Canada’s top court hears landmark legal battle over toxic site

Intervenors argue court should uphold polluter pays principle

January 20, 2005

OTTAWA – On behalf of a coalition of environmental groups, Sierra Legal Defence Fund lawyers will be in the Supreme Court of Canada today intervening in a landmark case that could impact how the estimated 30,000 contaminated sites across the country are dealt with. The groups are intervening in a precedent setting case concerning the clean up of one of BC’s most severely contaminated sites, near Vancouver. The groups argue that the Court should uphold the international ‘polluter-pays principle’ and ensure that polluters are held accountable for their share of the clean-up costs.

“We hope that the Supreme Court of Canada makes endorses the international polluter-pays principle and that a polluters are not allowed to escape liability for cleaning up the pollution they have created,” said Sierra Legal lawyer Margot Venton.

The case concerns a contaminated site at the mouth of the Fraser River. Although the province ordered several parties to participate in the clean up of the site in 1998, BC Hydro has tried to escape liability even though its predecessor, the BC Electric Corporation, transported toxic coal tar to the site for 37 years.

On behalf of Friends of the Earth Canada (FOE), Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law (WCEL), Sierra Legal lawyers presented their oral arguments to the Court today.

The groups hope to build upon the recent string of environmentally progressive Supreme Court decisions endorsing key concepts such as the “polluter pays” and “intergenerational equity” principles, including the precedent-setting ‘Imperial Oil’ decision in December 2003 concerning a contaminated site in Levis, Quebec.

“BC Hydro simply cannot be allowed to evade its obvious responsibility for the cost of cleaning up its past pollution,” said FOE Chief Executive Officer Beatrice Olivastri . “The strong polluter pays precedent set by the landmark Imperial Oil decision should be applied to BC Hydro.”

The case began in 1998 when the province issued a remediation order to several owners and operators of the site under BC’s Waste Management Act. Under the Act, the province is authorized to issue clean up orders to “persons responsible” for contaminating land, including businesses that brought toxic substances to the property. However, the order failed to include BC Hydro, even though its predecessor delivered coal tar to the site between 1920 and 1957, likely contributing to the coal tar contamination of the site.

“BC Hydro is arguing that a 1965 amalgamation agreement removed its environmental responsibility to the public and future generations,” said Andrew Gage, Staff Counsel with WCEL. “If polluters violate the public’s right to a clean environment, the courts should hold them responsible. We hope that the Supreme Court takes this opportunity to strengthen the development of the polluter pays and intergenerational equity principles in Canadian law.”

The case will be heard today at 9:30am at the Supreme Court of Canada, 301 Wellington Street, Ottawa.