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.).
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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