Ecojustice Charter Challenge

Ada Lockridge and Ron Plain after a court hearing on Feb 1, 2012

Meet Ron Plain and Ada Lockridge. They are both Aanishinaabe, and Aamjiwnaang band members. Ron no longer lives on the reserve, having moved his family into downtown Sarnia several years ago out of fear for his children’s health; but Ada – along with approximately 800 other members of the Aamjiwnaang band – still does. Both Ron and Ada are activists, and have been fighting for their people’s rights to clean air, clean water, and regulatory transparency for years. In November 2010, they embarked on a long legal journey by filing an Application for Judicial Review against Suncor Corporation and the government of Ontario. Their partner in this case is Ecojustice, a charitable organization of lawyers and scientists that provides free support to Canadian citizens fighting for environmental justice. Ecojustice staff lawyers Justin Duncan and Margot Venton and senior scientist Dr. Elaine MacDonald serve as their legal support.

The disputed Suncor emission stack

Ron and Ada were already activists fighting for their right to a clean environment before this lawsuit began. In fact, it was while Ron was distracted with a different act of civil disobedience that the incidents on which the case is based occurred. The Suncor Corporation had announced plans to construct Canada’s largest ethanol plant directly across the road from the Aamjiwnaang band office, in a move that Ron now considers to have been merely a distraction technique. Suncor, he claims, had no such plans for an ethanol plant, but while the attention of Ron and fellow activists was focused on that locale, Suncor proceeded to build a desulfurization plant right next to the Aamjiwnaang cemetery, a sacred ancestral First Nations burial site. The function of this plant – removing sulfur from diesel fuel – was touted as environmentally beneficial; however, the emissions stack was built much lower than the legal minimum height, and thus the sulfur emissions rain directly over Aamjiwnaang and settle there, rather than dispersing over a wider area as would be the case if the stack’s height met the legal requirements. When the Ontario Ministry of Environment (MOE) discovered the faulty stack, Suncor was very publicly ordered to reduce the desulfurization process to pollution standards and fined $200,000 to $300,000. This demonstrated an acknowledgment of harm to human health on the part of the MOE – but nevertheless, Suncor was later given permission, in the form of a private, government-issued director’s order, to ramp production back up to 100%. It was this action – the MOE’s direct permission for Suncor to continue something that had been acknowledged as harmful to the health of the people of Aamjiwnaang – that prompted Ron and Ada to file a lawsuit.

Text of the Canadian Charter of Rights and Freedoms, Section 7 and Section 15

The lawsuit’s principle claim is that the actions of Suncor and the MOE violate Ron and Ada’s rights under Section 7 and Section 15 of the Canadian Charter of Rights and Freedoms. The Application for Review includes requests for a number of new terms of regulation for identified Pollution Hot Spots, including ongoing emission monitoring at emission sources, creation of pollution reduction plans that focus on community engagement and input, the prohibition of new approvals to pollute during the development of said plans, and others. Perhaps most significantly, it demands that new regulations would “Take a cumulative effects approach to regulating pollution” (Application for Review, pg. 2). This, and the demand that background pollution levels be included in any assessment or estimate of emissions, cover two holes in the current legislation and certificate approval process: currently, the MOE need only consider the estimated emissions from each individual plant requesting permission to pollute, and may consider that plant as if it were the only one in the region.

“What I fear most is how this cumulative pollution will affect me and my family.”

~ Ada Lockridge

In their Charter challenge, Ron, Ada, and Ecojustice are attempting to do something that has never been done before, and for that they have received international attention. The unprecedented claim they are making? Ron, Ada, and their partners at Ecojustice believe that it is a basic human right to walk outside one’s home and not breathe air that is harmful to human health. This claim, which is indeed monumental in the context of Canadian law, could be a step toward Canada approving a constitutional amendment for the right to a healthy environment, as 90 other countries around the world have done over the past 40 years.

These activists have a long road ahead of them. Since filing the lawsuit in November 2010, they have seen very slow progress in the case. On April 29, 2011, the Ecojustice team filed 2,124 pages of evidence with the Ontario Divisional Court, including affidavits from 13 witnesses. Three witnesses were community members – Ron, Ada, and Aamjiwnaang elder Wilson Plain, Sr. – and seven were expert witnesses whose testimonies included details on the health risks of pollution and the psychological effects of living in Chemical Valley, as well as information on Suncor’s current emissions and the increase in pollution that the director’s order would allow. Letters from Aamjiwnaang community members were also included.

The Suncor emission stack, visible behind the Aamjiwnaang cemetery

To stall the case, four motions have been filed by the defendants: one each from Suncor and Ontario to toss the case, and one from Suncor to strike all the evidence on the basis of hearsay. The latter poses a problem for the case: Suncor has argued for striking the evidence because many letters and testimonies were filed anonymously; however, this anonymity is crucial to protect the jobs of witnesses and relatives of witnesses who may be employed by Suncor. Ron, Ada, and their partners were in court for three days on Janury 31 through February 2, 2012, for hearings regarding these motions. They returned to court on March 5 to argue a motion of their own: Ecojustice is requesting that Ron and Ada be protected from adverse costs, so that they will not have to pay for Ontario’s and Suncor’s legal fees if they lose the case. Their argument is that to saddle Ron and Ada with the emotional burden of potentially losing their cars, future incomes, and, in Ron’s case, his house (Ada lives on the reserve, and thus cannot lose her house), combined with the existing psychological stress of living at Aamjiwnaang, would be cruel. As of April 2012, the Ecojustice team is still waiting the judge’s final decision on all of these motions.

Where do we go from here?

How the case is to proceed from here depends on a judge’s decisions. If the motions to dismiss the case are denied, Suncor and Ontario will be given six months to compile their evidence. If Ron, Ada, and their Ecojustice partners are required to amend their affidavits, they will have to do so. For now, all involved are playing the waiting game.

For more information…

Click HERE for updates on the case proceedings from Ecojustice.

Click HERE for the text of the Application for Review.

     

References:

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