August 10, 2004
MEDIA RELEASE – For Immediate Release
VANCOUVER, BC – A coalition of environmental groups announced today that they are seeking to intervene in a precedent setting case to be heard by the Supreme Court of Canada concerning the clean up of one of BC’s most severely contaminated sites. Although the province ordered several parties to participate in the clean up of the site at the mouth of the Fraser River in Vancouver in 1998, BC Hydro has relied on wording from the 1965 BC Hydro amalgamation agreement to try and 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 Defence Fund will be filing an application to intervene in the case today. The groups argue that Court should uphold the international ‘polluter pays principle’, ensuring that responsible parties pay for the clean up of hazardous contamination.
“BC Hydro should not be allowed to evade its obvious responsibility for contributing to the clean up of this site,” said FOE Chief Executive Officer Beatrice Olivastri. “The province may not hold BC Hydro to account, but it is essential that the courts continue to send a strong message to our corporate citizens – if you pollute, you will pay.”
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, the BC Electric Company, delivered coal tar to the site between 1920 and 1957, likely contributing to the contamination of the site.
Two of the named parties challenged the province’s refusal to hold BC Hydro responsible for the contamination, first at the BC Environmental Appeal Board and then in the courts. The Appeal Board found that BC Hydro was a responsible party, as did the BC Supreme Court, but the BC Court of Appeal held that the amalgamation agreement, which was affirmed through provincial legislation, had the effect of rendering BC Hydro immune from BC Electric’s liabilities.
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 recent landmark ‘Imperial Oil’ decision concerning a contaminated site in Levis, Quebec.
“BC Hydro should not be allowed to exploit a legal gap created by a 1965 amalgamation agreement,” said Andrew Gage, Staff Counsel with WCEL. “If polluters shirk their responsibilities to clean up contaminated sites, 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.”
“Similar contaminated “brownfield” sites exist throughout Canada and need to be cleaned up to protect our ecosystems and public health,” said David Lane Executive Director of T. Buck Suzuki Environmental Foundation. “Remediation orders put the financial burden on the industries who were responsible for polluting activities. If the system works effectively it should both help the clean up of existing contaminated lands and encourage industries to engage in effective pollution prevention in order to avoid future costs.”
It is expected that the case will be heard in January 2005.