Ecojustice Canada’s Environmental Crusade

It’s been an industrious 20 
years for tree huggers 
in pinstripes – B.C.’s forward-
leaning legal defenders 
of spotted owls and killer whales. They’re coming 
of age, and redefining 
Canadian environmental 
law in the process
.

Devon Page, executive director of Ecojustice Canada Society, drums his fingers on the boardroom table as he racks his brain for mementos kicking around the organization’s Vancouver office. You wouldn’t think it would be so difficult: after all, here is the public interest environmental law non-profit behind some of Canada’s most far-reaching environmental legal precedents. I half-expect to open a closet and find a spotted owl winking at me from the limb of an old-growth Douglas fir. Sure, as a non-profit, Ecojustice isn’t like other law offices (witness the ’80s-era faded-velvet oak chairs in the boardroom, proof that redecoration is on the bottom of this law office’s to-do list), but you’d think saving Canada’s national parks from logging or protecting killer whales’ critical habitats would leave behind a colourful trail of mementos.


“Our stuff’s papery,” says Page, as if in apology. “Plus, part of being a charity is you never hang on to your memories.” His fingers stop drumming and he abruptly leads me to his office, where he removes a small frame from the wall. It contains a photocopy of the first dollar that the Sierra Legal Defence Fund (renamed Ecojustice in 2007) raised, a $100 cheque from the UBC law faculty, circa January 1991. “That’s probably been the one piece that’s persisted as long as anything because we’re 100 per cent donor-funded,” says Page, whose boyish round head ends in a small, pointy goatee. He perches his glasses on his head and talks fast, fingers always impatiently drumming a beat. What else? A pair of spiky-soled lumberjack boots has lived in the front closet going on 15 years. Page slides open the closet doors. Yup, they’re still there. One office has a five-foot-long inflatable orca astride the mantel next to some scales, of justice presumably. We delve into room 13 next, a catch-all storage space where we find a 1999 “Speak Out for Species” award, a cast of a grizzly footprint, and water samples in an ice chest. “There’s a bit of Howe Sound in there,” says Page. And then there’s that papery stuff again: legal file boxes stacked 14 feet high, some 21 years of cases. 


Ecojustice uses the law to protect and restore the environment and, in so doing, has changed environmental law in Canada. “The primary activity we’re going to undertake to achieve our mission is precedent-setting litigation,” explains Page. In practice that means protecting our national parks from logging, defending environmental groups’ right to enter the courtroom, and ensuring that environmental assessment is enforceable – and that is just for starters. Most recently, Ecojustice took the Department of Fisheries and Oceans to court for failing to protect B.C.’s killer whales, as required by the Species at Risk Act. Ecojustice won (Page: The DFO “just got spanked”). At a time when provincial and federal governments have scaled back oversight and enforcement of environmental laws, the burden of making sure our wilderness stays wild comes down on this organization’s shoulders, an organization that at this very moment smells like soggy bike gear. 


As Page and I circle back to reception, he ducks into a little boardroom and taps the glass of a framed mayoral decree, delivered in person by Gregor Robertson on the 20th anniversary of the organization’s founding last year. “The mayor of Vancouver proclaimed December 5th Ecojustice Day,” Page says. He pauses for a second before ushering me out. “OK, that’s it.” The tour is over, and the papery stuff calls.


“When we started Sierra Legal, we always said we’d love to be put out of business,” says founder Stewart Elgie, now a law professor at the University of Ottawa and director of the green-economy think-tank, Sustainable Prosperity. “Our goal was to help create a society where companies and governments wanted to do the right thing environmentally and didn’t need us.”


Fat chance. Today Ecojustice has 50 employees occupying four offices in Vancouver, Ottawa, Calgary and Toronto. The lion’s share of its annual operating budget of $5 million comes from individual donors, with community or family foundations rounding out the amount. Of that revenue, two-thirds pays the salaries. The next highest expense is rent, which in Vancouver’s case pays for what Ecojustice employees affectionately call the “rabbit warren,” a multi-level maze off Water Street that houses 26 employees. The organization has about 10 to 15 active cases on the docket nationally at any one time, but demand far outstrips supply. In 2011 alone, the Vancouver office has developed about 40 new cases. The phone is constantly ringing, and public enquiries and anonymous documents alerting the society to bad environmental practices arrive on its doorstep often enough that staffers have coined a term for it: “brown envelopes.”


The operation, while proudly shabby around the edges, is a far cry from its scrappy start. In 1989, Elgie, then a 28-year-old lawyer, moved to Vancouver and set to work founding Canada’s first public-interest environmental litigation firm. Young as he was, Elgie, an Ontario boy and Harvard law grad, had an impressive resumé. After clocking time on Bay Street, he made his way to Alaska, where he worked for the Sierra Club litigating in the wake of the Exxon Valdez oil spill. “I realized that citizens and citizens’ groups had a real impact on ensuring that environmental laws were obeyed,” he says over the phone. His voice is soft and careworn. Sure, the Americans were a bit trigger-happy when it came to litigation, whereas we Canadians were a bit hesitant, but as Elgie puts it, “sometimes you’ve got to drop your gloves and fight for what’s right.”

[pagebreak]

The Sierra Legal Defence Fund

Back then, B.C. was ground zero for a growing environmental movement that took issue with the province’s logging practices. The press dubbed it the War of the Woods, in which tree huggers were pitted against the forestry industry, the lifeblood of B.C. The protest over logging in Clayoquot Sound, the largest act of civil disobedience in Canada, was three years away.


Into this melee stepped Elgie’s brainchild, the Sierra Legal Defence Fund, backed by a three-year $650,000 startup grant from the Law Foundation of B.C. and matching public donations. The Sierra Club, where Elgie worked in Alaska, was the Sierra Legal Defence Fund’s partial namesake, but the organization never fully grew into the name. It caused confusion with donors and the public, who mistook the Sierra Legal Defence Fund as being affiliated with the Sierra Club, often associated with American eco-causes. Also, the word “fund” connoted grants, and seemed to suggest that the organization was already well financed. The hunt for a new name began in 2007, and Ecojustice came out on top as the clearest expression of the organization’s mission. 


Elgie hired Greg McDade, a 39-year-old criminal litigator from Kelowna and currently managing partner at Ratcliff & Company LLP, to be executive director. Next, McDade hired attorney Mark Haddock to join the nascent organization. Together with Carol McDonald, who filled the roles of legal secretary, courier, filing clerk and receptionist, the trio set up shop in room 601 of the Dominion Building at Cambie and Hastings, and got to work, much to the vexation of the forestry industry, which pressured the Law Foundation of B.C. to rescind its grant to the society. “If they hadn’t held their ground, Ecojustice wouldn’t exist today and public-interest environmental law in Canada as it stands would never have evolved the way it has,” says Elgie. “I give them a lot of credit.”


Pat Pitsula, program director at the Law Foundation at the time, championed and later rigorously defended her organization’s decision to fund Ecojustice. “It was the proudest moment I had at the Law Foundation,” she says. “I guess maybe they [the forestry industry] actually saw that Sierra, now Ecojustice, would become the player it has in Canada in terms of what I perceived at the time as balancing the equation of the legal arguments for and against various environmental issues,” Pitsula says. “At least now you can have a debate that’s not all lopsided and tipped in the favour of one side: those who can afford a lawyer.” 


For any environmental group, the prospect of going to court was like financial triple jeopardy according to Harvey Locke, senior advisor of conservation to the Canadian Parks and Wilderness Society. People going to court to protect a wilderness area or an endangered species didn’t win a dime when the judge ruled in their favour and they still had lawyers’ fees to pay. Plus they ran the risk of having to pay the other side’s fees if they lost. By securing public donations to cover the salaries of their staff lawyers, Sierra Legal could offer its services to clients at no charge. “Imagine my joy when competent lawyers arrived for free to help us defend places that I’m personally in love with and deeply concerned about,” says Locke.


The Friends of the Oldman River case was the first public environmental victory in Canada’s Supreme Court. A citizens’ group from rural Alberta, headed by Martha Kostuch, challenged the government’s decision to build a dam on the Oldman River, and in 1990 the case went all the way up to the Supreme Court, which ruled against the dam. “It sent a strong signal from the nation’s highest court,” observes Elgie. “Not only were environmental issues serious, but citizens going to court to defend those issues was a perfectly legit and valid activity.” 


“It was exciting for environmental groups to discover that the courts could actually support them, that the courts were places in which you could find justice and that justice extended to the environment,” says McDade, who almost affectionately refers to his efforts at the time as “legal machete work.” 


Deborah Curran, program director at UVic’s Environmental Law Centre, offers more praise for Ecojustice, crediting it at least in part for making environmental law a viable option for law students. Even students who enter private practice today will often take on public-interest environmental law cases, she says, with the help of grants from a fund administered by the West Coast Environmental Law Association. 


McDade brusquely dismisses the opportunity to wax poetic about his role in making environmental law history in Canada (“History is for old men,” he barks down the phone before chuckling heartily). His take on the remarkable run that Ecojustice has enjoyed is succinct: “It’s like an artist who does one painting. You don’t think about your body of work at that point, you just want to sell your painting.” 


“The legal framework became a very significant part of the struggles that were going on, and I think that whether that made our government feel uncomfortable from time to time or not, that that was a very good thing,” says John Cashore, who was B.C.’s minister of environment, lands and parks from 1991 to 1993. “When it’s going through a system that’s based on balancing the scales of justice, then the decisions that are coming though that process are hopefully better for the future of our societies and communities and the environment.” 


With Ecojustice working as a watchdog, there’s more incentive for companies or governments to comply with laws, observes Joel Wood, a senior research economist in the Centre for Environmental Studies at the Fraser Institute: “The risk of a litigation approach is that it may scare away foreign investment.”


Companies can become snarled in lengthy and costly lawsuits due to bad governance practices. “Business will get caught up in litigation because business has to deal with government and government regulations,” says Bill McNaughton, an environmental lawyer at Borden Ladner Gervais LLP in Vancouver who represented Cattermole Timber Ltd. in Ecojustice’s spotted owl case. “Ecojustice’s dispute isn’t often with the business; it’s with the level and scope of those environmental obligations which the business has to meet,” he explains. The longer the legal challenge, the longer it takes to get permits approved, which means business is delayed and lawyers’ fees pile up as companies are forced to defend their position. 


Public-interest environmental litigation does serve to call out the shades of grey in environmental laws on the books. “Sometimes their litigation will result in some clarity of the law and the application of the law, which will then provide clarity for everyone and that can be valuable,” says McNaughton. “With respect to clarifying aspects of environmental law, that could potentially provide some benefit to businesses through clarity,” says the Fraser Institute’s Wood. “What people in business hate more than anything is changing the rules on investment,” says the Parks and Wilderness Society’s Locke, who worked as a lawyer in Calgary. “So knowing that environmental groups and Ecojustice are part of the equation . . . the advantage is you can manage the risk before you invest.” 

[pagebreak]

Battling changes in environmental law

Karen Campbell and Jen Agnolin, both lawyers at Ecojustice, are sitting in armchairs in Campbell’s office looking flummoxed. For my benefit they are re-enacting how they spent the better part of their summer trying (unsuccessfully) to find a way to address public concern about water licenses issued for hydro-fracking underground natural gas in northeast B.C. using litigation. It’s a “Hamlet in 30 seconds” version of an otherwise encyclopedic process. As best as I can tell, it has involved much butting of heads against the wall, the Water Act, and each other. In Campbell’s lap is a four-inch-thick navy binder that contains B.C.’s Water Act. By the time we wrap up the interview, the unwieldy thing is relegated to her desk, where it lies open and askew. “There does not appear to be a trip to court to address any public concern about massive water licenses being granted to the industry to take water out of the Walliston reservoir,” she says. She and Agnolin look at each other before she sums up. “We were feisty for a while . . . and then we just sort of whimpered to a finale.” 


The reason? Governments are changing the rules. B.C. and Canada are not back to square one when it comes to environmental law, but on some fronts it seems close. “This is a much more hostile environment to environmental law than I’ve ever experienced and it’s in part because there have been so many legislative changes that have added more hurdles to getting public-interest cases into the court room,” says Campbell. Calvin Sandborn, legal director of the Environmental Law Centre at UVic, sums it up: “In 2001 the new provincial government came in and repealed 40 years of environmental legislation.” There are fewer laws, and less enforcement of them.


Things aren’t much better on the national level. In the past couple of years, Ottawa has scaled back environmental assessments. “Environmental assessment did sort of peter out as a useful tool because governments were not prepared, when push came to shove, to interfere in economic development even if there were environmental problems,” according to McDade. 


“I think there’s been kind of a regressive trend in many areas, but the thing that Ecojustice has done is they expanded the frontiers of legal tools that can be employed to challenge some of those trends,” says Sandborn. “You need to have a watchdog like Ecojustice because oftentimes the politicians that are running government are giving directives to their civil servants to not enforce the law as it stands.” 


It is no coincidence that lately Ecojustice has been very active in taking government agencies to court for failing to uphold the law. “A lot of the difficulty we run into with government not upholding its own laws is that it doesn’t have the resources, and in some cases it doesn’t have the political will,” says Deborah Curran. The B.C. economy is so resource-based that keeping it chugging along takes priority. Politicians are naturally reluctant to make environmental laws more stringent at the expense of job creation or tax revenues. “There are still a lot of political leaders who think that protecting the environment is bad for the economy,” agrees Elgie, who argues that the right market-based approaches such as B.C.’s carbon tax disprove such a rationale. 


There are situations in which protection of the environment automatically comes at a financial cost, and this is where governments tend to cut legal corners. Case in point: the critically endangered woodland caribou in northeast Alberta. The animals’ numbers are tanking in the face of tar sands development, despite the fact that they have legal protection under the Species at Risk Act. Here in B.C., the southern resident killer whale population is down to just 88. Enter Ecojustice to call foul. Without watchdogs like Ecojustice, “then you have a Species at Risk Act that doesn’t protect habitat in the three-dimensional world,” says Sandborn. “So it’s really important when Ecojustice goes into court and wins a case to protect orcas.”


Not long after my visit to Ecojustice it becomes increasingly clear to me that I walked right past the best artifacts in the entire office. I ring Devon Page to see if I can rectify my mistake. “The judgements? Yeah, we have them all in binders,” he confirms over the phone. I return one rainy fall day to see them for myself. Sure enough, on the bottom shelves of some sagging black shelves in the boardroom are 14 binders, each four inches thick. I am after the Oldman Dam case judgment, the opening lines of which Elgie and McDade could still recite like a scout’s honour. 


The judgment is in Volume 1 of the Decision Binders. I peel through the yellowing photocopied pages to find the Honourable Mister Justice La Forest’s judgment, rendered on January 23, 1992. The type is blurred and swollen from photocopying but the words ring out sharp and clear. It isn’t a sexy artifact, and it’s a far cry from a spotted owl or a majestic orca, but La Forest’s opening line still resonates: “The protection of the environment has become one of the major challenges of our time.”