September, 1997
Fisheries Act "chicken"?
In another
astonishing move, the Ontario government has announced it will stop enforcing the key
habitat protection provisions of the federal Fisheries Act (s.35). In the CCME
Harmonization process, (scheduled for signature this fall) Ontario demanded that the
federal government transfer habitat protection to the provinces. However, Ontario also
wants the federal government to pay provinces for enforcing federal laws. MNR argues that
the federal government is not paying its fair share, and therefore announced that it will
drop fisheries habitat enforcement as of September 18.
Who will win this game of chicken? Not the fish...
Due Diligence
The B.C.
Supreme Court has issued an important judgment acquitting BC Hydro of offences under the
Fisheries Act. In 1991, unusual weather conditions caused BC Hydro to spill water over
their dams in a salmon-spawning river, killing many fish.
The Crown argued that Hydro gave too much priority to protecting
its generating capacity, and not enough to protecting the fish.
The judge agreed that "Hydro must meet an exceedingly high
standard of care", and could not operate its dams "solely from the point of view
of what is best for the generation of electricity". Also, while a storm which occurs
once in a thousand years is an "act of God", Hydro was responsible for waterflow
from a "hundred year storm". It was no defence that the Crown had permitted
Hydro to construct the dams, or that Hydro itself created the affected fishery.
The key ruling was a ringing reminder that due diligence cannot
be judged in retrospect; the "all reasonable steps" a defendant must take does
not mean "all conceivable steps". Hydro had made reasonable decisions on the
basis of available information, having given careful consideration to government
requirements for fish protection. Dam management is exceedingly complex, requiring
constant juggling of innumerable variables. It is a matter of judgment on which equally
competent people may differ.
This decision is an important step towards a definition of due
diligence that well-managed companies can actually meet, admittedly with real effort.
(Some past decisions, especially in Ontario, have set the standard impossibly high.)
However, the judge raised but didn't answer several important questions about the balance
that companies must strike between their own mandate (e.g. electrical generation) and
environmental protection.
Toxins = Childhood Cancer?
The US EPA
is taking seriously the possibility that chemical pollution is causing cancer in children.
New cases of some childhood cancers have been increasing for two decades. A new research
initiative is being kicked off this month.
This is the latest in a series of EPA initiatives focusing on
children's health, part cause and part effect of EPA's resurging clout. Two previous
initiatives focused on smog (respiratory diseases) and endocrine disruption (chlorinated
organics). The NAFTA Commission for Environmental Cooperation has also called for urgent
joint action to reduce the health and environmental impacts of transboundary air
pollution.
It is hard to imagine any issue more capable of re-capturing
public interest in reducing toxics than children's health.
Huge Task in Europe
The
European Commission has ruled that the 10 east European countries seeking EU membership
must first bring their environment up to EU norms. About $130 billion of improvements are
needed to drinking water systems, sewage treatment and waste management, and to cut
pollution from industrial plants and power stations. The bulk of the funds will have to
come from the applicant countries. This could swallow up 3-5% of their gross domestic
product (GDP) for 20 years -- two to three times the percentage the rich nations spend.
In addition, each country must adopt in their national laws 91
pieces of EU environmental legislation, and set up physical and administrative structures
to enforce them.
Ozone Protection
The 10th
international "Conference of the Parties" on the Montreal Protocol is meeting
again in Montreal. Expect demands to accelerate timetables for phasing out ozone depleting
substances, to provide more resources to developing countries, and to improve
accountability.
Meanwhile, a US co. was fined $37 million for CFC smuggling.
Bankruptcy Act amendments
Most of
Bill C-5 is expected to come into force September 30, 1997. It will:
•extend personal protection from trustees to receivers and
interim receivers;
•raise their standard for personal liability to gross
negligence or willful misconduct;
•allow an estate to abandon contaminated sites;
•when an administrative order is issued, give the trustee 10
days to abandon the property, appeal the order or seek a stay;
•the Crown has a superlien against the contaminated property
and adjacent properties, but not against other assets of the estate, e.g. accounts
receivable.
"Waste" Redefined
An Ontario
superior court judge has ruled that "chopline residue" purchased at a nominal
cost for recycling is not "waste" subject to Part V EPA approvals. The purchaser
planned to recover and sell copper and plastic from the material. "Waste", she
said, means "unusable leftovers"; anything which can still be used productively
is a "resource". MOEE has appealed.
Questions? Call Dianne Saxe!
- 66 Russell Hill Road Toronto, Ontario M4V 2T2
- (416) 962 5882
- Fax: (416) 962 8817
- e-mail: dsaxe@envirolaw.com
____________THE DIANNE SAXE LETTERS
