December 7, 2004
HAMILTON SUES CANADA
An unprecedented assault on Canadian environmental law
In an unprecedented assault on Canadian environmental law, the Hamilton municipal government is accusing 65 federal government staff of "deliberately and unlawfully" using their public office to harm the city by participating in an environmental assessment of a controversial city expressway. The city is suing the civil servants and four former federal cabinet ministers for $75 million, charging the public servants illegally used the Canadian Environmental Assessment Act (CEAA) in 1999 to stop or delay the Red Hill Creek Expressway.
The lawsuit says "the defendants abused their public office by engaging in targeted malice towards the City's completion of the Expressway" and utilized environmental assessment "in an unprecedented, illegal and unconstitutional manner in order to achieve that objective."
The formal statement of claim filed in court by David Estrin of Gowling Lafleur Henderson also says "the defendants knew, when they determined to use their public office to stop the City completing the Expressway, that the City would be harmed in the result".
The extraordinary accusations threaten to impose a chill on the enforcement of environmental assessment and other environmental laws across the country. The federal employees work for Environment Canada and the Department of Fisheries and Oceans and include members of the Professional Institute of Public Servants of Canada and the Public Service Alliance of Canada.
Federal government rules prevent the targetted employees from speaking out in their own defence. None of the four ministers named in the lawsuit are still in the cabinet. David Anderson, Sheila Copps, Herb Dhaliwal and Christine Stewart were part of the Chretien government but were not invited into Paul Martin's cabinet.
The expressway project was subject to a federal environmental assessment because it includes a seven kilometre relocation of Hamilton's second largest creek. The assessment began in 1998 and was bumped up to a full panel review in May 1999 when it became apparent that the expressway would cause "significant adverse environmental impacts that could not be mitigated".
The city hired Estrin to fight the assessment and spent $3.5 million to obtain a Federal Court decision that the assessment was not required. Hamilton has subsequently paid Estrin's firm an additional $1 million to secure other expressway approvals and fight massive citizen opposition to the project.
The city was awarded court costs of half a million dollars, but has now decided it wants much more. Its council voted 8-7 on November 24 to launch the lawsuit, and at the same time approved, by the same margin, plans to sue individual citizen opponents of the expressway. The road itself is well under construction. Over 90% of the project is located inside Hamilton's largest park and natural area.
Friends of Red Hill Valley calls on all Canadians to oppose this lawsuit which clearly threatens the enforcement of environmental law across the country. The claims in the lawsuit are false and its accusations against federal staff are grossly inaccurate and unfair. The city openly admits that its aim is to achieve an out-of-court settlement which would transfer tens of millions of dollars from the federal government to municipal coffers.
Paul Martin's vendetta against Copps and other Chretien ministers suggests this may happen. The fact that Estrin's law firm was among the top 5% of contributors to Martin's leadership campaign may also be a factor in the federal response to the lawsuit. Such a crass political decision would cut the legs out from under federal civil servants and send the clear message to them to back off from the enforcement of Canadian environmental laws.
All Canadians should oppose such a cowardly decision and demand that the Martin government vigorously fight the Hamilton lawsuit.
For more information, including a PDF file of the text of the lawsuit, please contact Friends of Red Hill Valley at firstname.lastname@example.org.