CANADA

The clash over Rafferty

Devine and de Cotret square off in court

BRIAN BERGMAN October 29 1990
CANADA

The clash over Rafferty

Devine and de Cotret square off in court

BRIAN BERGMAN October 29 1990

The clash over Rafferty

CANADA

Devine and de Cotret square off in court

The conflict had built for more than four years before it erupted last week into a full-blown judicial war between Saskatchewan and Ottawa. The point of contention: Premier Grant Devine’s determination to complete two dams in southeast Saskatchewan. The Federal Court of Canada has twice ruled that construction on the $ 145-million Rafferty and Alameda flood-control dams should cease to allow an Ottawa-appointed independent review panel to assess the project’s environmental risks. The federal government named the required panel in January. On Oct. 11, however, all five of its members resigned, claiming that the province had repeatedly violated its undertaking to suspend most work on the dams until their review is complete. The same day, Devine decided to resume full-scale construction. Then, last week, Environment Minister Robert de Cotret declared that Ottawa will seek another court order against work at Rafferty and Alameda. In reply, Devine announced a lawsuit of his own— against Ottawa and de Cotret.

The exchange of court challenges caps four years of controversy over the project. First unveiled in February, 1986, the proposal to build two large dams on the narrow, twisting Souris River and one of its tributaries in southeast Saskatchewan has divided residents of the province. Some farmers in the area, long victimized by drought and flooding, welcomed the prospect of stable water flows and irrigation. The Souris dips south across the CanadaUnited States border into North Dakota before flowing back north into Manitoba—and under a 1989 agreement, the U.S. government agreed to contribute $50 million to help finance construction. But environmentalists condemned the dams as a threat to wildlife and downstream water quality. They took their protest to court, eventually securing last January’s Federal Court call for a review.

In the end, neither that victory nor the latest developments appeared likely to scuttle the project. Even before Devine ordered work to continue, the Rafferty dam was almost complete. And construction on the smaller Alameda dam, which Devine ordered begun last week, could be finished by 1992. As well, U.S. officials noted last week that the terms of Washington’s agreement with Saskatchewan oblige the province to finish the project. For his part, de Cotret made it clear that he does not want to prevent completion of the dams—only to ensure that they meet federal environmental

guidelines. As a result, the greatest impact from the confrontation between Ottawa and Regina may be felt by the two politicians who set it in motion. For Devine, who has to call an election within the next year, the issue enables him to directly confront an unpopular government in Ottawa. For de Cotret, who took over

the federal environment portfolio only last month, it is a critical early test of his credibility and political will.

Indeed, for de Cotret, the controversy could not have been more ill-timed. He has recently been completing the Tories' long-awaited master plan for the environment—known as The Green Plan—which is likely to be released next month. But de Cotret’s credibility suffered badly during last week’s exchanges with Devine. His biggest problem centred on whether, as Devine claimed, de Cotret had agreed early in September to allow all construction to go ahead while the federal review took place.

De Cotret flatly denied that any deal had been made. But

in Regina, Devine and his staff insisted that de Cotret gave them an assurance and shook hands with the premier at a private meeting in Ottawa on Sept. 5. They added that Devine’s office had later put the verbal understanding into writing and sent a fax of the proposed text to de Cotret, followed by a hand-delivered letter in which Devine urged de Cotret to sign the draft agreement. Devine said Ottawa did not respond.

After the disagreement became public, de Cotret initially suggested that Ottawa would stop the project by any means. But on Oct. 16, the minister appeared to retreat from his hard line, telling the Commons that he would appoint another review panel and seek an “out-ofcourt agreement” with Saskatchewan to halt

construction. After critics accused the minister of failing to assert federal authority, de Cotret changed course again, announcing that his department would seek a court injunction to order the construction halted. Still, some detractors said that was not enough. “He should have revoked the licence six to eight weeks ago,” said Liberal environment critic Paul Martin. For his part, de Cotret said that government lawyers had told him that he could not quash the licence.

Meanwhile, the confrontation with Ottawa seemed to hand Devine a much-needed election issue. The premier heads a government with the support of only 18 per cent of voters in the latest public opinion polls—compared with 23 per cent for the Liberals and 53 per cent for the New Democratic Party. Said David Smith, a political scientist at the University of Saskatchewan: “Here is a premier sticking up for the province. I don’t think that is going to hurt him.”

Sticking to his tough line, Devine announced that Saskatchewan will file its own court claim to counter the minister’s threatened injunction. The premier contended that Ottawa does not have the constitutional right to interfere with Saskatchewan’s construction and operation of the Rafferty-Alameda project. Declared Devine: “The people of south Saskatchewan have endured drought and flooding and hardship. Construction on all aspects of the project will continue.”

Although last week’s developments carried the conflict between Ottawa and Regina to a new rhetorical level, the controversy over building a dam on the slow-flowing Souris has been debated in the province since the 1930s. Proponents—including Devine, who represents the riding of Estevan—say that the $120million Rafferty and the $25-million Alameda dams are necessary for water management. They are designed to control seasonal flooding and hold back water for irrigating parched farmland. In addition, water from a 38-milelong reservoir that the Rafferty dam would create could be used to cool the generators at a $500-million coal-fired power plant that the Saskatchewan Power Corp. recently completed southeast of Estevan.

In 1987, the Saskatchewan government conducted its own environmental assessment of the project. And in June, 1988, Ottawa granted the province a conditional construction licence—without conducting its own review. Then, critics of the proposed dams, led by the Canadian Wildlife Federation, challenged the project in the courts. In April, 1989, the Federal Court of Canada lifted the federal construction licence and directed Ottawa to order an independent review. The court ruled that Ottawa had ignored its own guidelines, adopted in 1984, that required it to conduct an environmental assessment of any project affecting navigable waterways. In response, de Cotret’s predecessor, Lucien Bouchard, reissued the licence—with 22 new conditions. Unappeased, the wildlife federation launched another challenge. Last December, the Federal Court ruled that it would invalidate the licence again if Bouchard did not appoint an independent review panel. Bouchard complied and reached an agreement with Saskatchewan that while the panel conducted its review, work on the Rafferty would be limited to what was necessary to ensure the structure’s safety.

But the review panel’s members claimed that other construction continued as well, including work on a downstream channel that could affect the environment. When their concerns produced no response, all five members of the panel resigned in protest. In the wake of last week’s developments, opposition MPs and critics of the project demanded a tougher examination of the potential environmental impact of such projects as the Rafferty and Alameda dams. Meanwhile, de Cotret and Devine were both left to assess the project’s impact on other areas—their respective political fortunes.

BRIAN BERGMAN with DALE EISLER in Regina and ANTHONY WILSON-SMITH in Ottawa

DALE EISLER

ANTHONY WILSON-SMITH