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January
2001 Newsletter
The
Red Hill Court Case
The
Federal Court hearings were completed on December 1 and
the case is now in the hands of the judge who is expected
to take at least four months to render her decision. Here
is a brief summary (as brief as possible in the circumstances)
of the twenty or so arguments made by the Regional government
and the counter arguments to these. The Region's positions
are listed first and the responses are referenced by bracketed
numbers and given afterwards.
REGION'S
ARGUMENTS
CEAA
(the Canadian Environmental Assessment Act) doesn't apply
to the expressway because:
- no
permit is required under the federal Fisheries Act (because
the project will end up improving fish habitat) (1)
- because
work began on the project prior to 1984 (CEAA has a grandfathering
clause exempting some older projects) (2)
- because
irrevocable decisions have been made about the expressway
(they've built the Linc, etc.) (2)
- Environment
Canada failed to participate in the 1984-85 hearings (3)
Going
to a panel review was beyond the power of the federal government
because:
- the
Environment Minister didn't consult with the provincial
government (she wasn't required to, but evidence showed
that the province was kept informed)
- the
Region had a legitimate expectation that the screening
report would be completed before referral (not required
under the legislation) (4)
- the
method of referral is an abuse of discretion (Region alleges
that Environment Canada used the Fisheries Department)
(5)
- Environment
Canada was not a "responsible authority" (5)
- the
federal migratory bird legislation doesn't permit it to
protect bird habitat (5)
- Environment
Canada employees were biased and members of anti-expressway
groups (5)
- Sheila
Copps is opposed to the expressway and interfered (5)
- Panel
Chair Nick Mulder is biased (5)
- other
projects like this one were not referred to a panel (6)
- the
scope of the project was wrongly defined as the entire
north-south expressway (6)
The
Panel terms of reference and EIS Guidelines should be rejected
because:
- the
feds are trying to regulate transportation policy and
urban planning which are provincial matters (7)
- the
terms of reference are beyond the scope of CEAA because
they include need and alternatives (7)
- the
Panel terms of reference are unconstitutional because
they include need and alternatives (7)
- the
EIS Guidelines are beyond the scope of CEAA and the Terms
of Reference (8)
- terms
like "ecosystem integrity", "ecosystem
health" in the EIS guidelines are "extremely
vague" (8)
- use
of the precautionary principle in the Terms of Reference
and the EIS Guidelines is invalid (9)
NOTES ON THE ARGUMENTS
(1)
A fisheries permit is required if there may be harmful alteration,
disruption or destruction of fish habitat. The region's
fish consultant says after they move seven kilometres of
the creek things will be better for the fish. However, even
the construction of the Dartnall Road interchange of the
Linc required a fisheries permit and resulted in a CEAA
screening. In addition, the Region actually applied for
a fisheries permit in 1998 (now they claim they didn't have
to do that) and agreed to and participated in the CEAA screening
for nearly a year.
(2)
The grandfathering clause of CEAA only exempts projects
that were under construction prior to 1984. The expressway
didn't even have provincial approvals until 1987. The Region
claims that 60% of the expressway is constructed (by lumping
in the Linc with the valley expressway) including 37% of
the north-south expressway (they claim the north-south starts
at Upper Gage which even contradicts the compass!). However,
their chief engineer testified that 0% of the north-south
has been constructed. In addition, major design changes
to the north-south occurred after the Crombie report in
1994. These changes forced the Region to go back to the
provincial government and ask that their new north-south
road be exempted from the provincial environmental assessment
act. One of the reasons they gave was that the north-south
road would have to undergo a federal assessment! (because
the feds told them this in writing in 1996). This exemption
wasn't granted until 1997.
(3)
Federal rules now require that assessments take place when
the federal government is asked to provide a permit. These
rules were established in 1984 (although the feds incorrectly
regarded them as discretionary until 1989 when the courts
ruled they were mandatory). The Region points to a 1983
letter from the feds saying they won't participate in the
provincial assessment because they have no power to do so.
This letter was correct when it was written but is irrelevant
today.
(4)
The federal assessment "screening" (first
stage) began in June 1998. The Panel Review was called in
May 1999 after it became clear that this was inevitable.
Throughout this period the Region was demanding faster action
by the feds. In March 1999, the Region's transportation
committee actually asked the feds to go immediately to a
Panel Review. The Region didn't complain about the calling
of the Panel until two months after it happened (when the
Terms of Reference were finalized and the Panel members
appointed). Now the Region says it was illegitimate to begin
the Panel before the formal completion of the screening
report (which would have taken several more months). In
fact, CEAA allows the Minister of Fisheries full discretion
to ask for a panel "at any time".
(5)
This is all part of the grand conspiracy theory. Environment
Canada (EC) (and other federal departments) were required
by law to help the Fisheries Department examine the expected
effects of the expressway project. EC concluded that there
will likely be significant adverse environmental effects
on migratory birds, air quality and water quality. This
was one of the two reasons (the other was public concern)
for the decision to move to a Panel Review. The Region claims
that the Fisheries department would have okayed the expressway,
but it was manipulated into asking for a Panel Review by
the scientific advice of Environment Canada (Health Canada
and the National Energy Board also supported the Fisheries
Minister's decision). The Region's "evidence"
and argument tries to paint a picture of a grand conspiracy
centred around Sheila Copps and a 'circle of friends' of
the valley who are alleged to have gotten Environment Canada
to get the Fisheries department and Minister to do their
bidding. The "evidence" is centred within the
Region's own mind, but they allege "proof" of
their suspicion exists somewhere but is being hidden by
the federal government. Since there is no real evidence
of this conspiracy, it appears it is being used by the Region
primarily as a public relations tool to demonize its "enemies".
These include Ms. Copps, Friends of Red Hill, the Hamilton
Naturalists' Club and the Bay Area Restoration Council,
all of which are allegedly part of the conspiracy. The "evidence"
presented by the Region claims that one individual who works
in the economics wing of Environment Canada and has publicly
criticized the expressway is a member of Friends and the
Bay Area Restoration Council and that three other employees
are biased because they are or were members of the Hamilton
Naturalists' Club. However, none of these people were even
involved in the Environment Canada review of the expressway
project.
As
part of the conspiracy theory, the Region claims that anticipated
adverse effects on migratory birds have not been "proven"
(just because 41,000 trees will be cut down and the valley
chopped into 30 pieces) and that if the feds had accepted
this they wouldn't have called a Panel Review. They claim
the migratory bird convention act is being used illegitimately
and doesn't give the feds the right to protect bird habitat.
A
further part of the conspiracy theory alleges that Nick
Mulder, the Panel Chair, is biased because he was once the
Deputy Minister of Transportation when David Anderson was
the Minister, and the Deputy Minister of the Environment
when Sheila Copps was the Minister. In a separate case heard
at the same time, the Chamber of Commerce alleged that panel
member Sally Lerner is biased because she knows Don McLean
and sat on his master's thesis committee, and that her writings
show that she is pro-environment.
(6)
These arguments carry little weight because the other situations
were not examined in detail. More importantly, CEAA gives
federal ministers a great deal of discretion and the courts
have ruled repeatedly that this discretion is legal. The
Region says that the entire north-south expressway shouldn't
be examined, only the bridges and culverts over the creek.
Under CEAA it is clear that this decision is entirely up
to the federal government. In addition, the scope in the
Panel Review is virtually identical to the scope used in
the environmental screening from June 1998 to May 1999,
and this scope was actually proposed by the Region itself.
(7)
These are old arguments that were used by provincial governments
in the early 1990s and were rejected by the Supreme Court
of Canada which ruled that the federal government has a
right to conduct assessments in order to inform its decision-making.
The court also ruled that this allows the federal assessments
to examine all aspects of the projects including those that
are under provincial jurisdiction. In this case, the federal
government must decide if it will issue the Region a fisheries
permit. CEAA gives it three possible choices: (1) decide
the project WON'T cause significant adverse environmental
effects, in which case it must give the permit; (2) decide
the project WILL cause these effects and this is not justified
in the circumstances, in which case the permit must be denied;
and (3) decide the project will cause adverse effects but
that these are "justified in the circumstances"
which permit the government to issue the permit. Among the
ways that the government can decide if adverse effects are
"justified" are to look at "need" or
"purpose". That would then permit it to conclude
that the valley is going to be seriously damaged but the
expressway should be allowed to proceed because it is desperately
needed and there is no other place to build it, and that
"on balance" the gain is greater than the loss.
Obviously this conclusion REQUIRES the federal government
to examine the need for the expressway and alternatives
to it including alternative routes.
(8)
The Region began its court challenge in early August 1999.
When the Review Panel refused to stop functioning because
the Region was boycotting its proceedings, the Region launched
a second court challenge against the EIS Guidelines produced
by the Panel, repeating most of its objections to the inclusion
of needs and alternatives. It also is complaining that the
Guidelines are vague. The federal lawyers noted that the
Region's concerns could have been met by not boycotting
the process which produced the guidelines, and that even
now the guidelines specifically allow the Region to argue
with the Panel about any aspect of the guidelines.
(9)
The Precautionary Principle was adopted at the 1992 UN Conference
on the Environment (the Rio Summit) and endorsed by Canada.
It basically says that where there are potential serious
consequences of an action but these consequences are not
absolutely certain to occur, we should err on the side of
caution. The principle has been included in other Panel
Reviews and certainly falls within the discretionary powers
of the federal government. Indeed, failure to include it
could be challenged in the courts because the principle
has been adopted by the federal government.
THE
COURT PROCESS
The court case was initiated by the Region in August 1999
and is directed against the federal government. The provincial
government was automatically included because constitutional
issues are raised. The province's lawyers only spoke on
the constitutional issues. Friends of Red Hill was represented
by the Canadian Environmental Law Association. Our rights
were limited to three areas: (1) providing evidence on the
natural features of the valley; (2) cross examining two
regional witnesses about the history of the expressway project;
(3) make written and brief (90 minutes) oral arguments to
the court on all issues that we wished to canvass. The federal
government argued that the law requires the region to challenge
a decision within 30 days and that therefore much of the
Region's case was "out of time". The court has
not made a decision on this.
The
process before this court was as follows: The region and
the federal government filed witness statements from various
individuals (about 20). Friends was allowed to file one
such statement (on the valley features). Then each witness
was subject to cross-examination which was transcribed.
These examinations were not in front of a judge, so if a
question was refused, the lawyers could (and did) go to
the case manager (the prothonotary) for a ruling. For example,
CELA instructed the Friends witness not to answer 42 questions.
This was challenged and the court ordered one of the questions
to be answered.
In
late October the Region filed its 60 page written argument
summarizing its case. The feds got 60 pages to respond,
and Friends had 30 pages to present our arguments. The province
also got 30 pages. All of this preceded the actual hearings
which ran for 5 full days of oral arguments which included
frequent reference to case law as well as to the "records"
filed by each party. The Region's record was 47 volumes
(usually between 100 and 200 pages each). The feds responded
with 15 volumes and the others with much smaller amounts.
Altogether there may be 10,000 pages. The judge now has
the task of sorting all this out, which is why a decision
is not likely for several months.
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