WCEL argues the public’s right to a clean environment

Posted January 2006

Courtesy of West Coast Environmental Law

Over the centuries, judges have recognized that the public has rights not to be exposed to toxins, and to have clean water and air: that’s the conclusion of a recently published paper written by West Coast Environmental Law (WCEL) staff counsel, Andrew Gage. Re-establishing these rights has the potential to significantly shift how governments make decisions that affect people’s health and environment.

Gage’s paper, Public Rights and the Lost Principle of Statutory Interpretation, demonstrates that the common law (judge-made law) has long recognized public rights, and that government decision-makers cannot ignore these rights when making decisions. 

In the U.S., the laws around public rights have evolved into a powerful legal principle known as the “public trust doctrine,” the idea that certain resources and lands must be managed for the public. In Canada, many older cases involve courts saying, “NO! Unless there is a very clear statute allowing you to interfere with the public’s rights, we’re not going to let you do it.”

Unfortunately, in the last century these cases have become increasingly obscure and both courts and legal academics have focused on protection of private rights. According to Gage, “Somehow those basic rights have been forgotten for much of the last century. This paper points out that the public’s rights do have real legal clout and that the courts should not assume that the government has the power to negatively impact them.”

Gage feels that “the time is ripe to raise these issues in the courts. These rights could be a powerful tool for environmental protection in Canada.” In a related development, the Supreme Court of Canada skirted the issue of public rights while supporting WCEL on the effective application of toxic clean-up laws.  

In January, WCEL scored a victory at the Supreme Court of Canada, with the court’s ruling that BC Hydro was responsible for the actions of its predecessor, BC Electric, in contaminating a Vancouver property. WCEL had gone to court to both ensure continued effectiveness of contaminated sites legislation, and to re-establish public rights to a clean environment. Submissions to the court by WCEL and other environmental groups raised the argument of public rights, citing Gage’s paper.

“We were hopeful that the decision might recognize the public has always had a right to a clean environment—even in the 1930s when BC Electric was allegedly contaminating that Vancouver property.”

The Supreme Court adopted the reasons of a dissenting judge at the BC Court of Appeal, deciding the case solely on technical grounds related to the legal responsibilities of corporations. While a victory, the case did not advance the public rights argument.

Public Rights and Statutory Interpretation was published in April 2005 in Volume 15, No. 2 of the Journal of Environmental Law and Practice. The article was researched and written with support from a grant from the Canadian Bar Association Law for the Future Fund.

For more information go to WCEL’s website at www.wcel.org