It’s been almost a year since Natural Resources Minister, Joe Oliver, attacked Canadian environmental groups in an open letter as “radicals”. Lots has been said since then about the Minister’s inflammatory rhetoric, but very little has been said about this statement:
Finally, if all other avenues have failed, [environmental and other radical groups] will take a quintessential American approach: sue everyone and anyone to delay the project even further. They do this because they know it can work. It works because it helps them to achieve their ultimate objective: delay a project to the point it becomes economically unviable.
This statement, like so much of the Minister’s Open Letter, has little basis in reality. Our experience, as environmental lawyers, is that Canadian environmental organizations (including the groups he’s implicitly taking aim at) have been far less likely to go to court than their U.S. counterparts.
However, a great article in Tuesday’s the Financial Post (Dec 4th) points out that this may change – thanks in large part to Canada’s new Environmental Assessment Act 2012 (CEAA 2012). The article argues that CEAA 2012, developed hastily and without adequate 
When the federal government rushed new rules on environmental assessments into law last June, it hoped to speed up the approval of natural resource projects such as mines and pipelines. Now that plan may be backfiring, environmental lawyers say, because the details that policymakers in Ottawa didn’t iron out will likely be fought over in courts across Canada.
We agree that the potential uncertainties introduced in CEAA 2012 will result in increased litigation, and more delays for certain large and controversial projects. However, we think that some further discussion about the link between the government’s recent attack on environmental laws and the resulting litigation – particularly in light of Minister Oliver’s prescient statements back in January – may be in order. This increased litigation could have sweeping implications not just for project proponents, but for the environmental movement in Canada.
What types of litigation?
First, it’s not just litigation related to the Canadian Environmental Assessment Act 2012. The changes to the Fisheries Act, that resulted in weakened protection for fish, create an even greater amount of legal uncertainty.
And, during a briefing in October regarding changes to Canada’s Navigation Protection Act (formerly the Navigable Waters Protection Act), Transport Canada officials indicated that they fully expect environmental and other groups as well as individual citizens to have to turn to the courts – using their own time and money - to protect the public right of navigation on the tens of thousands of rivers and lakes that no longer have legal protection under the Act. The officials went so far as to suggest that the courts enforcing the common law public right to navigate amounts to “stronger” than protection under the legislation.
Some of these uncertainties will be resolved in the long-term, as courts clarify the rules, although the potential for litigation in the short-term is great. That being said, relying on protracted litigation to clarify the meaning of hastily and poorly drafted legislation is not consistent with the government’s stated goal of a “modern, efficient and effective regulatory system.”
In other cases, litigation will be the result of eliminating Canada’s laws that ensured that environmental, fisheries and other values were considered in an open and transparent manner. Eliminating environmental assessments altogether for many important, and environmentally destructive, projects mean that there may be no place for community concerns to be voiced.
This poses legal problems: First Nations have a constitutional right to be consulted, which governments have often addressed through environmental assessment. Similarly, I have argued that the Charter of Rights and Freedoms requires a basic level of environmental assessment for government decisions that put public health and safety at risk (under Section 7 of the Charter – the right to “Life, Liberty and Security of the Person”).
However, it also creates “social licence” problems – meaning that people are less likely to accept a project when they haven’t had an opportunity to express their concerns and have them heard. The result will be more concerned people, with a greater likelihood of litigation – if court is the only place that their concerns can be heard.
Impacts of increased litigation?
There’s no doubt that the legal uncertainty associated with the gutting of Canada’s environmental laws is going to create big problems for some projects, and considerable uncertainty for others. Is this a good thing for the environment? Is it a good thing for the environmental community – does it give us more power?
It’s worth noting that community groups, First Nations, and others who might launch litigation, do not have unlimited resources to sue (notwithstanding the implication to the contrary in Minister Oliver’s letter about the “foreign funded radicals”). So the reality may be that, if any, only a small number of controversial projects could be delayed through litigation, a far cry from having rigorous consideration of environmental impacts for all potentially destructive projects. While it’s possible that some environmental groups and communities may defeat particular projects, the overall result would not be better legal protection – unless we can use those wins to leverage improvements to Canada’s environmental laws as well (undoing some of the damage caused by the recent attacks on our environmental safety net).
And it’s not in anyone’s interests to have tax-payer’s dollars spent on government lawyers defending lawsuits that could have been avoided through more carefully crafted legislation.
And I think we should be concerned, also, about the impacts of this increased litigation to the environmental movement’s reputation. Minister Oliver, in a pre-emptive attack aimed at laying the political justification for the changes to environmental laws that we’re talking about, intentionally caricatured environmental organizations as adopting U.S.-style litigation strategies.
As environmental lawyers, we obviously see a role for litigation to protect our environment. But, in light of Minister Oliver’s comments, it seems important to be aware of the limits of litigation. At its best litigation is a powerful, but blunt, tool to protect the environment. At its worst, litigation may become a drain on limited resources, and can be disempowering and polarizing. It can shift the focus from building solutions that are good for the environment, for democratic process and for Canadians, to decisions based on technical legal requirements.
Closing questions?
Is Minister Oliver’s attack on litigation by environmental groups a sign of political battles ahead, when the environmental community responds to the new legal framework by turning to the courts? Is litigation – and resulting delays – really an unintentional impact of these changes, or is the government expecting such litigation, and preparing to make use of it in future attacks on Canada’s environmental community? How can we ensure that our environmental laws and environmental litigation are used responsibly – in a way that brings communities together instead of further polarizing Canadian environmental debate? How can the threat of litigation best be used to push for stronger environmental laws?
