Could the Fundamental ‘Right to a Healthy Environment’ Be a Gamechanger for Community-Led Battles like Shawnigan Lake?

Residents of Vancouver Island’s Shawnigan Lake are currently in B.C.’s Supreme Court fighting a waste discharge permit that will allow five million tonnes of contaminated soil to be dumped in their watershed over the next 50 years.

The ongoing case marks the third legal challenge the community has brought against the B.C. Ministry of Environment for granting the hazardous waste disposal permit to company South Island Aggregates.

The feeling of betrayal in the community is palpable, where frustrations with B.C.’s permit granting process and seeming close connection with industry are running at an all time high.

Sonia Furstenau, Cowichan Valley Regional District elected official for Shawnigan Lake, said people in the community have voiced their opposition to the project since day one.

Shawnigan Lake residents fought to prevent the original permit from being granted in 2013 and, when it was granted, challenged it through the Environmental Appeal Board (EAB). The community is now in the B.C. Supreme Court where a judicial review of the EAB’s ruling, which was favourable to the project proponent, is currently underway.

The Cowichan Valley Regional District is also fighting a separate legal battle, arguing the region’s zoning rules don’t allow for the dumping of hazardous waste.

Furstenau said she hopes the judicial review will out the community on a new trajectory.

“So we have a judge looking at all that evidence which was weighed so heavily against this site going forward,” she said. “I hope the judge is going to give us the ruling this community deserves to have.”

She said a win like that could really “help us keep the momentum moving forward.”

“There’s no relenting until the permit is revoked and the soil that’s been dumped already is removed. That cannot sit in our watershed. We are not going to let it stay.”

“I’m an advocate for justice and I always have been,” Furstenau said, “but it’s always been global issues, or climate change, or hunger or poverty — things that are a little bit removed.”

“To have it be so personal is very different and yet I’m motivated by the same things: justice, fairness and what’s right, what’s wrong.”

Right to Healthy Environment Proactive, Provides Access to Justice

Alaya Boisvert, lead for the David Suzuki Foundation’s Blue Dot movement, said if communities like Shawnigan Lake had a more definite right to clean water, it could change the way they engage with government permitting processes.

“We believe all Canadians have the right to a healthy environment which means — in addition to having the right to breathe fresh air, eat safe food, enjoy a stable climate — they fundamentally have the right to clean water,” Boisvert said. “It’s of critical importance that we have laws to substantiate those rights.”

Boisvert said currently Canada has a disconnected patchwork of environmental laws and regulations, “which do not recognize, fulfill and protect Canadians’ right to a healthy environment.”

“That’s a problem at all levels of government,” she added.

The David Suzuki Foundation, along with legal partner Ecojustice, is currently campaigning for a legislative change that would embed the right to a healthy environment within the Canadian Charter of Rights and Freedoms.

Boisvert said giving Canadians substantive environmental rights could change the way decisions are made about things like hazardous waste disposal.

“This would mean Canadians have access to adequate and safe waste management, which is an issue that is front and centre in the Shawnigan Lake situation.”

“It will also give Canadians procedural rights that include the right to know if there is pollution or contaminants being released in your environment.”

If that were the case, a fundamental right to a healthy environment would mean you would have the right to participate in environmental decision-making about those contaminants, Boisvert said.

“This is also relevant to the Shawnigan Lake situation where citizens have had long-standing concerns about the environmental impact assessment, about the quality and stability of … the infrastructure that is handling the waste disposal.”

A fundamental right to clean water might also give communities more legal standing to challenge decisions after the fact. “It’s also about access to justice,” Boisvert said.

“If there are cases where the environmental rights of citizens are being violated, it’s critically important that citizens are able to seek legal recourse for that, have their rights protected, fulfilled and respected.”

The Cowichan Valley Regional District is one of the more than 100 municipalities in Canada that have passed resolutions recognizing a citizen’s right to a healthy environment.

Legal Challenges Costly

Celine Trojand, community organizer with democracy-advocacy organization Dogwood Initiative, said the right to a healthy environment could compliment the battle for community self-determination that is currently being waged across the province in places like Shawnigan Lake, near the Site C Dam, or in the Walbran Valley’s old-growth forests.

“I think at the municipal, provincial, or federal level it would give communities something to point to that could back up their advocacy work,” Trojand said.

She added, however, that legal protections may not be enough without “boots on the ground” activism that ensures those rules are actually enforced.

“The policy is good if there is political will or a constituency organizing around seeing that law or policy enacted and enforced, because otherwise there are loopholes and it will be back to business as usual.”

Trojand said the way B.C. handles resource and development decisions is somewhat “backwards.”

“A company comes in and their sense of accountability is not to people who live in that community,” she said. “When they have a proposal to put forward they advance it, get the support of government and, if they’re able to, go through the hoops to get the support of the community.”

“If the process were that the community needed to be part of the proposal creation first, then we wouldn’t run into this cycle of communities feeling like their interests aren’t being represented at the government level — or anywhere really.”

Trojand said legal challenges — like those currently ongoing against the Site C Dam, Northern Gateway pipeline, the Kinder Morgan Trans Mountain pipeline, and waste disposal in Shawnigan Lake — are expensive and time consuming.

“It’s a long road to walk,” she said.

“However if a legal approach is backed up by a political approach in terms of applying pressure on decision makers and building a grassroots constituency that can organize and mobilize in key moments on an issue — in combination those things are really effective.”

Trojand added whether you’re fighting legal battles in the courts or working on developing stronger policies, like the right to a healthy environment, community participation “hasn’t been made very easy.”

“It’s not often clear to the average voter or citizen how to engage with either of those institutions.”

She added: ”That’s really what’s exciting, I think, about all of these very local community concerns really starting to take centre stage in B.C. as people are seeing that if they become activated on those issues and activated in their local communities they can see the change.”

“Local people are catalyzing around an issue, trying to trigger both legal and political processes, to combat the industry-driven status quo,” she said.

Image:  Shaw Creek near Shawnigan Lake, located below South Island Aggregates sites 21 and 23.* Photo provided by the Shawnigan Residents Association.

* Caption updated January 15, 2016 10:25am.

Carol Linnitt is a journalist, editor, illustrator and co-founder of The Narwhal. Carol has been reporting on energy and environmental…

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