Will Andruschak

Legally Green | U of C prof Shaun Fluker attempts to find whay wilderness really means.

As the Alberta government announced that it has laid charges against Syncrude for the death last April of 500 ducks on one of the company’s tailings ponds, a new research project headed by University of Calgary faculty of law professor Shaun Fluker is delving into the legal processes that are supposed to protect Alberta’s wilderness.

Fluker says we’re not necessarily lacking regulations to protect wilderness areas, but rather the follow-through to enforce them. He cites the Syncrude duck deaths as an example of environmental laws not being upheld. Section 5.1 of the Migratory Birds Convention Act prohibits depositing substances harmful to migratory birds in waters those birds are known to frequent. Compounding the offence, Alberta Environment reported Syncrude didn’t notify it of the incident, as required by law.

On Jan. 7, a month before the Alberta government laid charges, John Custer, a private citizen frustrated by government inaction on the issue, launched a private prosecution against Syncrude in front of an Edmonton justice of the peace. (Such prosecutions are typically brought forward by the Crown, as part of their mandate to prosecute those who violate environmental legislation; however, private citizens can pick up the slack if the Crown fails to act.) EcoJustice, Forest Ethics, and the Sierra Club of Canada aided Custer in his case before the provincial government took over.

But the government doesn’t always take up their obligations. Fluker cites a case from the late 1980s when Martha Kostuch, another private citizen, launched a similar private prosecution, challenging the construction of the Oldman River dam on the basis that it contravened the Fisheries Act and the Navigable Waters Protection Act. The Alberta attorney general intervened by entering a stay of proceedings, which meant the Alberta government and the companies involved in the construction did not have to answer the charges.

“There’s nothing in the law to make [the Alberta attorney general or the provincial court] accountable if they decide not to adhere to their mandate,” Fluker says. “And there’s not a lot you can do if you are unhappy with their decision.”

In the Kostuch case, a number of legal proceedings followed and, seven years later, her case eventually succeeded in the Supreme Court — but it was a Pyrrhic victory, as the dam was by then fully operational. “If you believe in a robust and functioning legal system, this should bother you,” Fluker says.

Barry Robinson, a Calgary-based lawyer with EcoJustice who is representing the case, is encouraged by Fluker’s work. “I’m hoping it’ll identify legal tools to protect wilderness areas,” he says. “Whether the government is willing to use those tools is ultimately a political question, but Shaun’s work is a useful first step.”

Before Fluker digs into the bulk of the research, he’s going to attempt to define what wilderness means. He suspects part of the problem in the legal system is that legislation — particularly wilderness preservation — can seem clear when you look at how it’s written, but gets interpreted differently when the case arrives in court. “When you get into litigation,” Robinsons says, “ecological integrity starts to be discussed in terms of balancing the competing interests of the environment versus development. There’s a disconnect happening between what’s written in the law and how it’s implemented.”

He wants to find out what it is about the legal process that’s leading to such interpretations, which Fluker feels are causing environmental law to drift away from the basic tenets of the legal system. “People get the sense that environmental law is a technical field with a lot of science involved,” he says. “It’s losing its connection to broader values such as justice and integrity; fewer people see it as having a strong ethical component.”