decision involved an application by Shredding for review of the Environment Minister's refusal to allow him to produce higher emission levels. The level was attainable with difficulty and expense. The Minister gave no reasons for her decision. She imposed less stringent standards for incinerating domestic medical wastes.
The application was dismissed, with the Court refusing to interfere with the Minister’s discretion. The Court held that Shredding failed to the show any "manifest abuse". The timing of the adoption of the Standards in the Province, the Minister's implementation plan for the level, or the lower levels allowed for plants burning domestic waste, did not fetter the Minister's discretion to impose the standard. The imposition of stricter standards on foreign waste was not inconsistent with the Act or Regulations. The lack of reasons by the Minister was not a breach of procedural fairness since it was clear that her reasons related to environmental protection.
4. Sutcliffe v. Ontario (Minister of the Environment), [2003] O.J. No. 2576
The applicants opposed the expansion of the Richmond Landfill Site near Napanee, and sought judicial review of the Minister of the Environment's approval of Terms of Reference (TOR), which were granted preparatory to an Environmental Assessment (EA). The key issue rested on the statutory interpretation of the Environmental Assessment Act, and the extent to which applicants could individually tailor their applications (as was apparently the legislative intent). The Court ultimately held that the generic requirements of the Act always had to be met, which has apparently wreaked some havoc in the Ontario EA process. The matter is, I understand, under appeal.
5. Sanford (Private Prosecutor) v. Ontario Realty Corp., [2003] O.J. No. 2941
The defendant applicants, the Ontario Realty Corporation ("ORC") and Her Majesty the Queen, In Right of Ontario, as represented by the Chair of the Management Board of Cabinet, brought an application for a declaration that a summons issued pursuant to a privately laid prosecution be quashed. A Justice of the Peace issued as Summons after a private citizen, David Robert Sanford laid an information (the "Information") before a justice of the peace, in which he swore that he had reasonable and probably grounds to believe that the ORC committed the offence of "failing to conduct a proper environmental assessment before disposing of a property", contrary to the Ontario Environmental Assessment Act .
The Court concluded that Mr. Sanford had a reasonable basis for alleging that the ORC did not comply with its environmental assessment obligations, and that there was nothing to indicate that the Information and Summons were oppressive or vexatious. The Court also observed that proceeding with a private prosecution under the POA is a statutorily granted right which the courts "should be loath to tamper with lightly". The Court exercised its discretion not to quash the summons.
III. CONCLUSION
If there is any theme to be drawn from jurisprudence discussed above, it is that the Courts are relatively hesitant to wade into environmental disputes, and are inclined to be deferential to government decision-makers. The Courts will, of course, intervene whether there is a clear breach of the applicable rules of natural justice, or where a legal error is made. Judicial deference is ultimately a double-edged sword for both corporations and public interest litigants involved in environmental disputes.
