Environmentalists hail unanimous decision in BC Hydro contaminated site case
January 21, 2005
OTTAWA – In an unexpectedly quick decision from Canada’s top court, the Supreme Court of Canada today closed a legal gap that would have allowed BC Hydro to escape liability for cleaning up one of BC most severely contaminated sites. Environmentalists are hailing the decision as a major victory for the international ‘polluter pays principle’. This is the first case to consider contaminated sites issues since the landmark 2003 ‘Imperial Oil’ decision. The Court unanimously and immediately slammed the door on BC Hydro’s attempt to dodge liability for cleaning up one of BC’s most severely contaminated sites.
“With today’s decision, the Supreme Court of Canada has slammed the door shut on BC Hydro’s attempted end-run around the contaminated sites legislation in BC,” said Sierra Legal Defence Fund lawyer Margot Venton. “The decision sends a clear message to polluting corporations that they will be held accountable for their toxic legacies and must pay to clean up the messes they have made.”
Sierra Legal intervened in the case on behalf of Friends of the Earth Canada (FOE), Georgia Strait Alliance, T. Buck Suzuki Environmental Foundation and West Coast Environmental Law (WCEL). The groups argued that the Court should uphold the polluter pays principle and send a strong message to polluters that they will be held accountable for their share of clean-up costs.
The case began in 1998 when the province issued a remediation order to several owners and operators of a contaminated site at the mouth of the Fraser River, near Vancouver. Under BC’s Waste Management 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. Although the province ordered several parties to pay for the clean up of the site in 1998, BC Hydro tried to escape liability even though its predecessor, the BC Electric Corporation, transported toxic coal tar to the site for 37 years.
“In this era of mergers and consolidation, corporate Canada should pay attention to today’s decision – you can merge but you can’t hide from your pollution liabilities,” said FOE Chief Executive Officer Beatrice Olivastri. “It appears that Imperial Oil is not the only corporate player in Canada to need to understand that polluter pays is a key plank in corporate accountability.”
“BC’s contaminated sites legislation has been important in cleaning up the legacy of past industrial activity,” said WCEL Executive Director, Chris Rolfe. “It makes sure that those who benefited from pollution in the past are responsible for cleaning up the resulting contamination. This decision maintains the integrity of our toxic real estate laws.”
The decision follows 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. The groups hope the court’s reasons will expand on those recent decisions.