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Natural Resource Damages:After the Canfor decision
NEERLS Pre-DOJ DaySeptember 29, 2005
Tony CrossmanMiller Thomson LLP
To say the law on this question is unsettled is vastly to understate the situation. The parties in this lawsuit, and we ourselves, have ventured far into unchartered waters. We do not think plaintiffs could reasonably have been expected to anticipate where this
journey would take us.”
US District court of Appeal in SS Zoe Colocotroni, 628 F. 2d 652 (1st Cir. 1980) at p687
Canadian history of environmental damage claims
Nestucca Oil spill in US waters
affecting Canadian resources
Birds and fish affected
Claim in US Settlement Fund established for
restoration and enviro. projects
The Canadian experience- The Ship Sun Diamond
Federal crown sought to recover its cleanup costs to mitigate an oil spill in Vancouver harbour
Damages awarded for the water cleanup in addition to costs to clean up Crown owned beach and foreshore
Reference to the parens patriae principle
US natural resource damage claims
CERCLA OPA, 1990
response to Exxon Valdez
Parens patriae Public trust
Canfor decision
BC Crown sued for fire damage to forest 1,500 hectares Cost of fire fighting and
restoration of forest Loss of stumpage
revenue from harvestable trees
Loss of non-harvestable trees set aside for environmental reasons in sensitive areas
Canfor decision
Province did not plead or lead evidence as to “environmental damage” at trial - only claimed commercial loss
SCC: Province only able to recover cost of fire fighting and restoration Did not plead environmental damage claim Did not lead evidence as to environmental loss
Crown’s basis for a claim
Parens patriae Protector/ guardian
of the environment
Public trust Trustee of the
environment
Land owner Legal owner of land
Canfor decision implications
Government can claim for environmental damage
“…there is no legal barrier to the Crown suing for compensation as well as injunctive relief in a proper case on account of public nuisance, or negligence causing environmental damage to public lands, and perhaps other torts such as trespass, but there are clearly important and novel policy questions raised by such actions.”
“…[T]here is no reason to neglect the potential of the common law, if developed in a principled and incremental fashion, to assist in the realization of the fundamental value of environmental protection.”
Implications Possible expansion of
the public nuisance doctrine
can be used not only for injunctive relief but also for compensation
Possible acceptance of the public trust doctrine in Canada
CL Causes of Action
Public nuisance - yesNegligence - yesTrespass - perhapsPrivate nuisance - ?Strict liability - ?A new tort ??
Implications SCC recognised that
these findings had potentially broader implications
Role of guardian of the environment may also carry with it fiduciary-like duties over the environment
“[T]here are clearly important and novel policy questions raised by such actions. These include the Crown’s potential liability for inactivity in the face of threats to the environment, the existence or non-existence of enforceable fiduciary duties owed to the public by the Crown in that regard…”
Statutory causes of action ?
CEPA Fisheries Act
BC Environmental Management Act
Valuing environmental damage
SCC noted that BC’s factum identified at least 3 components of environmental loss that could be measured: Use value – associated with the benefits that flow from direct use of
the natural environment Passive use of existence value – associated with the benefits that
flow from eihter indirect enjoyment or the preservation of the environment
Inherent value – the value the ecosystem has beyond its usefulness to humans
Methods for quantifying the value: market valuation, restoration or replacement cost, contingent valuation, behavioural use valuation
Valuing damage to natural resources
SCC: Crown's claim for an "environmental premium” of 20% of commercial value is arbitrary and simplistic
The challenges of proving a claim: expensive time-consuming complex (baseline, causation, impacts from other
causes, etc)
Who should be able to claim?
Federal crownProvincial crownMunicipalities
“…the municipality is, in a broad sense, a trustee of the environment for the benefit of the residents in the area of the road allowance and, indeed, for the citizens of the community at large.” (Scarborough v. REF Homes Ltd quoted by Binnie J in Canfor)
First Nations
Should we have a statutory cause of action?
Rely on CL causes of actionRely on existing statutory causes of
actionCreate a new statutory cause of action
What should this look like?
How should we value environmental damage?
US experience CERCLA regulation – a formula Many different methods Evidence is very costly to gather No accepted method – battle of the experts
“Man has lost the capacity to foresee and to forestall. He will end by destroying the
earth.”
Albert Schweitzer
Case study