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

Readers Digest of CELA's History - Another perspective

Today, the world is run by "bean counters" - management gurus, efficiency experts, "quality assurance" types (and even governments) that seem to think that process is more important than product. To run an efficient and effective organization, they claim, you need "visioning" exercises, mission statements, strategic plans, long term goals, medium range objectives, short term targets, action plans, blah, blah, blah.... . These goals, objectives and targets must all be "measurable" and the results are to be measured and compared against "indicators" and "benchmarks" and "best practices."

And when, pray tell, is one expected to find the time to actually do the work?

Given this context, it is instructive to "measure" CELA's performance against its vision, mission, goals, objectives, targets, and all the rest of the paraphernalia of the bean counters. Around 1970, CELA enunciated what we now might call a vision or mission or a set of long term goals. CELA stated that Ontario needed an EBR and set out to make it happen. In my days at CELA I don't remember anyone ever developing a strategic plan or setting goals or targets as to how we would get there. Nevertheless, using this simple measuring stick quickly makes clear just how effective CELA has been.

CELA's EBR included:

Standing to sue in courts and appear before tribunals:

Result? Numerous court decisions broadening the right to participate, a report by the Law Reform Commission recommending broader standing, and standing provisions in the actual EBR passed by the Ontario government

Class actions:

Result? Ontario's Class Proceedings Act, as well as similar legislation in at least one other province

Funding to participate in proceedings before courts and tribunals:

Result? The establishment of a case-by-case intervenor funding program by former Environment Minister Andy Brandt as a result of lobbying by a coalition spearheaded by CELA, followed by the Intervenor Funding Act, passed by a previous Ontario government and killed by the current one; the existence of the CEDF, which CELA helped to found. CEDF raises money to fund citizen interventions; and the fund set up under the Class Proceedings Act to support class actions; as well as funds for disbursements and to relieve against adverse costs awards available to clinics like CELA through Legal Aid Ontario

Reform of the party-and-party costs rule that acts as a barrier to citizens enforcing their environmental rights:

Result? Well, you can't win 'em all. We still have the same old costs rule, but CELA's efforts have brought a new approach closer to reality. CELA's submissions resulted in the Osler Task Force on Legal Aid commenting in its report that a one-way costs rule should be considered in public interest lawsuits, an idea that the Law Reform Commission of Ontario (disbanded by the current government) ran with in one of its reports - either the one on standing or the one on class actions, I think.

Freedom of information laws:

Result? The federal government, Ontario, and every other province have freedom of information laws which make it easier (somewhat, sometimes, depending on how hard government departments fight to avoid complying) to get government information about the environment.

Whistleblower protection:

Result? Added to the EPA around 1981 and incorporated in the EBR in 1993

An environmental Ombudsman:

Result? Ontario and the federal government both have appointed environmental commissioners and the B.C. government has just announced that it will establish such an office

Laws requiring environmental impact assessment of environmentally significant projects and programs:

Result? Ontario passed the first Environmental Assessment Act in Canada in 1975, and today most, if not all provinces, have such legislation, as well as the federal government. In addition, many other laws governing specific matters such as pipelines or land use planning require assessment of environmental impacts before approvals are granted.

Public participation in setting environmental standards:

Result? In the 1980s, the Ontario government set up several advisory committees to review proposed environmental standards and guidelines. They have all been disbanded by the current government, but the EBR remains. It requires an opportunity for public participation before many regulations, policies, guidelines and enforcement and compliance instruments are issued.

The right to a healthy environment:

Result? Well, again, you can't win 'em all, but the EBR contains a new cause of action that gives ordinary citizens the right to protect public resources when governments decline to do so, and CELA was probably the first organization in Canada to argue that a clean and healthy environment should be enshrined in the Canadian Charter of Rights and Freedoms. When Toby Vigod went to Ottawa in 1978 or 1979 to argue before a joint committee of the House of Commons and the Senate that our Constitution should contain a right to a clean environment, her submissions were ignored not only in the committee's report but also by the media (possibly the only time in 30 years that a CELA press release has not resulted in media coverage). Today, however, there is a respectable body of academic literature arguing for such a constitutional right and the Supreme Court of Canada in at least four cases has talked about environmental protection as an important, and even fundamental, value in Canadian society.

So, measured against its original goals, even the bean-counters would have to concede that CELA, despite its lack of a detailed 30 year plan with monthly measureables, is somewhat of a success.

I was at CELA from December 1972 to the summer of 1980, with seven months off to attend the Bar Admission Course. Unlike the governments of today, the governments of the Trudeau-Davis era didn't always feel compelled to act when CELA made a suggestion or revealed a problem in the way they dealt with the environment. Back in those days, it often took a disaster or near disaster, like the Mississauga derailment, Bhopal, Three Mile Island, or mercury poisoning in Japan, on First Nations reserves in northern Ontario, and in the St. Clair River in southwestern Ontario to convince a government that something needed to change. Of course, now governments are so much more responsive. It is inconceivable that today it would take, for example, children dying, to persuade a government to set drinking water standards and enforce existing laws to protect our water supplies.

Nevertheless, despite recalcitrant governments, we had many small victories, and some major ones. The major ones included, of course, the EAA, shaped by a CELA campaign lasting several years run by Gar Mahood, Joe Castrilli, John Low (for a while) and the late Dolores Montgomery with important input from CELA directors such as Cliff Lax and Dennis Wood (forgive me if I've forgotten anyone). Less well known perhaps, is CELA's success in raising the issue of compensation for pollution victims, which may have been a factor in the Ontario government's introduction of the Spills Bill in 1979 and CELA's partially successful efforts to protect that bill from a strong industrial and commercial lobby to weaken it. These efforts led to the addition of an Environmental Compensation Corporation to the bill. (Note: the ECC has been killed by the current government, which declared that it is not the business of government to compensate pollution victims. Its rush to compensate the people of Walkerton seems to suggest a change of mind).

Other successes in the 1970s and 80s included CELA's success in using the media and private prosecutions to embarrass the MoE into abandoning a policy that it would not prosecute noise violations under the EPA (the current Ministry has instructed its staff not to investigate or prosecute offences involving noise, vibration, dust or odours); CELA's role along with the Conservation Council of Ontario (CCO) in persuading the government to replace a weak Pits and Quarries Control Act with a strong Aggregate Resources Act (the current government amended the latter Act to remove some of the strong provisions that CELA had argued for); CELA's role, again along with the CCO, in persuading the government to amend legislation intended to immunize farmers against lawsuits resulting from certain types of pollution; and CELA's success in persuading municipalities to pass stronger urban tree protection by-laws.

I could go on, and perhaps I will when it comes time for CELA's 40th. But there is one last story that I think is worth telling for the first time, some 20-odd years later. It was a small victory in the scheme of things, but an important one, I think.

Some time in the mid-1970s, the media got wind of the fact that the Ontario government planned to grant a logging company the right to clear cut vast areas of northwestern Ontario, without an environmental assessment and without any notice to the First Nations communities that inhabited the area. The resulting outcry became such an acute embarrassment to the government that it moved quickly to control the damage by appointing a Royal Commission to report on how to protect the Northern Environment. (Bill Davis did that a lot. My, how things have changed).

One day, an employee of the Ontario government came to CELA's office and asked to see a lawyer. He was visibly shaken; close to tears, in fact. Only a year or so away from retirement, he had been accused of leaking to the press the document that had revealed the secret deal to sell off much of northern Ontario. He was facing a disciplinary hearing and would likely lose his job and his pension if the hearing concluded that he was the whistleblower. He needed CELA's help.

A phone call was made on the alleged whistleblower's behalf to a Tory power broker who had the ear of the Premier. The CELA staffer explained that CELA wanted to help the government avoid any embarrassment. If the discipline proceedings went ahead, every organization advocating freedom of information legislation (non-existent at that time), civil liberties, protection of the environment, and native rights would undoubtedly feel compelled to ride to the rescue. The martyrdom of the alleged whistleblower would be a boon to their causes and a bane to the government. Indeed, such a disciplinary proceeding might be the best thing that ever happened to these groups.

Two days later, CELA received a curt telephone call. The alleged whistleblower would not be fired, which was "more than he deserved." The alleged whistleblower was stripped of his usual duties, moved to an isolated office, given an impressive-sounding but useless research project to work on, and permitted to spend his days chasing chimeras until he retired, with full pension, a year or so later.

John Swaigen is an environmental lawyer, and a founding member of CELA