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Opinion

Put People on Par with Industry in Enviro Tribunals

And give the B.C. public a chance at justice. Latest in a series of proposed law reforms.

By Ethan Krindle, Mark Haddock and Calvin Sandborn 9 May 2013 | TheTyee.ca

Mark Haddock is a lawyer with the Environmental Law Centre and senior instructor at the UVic Faculty of Law. Ethan Krindle is a former ELC Clinic student and ELC executive who also articled with the Environmental Law Centre. Calvin Sandborn is the legal director for the Environmental Law Centre.

[Editor's note: British Columbia's economy is growing. Much of that growth rests on expanded resource industries. Yet our laws designed to protect the unparalleled beauty and richness of the B.C. environment have been weakened, both federally and provincially, over the past decade. This Tyee special series, in cooperation with the Environmental Law Centre at the University of Victoria, reveals what B.C.'s leading experts in environmental law say most needs to be fixed, and their specific suggestions for change. To read all their recommendations, download the free electronic publication Maintaining Natural British Columbia for Our Children: Selected Law Reform Proposals. Today, we look at the problems in B.C.'s system of administering environmental justice.]

The environment cannot be protected if the case for clean air, pristine water and healthy wildlife is excluded from the halls of justice. Unfortunately, environmentally concerned citizens are often unable to enter these halls. While industry has broad access to tribunals to promote private rights, citizens are often unable to enter those same government tribunals to argue for public rights.

For example:

- Forest companies can appeal government decisions regarding Allowable Annual Cut, stumpage and management plans, but environmental groups and members of the public may not.

- Citizens cannot appeal when an industry gets a water licence unless they happen to own waterfront land, or land physically affected by the new licence. This excludes salmon enhancement groups and recreation groups from appealing on behalf of nature.

- In 2005, the law was changed to eliminate the right of neighbours to appeal potentially hazardous proposed sewerage (septic) systems.

- In 2003, the public's right to appeal pesticide use permits was effectively lost when the requirement to obtain such permits was dramatically reduced. From 2003-2010 there were no public-interest based appeals. 

B.C. currently has several tribunals with some form of environmental mandate. However, citizen access to these tribunals is very limited due to "standing" rules, and restrictions on which environmental decisions the tribunals may actually consider. Even citizens that get past those barriers face the problem that many decisions can only be reviewed at specific times -- such as when a licence is first granted or amended.

If it turns out that an industrial operation harms someone, wrecks their quality of life, or even interferes with other licenced rights (e.g. water rights holders, tourism operators with commercial recreation tenures), there is often little recourse available to them. Those who have legal remedies may sue in court but face numerous hurdles and risks -- among them extremely high costs. Those without judicial remedies can only hope for the goodwill of the minister responsible, or try to get media attention to put pressure on politicians.

Rehaul the tribunal

In many cases, environmental disputes could be resolved by requiring new standards or technology, but today there is often no mechanism to bring such issues before a tribunal. In addition, some tribunals do not see themselves as having a mandate to resolve disputes -- and tend to act more like courts in deciding winners and losers.  

Clearly, the tribunal system needs to be improved to better serve the public and protect the environment, and to ensure better access to justice for those affected by industries such as mining, logging, and oil and gas development. The mandate and procedures of environmental tribunals need to be modernized if environmental justice is to be done.

Reform must recognize that environmental harm is inherently unpredictable, and tribunals must be able to address it when and where it occurs. They need to have the discretion to grant standing where parties can show a legitimate grievance even if it wasn't foreseeable at the time a permit was issued.  Our environmental tribunals should also be mandated to apply dispute resolution techniques, as we do in many other sectors.

In addition, participant funding should be made available to citizens pursuing meritorious appeals. The ability to start an appeal is of little use if one cannot afford to hire experts and make an effective case. Participant funding would reduce the imbalance between parties, put better information before tribunals and improve their decisions.

A list of fix-its

A study published by the Environmental Law Centre looked at environmental tribunal systems in other provinces and countries and made these recommendations for improving the system in B.C.:

- Consolidate and expand tribunal mandates: currently, some kinds of environmental decisions fall under the jurisdictions of multiple tribunals, while others (such as local government decisions) are not covered at all. Expanding and consolidating tribunal mandates where appropriate could close some of these "accountability gaps" and allow for more consistent rules and procedures;

- Make tribunals more accessible: Allow review of decisions by appeal whenever the environmental impacts of those decisions is felt -- not just at set points such as license amendments;

- Recognize that where the government chooses not to act in relation to an environmental issue, this is a decision and should be appealable in the same way as other decisions;

- Improve the standing rules so that individuals or public interest groups who can show that an environmental decision negatively affects them can appeal it. In addition, "advance costs" should be more readily available to public interest litigants; and

- Give tribunals broader investigative powers as well as a greater scope to take a problem-solving approach to disputes and/or to use alternative dispute resolution techniques such as mediation.

B.C. is falling behind many jurisdictions that have taken steps to ensure that environmental tribunals are accessible, fair, efficient, effective, accountable, and mandated to deliver environmentally sustainable outcomes. The recommended reforms would remedy this, and provide the B.C. public with access to environmental justice.

For more information, see:

Environmental Tribunals in British Columbia. Environmental Law Centre.

On the lack of citizen involvement in environmental assessments, Environmental Assessment in British Columbia. Environmental Law Centre.  [Tyee]

Read more: BC Politics, Environment

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