Intervenor: vol. 26, no. 1, January - March 2001

CELA in the Courts: Casework Updates

Adams Mine Intervention Coalition

In 1998, CELA acted as counsel for an environmental coalition which is opposed to the proposed establishment of a 20 million tonne landfill in an old iron mine near Kirkland Lake. A scoped hearing was held before the Environmental Assessment Board in the spring of 1998 on the proposed leachate collection system. In June 1998, the Board issued a split decision, 2:1, that gave conditional approval to the proposal. CELA's client brought a judicial review application to quash the Board's decision. The judicial review application was dismissed by the Divisional Court in 1999, and leave to appeal was denied by the Ontario Court of Appeal. CELA's client continued to monitor the implementation of the Board's decision and were very active in the Toronto City Council debates over whether the City should enter into a long term disposal contract. In a surprising turn of events, Toronto City Council decided against using the Adams Mine site in late 2000. Coincident with these events, opponents to the landfill set up railway blockades and investigated First Nations' interest in the matter (as well as other potential areas of federal jurisdiction). CELA continues to monitor this situation as part of a legal team consisting of other lawyers in Northern Ontario and Toronto.

Property Contamination

CELA is counsel for a dairy farmer near Teviotdale, Ontario. Waste asphalt from a provincial highway project was buried in the 1960s on the farm property, and the family alleges that contaminants from the asphalt have leached into the shallow groundwater and the farmer's well water. Among other things, the plaintiffs allege that these contaminants have caused significant problems with cattle health and milk production, forcing the farmer to abandon the property and re-locate his family and dairy operations to another farm. The plaintiff's action was dismissed on limitation grounds upon a motion for summary judgement brought by the defendant. This judgement was upheld by the Ontario Court of Appeal in March, 1999. In 2000, however, the plaintiffs were successful in obtaining leave to appeal to the Supreme Court of Canada. This precedent-setting appeal, which focuses on Ontario's Public Authorities Protection Act, was heard by the Courts in May 2001, and a decision is pending.

Contamination of Ground Water

CELA is representing clients who reside in close proximity to an illegal tire dump. Approximately 33,000 tires were buried at the site, resulting in the leaching of tire contaminants. The MoE issued an order requiring the tenant of the site and the mortgagee to remove the tires. The case was appealed and the Environmental Appeal Board (EAB) ordered the public authorities who had acquiesced in the burial of the tires to unearth the tires and also ordered the mortgagee to remove the tires from the site. CELA's clients, who had participated in the EAB hearing, have sought CELA's representation in pursuing all legal options in effecting a removal of the tires. In late 1997, the mortgagee appealed the Board's decision to Divisional Court. In late 1998, CELA's clients commenced an action against various defendants after the tire dump was only partially cleaned up by public authorities in the summer of 1998. In 1999, the plaintiffs brought an interlocutory motion regarding Environmental Bill of Rights (EBR)notice since the precedent-setting action includes the first-ever claim under Part VI of the EBR. CELA counsel examined the personal defendant for discovery in 2000, and additional discovery will occur in 2001.

Manufacturing Plant

CELA represents a client concerned with a neighbouring manufacturing operation. The plant, which coats frying pans with Teflon, emits fluoride as a by-product. CELA's client suffered adverse impacts from the plant, including health effects and property impacts that are consistent with fluoride poisoning. In August 1997, CELA's client discovered dead birds their backyard. After contacting the company's supplier and distributor to enquire about the health effects of Teflon, the company launched a SLAPP suit (Strategic Lawsuit Against Public Participation) against the client , alleging wrongful interference with economic relations. CELA prepared a Statement of Defence and Counterclaim for the nuisance effect of the plant on behalf of its client. A Freedom of Information request of both the Municipality of Metropolitan Toronto and MoE was made. Both requests produced substantial documents. CELA has prepared and forwarded its Affidavit of Documents to the defendants, and is awaiting the defendants' Affidavit of Documents.

Campaign for Nuclear Phaseout - Mixed Oxide Plutonium

In late August, of 2000, CELA claimed a partial - but fleeting - victory for public accountability and dropped its lawsuit launched on behalf of opponents to the plan to import mixed oxide (MOX) plutonium for use as a fuel in Canadian nuclear reactors. The lawsuit was seeking proper public consultation on any changes to MOX transportation plans. Consultation on the plans for flying Russian MOX occurred for a brief 30 days in the summer. Despite discovering serious deficiencies in Atomic Energy of Canada Limited's (AECL) plans, the consultation was extended for another 15 days until mid-September. CELA and other public interest organizations sought an extension to the consultation so concerns could be reasonably addressed. However, with startling speed, the consultation was closed in mid-September and within less than a week the Russian MOX flights were approved and the flights occurred by fixed wing aircraft to Trenton and by helicopter to Chalk River Laboratories.

Canadian Environmental Law Association v. Minister of the Environment

In 1998 the Canadian Council of Ministers of the Environment (CCME) concluded the Canada-Wide Accord on Environmental Harmonization (Accord). This Accord devolves significant federal environmental roles and responsibilities to the provinces. In March of 1998, CELA brought a judicial review application challenging the legality of the Accord on two grounds: first, that the Respondent did not have the legal authority to conclude the Accord under the Department of the Environment Act; and second, that, in any event, the Respondent fettered her discretion in exercising her statutory duties. The matter was heard on January 12 and 13, 1999. A decision was rendered in the case and CELA was unsuccessful in obtaining the relief sought. However, the judge made important findings concerning the shortcomings of the Accord. The federal government has responded to some of these concerns in subsequent activities. CELA appealed the decision to the Federal Court of Appeal. The Court heard the matter in June of 2000 and declined to reverse the trial judgement with the result that the Accord and its Sub-Agreements signed by the federal Minister of Environment and most provinces were not struck down or altered as CELA had requested.

Re: Friends of West Country v. Attorney-General (Canada)

In July of 1998, the Federal Court of Canada granted a declaration sought by the applicant that the Canadian Environmental Assessment Act (CEAA) includes the requirement to take cumulative effects into account. This decision clarified the broad scope of this federal law. In this case, the federal government had previously accepted that the CEAA could be complied with by separately assessing two bridges without having to include either the road or the reason that the road was being built, namely, a related forestry operation, in the assessment. In the fall of 1998, the Respondent, the Attorney-General (Canada) appealed the decision. A number of industrial groups and provinces sought intervention at the Federal Court of Appeal as did CELA, in its own name, and with another Canadian NGO as a client. Leave was granted and the case was heard in September 1999. The Friends of the West Country were successful in resisting the appeal and the case sets a very important precedent in federal environmental assessment law on issues of scope of a project and cumulative impacts. A further application for leave to appeal to the Supreme Court of Canada was dismissed in 2000.

Re: President and Fellows of Harvard College v. Commissioner of Patents

In mid-1998, the Federal Court ruled against Harvard College in refusing to grant a patent for its genetically-altered mouse or any other mammals bred to carry the same gene. Later in the year, Harvard College appealed the Federal Court ruling. In late 1998, CELA sought leave from the Federal Court of Appeal to intervene in the appeal of the decision. In 1999, CELA was granted intervention status in this precedent-setting appeal concerning the patenting of life forms. The Court stated that leave was granted to CELA specifically to enable CELA to present the public interest implications of this kind of patenting. The case was argued in December of 1999 and in a decision issued in August of 2000, the Federal Court of Appeal overturned the decisions of the Federal Court Trial Division and the Commissioner of Patents. As an intervenor, CELA could not appeal the case. However, after several weeks of efforts, CELA and many others successfully urged the federal government to seek leave to appeal the decision to the Supreme Court of Canada. This case has huge ramifications for life form patenting. The Supreme Court has just granted leave to appeal. CELA will be seeking intervention status, along with others in this ongoing process.

Coalition on the Niagara Escarpment (CONE)

In 1998, CELA represented CONE at a Plan Amendment hearing under the Niagara Escarpment Planning and Development Act (NEPDA) with respect to a proposal by the Niagara Land Company to build a winery, a culinary centre and 56 guest cottages. The proposed development would be on lands designated as Escarpment Protection Area within the Niagara Escarpment Plan (NEP) area. CONE intervened at the hearing as they were concerned about the precedent-setting nature of the decision. In particular, CONE was concerned that if the Plan Amendment was approved, it would open the floodgates to resort type development in the NEP Area. CONE was opposed to the development because it believed it violated two key objectives of the NEP, namely, to maintain and enhance the open landscape of the Escarpment and to protect unique ecological areas. The Hearing Officer's report approved the resort, but made some minor modifications, including reducing the square footage from the proposed 750 square feet to 500 square feet. CONE and CELA were very active in raising public concern about this decision, including meeting with Members of the Provincial Parliament and senior Ministry of Natural Resources (MNR) staff to voice concerns about the proposed development. In June of 2000, the Provincial Cabinet rejected the entire proposed development.

In a second matter, CELA represented CONE with respect to an inappropriate development proposal on the Niagara Escarpment. An April 2000 decision by the Niagara Escarpment Commission approved a development permit application to construct a public mini-storage facility at the base of the Niagara Escarpment. CELA represented CONE at a hearing on this matter held in July and in October, 2000 the Minister of Natural Resources adopted the Hearing Officer's recommendation to not issue a development permit. CELA's articling student won her first hearing three weeks into the job.

Third, CELA is representing CONE in a judicial review application against a Hearing Officer with the Niagara Escarpment Commission and two others. In April of 2000, a hearing was held to determine whether a family owning land on the Escarpment should be entitled to a development permit to sever a one acre portion of their property. The property is located within the Niagara Escarpment Plan Area and is subject to the NEPDA, as well as to the NEP. The NEPDA only permits new lots to be created provided there has been no more than one previous severance. This property had been the subject of two previous severances. The Hearing Officer, however, approved the application for a development permit, thereby permitting the creation of a third lot. CELA has filed a judicial review application of the Hearing Officer's decision on grounds that he erred in law by concluding that the NEPDA provides discretion to approve a development permit which overrides the requirements of the NEP. The judicial review application will determine whether the NEP should be interpreted as a set of guidelines or a rulebook in regards to protecting the Niagara Escarpment.

Also, in this issue of the Intervenor, read about the five-year review of the Niagara Escarpment Plan in the article "Determining the Future of the Niagara Escarpment: Province's Plan up for Review."

Concerned Walkerton Citizens - Walkerton Inquiry

CELA is representing Concerned Walkerton Citizens (CWC) at the Walkerton Inquiry which is investigating how the town water supply was contaminated with E. coli causing at least seven deaths and illness for hundreds of residents last year. CWC is a local public interest group comprised mostly of Walkerton residents seeking both answers and prevention of a similar situation in any other community. Chaired by Mr. Justice Dennis O'Connor, the Inquiry began in October of 2000 and is divided into two phases. CELA's clients obtained standing for both phases of the hearing and Phase IA is set for completion in early 2001. It has dealt with the most direct causes of the water contamination and resulting tragedy in Walkerton. Phase IB, to be conducted in early 2001, will deal with the contribution of provincial policies and other broader institutional and systemic causes of the Walkerton events. Phase II of the Inquiry, which is to assist with recommendations for improvement, will be conducted in the form of study papers on a broad range of topics, which are to be commissioned by the Inquiry.

The Management Board Guidelines of the Ontario government define funding opportunities for the parties. While some counsel received funding pursuant to a tariff, CELA, as a legal aid clinic, was not allocated any money for counsel fees. Nor is any funding being provided for expert witnesses to assist parties in preparation of their cases.

A unique aspect of the Inquiry, compared to civil litigation or administrative hearings, is that the all of the evidence is lead by the Commission. It is not an adversarial procedure insofar as parties calling their own witnesses at their own discretion. Instead, the Commission, through its counsel, determines the witnesses to be called and the documents to be introduced. Parties have had an opportunity, and will continue to have the opportunity to suggest to Commission counsel the witnesses, experts and documents that should be heard or admitted at the hearing. Ultimately, it is up to the Commissioner to determine the witnesses to be heard. Nevertheless, some witnesses, especially those who were directly involved in the Walkerton events, will have the opportunity to have their evidence initially led by their own counsel. The Public Inquiries Act includes protection for witnesses testifying at an Inquiry, vis-à-vis subsequent civil and criminal proceedings. The Commission also benefits from search powers under that Act.

Because of the unique nature of a Public Inquiry, parties, for the most part, do not have an opportunity to bring their own expert witnesses forward, unless they can persuade the Commissioner that an evidentiary gap exists or that a particular perspective is missing, and the Commissioner gives leave for a party to call that evidence themselves. Otherwise, parties' participation will be primarily by way of cross-examination and submissions. However, expert witnesses are often very important to counsel in preparation of cross-examination, in preparation of submissions and recommendations, and in noting gaps in the evidence or sources of information that should be considered in the hearing. Accordingly, CWC is fund-raising so that it can retain expert assistance through CELA both to advise CWC on the evidence and to assist counsel. Legal Aid Ontario, and in particular, the Test Case and Group Fund, has assisted CWC through additional funding.
CELA is devoting extensive clinic resources to this file.

For more information on CELA's involvement in drafting study papers for the Commission, read the section titled "CELA at the Walkerton Inquiry."

Gypsum Mining and Water Taking in Southwestern Ontario

CELA was retained in 1998 as counsel to advise two families residing on the Six Nations First Nation in southwestern Ontario. They and others were significantly affected by very large volume water takings by a gypsum mining and processing company whose operations are based immediately adjacent to the First Nation. The mining operations were taking place in the subsurface below CELA's clients' properties. Large volume pumping of water to facilitate the mining operations has continued to occur below and immediately adjacent to CELA's clients' and others' properties. Well water volumes, local stream flow, and local water table levels have been seriously affected. CELA assisted the clients with respect to a proposed 10-year water taking permit renewal. In June 1998, a six-month temporary permit with conditions was issued. CELA was then retained in late 1998 as counsel to 15 additional families in order to provide comments to the Ontario Minister of the Environment with respect to a proposed two and one-half year renewal of the water taking permits. Comments were provided based on a posting of the application on the Ontario EBR. On December 24, 1998, the Minister of the Environment granted a three month temporary permit with additional conditions. CELA continued to assist the clients with respect to the water taking permit application in 1999. In the fall, the MoE issued a five-year water taking permit despite the fact that only a two and a half year permit had been sought. CELA represented one of the families in seeking leave to appeal the decision under the Environmental Bill of Rights (EBR). The Appeal Board did not grant leave to appeal. This case illustrates a serious concern with the EBR leave test. In the meantime, the clients have commenced civil litigation against various defendants with CELA as co-counsel with a member of the private bar.

Aggregate Pit

CELA is counsel for an organization challenging the development of an aggregate pit immediately adjacent to its property, which has been in its possession since the 1920s. The land proposed for aggregate extraction has been subject to a restrictive covenant since the 1950s. CELA is assisting the client in its negotiations with the company to protect its client's property from impacts of the aggregate operation, particularly noise impacts. At the end of 2000, formal applications for a zoning change and an official plan amendment were filed by the applicant. CELA is on co-retainer with a member of the private bar on this file.

Friends of Red Hill Valley

CELA represented a Hamilton-based citizen's group in a Federal Court Trial Division challenge brought by the Region of Hamilton Wentworth. The Region's challenge was against the application of the Canadian Environmental Assessment Act to a major expressway intended to run through the Red Hill Valley in Hamilton. The Region brought a wide ranging judicial review application which, if successful, would have major repercussions for federal environmental assessment in Canada. Their application is based on both statutory interpretation and constitutional grounds. CELA's clients successfully obtained intervener status in the application. The Region's judicial review application was heard for five days by the Federal Court in the late fall of 2000. The intervention by CELA on behalf of its clients supported the proper application of the federal environmental legislation to projects of this type, and the terms of the referral to the environmental assessment panel. A decision was released in May 2001, granting the Region's application. The federal government has appealed this case to the Federal Court's Attorney and CELA is representing the Friends of Red Hill Valley in seeking an intervention at the Federal Court Attorney hearing.

Lanark County Landfill

In 1999, CELA was retained by an individual opposed to the establishment of a new "greenfield" landfill in Lanark County. The proposed landfill has been approved without a hearing under the Environmental Assessment Act and the proponent's application for a certificate of approval under the Environmental Protection Act (EPA) is pending. This case raises important statutory interpretation questions about the validity of a recent EPA regulation which purports to dispense with the mandatory public hearing under Part V of the EPA. In 2000, CELA continued to monitor this situation, particularly since the proponent has not proceeded to establish the proposed landfill.

EBR Investigation

CELA assisted a client with the preparation of a Request for Investigation under the EBR regarding noise and dust impacts from a grain mill. The request was successful and the MoE is investigating the matter.

Mushroom Composting

In 1999, CELA represented two residents at a hearing before the Normal Farm Practices Board in an effort to get a mushroom composting facility to install aerated floor and biofilter technologies to control the discharge of odours. Witnesses at the hearing compared the odour to rotting animal carcasses. The Board's decision noted that witnesses had vomited as result of the odours and their lives were "certainly detrimentally affected." The Board, however, reluctantly found that the composting facility's operation met the definition of normal farm practice as aerated floor technology and biofilters in Ontario were still at an experimental state. At that time, only one commercial mushroom producer in Ontario was using an aerated floor and even that aerated floor formed only a small part of the facility's total production. In 2000, the Co-op sought to expand its operation and applied for a site plan amendment. Brant County planners raised numerous concerns and sought additional information from the Co-op. The Co-op, in turn, appealed the matter to the Ontario Municipal Board (OMB) and CELA intervened on behalf of a local resident. After the hearing started the Board asked the parties to mediate a settlement. Four days of negotiation later, a revised site plan amendment was agreed upon including, among other terms and conditions, an agreement to install aerated floor technology in bunkers at an approximate cost of $1.5 million dollars. The Co-op also agreed to construct the bunkers to accommodate biofilters in the future. The Co-op is the first operation to install aerated floor technology inside bunkers in Ontario. The settlement goes a significant way towards improving operating standards for mushroom composting facilities in Ontario.

Innisfil Landfill

CELA acted as counsel for over six years for a family living beside the Innisfil Landfill site near Barrie. The facts of the case are succinctly summarized in a Joint Board decision which refused to permit expansion of the site. Leachate (contaminated groundwater) from the landfill site has trespassed onto the family's property and the family has experienced significant nuisance impacts. A number of legal activities occurred in relation to this matter: (1) the Environmental Compensation Corporation awarded the family interim compensation for the spill of leachate; (2) the family reached an out-of-court settlement with one party respecting this matter; (3) the family discontinued a regulatory negligence action against the Crown; and (4) the family continued to pursue other parties who caused or contributed to the leachate contamination on their property. In February 1999, the Environmental Appeal Board granted a motion by CELA's clients to dismiss appeals against cleanup orders issued to the former owner and operator of the landfill. A motion for summary judgment brought by CELA's clients was granted in March 1999 and substantial damages were awarded to CELA's clients. In late 1999, the Environmental Compensation Corporation authorized a final compensation payment to CELA's clients, and in early 2000, CELA's clients received the compensation. The landfill was closed and leachate collection equipment was installed, but CELA continues to monitor this situation in case the site is reopened or expanded.

Ontario Hydro Discharges

In 1998, CELA represented two clients in requesting an investigation of Ontario Hydro for alleged discharges of toxics including zinc, tin, lead, arsenic and copper into Lake Ontario from its nuclear and fossil fuel generating plant in Pickering, Ontario. The discharges were caused by the scouring of the brass tubing used in the condenser units at the plant. A request for investigation was brought pursuant to the EBR and filed with the Environmental Commissioner of Ontario. Following the request for investigation, Ontario Hydro established an independent review team, headed by the Dean of the Faculty of Environmental Studies at York University to evaluate and assess a report on the discharges. The report was critical of the lack of environmental accountability, environmental awareness and internal and external reporting within Ontario Hydro. In addition, Ontario Hydro indicated it would be replacing the condensers at the Pickering plant at an approximate cost of $30 million. The MoE provided a response advising that the investigation would not be commenced. The MNR provided its response, advising that an investigation would not be commenced. However, MNR made a number of recommendations to Ontario Hydro including the establishment of an ongoing scientifically sound monitoring program for metals at Ontario Power Generation generating stations.

Groundwater Contamination

CELA continued to serve as counsel for the plaintiffs who reside in Belleville, Ontario. In the early 1970s drums containing toxic waste were buried near the plaintiffs' property. Over the years the drums started leaking and discharging hazardous waste causing groundwater contamination. The plaintiffs relied on well water and used the water for drinking and bathing purposes until advised not to do so by the MoE. In 1994, CELA commenced a lawsuit on behalf of the plaintiffs for trespass, nuisance and negligence. In mid-July of 1997, CELA brought a motion seeking production of a Crown Brief which consisted of approximately 5000 pages of documents relating to Criminal Code charges against the defendant, Goodyear Canada Inc. The defendants then brought a motion in the Ontario Court (General Division) to quash the plaintiffs' motion. Cross-examinations were done on affidavits filed by both CELA's clients, as well as Goodyear Canada Inc. with respect to the motion to quash. The motion was dismissed by the Court and CELA clients were awarded costs. Further motions regarding production were heard in September 1998. The decision on the motions was released on January 26, 1999 granting in favor of CELA's clients' position. Goodyear appealed the decision. The Superior Court of Justice (Divisional Court ) heard the appeal on February 16, 2000 and the Court ordered Goodyear to produce the Crown brief and to pay $5000 in costs to the plaintiffs.

SWARU Incinerator

This matter involved representation regarding a Request for Review under the EBR of the operating permits for the SWARU incinerator in Hamilton, Ontairo, one of the oldest and most controversial incinerators operating in Canada. The request was favourably received by the MoE in that one of the approvals is now under formal review. In part, this review has questioned the viability of continued operation of this incinerator.

PCBs Incineration Facility Proposed in Northern Ontario

CELA is representing an organization opposing the development of a new PCB incinerator in Kirkland Lake. Comments on the Terms of Reference required under the EAA were completed in December, 2000. The scope of the environmental assessment will be determined in 2001. A hearing is possible late in 2001 or in 2002. This case has significant implications given that the proposed service area is all of North America.

Protection of Croplands in Niagara Region

CELA represented an organization in an OMB hearing held in March of 2000. The case involved protecting 500 acres of specialty croplands in the Town of Pelham and raised two key principles of the Region of Niagara Official Plan; to preserve tender fruitland and direct development to the south of the region. CELA called a microclimatalogist to provide expert evidence of the microclimate in the proposed urban expansion area as well as a planner to provide evidence on municipal planning issues. The OMB ruled in favour of the expansion and CELA filed a request for a re-hearing on grounds that the Board erred in law in concluding that the lands did not have a suitable microclimate for tender fruit production and for erring in its application of the Provincial Policy Statement. The Board refused the request for the re-hearing. CELA's client has focused its efforts on raising the public profile of this issue.

Proposed Development by Amos Ponds

At the hearing in the fall of 2000, CELA's client successfully opposed highrise development next to Amos Ponds, a provincially significant wetland straddling the eastern border of Toronto's Rouge Park. In a written decision, OMB chair M.A. Rosenberg ruled that two eleven-story high-rises proposed by Map Realty Ltd. would have had "an unacceptable adverse impact on the environment" and would have broken the natural link between the Amos Ponds in the west and the Petticoat Stream Corridor in the east. The developer had claimed that wildlife could use a railroad and hydro-corridor to pass the proposed development, but CELA argued that these areas are highly disturbed by regular cutting of all woody vegetation and spraying of particularly toxic herbicides. As well as destroying the forest itself, the OMB found that development so close to the Amos Ponds would have "seriously and negatively impacted" the wetland, an area so rich in wildlife that it is considered one of Pickering's most significant natural assets. The OMB decision was issued on October 23, 2000.

Save the Rouge Valley System

CELA was retained to intervene in the City of Toronto's appeal to Divisional Court to obtain standing before an OMB hearing into developments on the Oak Ridges Moraine. CELA was successful in obtaining intervention status and arguing before the Court but the appeal to grant standing to the City of Toronto was dismissed.

Whistleblower Provisions and the Ontario Labour Relations Board

CELA is representing a client in an application before the Ontario Labour Relations Board under the whistleblower provisions in the EPA. CELA's client, an employee of the the Regional Municipality of York (RMOY) for two decades raised concerns regarding safety issues to RMOY. The applicant also made a complaint regarding these issues to the Ontario Ministry of Labour (MOL) resulting in an order against RMOY. The applicant was subject to various disciplinary actions following his complaint to MOL and in response, the applicant filed a number of grievances against RMOY. In March 1998, the MoE investigated RMOY for discharge of sewage into the East Don River. The applicant gave a statement to a MoE investigator which outlined a number of environmental and safety problems at RMOY's pumping station. Shortly after MoE's Crown Counsel disclosed the statement to RMOY, the applicant was fired. The Ontario Labour Relations Board commenced its hearing on this case in November of 2000. After hearing two days of evidence, the case continued in February, March and April 2001 with it expecting to conclude in September. This action seeks to take advantage of the whistleblower provisions of the EPA that protect persons from reprisal when reporting.

Municipal By-law on the Use of Pesticides

CELA successfully obtained intervention status for TEA and ten other clients, being local and national grassroots groups concerned with local cosmetic use of pesticides, in an application to the Supreme Court of Canada dealing with a municipal by-law providing for control on the use of pesticides on private property. The by-law was passed by the municipality of Hudson, Quebec. The matter was heard by the Supreme Court in December of 2000. The court decision will have significant ramifications in Ontario, and in fact, across the country, because the municipal legislation under which the by-law was passed is very similar in its provisions to that under which municipalities in Ontario would act. CELA's clients argued in support of the ability of a municipality to pass such a by-law, both on statutory interpretation grounds and on constitutional grounds. A decision is expected in the summer of 2001.

Richmond Landfill

In mid-1999, CELA was retained by a residents' group which opposes the proposed mega-expansion of the Richmond Landfill near Napanee. CELA intervened in the EAA process on the group's behalf, and made submissions on the Terms of Reference which were approved under the EAA by the Minister of Environment in September 1999. In 2000, CELA commenced a judicial review application in respect of the Minister's approval decision. A similar judicial review application has been brought by a First Nations community located near the proposed landfill expansion. This precedent-setting case will likely be heard in 2001.

Water taking in the headwaters of the Saugeen River

CELA represented a local community group in a leave application under the EBR, 1993. The group was formed in December 1998 to raise local residents' concerns over a bottling company's request to take 76 million litres of spring water per year from a shallow surface aquifer at the headwaters of the Rocky Saugeen River. CELA filed an application for leave on behalf of its clients raising a number of issues, including: the failure of the Director to consider an ecosystem approach in his decision to issue the permit; violation of a neighbour's riparian rights by the virtual elimination of the flow of a stream into a wetland; conflicting expert opinions regarding potential impacts on the wetland; and concerns over the development of severe drought conditions subsequent to the completion of the proponent's hydrogeological study. In a very surprising decision, the Environmental Appeal Board found the Director's decision to issue the permit reasonable having regard for the relevant law and government policies and denied the application for leave. CELA's client is considering other options including legal remedies to address its concerns. The case highlights the on-going concerns regarding increased water taking in the Province as well as the need to reform the permit process to ensure the application of an ecosystem approach to water taking permits. In 2000, CELA continued to provide summary advice to its client in relation to this matter.
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Kathleen Cooper is a researcher at CELA