Reserve Judgements

This story first appeared in The Coast on Jan 20, 2011:

Two landmark environmental racism cases are coming to a head; one could change how polluting companies do business in Canada
By Chris Benjamin

In mid-September, the Pictou Landing First Nation band council filed a lawsuit against the province of Nova Scotia, Neenah Paper, Kimberly-Clark and Kimberly-Clark NS Inc., demanding action on Boat Harbour. The harbour is adjacent to the reserve and has been absorbing pulp processing effluent —currently about 95 million litres per day—for 44 years. The effluent is a cocktail of chemicals including dioxins, furans, chloride, mercury and other heavy metals.

The lawsuit contends that the province and Scott Maritimes (the company that established the pulp plant) knew the waste was toxic and would destroy the water on Pictou Landing. The air pollution has been equally problematic, causing breathing difficulties, nausea and headaches.

The sight and smell of the pollution sparks palpable anxiety and fear of sickness. “Nova Scotia has the highest cancer rate in the country and Pictou County has the highest cancer rate in Nova Scotia,” says Ron Kelly, a member of the Pictou County Watershed Coalition. Kelly’s group consists of members of Pictou Landing and non-native residents, which he says are equally affected and largely integrated.

Pictou Landing’s case, filed by Halifax lawyer Brian Hebert, is largely based on a breach of contract. The province promised to shut down the Boat Harbour facility and clean the pollution as far back as 1995. “The NDP says that agreement doesn’t apply to them but it’s on government seal,” says Kelly.

While the contract law is relatively straightforward, Brian Hebert tells me that Pictou Landing’s aboriginal right to live on the reservation has been interfered with by the nuisance of pollution. That is why a case filed by Ecojustice on behalf of the Aamjiwnaang First Nation in Sarnia, Ontario— six weeks after Pictou Landing filed its case —could change the lives of Pictou County residents.

Ecojustice lawyers have filed an Application for Judicial Review, on behalf of Aamjiwnaang members Ada Lockridge and Ron Plain, in which they claim that the Ontario Ministry of Environment’s consistent approval of petro-chemical pollution around the reserve violates their Charter rights to life, liberty, security and equality.

“The case is about increased risk,” ecojustice lawyer Justin Duncan explains. “Ontario doesn’t consider the chemical soup, the cumulative effects of all these pollutants. We have experts who will say that the total pollution adds risk: increased risk of cancers, asthma, neurological and development issues.” Duncan adds that 40 percent of Aamjiwnaang’s children use inhalers and some residents are in a state resembling post-traumatic shock from near weekly off gassing rocking their houses.

It could be the first case tried on Charter rights to a safe and healthy environment, and it argues that First Nations people—who are connected to their land by eons of history and ancestral burial grounds—are affected disproportionately by pollution across Canada. Duncan hopes the case will be heard by mid-2012. If he wins it could open the door to new lawsuits from reserves, and other communities, dealing with health pollution.

Brian Hebert says he’s watching closely. “Aboriginal law is different in each province because of the different histories,” he says. “But the right to live on reserve is the same.” Meaning that if an Ontario court accepts the claim that Chemical Valley violates Aamjiwnaang’s aboriginal Charter rights, the province of Nova Scotia and several subsequent owners of the Boat Harbour pulp mill facility could be in a toxic mess for doing the same thing to Pictou Landing.

And if an Ontario court agrees that Ada Lockridge and Ron Plain’s rights to a safe living environment were violated, the Province of Nova Scotia may have a lot of explaining to do to the people of Pictou County. Ron Kelly’s Pictou County Watershed Coalition is now in discussions with the Department of Health and the Pictou County Health Authority to commission a full epidemiological health study of the area. Kelly says the study can be done through quantitative community health surveys and systematic anecdotal data collection.

So far, the province has only said that a risk assessment might be possible. “They don’t want the complete information because it means they would have to acknowledge their mistake,” Kelly says. But as much as they may stall, events in Ontario may soon force our provincial government to finally make amends.