13
Jun
2004

Polluters can be sued, court says in precedent-setting decision

by KIRK MAKIN

JUSTICE REPORTER

Saturday, June 12, 2004 - Page A16

The Supreme Court of Canada has opened the door for governments to sue polluters who damage trees, wildlife and water that lack commercial value. In a ruling that delighted environmentalists yesterday, the court said governments may act as trustees of the public good, seeking compensation for damage from negligence ranging from oil spills and poisoned air to forest fires.

The virtues of an unspoiled environment are inarguable, the court said, and there is no reason members of the public cannot have recourse to the courts through their governments when corporations negligently damage it.

"This is a major environmental law precedent in Canada on an issue -- compensation for environmental harm to public assets -- never before tackled by the Supreme Court," said Jerry DeMarco, a lawyer who argued on behalf of the Sierra Legal Defence Fund.

"The court specifically recognized the inherent value of forests and recognized that trees are much more than timber waiting to be cut," Mr. DeMarco said. "This case will have repercussions well beyond forestry law to air pollution, water contamination, oil spills and the like -- indeed any case where a natural asset or resource is held in common for the benefit of everyone and is harmed by corporate negligence."

Mr. DeMarco said one of the great virtues of the ruling is its implicit warning to companies that they may pay a high price for polluting. He said that in future cases, judges and juries will reach damage awards after hearing expert testimony evaluating the loss of nature and wildlife in monetary terms.

The case before the Supreme Court involved a 1992 forest fire that burned 1,491 hectares in Northern British Columbia. The province sought compensation from Canadian Forest Products Ltd. because the fire, near Prince George, had harmed a vast number of trees, fish and a drinking-water source. Fifteen per cent of the destroyed trees were protected from commercial logging.

At trial, Canfor was ordered to pay almost $2.5-million. However, the judge refused to award damages over and above what it had cost the province to fight the fire and to reforest and rehabilitate the area.

In a limited sense, yesterday's ruling was actually a triumph for Canfor. The court left the trial judge's award as it was, refusing to add an award for the loss of the non-harvestable trees.

However, Mr. Justice Ian Binnie said this was because the province did not submit its claim until the litigation was well-advanced. He also faulted it for using "overly arbitrary and simplistic" methods to estimate the losses.

"The valuation of a few trees plucked from a leafy urban boulevard poses fewer problems than valuing the environmental benefit of 1,491 hectares of trees clothing the slopes and valleys of the B.C. Interior," Judge Binnie said. "No evidence was led about the nature of the wildlife, plants and other organisms protected by the environmental resource in question . . . the environmental services provided or recreational opportunities afforded by the resource, or the emotional attachment of the public to the damaged or destroyed area."

Three of the judges dissented on this point, saying they could have figured out how much to award B.C. regardless of its inadequate evaluations. "These trees have intrinsic value at least equal to their commercial value, despite their non-commercial use," Mr. Justice Louis LeBel said on behalf of Mr. Justice Michel Bastarache and Mr. Justice Morris Fish.

On the broader point, however, the court disagreed with Canfor that only governments can compensate for environmental damage through funds set up for that purpose. "There is no reason to neglect the potential of the common law, if developed in a principled and incremental fashion, to assist in the realization of the fundamental value of environmental protection," Judge Binnie said. He said future courts will develop specific rules and procedures, since there are "clearly important and novel policy questions raised by such actions."

Informant: Deborah Barrie
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