COVER

TAKING TO THE COURTS

ENVIRONMENTALISTS FIGHTING BACK

DAVID TODD April 30 1990
COVER

TAKING TO THE COURTS

ENVIRONMENTALISTS FIGHTING BACK

DAVID TODD April 30 1990

TAKING TO THE COURTS

ENVIRONMENTALISTS FIGHTING BACK

It is a classic confrontation between environmentalists and government. Since September, 1987, the Friends of the Oldman River Society has been fighting in court to halt the Alberta government’s Oldman River dam project. Members of the group say that the $353-million dam could destroy at least 18 square miles of valuable wildlife habitat. In March, a Federal Court of Appeal handed the society a major victory, ruling that the transport and fisheries departments had failed to carry out the environmental assessments of the project that Ottawa’s guidelines require of all federal decisions. But the legal sparring is far from over. This week, the group is scheduled to go to court again in an effort to stop continuing construction work on the dam. Said Martha Kostuch, vice-president of the Friends of the Oldman River Society: “We expect to have been at every court level in Canada before this is over.”

Increasingly, groups opposed on environmental grounds to massive development projects are opting to fight their battles in court. Successful challenges to the Oldman project, and to Saskatchewan’s Rafferty-Alameda dam project, have given environmental groups renewed confidence in the courts. Indeed, environmental arguments form a major part of challenges mounted by the Grand Council of the Crees of Quebec against Hydro-Quebec’s $8-billion Great Whale hydroelectric project in the James Bay region. The trend has sparked concern among resource industry officials, who say that precedents set by recent decisions, and the threat of future challenges, could cloud prospects for regional development.

Recent environmental court actions have largely followed in the footsteps of last year’s precedent-setting Rafferty-Alameda case. Lawyers for the Canadian Wildlife Federation, which launched the Federal Court challenge, argued

that the federal government was obliged to conduct an environmental assessment of the $140-million provincial project because it touches on several areas of federal jurisdiction, including fisheries and international rivers. From the outset, federal officials interpreted Environment Canada’s 1984 guidelines on environmental assessment as discretionary, and usually chose to leave assessment of provincial projects to the provinces. But, in the Rafferty-Alameda case, the Federal Court ruled that Ottawa has a legal obligation to follow its own guidelines and assess projects involving federal land, money or areas of jurisdiction.

Built: That ruling has given environmentalists a powerful tool in their attempts to block other projects. Opponents of Daishowa Canada Co. Ltd.’s new $550-million pulp mill, being built near the town of Peace River in northern Alberta, have followed the same strategy. A coalition of seven environmental and native groups launched a 9 Federal Court challenge in February, i They argue that the mill, scheduled to I open in July, may endanger fish and Ë wildlife in the area. And they say that * four different federal departments, Environment, Transport, Fisheries and Western Economic Diversification, all failed in their responsibility to follow the guidelines.

The rise of legal challenges by environmentalists has caused growing concern in Canadian industrial circles. Said Donald Currie, managing director of the Alberta Chamber of Resources: “The environmental movement has got our attention—they have whacked us right between the eyes.” Currie said the likelihood of costly, time-consuming legal battles may discourage investment in the western provinces, where most of the actions have so far taken place. For its part, Ottawa has expressed concern that many proposed projects may now be subject to review.

Environmentalists, meanwhile, say that Ottawa may block the avenue for court challenge. New legislation providing for environmental assessment reviews is scheduled to be tabled in the Commons before the summer recess, and it is expected to grant Ottawa discretionary powers to call for reviews, limiting the effect of the recent court decisions.

Action: Still, environmentalists continue to view the courts as an important arena for future battles. Earlier in April, three of the founders of a Saskatchewan coalition opposing the RaffertyAlameda dam project announced a foundation for environmental action. Among its mandates: mounting court challenges on environmental issues. Lawyer Roderick MacDonald, a spokesman for the group in Radville, Sask., said, “People are frustrated with the conflict between what they want and what governments are giving.” As public militancy on the environment mounts, a growing number of Canadian megaprojects may have to face their day in court.

DAVID TODD