A new legal research project, headed by University of Calgary faculty of law professor Shaun Fluker, aims to sharpen wilderness protection in Alberta and improve the practise of environmental law worldwide.
Fluker says we’re not necessarily lacking the regulation to protect wilderness areas, but rather the follow-through to do it. He cites the deaths of 500 migratory birds at a Syncrude tailings pond last April as an example of environmental laws not being upheld in a timely manner. Section 5.1 of the Migratory Birds Convention Act prohibits depositing substances harmful to migratory birds in waters they frequent. Compounding the offence, Alberta Environment reported Syncrude didn’t notify it of the incident, as required by law.
An apparently outraged Premier Ed Stelmach promised action in response to public outcry, stating, “As the government of Alberta, we mean business.” And yet, it took almost a year before the provincial and federal government pressed charges on February 9. Together, the charges will result in a maximum penalty of $800,000 — a drop in the bucket for the world’s largest producer of crude oil from oilsands and the largest single-source producer in Canada.
John Custer, a private citizen frustrated by Alberta Environment and Environment Canada’s failure to respond in a timely manner, launched a private prosecution against Syncrude on January 7 in front of an Edmonton justice of the peace. Private citizens are able to take such measures if the Crown fails to act. EcoJustice (formerly Sierra Legal Defense Fund), Forest Ethics and the Sierra Club of Canada collaborated with Custer.
Since the Crown has taken over, Custer’s case will be dropped. Fluker points out that other cases launched by private citizens haven’t had such fortunate outcomes. He cites a case from the late 1980s wherein Martha Kostuch launched a similar private prosecution, challenging the construction of the Oldman River dam on the basis that it was contrary to the Fisheries Act and the Navigable Waters Protection Act. The Alberta attorney general intervened, entering a stay of proceedings, which meant the Alberta government and the companies involved in the construction did not have to answer the charges.
“There’s nothing in the law to make them [the Alberta attorney general or the provincial court] accountable if they decide not to adhere to their mandate,” says Fluker. “And there’s not a lot you can do if you are unhappy with their decision.” In the Kostuch case, a number of legal proceedings followed and, seven years later, her case was eventually successful in the Supreme Court, but by then, the dam was fully operational.
Fluker says government delays and inaction demonstrate the system is failing. “The system obligates the government to investigate and prosecute where appropriate. If it takes citizens to launch private prosecutions, it’s an indicator something has gone amiss. Arguably, the system is not working. If you believe in a robust and functioning legal system, this should bother you. It’s easy to draft legislation, but when it comes time to implement it, things get a bit stickier.” He plans to find the cause of this stickiness.
Barry Robinson, a Calgary lawyer with EcoJustice, is encouraged by Fluker’s work. “I’m hoping it’ll identify legal tools to protect wilderness areas. Whether the government is willing to use those tools is ultimately a political question, but Shaun’s work is a useful first step.”
To start, Fluker will attempt to define what wilderness means. He suspects part of the problem is that seemingly straightforward wilderness preservation legislation can be interpreted in unexpected ways. “Protecting ecological integrity sounds straightforward, but when you get into litigation, ecological integrity starts to be discussed in terms of balancing the competing interests of the environment versus development. There’s a disconnect happening between what’s written in the law and how it’s implemented.”
Not only is environmental law prone to interpretation, Fluker says it’s losing its relationship to the basic tenets of the legal system. “People get the sense that environmental law is a technical field with a lot of science involved. It’s losing its connection to broader values such as justice and integrity; fewer people see it as having a strong ethical component.”
“There hasn’t been a whole lot of historical research into environmental groups and their use of the law,” says Fluker. This summer, he will create a historical assessment of environmental groups from Canada to New Zealand that have tried to use the legal system to advance their causes. His intent is to ensure what’s been learned from past cases, such as Kostuch’s, won’t be lost. Fluker will identify trends and share this information globally. He believes his research will not just be useful to environmental groups, but to lawyers, government and private business.
“I expect my research to comment on the shortcomings of the legal system, and if we believe in this cause [wilderness preservation], which we purportedly do, then we will be interested in doing a better job of administering the system to serve the cause.”