Ground breaking case invokes Charter to protect First Nation community from toxic harm
Toronto – Today the Grassy Narrows First Nation is filing legal proceedings against Ontario asking the Divisional Court to overturn provincial plans for a decade of clearcut logging on Grassy Narrows’ homeland.
This small Indigenous community fears that clearcut logging will release mercury into local waterways further poisoning local fish and people who already bear the burden of mercury that was dumped into their river by a paper mill in the 1960s. Grassy Narrows alleges that the logging plan will prolong and deepen the ongoing tragedy of mercury poisoning in their community and therefore violates their Charter rights to security and freedom from discrimination. This could become the first case to successfully use the Canadian Charter of Rights and Freedoms to protect people against harm and discrimination arising from environmental degradation.
“It saddens me that we are forced to fight in court to protect our children from the dangerous mercury impacts of clearcut logging,” said Grassy Narrow Chief Roger Fobister Sr. “I hope that the court will finally end Ontario’s long legacy of forcing harmful decisions on our families and our homeland.”
Scientific research indicates that clearcut logging in the boreal forest can raise mercury levels in local fish above the limit for safe human consumption. Many of the lakes in areas where logging will take place already faces fish consumption restrictions due to the past industrial dumping of mercury. Despite this evidence, Ontario refused Grassy Narrows’ request for an environmental assessment of the impacts of clearcut logging on the health of the community, its waterways, and its fish. The 1,200 plus page logging plan approved by Ontario does not even contain the word ‘mercury’.
After repeated attempts to convince Ontario to withdraw the clearcut logging plan, today Grassy Narrows commenced an application for judicial review in the Ontario Divisional Court. Among other things, the application asks the Court to overturn the government’s approval of the clearcut logging plan, and refusal to conduct an individual environmental assessment of the mercury impacts of the plan.
“When I was pregnant I couldn’t afford to buy food at the store, so I ate what my grandfather brought home – mostly fish. Now I cry because I fear that my daughter may suffer for her whole life. She deserves to live a good life and be happy,” said Grassy Narrows mother Sherry Fobister, an applicant in the lawsuit. “This pain is never going to end if Ontario allows clearcut logging to add even more mercury into our river.”
The MNRF’s own response to Grassy Narrows’ request for environmental assessment stated that “[t]he potential for forest management activities to result in mobilization of terrestrial mercury into aquatic systems is well documented and a serious concern.” MNRF further acknowledged that “[t]here are no claims that [provincial logging rules] direction and application of the [provincial logging rules] will mitigate or eliminate Hg [mercury] mobilization.” Nevertheless, in December 2013, Ontario gave the green light for the clearcut logging plan. In December 2014, Ontario formally refused Grassy Narrows’ request that the mercury impacts of the logging plan be identified and evaluated in an environmental assessment of any logging operations. Clearcut logging under the plan could begin on Grassy Narrows’ homeland as soon as 2016.
“We are asking the court to intervene to ensure that the basic rights of all Canadians, including the right to be safe from harm imposed by the government and the right to be free of discrimination, are finally upheld in Grassy Narrows,” said Joseph Castrilli, legal counsel at the Canadian Environmental Law Association which is acting for Grassy Narrows. “Our clients believe that the members of Grassy Narrows have endured far too much harm and, therefore, are owed the highest degree of precaution and environmental justice.”
Grassy Narrows is the home of one of Canada’s most infamous environmental health crises. Many people in this fishing community are still suffering from the toxic effects arising from the discharge of 9,000 kg of mercury from a paper mill into the Wabigoon River in the 1960s. Forty five years after the dumping was curtailed, mercury levels in the river remain in the highest risk category and in some areas close to Grassy Narrows the mercury levels in the river sediment are still rising. Nothing has ever been done to clean up the river even though a joint Ontario-Canada scientific panel recommended specific remediation measures in 1983.
Legal Aid Ontario (LA0) is providing financial support for this litigation through its test case funding program and the funding of the Canadian Environmental Law Association. Important early support was provided by the Environmental Defender Law Center and the Impact Fund.
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Chief Roger Fobister Sr. – 807-407-2574
Deputy Chief Randy Fobister – 807-407-1832
Joseph Castrilli – lawyer for Grassy Narrows, and counsel at the Canadian Environmental Law Association 416-960-2284, ext. 218, cell: 416-998-9838
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More information: FreeGrassy.net
Quick Facts: Grassy Narrows v. Ontario – case against mercury impacts from clearcut logging
What is happening?
The Grassy Narrows First Nation is applying to the Ontario Divisional Court for judicial review of a provincial decision approving clearcut logging activities on their homeland and refusing to order an individual environmental assessment (“IEA”) regarding potential mercury contamination and adverse human health effects, arising from the clearcut logging. A judicial review is a legal proceeding that asks the Court to rule on whether a government decision violates the applicable law.
Why is Grassy Narrows suing Ontario?
Clearcut logging and mercury have a severe impact on Grassy Narrows’ health, culture, and livelihood. Grassy Narrows has tried repeatedly to convince Ontario to stop this clearcut logging plan, through meetings, petitions, prayers, protests, and open letters, but Ontario has refused. However, Ontario ministries (Ministry of Natural Resources and Forestry and Ministry of the Environment and Climate Change) have used provincial laws to approve the plan and refused to study the mercury impacts beforehand in an IEA.
What is the legal argument?
Grassy Narrows argues that clearcut logging under the approved plan will hurt their health and their culture by increasing the levels of mercury in local water and fish. More specifically, Grassy Narrows contends that this violates the following laws:
1. Section 7 of the Canadian Charter of Rights and Freedoms protects the right to life, liberty, and security of the person. The Charter is the highest law in Canada. Grassy Narrows alleges that the clearcut logging plan violates Section 7 because increasing mercury levels in local fish will harm the health of Grassy Narrows people who eat the fish.
2. Section 15 of the Charter protects from discrimination. The clearcut logging plan violates section 15 because it will have a disproportionate impact and disadvantage on Anishinaabe people who practice their traditional way of life, which includes fishing, in Grassy Narrows.
3. The Ontario Crown Forest Sustainability Act requires that logging plans must be sustainable with regard for water quality and fish. The federal Fisheries Act prohibits the release of harmful substances into waters frequented by fish. Grassy Narrows alleges that the clearcut logging plan violates these laws by causing or permitting mercury to be released into waterways and bioaccumulated in fish. (see the notice of application for more details)
How does clearcut logging raise mercury levels in fish?
Mercury from industrial emissions (e.g. coal power plants and incinerators) falls from the sky onto the earth everywhere. In a healthy forest the mercury is held in the soil. However, when the forest is clearcut the mercury flows into lakes and rivers where it builds up in the fish as methylmercury – a potent neurotoxin. The fish become unsafe to eat. In a natural boreal forest periodic fires release mercury into the air which carries it away. The soil is cleaned and the fish stay safe to eat. (see the clearcut-mercury fact sheet)
How does this relate to the mercury that was dumped in the 1960s?
9 tonnes of mercury were dumped into Grassy Narrows’ Wabigoon River between 1962 and 1970 by a paper mill in Dryden with permission from Ontario. Japanese and Canadian mercury experts have confirmed that Grassy Narrows people have been made sick by this mercury. The mercury was never cleaned up or removed and many people are sick to this day, including children. (see the fact sheets on Dr. Harada’s work in Grassy Narrows for more details)
Clearcut logging under the plan would add even more mercury into Grassy Narrows’ river, and would add mercury to lakes and rivers in Grassy Narrows’ homeland that were not impacted by the dumping in the 1960s. This would prolong and deepen the ongoing tragedy of mercury poisoning in Grassy Narrows.
What remedy is Grassy Narrows asking for?
In its application for judicial review, Grassy Narrows is not asking for money, or other forms of compensation. Instead, Grassy Narrows representatives are asking the Court to protect their health and their culture by cancelling the clearcut logging plan, and ordering an individual environmental assessment. (see the notice of application for more details)
How is this different from Grassy Narrows’ recent Supreme Court case (Keewatin v. MNR)?
The recent decision of the Supreme Court of Canada in Keewatin was based on interpretation of provisions in Treaty 3. In that case, all levels of court decided to look only at the specific legal question of whether Ontario had the legal authority to issue licences for logging on Crown land, or if Ontario needed to first obtain approval from Canada. The Supreme Court ruled that Ontario did not need Canada’s prior approval.
The judicial review brought today does not ask the court to interpret Treaty 3. Instead, this case is based on laws of general application that are intended to protect all people, and the environment from harm. It could become the first case to successfully use the Charter to protect people from harm and discrimination caused by environmental degradation.
What happens next?
After being served with the judicial review application, Ontario will have an opportunity to respond to Grassy Narrows’ arguments and affidavit evidence. Upon completion of the necessary paperwork and other preliminary steps, an oral hearing will be scheduled in Ontario Divisional Court and a panel of three judges will hear arguments from both sides before making a decision on the legal issues in dispute. More info: FreeGrassy.net