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

Readers Digest of CELA's History

Once upon a time, there was no Ontario Ministry of the Environment (MoE) or Environment Canada. Environmental law was not taught in the law schools, and there was not even an index listing in legal texts, digests and journals. And it was in these days, long ago, that CELA was born.

The idea of CELA was established in 1970 by a group of young people that included some Pollution Probe staffers (Peter Middleton and Tony Barrett), law professors at Osgoode Hall (Barry Stuart, now a Judge, and Harry Arthurs), lawyers (Clay Hudson, Harvin Pitch), and some law students and graduates, mostly from the Faculty of Law at the University of Toronto (U. of T.). David Estrin was an exception, having studied law in Alberta. The organization's original name was ELA, with 'Canadian' being added sometime in the early 1970s.

The concept was to create a public interest law clinic that could provide support for environmental groups like Pollution Probe that needed expertise (there was very little at that time in the private bar) at little or no cost (Probe, like most environmental groups then and now, had no money to spare). At the time, Probe was receiving numerous calls from people living in Ontario and beyond with environmental concerns and problems, and wanted a legal team mobilized to be able to assist them.

The first step was the establishment of the Canadian Environmental Law Research Foundation (CELRF) in 1970, complete with federal charitable status and the power to issue tax receipts. This work was quickly undertaken by Clayton A. Hudson (Shibley Righton LLP), one of the founding members. CELRF would be CELA's twin and try to raise funds to launch and finance the clinic; it would also undertake related legal and policy research projects.

From the fall of 1970 until the spring of 1971, the complaint files generated by Probe were fielded primarily by a group of my classmates (the U. of T. Faculty of Law graduating class of 1970) who were articling at that time. I still recall a tense discussion with the Faculty's Assistant Dean who wanted an organizing notice I posted at the law school to be removed, since in his view it created the impression that something radical was being planned. Perhaps it even used the word 'radical' in describing our fledgling group.

For the first year we had neither office nor operating funds, and worked strictly as volunteers - we met often at our homes after hours. In the spring or summer of 1971 a small federal grant became available (each full-time staffer was paid $70 per week), and temporary space in the U. of T. Ramsey Wright building was donated by Prof. Donald Chant. Thus began the full-time operation of CELA. At the same time, in a corner of David Estrin's law office, a student (now a Superior Court judge) toiled away doing environmental legal research for CELA.

Prof. Stuart worked part-time as a volunteer director of CELA for a period of many months, and then David Estrin became its first full-time lawyer in late 1971. One of the first law reform projects at that time was a thorough critique of the bill which would create the Environmental Protection Act (EPA). Among other things, CELA fought to remove the bill's prohibition against private prosecutions.

After lengthy negotiations with the Law Society, CELA was granted permission to establish a roster of private lawyers so that referrals to the private bar could be made in appropriate cases. We tried to keep it a secret that the outside lawyer in private practice who started the incorporation work pro bono for CELA was sent to jail for an unrelated fraud. Someone else eventually finished the job of incorporating CELA.

Within a short time, the board of directors was faced with a demand by staff that they wanted membership on the board with voting rights (except of course for personnel matters). After all, staff were paid very little, had to share a single one-room science laboratory as their "office," and were working long hours to do most of the important work of the organization. The board resisted, the staff protested and after a spirited stand-off-turned-negotiation session, the board relented and corporate democracy was established. This model of governance, unique in the Ontario legal aid clinic system, I understand, continues to the present and has served CELA well. I feel that it may be one of the most significant factors in CELA's survival and success.

Periodic newsletters were published and still continue in the form of the Intervenor and an E-mail Bulletin. Reports of environmental court and tribunal decisions were summarized (initially David Estrin typed decision summaries at home on his old typewriter - clearly without the aid of any spell-checker) and printed in-house (the Environmental Law News); they were later published professionally with Canada-wide circulation by Carswell. The Canadian Environmental Law Reports, the country's primary environmental law reporting service, continues to be edited by a team which includes three CELA staff lawyers. Several books were written by staff, including the encyclopedic Environment on Trial, currently in its 3rd edition.

In 1975, staff lawyer John Swaigen organized a fund-raising Stringband concert to support the litigation costs of public interest environmental cases. The event was a success and raised $5,000, thereby launching the first Canadian Environmental Defence Fund (CEDF). After a subsequent period of dormancy, the CEDF was revitalized and now continues to operate on a much larger scale than ever before.

The two siblings, CELA and CELRF, lived together with overlapping staff and boards of directors, until CELRF decided that it could not expand and have more clout unless it had an identity very distinct from CELA. There was a perception on the part of some at CELRF that CELA was too radical in the eyes of foundations, sponsors from the business community, and government. Some of us resisted the separation but to no avail. And so it was that CELRF left home and eventually changed its name to the Canadian Institute of Environmental Law and Policy (CIELAP). Neither organization was a fund-raiser's delight, mind you. Core funding and financing of projects involving law reform and legal process were difficult to find, and CELA board members were as disinterested and unskilled in fund-raising as they were learned and keen about environmental law.

Similar public interest environmental law clinics soon opened in Sudbury (Sudbury Environmental Law Association) and British Columbia (West Coast Environmental Law Association (WCELA)). The Sudbury office closed after a time, although in its short life it had the distinction of being the first organization to prosecute Inco for pollution, long before the MoE got around to doing so. WCELA in Vancouver still remains. Dean John McLaren and Associate Dean Ron Ianni at the University of Windsor's Faculty of Law, two of CELA-CELRF's backers in the early days, opened the Windsor Environmental Law Association. One of its active law students at that time was a young Eva Ligeti.

Meanwhile, in Toronto, CELA expanded and moved offices, but without permanent and adequate funding, life for staff and the board was very strained. Staff lawyers toiled with little administrative assistance or legal support. Signing personal guarantees (which several board members and other CELA supporters did in 1975) to back CELA's bank indebtedness and sustain operations when funding ran out, was an experience some of us try to forget.

It was probably due to this austerity that CELA's preferred form of retreat in those days was an annual canoe trip over the May long weekend - it was all we could afford. How many other organizations do you know that met and traveled in the wilderness during the most buggy time of year? On the other hand, it may help to explain why some of us have remained good friends ever since.

Provincial legal aid funding arrived just in the nick of time. A one-year group certificate was issued in 1976 for $2,000 per month to cover the salaries of our two staff lawyers. CELA was recognized by legal aid as a clinic, one of the first in the system which now numbers more than 70, and we remain forever indebted to Legal Aid Ontario for its continuing financial support. Although legal aid never accounted for the entire budget, and other fund-raising efforts continued, the change permitted salaries at a level at which staff were no longer forced to leave CELA in order to obtain a measure of financial security and a lifestyle beyond that expected by summer students. As a result, CELA ceased to be just a training ground for environmental lawyers and researchers and also became a potential career base. Not that all board members agreed with this shift - and it took a difficult and heated board debate in the 1980s before the new paradigm prevailed. This change too has served CELA well.

Staff had time to learn and practice their craft, and many chose to remain when higher-paying opportunities inevitably beckoned. CELA was consulted more and more by government on legislative and policy initiatives, and CELA lawyers spoke regularly at professional conferences. Still, opportunities continued for law students and others to work or volunteer at CELA for short periods. And CELA itself is now a volunteer partner in the Environmental Law Practicum, which commenced last year at U. of T.'s Law Faculty. The Practicum provides opportunities for law students to earn an academic credit by working on client files with an environmental lawyer as supervisor. CELA has not forgotten its roots.

Occasional board controversies were always interesting, if not entertaining. Once a board member defended a large public corporation that CELA successfully prosecuted. After the conviction, he campaigned on behalf of the polluter to repeal that part of the Fisheries Act which permitted our client's private prosecution, or at least to split the fine. On a later occasion, CELA was attempting to stop a large scale water diversion project only to discover that one of its directors was publicly supporting it. Sometimes, we had to create new rules for board governance on the fly, in order to deal with situations which we never expected to encounter. Most of the time, however, we operated through consensus. At CELA, there was usually an understood and shared set of values to guide us through the maze.

Many of those who worked for CELA (and CELRF) in summer jobs, as articling students or as staff lawyers, or who served on its board of directors, remained in the environmental law and policy field and have distinguished themselves elsewhere. Although there is not space to name them all, examples (in addition to those named above) include environmental law professors (Paul Emond and Marcia Valiante), the first Environmental Commissioner of Ontario (Eva Ligeti), a founder and head of the Non-Smokers' Rights Association (Gar Mahood), a publisher of many environmental law titles (Paul Emond - he was one of the first group of summer students and years later wrote and published the important 1978 text, Environmental Assessment Law in Canada), Graham Rempe who worked as solicitor for the Environmental Compensation Corporation 1986 - 1988 and now with the City of Toronto practising environmental and municipal law, a member of an Ontario Royal Commission on Planning who later chaired the B.C. Environmental Appeal Board (Toby Vigod), the first (and only) special Ontario Cabinet advisor on environmental issues (Steve Shrybman), former executive director of the Canadian Coalition on Acid Rain and current Director of the Ontario Campaign for Action on Tobacco (Michael Perley), former Chair of the Environmental Assessment Board (Grace Patterson), former Chair of the Environmental Appeal Board (John Swaigen), and heads and members of environmental law departments in large Bay Street and small environmental specialty firms (Chuck Birchall, Joe Castrilli, Roger Cotton, David Estrin, Robert Fishlock, David & Harry Poch, Stan Stein, John Willms and Dennis Wood, to name just a few).

Sadly, we also lost some former staff (Dolores Montgomery, Nettie Vaughan and Barbara Rutherford) and at least one board member (Pat Reed) along the way to illness and accident. Dolores, a good friend, died tragically in a small plane crash (it hit a hydro line) while doing public consultation work for the Porter Royal Commission on hydroelectric power in 1976. The 3rd edition of Environment on Trial is dedicated to Dolores and Pat.

CELA has been an important player in several law reform projects, such as the creation of the Environmental Assessment Act (EAA), the Intervenor Funding Project Act and the Environmental Bill of Rights (EBR). In fact, CELA has been an advocate in these three legislative areas for almost all of its 30 years. The EAA 1970s campaign was long, elaborate, expensive and successful - it also left us in perilous debt. CELA has also been involved in numerous cases before the Ontario Court of Appeal and Supreme Court of Canada - more than many lawyers will see in their career.

Now, CELA has five lawyers in a full-time staff totaling 13 people, its own in-house international environmental law team, and an extraordinary library. When the MoE and Pollution Probe disbanded their libraries due to cutbacks, CELA filled the void. That library is now managed by the Resource Library for the Environment and the Law (RLEL), a non-profit charitable corporation housed at CELA. Its collection is vast. CELA has collaborated with CIELAP, CEDF and RLEL on research projects. CIELAP, having separated from CELA years ago, is now located just down the hall from CELA's offices. And CEDF is located on the same street, just blocks away.

CELA has seen provincial and federal governments and politicians come and go - some who genuinely tried to help and advance the cause of environmental protection, and some who have unfortunately tried to undermine it. CELA was active when environmentalism was flourishing, and continued on during the low points. CELA has survived the efforts of a few people who regarded environmentalism as a problem to be eliminated.

An environmental consultant informed me just weeks ago that CELA is often considered "a little too radical" by many of his firm's clients. Maybe they heard about that notice posted long ago on a law school bulletin board. Another opinion, offered by the federal Environment Minister in a letter last month, is that the "founding members can be justly proud of the work the Association has done, and the influence it has had on Canadian environmental policy over the years." He congratulated the board and staff for "achieving 30 years of committed service to Canadians."

And it is not only the founders of CELA who continue to be very proud of its many accomplishments.

Alan Levy, David Estrin, and John Swaigen are environmental lawyers, and founding members of CELA