Rule of Law Marginal Concern for Governments


Lubicon Lake Indian Nation
Little Buffalo Lake, AB
403-629-3945
FAX: 403-629-3939

Mailing address:
3536 - 106 Street
Edmonton, AB T6J 1A4
403-436-5652
FAX: 403-437-0719



January 26, 1992



Enclosed for your information are copies of articles on a recent Canadian Supreme Court decision again illustrating the minimal effect that the rule of law has upon the actions of Canadian Government. The Supreme Court decision in question up-held an earlier Federal Court of Appeal decision quashing Federal permits supposedly required for the construction of a massive new dam pending conduct of a supposedly required environmental review. Predictably dam construction proceeded apace while the appeal of the earlier decision was before the courts and was completed without benefit of either the supposedly required environmental review or the supposedly required Federal permits.



The Alberta Provincial Government originally decided to proceed with construction of the new dam over the protest of concerned citizens and in spite of the findings of an official Environmental Council hearing which concluded that "a dam on the Oldman River is not required now or in the foreseeable future". Construction plans for the new dam then actually proceeded without supposedly required public notice or consultation or involvement of the appropriate regulatory agency.



Concerned citizens demanded that the Federal Government conduct a supposedly required environmental review before issuing supposedly necessary Federal permits. The Federal Government ignored citizen demands to conduct a supposedly required environmental study and simply issued the necessary Federal permits.



Citing lack of supposedly required public notice, consultation and involvement of the appropriate regulatory agency, concerned citizens took the Provincial Government to court in an effort to have the Provincial construction permit quashed. In 1987 the Provincial Courts agreed that proper procedures had not been followed and quashed the Provincial construction permit. In rapid fire order the Provincial Government first appealed the decision, then granted a $97 million construction contract before the appeal was heard, then issued a new construction permit, then dropped the appeal and proceeded with construction based on the new Provincial construction permit.



Construction of the new dam involved diversion of the Oldman River, which concerned citizens argued violated the Federal Fisheries Act by destroying fish habitat. They made their case to the Federal courts since Federal legislation and jurisdiction are involved. The Provincial Government claimed jurisdiction for prosecuting the charges. The Federal Government agreed and transferred responsibility for prosecuting the charges to the Provincial Attorney General. The Provincial Attorney General then stayed the charges.



Concerned citizens continued to pursue the matter and eventually succeeded in having prosecution of the charges turned back to the Federal Government, which predictably sat on the charges and took no action.



Concerned citizens then asked the Federal Courts to quash involved Federal permits until the supposedly required Federal environmental review is completed. The Federal Court of Appeal agreed and ordered the Federal Government to conduct an environmental review. The Provincial Government appealed the decision and actually completed construction of the new dam while the appeal was before the courts, without benefit of the supposedly required Federal permits and before the court mandated Federal environmental review could be completed.



In a manner similar to what's happened to the Lubicons the new dam has thus been built and much of what the concerned citizens had hoped to protect and preserve has already been irretrievably lost. However concerned citizens have managed to wring out of the Canadian Courts the seemingly inescapable conclusion that the new dam was built without benefit of supposedly required procedures or permits and in clear violation of the law. Their hope now is to have the dam dismantled, which isn't terribly likely, and/or that they've at least established a legal precedent which will have an effect on future projects.



History suggests, however, that the only kind of precedent that really counts in Canada is who has their way on-the-ground, and the fact is that the same people who built the dam and destroyed the traditional Lubicon hunting and trapping economy have again had their way. Legal precedent only matters with people who have respect for the rule of law and these people have repeatedly demonstrated that they only use the law when it serves their purpose, citing it selectively to justify their questionable use of force, purposefully using procedural delaying tactics in court to avoid judicial determination of issues which might possibly limit their prerogative, re-writing the law retroactively or simply ignoring it altogether when it threatens their purpose. Under such circumstances the only way to stop them is to actually stop them on-the-ground from proceeding with questionable dams, pulp mills, clear-cutting of internationally recognized World Heritage Sites, obliteration of inconvenient aboriginal societies, etc. Better yet would be to throw the buggers out and replace them with people whose definition of the public interest goes beyond short-term economic and political benefits for friends and associates.


Attachment #1: THE EDMONTON JOURNAL, Friday, January 24, 1992



OLDMAN APPEAL REJECTED

COURT RULES FOR ENVIRONMENT



Anne McIlroy

Southam News

Ottawa



The Supreme Court of Canada has dismissed an appeal from Alberta to get the federal government to butt out of the Oldman River dam.



The high court ruled Thursday that federal environmental assessment rules are valid, and said the federal government has both the right and the responsibility to carry out ecological reviews of provincial projects.



The judgement -- one of the strongest environmental rulings in the country's history -- noted that "protection of the environment has become one of the major challenges of our time."



It defined the term "environment" in broad terms, and said that environmental reviews are essential planning tools.



Environmentalists were ecstatic.



"Today is a great day for not just the Oldman River, but for the environment of Canada as a whole," Martha Kostuch, of the Friends of the Oldman River society, said following a native drum ceremony marking the victory. The society, which has been fighting the project for 10 years, was awarded costs.



"This decision certainly has major implications for the Oldman dam, but (also) implications for projects in the future involving the environment and environmental jurisdictions across Canada."



But the $350-million dam -- three km wide and 75 metres high -- is now complete and ready for spring runoff.



As a result of a lower court ruling, a federal panel is still scrutinizing the project for its impact on the environment.



Environmentalists urged that the dam's reservoir be drained. It is now 65 per cent full.



Kostuch hopes the review panel's report will recommend the dam be torn down, even though the panel's findings are not binding.



Environmentalists point out that the court said the federal panel now reviewing the dam could still have an impact on the project.



In the past two years, both Alberta and Saskatchewan built dams despite court rulings that there should be a federal environmental review.



Thursday's ruling will make that type of action more difficult, said May. The real test, she said, will come with the Great Whale project in northern Quebec. The federal government is carrying out an environmental review and if the province tries to start construction before the review has finished, Ottawa will have clear authority to withhold the needed permits.



NDP environment critic Jim Fulton said the government should also revise its new environmental assessment bill, which is intended to replace the guidelines upheld by the Supreme Court ruling. That bill is now in third reading.



A spokesman for Environment Minister Jean Charest said Thursday the federal government was not ready to comment.



Environmentalists and native groups say the dam will damage fish habitat, destroy a cottonwood forest, flood sacred Indian sites and cause mercury pollution.



Ranchers and farmers in the area say it is needed for irrigation.


Attachment #2: THE EDMONTON JOURNAL, Friday, January 24, 1992



SUPREME COURT DECISION CAPS 2 DECADES OF ACRIMONY OVER DAM



Ed Struzik

Journal Staff Writer

Edmonton



The fight over the Oldman River dam is one of the longest, most bitter and occasionally bizarre episodes in the history of Alberta's conservation movement.



Conceived by the Prairie Farm Rehabilitation Administration back in 1966, the idea for a dam at the Three Rivers site seemed doomed following pubic hearings and impact assessments in 1978-79. The Environmental Council of Alberta, which oversaw the review, gave it a thumbs-down.



But the dye seemed to be cast in 1984 when former premier Peter Lougheed announced that the province was going ahead with a dam, adding that he foresaw no environmental concerns.



Frustrated by the unbending position of the government, environmentalists suggested that Ottawa had an obligation to step in and conduct an environmental assessment review. Ottawa refused to get involved, however, and granted the province the necessary permits to go ahead with construction in 1987.



That's when a number of the province's major environmental organizations formed a coalition that came to be known as Friends of the Oldman River.



Friends, however, was not what Premier Don Getty's government considered them. When Friends of the Oldman gave notice that it was taking the province to court, alleging that proper procedures weren't followed, Environment Minister Ken Kowalski branded them "social anarchists."



Kowalski described the court challenge as "absurd, nonsensical and to the point of being ridiculous." But the court evidently thought not. That December, Chief Justice Kenneth Moore quashed the province's license to construct.



The province immediately appealed and then granted a $97-million construction contract before the appeal could be heard.



Alberta dropped the appeal and found a way to clear legal hurdles. It simply re-issued a new licence.



In the summer of 1988, while the Oldman River was being diverted into diversion channels, Martha Kostuch of Friends of the Oldman renewed the legal battle by charging in court documents that the province was violating the federal Fisheries Act in building a dam that destroyed fish habitat.



Attorney General Jim Horsman claimed jurisdiction. Ottawa complied and promptly transferred the case to Alberta. Charges were stayed, thus ending any chance for the case to get to court.



Friends of the Oldman, however, refused to back down and the province eventually turned the case back to Ottawa. No action has ever been taken by the federal Justice Department.



Using its last resort, Friends of the Oldman filed a motion in federal court in April 1989, asking that the federal permits be quashed until an environmental review is conducted. Justice James Jerome ruled against the group, but his decision was overturned by the Federal Court of Appeal.



The province then sought to appeal the decision in the Supreme Court, which made its final judgment on Thursday.



SUMMARY -- CHRONOLOGY OF EVENTS



1966 -- Oldman dam conceived by Prairie Farm Rehabilitation Administration.



1978-79 -- The province's Environment Council of Alberta holds hearings and concludes that "a dam on the Oldman River is not required now or in the foreseeable future."



1980 -- Province announces it intention to build a dam.



1983 -- Premier Peter Lougheed announces plan to proceed with construction. Refuses demands for environmental hearings.



1987-88 -- Ottawa is called upon by Alberta environmentalists to conduct a federal environmental assessment review, but refuses. Environmentalists form Friends of the Oldman River, head to court.



December 1987 -- Alberta Court of Queen Bench rules in favor of Friends of the Oldman when it rules construction permits are not valid because provincial Environment Minister Ken Kowalski ignored the need for public notice and discussions with municipalities and the Energy Resources Conservation Board. Province appealed, dropped appeal, then simply re-issued permits.



July/August 1988 -- Friends of Oldman back to court charging that the province and contractors violated Federal Fisheries Act. Ottawa transfers case to Alberta after Attorney General Jim Horsman claims jurisdiction. Horsman stays charges. Case transferred back to Ottawa after Friends of the Oldman complains. RCMP investigates.



April/May 1989 -- Friends of the Oldman files a motion in federal court asking for federal permits to be quashed and a federal environmental assessment review be launched. In August, court rules against Friends of the Oldman, which appeals.



March 1990 -- Federal Court of Appeal rules in favor of Friends of the Oldman and orders a federal environmental assessment review. Province is given leave to appeal to Supreme Court of Canada.



November 1990 -- Ottawa announces environmental assessment review after Friends of the Oldman threatens court action. Dam is 90 per cent complete.



December 1991 -- Dam completed.



January 1992 -- Supreme Court rules in favor of Friends.


Attachment #3: THE EDMONTON JOURNAL, Saturday, January 25, 1992



EDITORIAL

OLDMAN DAM RULING MORE THAN WELCOME



The odds against them were considerable, but the Friends of the Oldman ended up doing Canada a great, big favor.



Despite the arrogance of the provincial government, the Friends prevailed Thursday when the Supreme Court of Canada ruled that Ottawa had every right to review whether the Oldman River dam had potential to harm the environment. Alberta wanted the federal government to butt out of such assessments. Instead, the decision sets a precedent which obliges Ottawa to assess any industrial project affecting areas of federal jurisdiction. That includes everything from water quality to air emissions which might float into a bordering province.



The history of the Oldman dam proves that the provinces cannot be trusted to protect the environment on its own.



In 1984, Peter Lougheed announced that the dam would go ahead despite the objections of environmentalists, who said the project would flood sacred Peigan sites, destroy a cottonwood forest and harm fish habitat. The Friends, led by the tireless Martha Kostuch and Cliff Wallis, then launched a series of court challenges which the province fought all the way. Despite two judicial victories, the government appealed or ignored the rulings and pressed ahead with construction.



At one point, former environment minister Ken Kowalski referred to the Friends as social anarchists, calling their court actions absurd, nonsensical and ridiculous. Kowalski, by the way, was also charged with the responsibility of building the dam. The irony of an environment minister constructing a multimillion-dollar project, much less an environmentally sensitive one, wasn't lost on the people of this province.



Many Albertans came to believe that Ottawa must have a say on such projects because the provinces are sometimes in a conflict of interest. After all, a government which offers incentives to kick-start a pulpmill isn't likely to turn around and kill the scheme with an environmental review.



Environment Minister Ralph Klein lent some credence to that view on Thursday when he told reporters the Supreme Court decision would be bad for industry. Again, we had an environment minister going to bat for the views of business. The ruling, he argued, could mean construction delays; some projects would be killed because companies wouldn't be willing to wait.



We're not so sure about that. The Alberta-Pacific pulp mill proposal for Athabasca experienced several delays, most of them inspired by environmental concerns. But when the province eventually did say yes, Al-Pac didn't hesitate in going ahead.



Besides, industries face delays all the time. Government licences must be issued and tax implications ironed out before a project can go ahead. Taking care of the environment has become just another cost of doing business. In fact, the ruling will probably help businesses because they can be a little more certain of the federal government's role.



If Albertans needed any more indication of their government's regard for the environment, Kowalski gave it to them on Thursday, when he suggested that Alberta do away with its environment department.



"There may be some cost savings to the taxpayers of Alberta. Let the federal government deal with this," Kowalski is quoted as saying. "If we don't need a department of the environment, then let's just scrap it."



Perhaps Kowalski is simply trying to turn the issue into another Alberta-Ottawa battle by leaving the false impression that Alberta Environment has no remaining role. This ruling won't gut Alberta's environment department, but it does confirm Ottawa's obligation to examine projects the provinces might let slip through. The decision will mean a federal assessment for the controversial James Bay Hydro Project in Quebec. The ball is now in the court of federal Environment Minister Jean Charest, who can change proposed environmental regulations to allow the provinces more say in federal reviews.



As far as the Oldman dam goes, it doesn't appear that Alberta will order it torn down. The federal impact study found that it was well-designed and constructed, despite a few flaws.



Nonetheless, the Friends have signalled that they plan to petition the courts again. This time they want the whole thing taken apart. Success appears unlikely, but they've faced heavy odds before. At the very least, they've proved that the individual can make a difference.


Attachment #4: THE EDMONTON SUN, January 26, 1992



RULING ON DAM LAUDED

PULP MILL PROTESTORS TAKE STRENGTH



By Jennifer Bain

Staff Writer



The Supreme Court's Oldman Dam ruling will strengthen a court challenge involving a massive Peace River pulp mill, says an environmental coalition.



The coalition of environmentalists and native groups is calling for full public hearings on Daishowa Canada Co. Ltd.'s $579 million pulp mill near Peace River, 370 km northwest of Edmonton.



"Their decision makes it absolutely clear that the federal government has a position in environmental projects," said coalition member James Darwish.



"The Province can no longer say this is their sole territory," said Darwish, whose group, Edmonton Friends of the North, is part of the coalition.



The coalition's case in Federal Court to force full hearings has been on hold while the Supreme Court of Canada ruled on Ottawa's right to conduct an environmental review of the Oldman River Dam.



The Supreme Court ruled Thursday that the southern Alberta dam shouldn't have been built without a federal review.



Darwish said the federal government should have done an environmental impact assessment before the province gave Daishowa an operating licence in late 1990.



"We consider their mill to be a dirty mill," he said. "We want to see that it's up to par."



A Daishowa spokesman said yesterday that the Supreme Court decision will be studied to see what implications it may have for the company.



"I think it needs to be evaluated and I'm sure we're doing that," said Wayne Crouse.



The coalition includes the Dene Nation of the Northwest Territories, Edmonton Friends of the North, the Metis Association of the N.W.T. and others.