Lubicon Lake Indian Nation
Little Buffalo Lake, AB
403-629-3945
FAX: 403-629-3939
Mailing address:
3536 - 106 Street
Edmonton, AB T6J 1A4
403-436-5652
FAX: 403-437-0719
January 26, 1992
Enclosed for your information are copies of articles on a recent Canadian
Supreme Court decision again illustrating the minimal effect that the rule
of law has upon the actions of Canadian Government. The Supreme Court
decision in question up-held an earlier Federal Court of Appeal decision
quashing Federal permits supposedly required for the construction of a
massive new dam pending conduct of a supposedly required environmental
review. Predictably dam construction proceeded apace while the appeal of
the earlier decision was before the courts and was completed without
benefit of either the supposedly required environmental review or the
supposedly required Federal permits.
The Alberta Provincial Government originally decided to proceed with
construction of the new dam over the protest of concerned citizens and in
spite of the findings of an official Environmental Council hearing which
concluded that "a dam on the Oldman River is not required now or in the
foreseeable future". Construction plans for the new dam then actually
proceeded without supposedly required public notice or consultation or
involvement of the appropriate regulatory agency.
Concerned citizens demanded that the Federal Government conduct a
supposedly required environmental review before issuing supposedly
necessary Federal permits. The Federal Government ignored citizen demands
to conduct a supposedly required environmental study and simply issued the
necessary Federal permits.
Citing lack of supposedly required public notice, consultation and
involvement of the appropriate regulatory agency, concerned citizens took
the Provincial Government to court in an effort to have the Provincial
construction permit quashed. In 1987 the Provincial Courts agreed that
proper procedures had not been followed and quashed the Provincial
construction permit. In rapid fire order the Provincial Government first
appealed the decision, then granted a $97 million construction contract
before the appeal was heard, then issued a new construction permit, then
dropped the appeal and proceeded with construction based on the new
Provincial construction permit.
Construction of the new dam involved diversion of the Oldman River, which
concerned citizens argued violated the Federal Fisheries Act by destroying
fish habitat. They made their case to the Federal courts since Federal
legislation and jurisdiction are involved. The Provincial Government
claimed jurisdiction for prosecuting the charges. The Federal Government
agreed and transferred responsibility for prosecuting the charges to the
Provincial Attorney General. The Provincial Attorney General then stayed
the charges.
Concerned citizens continued to pursue the matter and eventually succeeded
in having prosecution of the charges turned back to the Federal Government,
which predictably sat on the charges and took no action.
Concerned citizens then asked the Federal Courts to quash involved Federal
permits until the supposedly required Federal environmental review is
completed. The Federal Court of Appeal agreed and ordered the Federal
Government to conduct an environmental review. The Provincial Government
appealed the decision and actually completed construction of the new dam
while the appeal was before the courts, without benefit of the supposedly
required Federal permits and before the court mandated Federal
environmental review could be completed.
In a manner similar to what's happened to the Lubicons the new dam has thus
been built and much of what the concerned citizens had hoped to protect and
preserve has already been irretrievably lost. However concerned citizens
have managed to wring out of the Canadian Courts the seemingly inescapable
conclusion that the new dam was built without benefit of supposedly
required procedures or permits and in clear violation of the law. Their
hope now is to have the dam dismantled, which isn't terribly likely, and/or
that they've at least established a legal precedent which will have an
effect on future projects.
History suggests, however, that the only kind of precedent that really
counts in Canada is who has their way on-the-ground, and the fact is that
the same people who built the dam and destroyed the traditional Lubicon
hunting and trapping economy have again had their way. Legal precedent
only matters with people who have respect for the rule of law and these
people have repeatedly demonstrated that they only use the law when it
serves their purpose, citing it selectively to justify their questionable
use of force, purposefully using procedural delaying tactics in court to
avoid judicial determination of issues which might possibly limit their
prerogative, re-writing the law retroactively or simply ignoring it
altogether when it threatens their purpose. Under such circumstances the
only way to stop them is to actually stop them on-the-ground from
proceeding with questionable dams, pulp mills, clear-cutting of
internationally recognized World Heritage Sites, obliteration of
inconvenient aboriginal societies, etc. Better yet would be to throw the
buggers out and replace them with people whose definition of the public
interest goes beyond short-term economic and political benefits for friends
and associates.
* * * * *
Attachment #1: THE EDMONTON JOURNAL, Friday, January 24, 1992
OLDMAN APPEAL REJECTED
COURT RULES FOR ENVIRONMENT
Anne McIlroy
Southam News
Ottawa
The Supreme Court of Canada has dismissed an appeal from Alberta to get the
federal government to butt out of the Oldman River dam.
The high court ruled Thursday that federal environmental assessment rules
are valid, and said the federal government has both the right and the
responsibility to carry out ecological reviews of provincial projects.
The judgement -- one of the strongest environmental rulings in the
country's history -- noted that "protection of the environment has become
one of the major challenges of our time."
It defined the term "environment" in broad terms, and said that
environmental reviews are essential planning tools.
Environmentalists were ecstatic.
"Today is a great day for not just the Oldman River, but for the
environment of Canada as a whole," Martha Kostuch, of the Friends of the
Oldman River society, said following a native drum ceremony marking the
victory. The society, which has been fighting the project for 10 years,
was awarded costs.
"This decision certainly has major implications for the Oldman dam, but
(also) implications for projects in the future involving the environment
and environmental jurisdictions across Canada."
But the $350-million dam -- three km wide and 75 metres high -- is now
complete and ready for spring runoff.
As a result of a lower court ruling, a federal panel is still scrutinizing
the project for its impact on the environment.
Environmentalists urged that the dam's reservoir be drained. It is now 65
per cent full.
Kostuch hopes the review panel's report will recommend the dam be torn
down, even though the panel's findings are not binding.
Environmentalists point out that the court said the federal panel now
reviewing the dam could still have an impact on the project.
In the past two years, both Alberta and Saskatchewan built dams despite
court rulings that there should be a federal environmental review.
Thursday's ruling will make that type of action more difficult, said May.
The real test, she said, will come with the Great Whale project in northern
Quebec. The federal government is carrying out an environmental review and
if the province tries to start construction before the review has finished,
Ottawa will have clear authority to withhold the needed permits.
NDP environment critic Jim Fulton said the government should also revise
its new environmental assessment bill, which is intended to replace the
guidelines upheld by the Supreme Court ruling. That bill is now in third
reading.
A spokesman for Environment Minister Jean Charest said Thursday the federal
government was not ready to comment.
Environmentalists and native groups say the dam will damage fish habitat,
destroy a cottonwood forest, flood sacred Indian sites and cause mercury
pollution.
Ranchers and farmers in the area say it is needed for irrigation.
* * * * *
Attachment #2: THE EDMONTON JOURNAL, Friday, January 24, 1992
SUPREME COURT DECISION CAPS 2 DECADES OF ACRIMONY OVER DAM
Ed Struzik
Journal Staff Writer
Edmonton
The fight over the Oldman River dam is one of the longest, most bitter and
occasionally bizarre episodes in the history of Alberta's conservation
movement.
Conceived by the Prairie Farm Rehabilitation Administration back in 1966,
the idea for a dam at the Three Rivers site seemed doomed following pubic
hearings and impact assessments in 1978-79. The Environmental Council of
Alberta, which oversaw the review, gave it a thumbs-down.
But the dye seemed to be cast in 1984 when former premier Peter Lougheed
announced that the province was going ahead with a dam, adding that he
foresaw no environmental concerns.
Frustrated by the unbending position of the government, environmentalists
suggested that Ottawa had an obligation to step in and conduct an
environmental assessment review. Ottawa refused to get involved, however,
and granted the province the necessary permits to go ahead with
construction in 1987.
That's when a number of the province's major environmental organizations
formed a coalition that came to be known as Friends of the Oldman River.
Friends, however, was not what Premier Don Getty's government considered
them. When Friends of the Oldman gave notice that it was taking the
province to court, alleging that proper procedures weren't followed,
Environment Minister Ken Kowalski branded them "social anarchists."
Kowalski described the court challenge as "absurd, nonsensical and to the
point of being ridiculous." But the court evidently thought not. That
December, Chief Justice Kenneth Moore quashed the province's license to
construct.
The province immediately appealed and then granted a $97-million
construction contract before the appeal could be heard.
Alberta dropped the appeal and found a way to clear legal hurdles. It
simply re-issued a new licence.
In the summer of 1988, while the Oldman River was being diverted into
diversion channels, Martha Kostuch of Friends of the Oldman renewed the
legal battle by charging in court documents that the province was violating
the federal Fisheries Act in building a dam that destroyed fish habitat.
Attorney General Jim Horsman claimed jurisdiction. Ottawa complied and
promptly transferred the case to Alberta. Charges were stayed, thus ending
any chance for the case to get to court.
Friends of the Oldman, however, refused to back down and the province
eventually turned the case back to Ottawa. No action has ever been taken
by the federal Justice Department.
Using its last resort, Friends of the Oldman filed a motion in federal
court in April 1989, asking that the federal permits be quashed until an
environmental review is conducted. Justice James Jerome ruled against the
group, but his decision was overturned by the Federal Court of Appeal.
The province then sought to appeal the decision in the Supreme Court, which
made its final judgment on Thursday.
SUMMARY -- CHRONOLOGY OF EVENTS
1966 -- Oldman dam conceived by Prairie Farm Rehabilitation Administration.
1978-79 -- The province's Environment Council of Alberta holds hearings and
concludes that "a dam on the Oldman River is not required now or in the
foreseeable future."
1980 -- Province announces it intention to build a dam.
1983 -- Premier Peter Lougheed announces plan to proceed with construction.
Refuses demands for environmental hearings.
1987-88 -- Ottawa is called upon by Alberta environmentalists to conduct a
federal environmental assessment review, but refuses. Environmentalists
form Friends of the Oldman River, head to court.
December 1987 -- Alberta Court of Queen Bench rules in favor of Friends of
the Oldman when it rules construction permits are not valid because
provincial Environment Minister Ken Kowalski ignored the need for public
notice and discussions with municipalities and the Energy Resources
Conservation Board. Province appealed, dropped appeal, then simply re-
issued permits.
July/August 1988 -- Friends of Oldman back to court charging that the
province and contractors violated Federal Fisheries Act. Ottawa transfers
case to Alberta after Attorney General Jim Horsman claims jurisdiction.
Horsman stays charges. Case transferred back to Ottawa after Friends of
the Oldman complains. RCMP investigates.
April/May 1989 -- Friends of the Oldman files a motion in federal court
asking for federal permits to be quashed and a federal environmental
assessment review be launched. In August, court rules against Friends of
the Oldman, which appeals.
March 1990 -- Federal Court of Appeal rules in favor of Friends of the
Oldman and orders a federal environmental assessment review. Province is
given leave to appeal to Supreme Court of Canada.
November 1990 -- Ottawa announces environmental assessment review after
Friends of the Oldman threatens court action. Dam is 90 per cent complete.
December 1991 -- Dam completed.
January 1992 -- Supreme Court rules in favor of Friends.
* * * * *
Attachment #4: THE EDMONTON JOURNAL, Saturday, January 25, 1992
EDITORIAL
OLDMAN DAM RULING MORE THAN WELCOME
The odds against them were considerable, but the Friends of the Oldman
ended up doing Canada a great, big favor.
Despite the arrogance of the provincial government, the Friends prevailed
Thursday when the Supreme Court of Canada ruled that Ottawa had every right
to review whether the Oldman River dam had potential to harm the
environment. Alberta wanted the federal government to butt out of such
assessments. Instead, the decision sets a precedent which obliges Ottawa
to assess any industrial project affecting areas of federal jurisdiction.
That includes everything from water quality to air emissions which might
float into a bordering province.
The history of the Oldman dam proves that the provinces cannot be trusted
to protect the environment on its own.
In 1984, Peter Lougheed announced that the dam would go ahead despite the
objections of environmentalists, who said the project would flood sacred
Peigan sites, destroy a cottonwood forest and harm fish habitat. The
Friends, led by the tireless Martha Kostuch and Cliff Wallis, then launched
a series of court challenges which the province fought all the way.
Despite two judicial victories, the government appealed or ignored the
rulings and pressed ahead with construction.
At one point, former environment minister Ken Kowalski referred to the
Friends as social anarchists, calling their court actions absurd,
nonsensical and ridiculous. Kowalski, by the way, was also charged with
the responsibility of building the dam. The irony of an environment
minister constructing a multimillion-dollar project, much less an
environmentally sensitive one, wasn't lost on the people of this province.
Many Albertans came to believe that Ottawa must have a say on such projects
because the provinces are sometimes in a conflict of interest. After all,
a government which offers incentives to kick-start a pulpmill isn't likely
to turn around and kill the scheme with an environmental review.
Environment Minister Ralph Klein lent some credence to that view on
Thursday when he told reporters the Supreme Court decision would be bad for
industry. Again, we had an environment minister going to bat for the views
of business. The ruling, he argued, could mean construction delays; some
projects would be killed because companies wouldn't be willing to wait.
We're not so sure about that. The Alberta-Pacific pulp mill proposal for
Athabasca experienced several delays, most of them inspired by
environmental concerns. But when the province eventually did say yes, Al-
Pac didn't hesitate in going ahead.
Besides, industries face delays all the time. Government licences must be
issued and tax implications ironed out before a project can go ahead.
Taking care of the environment has become just another cost of doing
business. In fact, the ruling will probably help businesses because they
can be a little more certain of the federal government's role.
If Albertans needed any more indication of their government's regard for
the environment, Kowalski gave it to them on Thursday, when he suggested
that Alberta do away with its environment department.
"There may be some cost savings to the taxpayers of Alberta. Let the
federal government deal with this," Kowalski is quoted as saying. "If we
don't need a department of the environment, then let's just scrap it."
Perhaps Kowalski is simply trying to turn the issue into another Alberta-
Ottawa battle by leaving the false impression that Alberta Environment has
no remaining role. This ruling won't gut Alberta's environment department,
but it does confirm Ottawa's obligation to examine projects the provinces
might let slip through. The decision will mean a federal assessment for
the controversial James Bay Hydro Project in Quebec. The ball is now in
the court of federal Environment Minister Jean Charest, who can change
proposed environmental regulations to allow the provinces more say in
federal reviews.
As far as the Oldman dam goes, it doesn't appear that Alberta will order it
torn down. The federal impact study found that it was well-designed and
constructed, despite a few flaws.
Nonetheless, the Friends have signalled that they plan to petition the
courts again. This time they want the whole thing taken apart. Success
appears unlikely, but they've faced heavy odds before. At the very least,
they've proved that the individual can make a difference.
* * * * *
Attachment #5: THE EDMONTON SUN, January 26, 1992
RULING ON DAM LAUDED
PULP MILL PROTESTORS TAKE STRENGTH
By Jennifer Bain
Staff Writer
The Supreme Court's Oldman Dam ruling will strengthen a court challenge
involving a massive Peace River pulp mill, says an environmental coalition.
The coalition of environmentalists and native groups is calling for full
public hearings on Daishowa Canada Co. Ltd.'s $579 million pulp mill near
Peace River, 370 km northwest of Edmonton.
"Their decision makes it absolutely clear that the federal government has a
position in environmental projects," said coalition member James Darwish.
"The Province can no longer say this is their sole territory," said
Darwish, whose group, Edmonton Friends of the North, is part of the
coalition.
The coalition's case in Federal Court to force full hearings has been on
hold while the Supreme Court of Canada ruled on Ottawa's right to conduct
an environmental review of the Oldman River Dam.
The Supreme Court ruled Thursday that the southern Alberta dam shouldn't
have been built without a federal review.
Darwish said the federal government should have done an environmental
impact assessment before the province gave Daishowa an operating licence in
late 1990.
"We consider their mill to be a dirty mill," he said. "We want to see that
it's up to par."
A Daishowa spokesman said yesterday that the Supreme Court decision will be
studied to see what implications it may have for the company.
"I think it needs to be evaluated and I'm sure we're doing that," said
Wayne Crouse.
The coalition includes the Dene Nation of the Northwest Territories,
Edmonton Friends of the North, the Metis Association of the N.W.T. and
others.