Protecting B.C. communities and the environment from toxic spills

Attorney General of British Columbia v. Attorney General of Canada
Photo by Kegan Pepper-Smith
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In January 2020, Ecojustice appeared in Supreme Court of Canada as an intervenor in a reference case brought by the Government of British Columbia.

The B.C. government asked the court whether it had the legal ability to amend its Environmental Management Act to better protect against diluted bitumen spills.

Diluted bitumen (dilbit) is toxic and spills can cause substantial, long lasting harm to communities and the environment.

Ecojustice lawyers intervened in support of B.C.’s right to amend its law. Ecojustice also used a novel argument to go a step further and insist governments at all levels have a constitutional duty to protect the environment.

Unfortunately, the Supreme Court decided to dismiss the case from the bench, meaning it issued its ruling immediately after hearing oral arguments. It did not issue a written decision.

This move upheld an earlier B.C. Court of Appeal ruling and ended the province’s bit to amend the Act.

Ecojustice intervened to argue that governments have a right and a constitutional duty to protect the environment and communities from toxic spills.

Science and experience tell us dilbit is highly toxic and it cannot be safely and completely cleaned up. For example, the 2010 Kalamazoo spill sent three million litres of bitumen into the environment, causing significant harm to birds, mammals, turtles and other wildlife.

Governments have a responsibility to put measures in place to prevent similar disasters in the future.

Ecojustice also intervened in this case to try to set an important legal precedent.

While environmental protection is not explicitly written into the constitution, Ecojustice lawyers argued that environmental protection is an underlying constitutional principle, much like the rule of law and democracy.

What does this outcome mean?

Unfortunately, the court’s decision effectively ends B.C.’s effort to amend its law, leaving communities and the environment at risk of a hazardous spill (Attorney General of British Columbia v. Attorney General of Canada 38682).

In dismissing from the bench and failing to provide written reasons for the decision, the court also failed to rule on Ecojustice’s argument that environmental protection should be considered a constitutional duty. As a result, that question remains unanswered for now.

While the outcome was disappointing, Ecojustice remains committed to using the power of the law to ensure governments fulfill their legal duty to protect the environment — and to using innovative public interest litigation and novel arguments to build the case for a better earth.

Key developments

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