CELA in the Courts – An Impressive Track Record Continues

Posted by Krystal-Anne Roussel, Student-at-law

I’m excited to be joining CELA during this 50th anniversary year and to have the opportunity to help continue CELA’s exceptional client representation. CELA’s casework has contributed to some of the most important legal precedents in Canadian environmental litigation.

For 50 years CELA’s casework has been instrumental in protecting low-income and vulnerable communities including protecting drinking water, preventing air pollution, opposing environmentally destructive land use decisions, and preserving key statutory and public participation rights. This casework has taken different forms in trial and appellate courts as well as environmental tribunals, and has included: judicial review applications, interventions, statutory appeals, civil actions, constitutional references, public inquiries, private prosecutions, and administrative hearings under federal and provincial law.

In representing the Concerned Walkerton Citizens at the Walkerton Inquiry, CELA’s role was pivotal in achieving recommendations for a multi-barrier approach to protecting drinking water. This work led directly to passage of multiple Ontario statutes to protect drinking water from source to tap.

In cases that began on behalf of small community groups, CELA’s work has repeatedly gone all the way to Canada’s top court where key legal precedents have, for example, affirmed municipal rights to pass pesticide bylaws to protect public health (see Hudson, Quebec Pesticide Bylaw) and upheld application of the precautionary principle to Ontario environmental laws (see Castonguay Blasting v. Ontario). Another strong Divisional Court precedent supporting public participation arose from the Lafarge case where CELA was part of a multi-group effort of behalf of local residents to stop the proposed burning of scrap tires, plastics and other wastes at the Lafarge Cement plant.

We have begun to profile illustrative examples of these and more recent cases on our website. Here are some highlights from 2020 so far:

National Environmental Law Test Cases

In 2020, CELA continues to represent clients in important national environmental law test cases, that is, cases for which the courts will set legal precedents that will help shape the future of environmental law and policy in Canada.

For example, CELA represents environmental and faith organizations in a Supreme Court of Canada judicial reference (i.e., where a government/governments, in this case Alberta, Ontario, and Saskatchewan, seek the court’s opinion to explain the law) that challenges the constitutionality of the federal Greenhouse Gas Pollution Pricing Act. CELA is intervening in this case to protect the rights of vulnerable communities from the effects of climate change by ensuring the courts confirm federal jurisdiction to act in order to protect the environment.

Similarly, CELA is intervening in another judicial reference to determine whether the new Impact Assessment Act (IAA) unlawfully intrudes into matters of exclusive provincial jurisdiction set out in the Constitution Act, 1867. In June 2020, CELA filed and served its written legal argument, which takes the position that the IAA and the underlying regulations are constitutionally valid from a division-of-powers perspective.

CELA has also been retained by Kebaowek First Nation (KFN) in relation to an upcoming federal impact assessment of a proposed 780 km natural gas pipeline that crosses the unceded, inherent and Aboriginal rights and title territory of KFN and other Algonquin First Nations in northeastern Ontario and southern Quebec. Since this proposal is one of the first projects to be assessed under Canada’s new Impact Assessment Act, this is an important national test case that involves federal, provincial and Indigenous jurisdiction.

Protecting Communities

CELA has often represented local citizen’s groups on matters of environmental assessment or land use planning, for example to address the siting or expansion of landfills, aggregate pits, etc. that could impact drinking water sources or cause other adverse environmental or public health effects. A recent case on behalf of a group in northwestern Ontario successfully challenged an aggregate pit proposal near Trout Lake. The Tribunal accepted CELA’s arguments on behalf of the local group and ordered a repeal of a zoning bylaw due to lack of consideration for social and environmental impacts.

Another current case involves representation of the Friends of Simcoe Forest (FSF) in a Local Planning Appeal Tribunal (LPAT) appeal of a decision to allow a waste processing facility in the middle of a significant woodland and habitat of several species at risk. Local residents are raising concerns about safety, odour, and natural heritage impacts. In late April of 2020, FSF raised serious concerns with actions taken by the County of Simcoe to seek to avoid the LPAT hearing and obtain a Minister’s Zoning Order to proceed with the waste processing facility. Such orders have the potential to overrule decisions of local planning staff and municipal councils as well as eliminate public rights of appeal to LPAT.

Protecting Drinking Water

Last but certainly not least, CELA represents the Citizens Against Melrose Quarry, (CAMQ) in various legal proceedings involving an existing quarry and a proposed new quarry in southeastern Ontario. There are public safety considerations and nuisance impacts that may adversely affect the quantity and quality of local groundwater, the sole source of drinking water for nearby residents. CELA was successful before the Environmental Review Tribunal in 2015 when CAMQ appealed a water-taking permit for the quarry and the ERT imposed more stringent conditions to safeguard water resources. This case continues with an upcoming public hearing before LPAT under the Aggregate Resources Act.

Watch our website for more current and historical profiles of CELA’s casework.

Photo: George Lake, Killarney Provincial Park, Petri Bailey.