As visitors to Expo 67 pulled into the parking lot, they might have been startled to hear that the gateway to the biggest party in Canadian history was situated on top of a massive toxic dump leaching chemical poisons into the St. Lawrence River.
Forty years later, they also might be amazed to learn that the federal government still hasn’t enforced the law – in this case, the Fisheries Act – requiring a cleanup on the site now owned by the City of Montreal.
“What makes the situation in Montreal Harbour particularly outrageous is that it’s happening just a few blocks away from Environment Canada’s local office,” says Daniel Green, the head of environmental group SociÃ©tÃ© pour Vaincre la Pollution. “They can probably see it from their windows.”
But then, as University of Ottawa law professor Lynda Collins points out, this is just one example of an “epidemic of non-enforcement.”
In fact, she and other experts believe Canada could go a long way toward improving the environment by applying the laws it already has on the books. The government’s lack of muscle has grown so acute, however, that Ms. Collins worries that officials see environmental regulation “as a public-relations exercise” in which strong laws are promulgated with “fingers crossed” while “knowing that enforcement will be minimal.”
That doesn’t bode well for the recent flurry of announcements regarding Ottawa’s intention to control greenhouse gases – the ones Al Gore called “a fraud” last week – which could wind up being just another case illustrating what former federal Commissioner of the Environment Johanne GÃ©linas not long ago termed Ottawa’s “trouble crossing the finish line.”
Three years ago, Mr. Green hatched a plan to put a spotlight on Ottawa’s legal neglect. Working with Mark Mattson, a Toronto-based environmental lawyer with a group called Lake Ontario Waterkeeper, he initiated an investigation now under way by the agency that serves as a kind of international environmental truth commission — the Montreal-based Commission for Environmental Co-operation, created by Mexico, the U.S. and Canada to promote environmental-law enforcement as part of the North American free trade agreement in 1993.
These days, the CEC is lifting the lid on quite a few cases where Ottawa systematically ignores the well-respected suite of environmental laws enacted by Parliament.
In a CEC review released two months ago, laws governing thousands of illegal discharges from nine Eastern Canadian pulp mills were revealed to be routinely overlooked by federal officials. Although the commission found that acutely toxic discharges from all nine mills were often known by officials to violate the law, federal fines were imposed only twice: one for $15,000, the other for $110,000 – hardly onerous for mills with annual revenues in the millions, and certainly cheaper in the short term than cleaning up their operations.
Then there’s the federal Species at Risk Act, proclaimed in 2003 to protect more than 500 threatened Canadian species. Last October, Devon Page, a lawyer with Sierra Legal Defence Fund in Vancouver, lodged a complaint with the CEC asserting that Ottawa is systematically failing to enforce the law – and at present is blocking the adoption of recovery strategies for more than a hundred species of animals and birds. Although much of Sierra’s analysis came from looking at internal government reports, Environment Canada wants the CEC to drop its investigation.
Efforts to avoid future problems appear equally timid. Under the Canadian Environmental Assessment Act, Ottawa is legally bound to investigate proposed developments before they are approved in cases where a range of significant environmental impacts are predicted.
But environmental lawyers and analysts are livid about current assessments for projects such as the Mackenzie Valley Pipeline, which will open up the Western Canadian Arctic for industrialization.
Despite the pipeline’s undisputedly massive impacts across Canada’s last pristine frontier, analysts at the Pembina Institute, an Alberta environmental group, say neither the effect of the gas flowing through the pipeline nor the vast majority of the Arctic gas fields that will be built to feed it is under scrutiny – which means the federal assessment is ignoring two-thirds of the pipeline’s impact.
Julia Langer, a toxicologist and conservation analyst at WWF Canada, goes even further. “Assessing the impact of the pipeline without assessing the global-warming impact of the gas it carries is like trying to pretend that cake doesn’t have calories,” she quips.
In a speech to energy executives in Toronto last January, Peter Sylvester, vice-president of the federal Environmental Assessment Agency, acknowledged that setting up assessments is often hampered by “incredible incoherence” among officials in federal departments with competing interests. Still, he assured his audience that things will improve once the government gives his agency more money, as was recently promised.
Mr. Sylvester is not the only government official to suggest that the failure to enforce environmental acts is less a lack of will than a lack of wherewithal. Renzo Benocci, Environment Canada’s national enforcement director, also says promised new funding is a linchpin to his plans.
By adding 85 inspectors to his team of 213, he believes he will be able to enforce the government’s new proposal to police greenhouse gases. Mr. Benocci and other officials note that the government is partly reinstating funding to some programs after cutting environmental budgets by 40 per cent in recent years.
But Ottawa’s spotty track record at applying and enforcing the law is not just an issue of finances, says David Boyd, an environmental law professor at Simon Fraser University in Vancouver. He argues that the fatal flaw lies in the design of the environmental laws – which merely enables enforcement, without ever explicitly compelling it.
“You could fix these laws almost immediately if you scanned their texts into a word processor and replaced the words ‘the Minister may enforce’ with the words ‘the Minister must enforce,’ ” he says.
Easier said than done. Just ask Patrice LeBlanc, director of habitat protection at the Department of Fisheries and Oceans in Ottawa. After a 1999 audit revealed what he calls “a lack of conservation efforts” by fisheries officials, he began work on bolstering inspection powers as part of planned revisions to the Fisheries Act.
But even he insists that federal officials need to be able to use their own judgment when it comes to enforcement. To prove his point, Mr. LeBlanc pulls out an analogy that might surprise anyone who has failed to talk his way out of a traffic ticket: “There’s discretion when a police officer stops you for speeding – and that’s exactly the way we operate as well.”
Could this sort of discretion be at work in Montreal Harbour?
Mr. Benocci, the environmental enforcement director, says he has had his inspectors look into the situation there, but because the matter is now being investigated by the CEC, he claims he can’t reveal why violation tickets were never issued to force a cleanup.
The only explanation he is offering is one that motorists might want to try with the traffic police: “I can tell you it’s extremely complicated.”