There just aren’t enough lawyers in B.C. to fight all the environmental battles First Nations, individuals and groups face on a regular basis in the province, according to University of Victoria lawyer Chris Tollefson.
As a solution, Tollefson, the founder of the University of Victoria’s Environmental Law Centre, and a handful of legal experts and litigators recently launched a new public interest environmental law outfit that will take on some of the most powerful forces in B.C., from Malaysian-owned Petronas to government ministries to BC Hydro.
The new legal non-profit, the Pacific Centre for Environmental Law and Litigation (CELL), will focus on environmental litigation, legislative reform and, as Tollefson describes it, “training up the next generation of young public interest environmental lawyers.”
Tollefson, who served as a former president of Ecojustice, one of Canada's most prominent environmental legal non-profits, said there is more work than existing organizations can handle.
That sentiment is echoed by Bob Peart, executive director of Sierra Club BC, and one of the centre's first clients.
"I think litigation is vital and it's so hard to move this government in any other way," Peart told DeSmog Canada. "You can build up the wall of public noise as much as you like but litigation seems to be a lever they at least half listen to."
Illegal Site C Permits at Centre of First Case
The organization launched with a case aimed at the B.C. Ministry of Forests, Lands and Natural Resource Operations for allegedly issuing illegal permits to expedite BC Hydro’s Site C construction work, as DeSmog Canada first reported.
The Centre filed for a judicial review of those permits last week in the B.C. Supreme Court on behalf of the Sierra Club BC and citizen Josette Weir.
Peart said the issue of the illegal permits reminds him of other stories of government corruption.
"The first reaction I had was thinking of the triple delete e-mails," he said. "What's the difference between 'you erase those e-mails' and someone saying 'please, wink, wink, nudge, nudge, can you approve this?' "
Peart said there is a long-standing tradition of using litigation to advance environmental issues and to hold government to account, but the need for that strategy is increasing over time.
Violating permitting rules or skirting proper consultation with First Nations seems to part of the due process with the current government, he said, adding they have come to expect litigation..
"It's a spin of the dice, risk analysis on their part."
Tollefson said the illegal Site C permits are a reminder of the importance of challenging government activity in the courts and holding government to account.
“That is exactly the kind of case CELL was created to take on,” Tollefson said. “This is the kind of situation that desperately needs to be brought to the courts for adjudication.”
“The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true that should concern all British Columbians regardless of how they feel about Site C."
— DeSmog Canada (@DeSmogCanada) July 29, 2016
Training Next Generation of Public Interest Environmental Litigators
Tollefson said the new organization will also focus on inspiring and training the next generation of B.C.’s environmental lawyers.
“We believe very much that the best way and maybe the only way to train young lawyers to be litigators is to bring them into ongoing cases, to make them part of a team that is working on a piece of litigation together.”
The centre will work closely with the University of Victoria’s Environmental Law Centre where Tollefson and law students have taken up cases aimed at the Northern Gateway pipeline review process or an expanded aluminum smelter in Kitimat, B.C.
Anthony Ho, a recent graduate of the University of Victoria’s law program, said he is excited to join the centre and continue on with some of the important litigation work he experienced through the Environmental Law Centre.
“There’s no end to the important public interest cases that could be brought all across Canada, but especially in B.C.,” Ho said.
Major pipeline proposals, energy projects like Site C, fracking and other energy development in the province have generated a significant level of public awareness around the need to balance economic development with environmental protection, Ho said.
“I do believe that British Columbians are becoming more and more aware of their environmental rights and more and more supportive of the idea that those rights need to be protected and if necessary vindicated through the justice system.”
Ho said the practice of public interest environmental law means ensuring citizens are able to bring cases forward that protect their environmental rights and bolster their access to justice, despite a lack of capacity or resources.
“If there aren’t lawyers out there or environmental law organizations out there who are able to take on those cases on a pro bono basis and represent those citizens and citizen groups in bringing forward these pieces of litigation then as a society we lose the chance to ensure that environmental justice is done.”
Once in a Generation Opportunity to Fix Broken System
Tollefson said a major focus for the centre will be on legal reform, especially when it comes to the review of major development projects.
The Trudeau government campaigned on a promised to make Canada’s pipeline review process more robust but has so far failed to deliver on that promise for major pipeline projects under review like the Kinder Morgan Trans Mountain and TransCanada Energy East pipelines.
The government has also promised to review major pieces of legislation like the Canadian Environmental Assessment Act that determines, in large part, how major developments like the Pacific Northwest LNG export facility are characterized during the review process.
But Tollefson said he sees a major opportunity for change.
“I think we potentially have a once in a generation opportunity here to fix a host of problems with how we do environmental assessments and how we approve major energy projects.”
“It’s a daunting task but … it’s absolutely critical that we weigh in and try to steer the federal government towards a successful completion of this project that they’ve taken on.”
Tollefson said he thinks an important part of that overhaul resides in ensuring the courts are given a mandate to supervise the work of tribunals and the work of bureaucrats in a more rigorous way.
“We believe the courts have taken a too deferential approach to reviewing the work of bodies like the National Energy Board and bureaucrats,” he said.
A new model would increase the ability of the courts to take a more hands on role in assessing if decisions, on pipelines or other major energy projects, measure up to the rule of law and procedure, he said.
“That’s something we’ll be urging the government to include in this new review.”
Image: Screenshot from Pacific Centre for Environmental Law and Litigation. Salmon image: Ian McAllister