Canadian Judiciary Poised to Redress Environmental Degradation

While the media has focused its lens upon the Harper government’s undermining of scientific research, scant consideration has been given to the impact of the “war on science” on Canada’s judiciary. Tasked with reviewing and adjudicating upon the constitutionality and validity of Canada’s resource regulatory process, the judiciary may be poised to assume a larger role in environmental decision-making. In this three-part blog series, lawyer Barbara D. Janusz examines how the “war on science” is being waged in tandem with a war on the Rule of Law.

Skip to part two (posted June 30, 2014) | Skip to part three (posted July 14, 2014)

Next summer, the Magna Carta of 1215 – the “great charter” of English civil liberties and the Rule of Law – is scheduled to tour Canada, as an exhibition. As Canadians commemorate this milestone in Western civilization’s history and ponder the Magna Carta’s legacy and impact on Canada’s political institutions, we may also be witnessing a constitutional showdown between the Canadian government and First Nations.

The fountainhead for this confrontation is the precedent-setting legal action of the Beaver Lake Cree First Nation, whose reserve lies adjacent to tar sands operations near Cold Lake, Alberta. Naming the Canadian and Alberta governments as respondents, the Beaver Lake Cree, in 2008, applied for a declaration that the cumulative effects of tar sands operations has resulted in so much degradation of their traditional lands as to constitute a violation of their treaty and constitutional rights.

Aboriginal treaty rights to hunt, fish and trap are constitutionally entrenched under Section 35 of the Charter of Rights and Freedoms. The inviolability of those rights not only threatens the Harper government’s aspirations to transform Canada into an energy superpower, but has also positioned our judiciary to assume a larger role in environmental decision-making.

The federal and Alberta governments’ first line of attack was to duck liability by pointing the finger at one another. While the federal government, in its bid to have the lawsuit struck out, raised the argument that all licencing of tar sands operations is a provincial matter, the province, on its part, contended that it is Ottawa (by virtue of it being a signatory to aboriginal treaties), and not Alberta, that owes a fiduciary duty to First Nations.

In separate rulings, the Court of Appeal of Alberta has confirmed not only that both levels of government are properly named as respondents in the proceedings, but has also held that an examination of the scientific evidence as it relates to the cumulative effects of tar sands development is not so exceedingly burdensome or complicated as to warrant having the claim struck out.

Changing the regulatory paradigm

It is not coincidental that following the launch of the Beaver Lake Cree court action, the federal government began to gut environmental legislation, lay off scientists and shutter research laboratories, field stations and libraries. And while critics have posited that these policy measures are ideologically driven – aimed at furthering the Harper government’s Economic Action Plan – the censoring of scientific research, in my mind, also constitutes resistance on Ottawa’s part to the current global shift in environmental decision-making from a permissive regulatory paradigm to an evidence-based policy of environmental design.

Underlying the permissive regulatory paradigm is the theory of assimilative capacity, also known pejoratively as pollution control. Since environmental laws were first enacted, allowable levels of pollution have been permitted into the receiving environment. An ecosystem’s assimilative capacity is the level to which it can withstand pollutants before irreparable degradation occurs, and is often the subject of scientific debate. Industry-funded data of the assimilative capacity of pollutants upon an ecosystem, such as the boreal forests of Northern Alberta, is likely to differ from that of scientists who are not employed by industry. With the recent sacking of many government scientists, industry data may not even be contested.

Environmental laws based on assimilative capacity have accomplished little to diminish the threat and impacts of climate change.

The flip side of assimilative capacity is cumulative effects, which are determined by conducting environmental impact assessments (EIAs). The Supreme Court of Canada, in the precedent-setting Friends of the Oldman River case, held that environmental impact assessments are planning tools, “with both an information-gathering and decision-making component” – indispensable to regulatory bodies fulfilling their mandate to balance the public interest with that of industry seeking to develop the resource.    

Under recent amendments to the Canadian Environmental Assessment Act, however, EIAs have been altogether dispensed with for small projects and streamlined for larger industrial developments, such as the Trans Mountain pipeline which is projected to expand, almost three-fold, the transmission of oil from Alberta to the Port of Vancouver. The expansion has attracted the ire of a contingent of university professors, scientists and ordinary citizens who have been shut out of the National Energy Board hearing process. Later in this series, we will examine the constitutional challenge of amendments to the National Energy Board Act that restrict the right to participate in NEB hearings and to cross-examine the proponent’s witnesses.

With atmospheric concentrations of greenhouse gases now hovering above the dreaded level of 400 parts per million, we now know that environmental laws based on assimilative capacity have accomplished little to diminish the threat and impacts of climate change.

While the Obama administration’s recently-announced initiatives to reduce carbon dioxide emissions are being touted as a bid to shape Obama’s presidential legacy, they might also inaugurate the repositioning of the United States away from a permissive regulatory regime and onto a more sustainable trajectory of environmental design. Inasmuch as Canada has, in the past, striven to align its energy and climate change policies with those of the US, it will be interesting to see whether the Harper government will be inclined to backpedal on its recent cutbacks to government-funded scientific research. Harper’s recent photo-op with Australia’s new Prime Minister, Tony Abbott, whose government’s political agenda reflects our own – to tackle a sluggish resource-based economy at the expense of the environment – speaks volumes, sadly, about our own government’s intentions to maintain the status quo.

By undermining government-funded baseline data that could shed some light on the cumulative effects of oil sands operations, our government has placed our judiciary in the unenviable position of having to rely upon industry-funded data to determine how the mining of bitumen and the deposit of waste material in tailings ponds have impacted the environment. The lack of compelling evidence that the cumulative effects of tar sands operations has irreparably degraded the Beaver Lake Cree’s traditional lands, may, however, according to some legal academics, provide the opportunity for the court to apply the precautionary principle, which we will explore in a subsequent post.

Just as the English nobility forced King John to defer to the Magna Carta on June 15, 1215, the Canadian government, in 2015, may be forced by the Beaver Lake Cree and other First Nations to address the growing challenges of climate change and embark, instead, on a sustainable path towards preserving Canada’s environmental heritage. Regardless of the policy and legislative obstacles confronting our courts, the Beaver Cree Lake lawsuit is poised to be precedent-setting. Apart from the significant Charter and environmental law implications, the case also has the potential to usher in a new era in Canada’s environmental decision-making framework, shifting the balance of power from the legislative and executive branches of government to the judiciary.

Part Two, updated June 30, 2014

Too big to divest

Just like the banks were deemed too big to fail during the economic meltdown of 2008, and were bailed out courtesy of taxpayers, so too is the fossil fuel industry so heavily invested in the tar sands that the Harper government is resolved to out-maneuver any legal impediments that stand in the way of their continued exploitation. Through cutbacks to scientific research and the gutting of environmental legislation, the Harper government has strategically positioned itself to defend its pro-industry economic policies against First Nations constitutional challenges aimed at redressing degradation of their territorial lands.

When Shell Canada applied to expand its Jackpine tar sands mine by 100,000 barrels per day, the Joint Review Panel (JRP), convened to oversee licencing of the project, insisted the company conduct a cumulative impact study. Based on this assessment, the JRP found that the Jackpine expansion would likely have significant adverse environmental effects upon wetlands, traditional plant potential areas, old-growth forest-reliant species at risk, migratory birds, caribou, biodiversity and Aboriginal traditional land use, rights and culture.

Regardless of the adverse environmental effects, the project was ‘justified’ because of its economic benefits.

The panel also concluded that Shell’s proposed mitigation measures were likely to be ineffective. Accordingly, as mandated, the Minister for the Environment referred the JRP’s finding to cabinet, which on December 6, 2013, approved the project on the basis that, regardless of the adverse environmental effects, the project was justified (emphasis mine) because of its economic benefits for the region and Canada as a whole.

While the Joint Review Panel’s ruling has been lauded by industry as inaugurating a new era in transparency, First Nations interveners – the Athabasca Chipewyan First Nation (ACFN) – contend that, like the Beaver Lake Cree, their constitutionally entrenched treaty rights have been violated and have applied to the Federal Court for a review of cabinet’s decision. But while the Beaver Lake Cree’s proceedings commenced in 2008 with little fanfare, the ACFN launched their judicial review application with the much-publicized support of iconic Canadian songwriter and musician Neil Young and his Honour the Treaties concert tour.

The Jackpine mine expansion was the first time that a regulatory body found that a proposed development would result in significant adverse environmental effects. It was also the first time that a proponent was ordered to conduct a study that took into consideration past, current and future tar sands development. The legal implications of these milestones upon the Beaver Lake Cree lawsuit cannot be ignored.

The panel’s finding in the Jackpine mine hearing – that the cumulative effects of tar sands development has resulted in significant environmental degradation – appears to have taken the wind out of the sails of the Beaver Lake Cree. And the issue of whether First Nations territorial lands’ have been irreparably degraded appears to have become moot. But, in both the Beaver Lake Cree and ACFN lawsuits, the respondent governments of Canada and Alberta will be called upon to justify infringement of aboriginal treaty rights. If the respondents don’t concede that tar sands development has resulted in environmental degradation, it would be an uphill battle for the federal and Alberta governments to justify such degradation in the public interest.

But while it appears as though, in the Jackpine case, the government has conceded on the cumulative effects issue, the ACFN is not conceding anything. The ACFN is asking the court to consider the adequacy of industry data, and particularly as it relates to Shell’s proposed mitigation measures, which the panel found to be lacking. By implication, the court is also being asked to rule upon the reasonableness and fairness of the JRP’s reliance on Shell Canada to conduct a cumulative effects study, rather than ordering a government-funded impact assessment.

Lines between legislators and judiciary becoming blurred

If the government had hoped that by conceding on the cumulative effects issue the court would not be weighing in on the war being waged against science, it was sorely mistaken. Government cutbacks to scientific research has resulted not only in the government relinquishing its responsibility to First Nations (and the Canadian public) in protecting the environment, but has also placed our judiciary in the unenviable position of second-guessing the government on its broader neo-conservative policy initiatives and economic strategies. The lines between the functions of the legislative and judicial branches of government to respectively enact and interpret environmental law are at risk of becoming blurred. And while the relationship between Harper and SCC Chief Justice McLaughlin has already become strained, it is also becoming increasingly obvious that the government has put itself (and the judiciary) in an awkward position through its own political manoeuvrings.

In the ACFN case, the court is essentially being asked to step into the shoes of cabinet to review its decision that economics should trump the environment and the constitutionally-entrenched treaty rights of First Nations. Although entrenched treaty rights under Section 35 of the Constitution are not subject to the reasonable limits clause of the Charter, they are similarly limited and trigger a process wherein the government is required to justify infringement of those rights. By analogy, when Section 1 of the Charter is raised as a defence by government to a Charter violation, the court is required to determine whether the infringement is “demonstrably justifiable in a free and democratic society.”  

The legal precedent for the duty of government to accommodate Aboriginal treaty rights is the 1990 SCC decision of Regina v. Sparrow. In this landmark case, the Supreme Court of Canada held that in order for an infringement of treaty rights to be justified in the public interest, “the special trust relationship and responsibility of the government vis a vis aboriginal people must be the first consideration.”  

A new era of judicial activism is emerging.

Since 1982, when the Charter of Rights and Freedoms was entrenched in our Constitution, the judiciary has assumed a broadened adjudicatory role of reviewing the laws and actions of government that violate Charter rights. Inasmuch as Charter rights are not absolute, however, the judiciary is required to balance individual and collective rights with the broader interests of society.

Until now, environmental decision-making has largely remained a function of the legislative and executive branches of the government, but with First Nations alleging infringement of their aboriginal treaty rights by the cumulative effects of tar sands developments, a new era of judicial activism is emerging. For the first time, human rights have become aligned with broader universal rights to a sustainable environment.

Part Three, updated July 14, 2014

Changing the game

In commemoration of National Aboriginal Day on June 21, 2014, Stephen Harper made the following statement: “The Government of Canada has had an enduring historic relationship with the first peoples of this land, based on mutual respect, friendship and support.” For First Nations battling pipelines and tar sands development, Harper’s words must  have come across as Newspeak – the propagandist language of the totalitarian state in George Orwell’s novel, 1984. Just five days earlier, on June 17, the Harper government announced its conditional approval of the controversial Northern Gateway pipeline. Projected to transport tar sands crude from Bruderheim, Alberta, across rugged mountain terrain, to Kitimat, BC, Northern Gateway has galvanized BC First Nations to harness any and all legal measures to obstruct the project’s development.

And while opposition to the pipeline escalates, fomenting civil disobedience, the Supreme Court of Canada in its recent historic judgement, Tsilhqot’in Nation v. British Columbia, has radically altered the landscape through which the pipeline is projected to be constructed. Unlike the Beaver Lake Cree and Athabasca Chipewan First Nations in Alberta, few BC First Nations have ever entered into treaties with the federal government. Until the Tsilhqot’in decision, the duty of the government to accommodate the interests of BC First Nations whose lands are earmarked for resource development had remained undefined.

            RELATED: The Tsilhqot’in First Nation’s fight against the New Prosperity Mine.

By affirming the Tsilhqot’in First Nation’s claim to traditional lands, the SCC has extended the constitutional safeguards, enunciated twenty-four years ago in Regina v. Sparrow, to BC First Nations. Any incursions on Aboriginal title lands, such as pipelines or tar sands operations, must be justified by the government or the regulatory agency authorized to licence exploitation of the resource. The adverse effects of such incursions must not outweigh the benefits that may be expected to flow from such resource development.

The Tsilhqot’in decision, accordingly, is a game changer, not only for the Northern Gateway pipeline, but also for Kinder Morgan’s bid to expand its Trans-Mountain pipeline that extends from Alberta to the Port of Vancouver. Unlike Northern Gateway, however, Trans-Mountain has yet to receive National Energy Board approval. But as opposition to pipelines and oil and gas development has intensified, so too has the resolve of our federal government to streamline the approval process for resource development.

Justice must not only be done, but seen to be done

Recent amendments to the National Energy Board Act restrict the rights of interested parties to participate as interveners and to cross-examine the proponent’s witnesses. A contingent of environmental and civil liberties organizations, academics, including scientists, and ordinary citizens who have been denied intervener status have launched a constitutional challenge against the legislative amendments.

The group contends that the NEB’s new review process offends section 2 (b) of the Charter – the right to freedom of expression. Simon Fraser University professor and molecular biologist Lynne Quarmby applied to participate in the Trans-Mountain pipeline NEB hearing because she believes that it is critical that the panel understand the connection between the pipeline’s expansion and climate change. Quarmby and others have applied to the Federal Court for review of the NEB’s decision to shut them out of the hearing process.

Apart from the freedom-of-expression argument, the Federal Court is also being asked to consider whether changes to legislation governing the NEB are contrary to the rules of natural justice. These rules ensure that the adjudicatory process overseen by regulatory boards is conducted reasonably, fairly and transparently. There is an old adage that justice must not only be done, but seen to be done. Cross-examination of witnesses in any type of legal proceeding – whether it’s in a civil or criminal trial or a regulatory hearing – is critical, as it affords the opposing side the opportunity to impeach the credibility of a witness who is testifying.

By restricting the right to cross-examine, and relegating scientists and other participants to reducing their concerns and evidence to writing, the Trans-Mountain Pipeline review panel may not be presented with the best evidence available in determining the potential adverse environmental impacts of tripling the pipeline’s capacity.

Decision after decision is being appealed and subjected to judicial review.

While it would be presumptuous on my part to speculate upon how the Federal Court is likely to rule on the relevance of evidence linking pipeline developments and expansions to climate change (and whether it has been correctly excluded by the NEB from the hearing process), there is little doubt that the environmental decision-making framework in this country is in transition. Decision after decision is being appealed and subjected to judicial review – and in the process, the judiciary is being called upon to consider not only the rights of First Nations, but of everyone in Canada.

In deliberating upon the relevance of scientific evidence linking the pipeline to climate change, the Federal Court may strike a compromise by ruling that the precautionary principle is appropriately applied under these circumstances. Euphemistically defined as “better safe than sorry,” the precautionary principle has been applied by our judiciary and by regulatory boards outside of Canada when scientific evidence lacks certainty. It has also been incorporated into international treaties aimed at environmental protection and sustainable development.

The Supreme Court of Canada, in 2001, set a precedent by applying the precautionary principle in 114956 Canada Ltee. (Spraytech Societe d’arrosage) v. Town of Hudson (the Spraytech decision) when it held that a municipality had jurisdiction to ban the use of a pesticide out of precaution for the safety of its citizens.

While the Harper government can be anticipated to raise the argument, in defence of National Energy Board Act amendments, that the streamlining of the regulatory process is expediently necessary, the application of the precautionary principle should be embraced precisely because it enhances expediency. In an adversarial setting, where the evidence lead by opponents to development often glaringly departs from that presented by industry, the search for the truth can be time consuming. And when the proliferation of litigation against regulatory board decisions is factored in, it also becomes glaringly apparent that the policies designed (ostensibly) to streamline the process have only exacerbated the problem that they were intended to address in the first place.

New legislation triggering constitutional challenges

That government policy on environmental protection is increasingly out of sync with the values of ordinary Canadians is undeniable. The fact that the Harper government’s “war on science” has been facilitated by policies directing how federal Department of Justice lawyers evaluate new laws, however, is less likely to be common knowledge amongst the Canadian public. According to lawyer and whistleblower Edgar Schmidt, the Legislative Services Branch (LSB) of the federal Department of Justice has been engaged in some serious streamlining of its own. While it would be a violation of solicitor-client privilege for Mr. Schmidt to comment upon any particular legislation that he reviewed, in his capacity as a member of the LSB, to ensure consistency with the Charter of Rights and Freedoms, he has spoken out about policy changes, in general, that have resulted in newly enacted legislation triggering constitutional challenges.

Mr. Schmidt, who is no longer employed by Justice Canada, during a telephone interview, expressed the opinion that the policy is precipitating “an erosion of respect for the Rule of Law” within the federal government. He has commenced his own lawsuit against the federal government, “…asking the [Federal] Court to clarify the duties of the Minister and Deputy Minister of Justice to vet proposed legislation for conformity with the Charter.” When proposed new laws (such as the amendments to the National Energy Board Act) are interpreted by the LSB to be inconsistent with the Charter, the House of Commons no longer needs to be alerted so long as some (emphasis mine) argument – even if it is almost certain to fail – can be made in favour of Charter compliance. This has resulted in many more constitutional challenges being initiated once those new laws are enacted, not only with respect to environmental laws, but also amendments to the Criminal Code and Immigration Act.

Inasmuch as the government’s streamlining policies have come about as a result of intense lobbying on the part of industry, one can’t help but wonder if the government is not only engaging in Newspeak but also in doublethink. Doublethink, like Newspeak, was coined by George Orwell and refers to a person subscribing simultaneously to two contradictory concepts or ideas without realizing it. While the government has adopted policies intended to streamline the regulatory process, it has also unwittingly fanned the flames of opposition to the very projects that industry hopes to expeditiously develop.

In the meantime, the Canadian judiciary – tasked with resolving burgeoning disputes between government and First Nations – is assuming a more activist role in environmental decision-making and in directing Canada from pollution control, a permissive regulatory paradigm and towards a more sustainable framework of environmental design.

This shift towards an expanded role for the judiciary in environmental law enforcement is part of a global trend. In 2011, Pace University School of Law and the Environmental Law Institute (of Washington, DC) hosted an international symposium for Judges, at the Judicial Institute of the State of New York. The symposium’s agenda was to instruct judges on “how governments have decided to empower courts to enforce environmental law and enhance the rule of law.”

It is ultimately up to the courts to decide whether the economy should trump the environment and aboriginal treaty rights.

Titled “Giving Force to Environmental Laws: Court Innovations around the World,” the symposium examined innovations in law enforcement, including the lead taken by countries like New Zealand and Australia, that have established separate environmental courts. And while the Canadian constitution does not easily lend itself to restructuring of our court system, Canada is in an enviable position because its Charter of Rights and Freedoms was designed to strike a balance between human rights and the broader interests of Canadian society.

When adjudicating upon First Nations land claims, the SCC has judiciously and consistently applied the Charter principle of reasonable limits.  Despite government assertions that environmental degradation – caused cumulatively by tar sands operations – is justified because of the economic benefits provided, it is ultimately up to the courts to decide whether the economy should trump the environment and aboriginal treaty rights. Waging a war on science is one thing, but waging a battle against the Rule of Law is another. It brings to mind Sonny Curtis’ famous line: “I fought the law and the law won.”