March 5, 2020
The clinic attracts Canada’s best aspiring public-interest environmental lawyers to work on cases for community groups.
SHOULD YOU WANT TO TRACK DOWN one of British Columbia’s most important shapers of public policy regarding environmental protection, better have your GPS handy.
There’s no glitzy storefront to brand the Environmental Law Centre at the University of Victoria. No swanky offices with plush carpet, oak panelling, and some elegantly-tailored watchdog receptionist. In keeping with its humble origins as a student initiative launched almost 25 years ago, it’s tucked away in a rabbit warren of austere cubicles, a Zen-like reminder that in the world of ideas, it’s the ideas, and not the trappings, that are the important currency.
And the ideas for statutory and regulatory reform that emerge from this small, scholarly clinic have profoundly altered the legal and political landscape for generations of British Columbians yet to come. That’s quite a legacy for undergraduate law students with only their passion, brains, diligence and the judicious guidance of a few wise mentors behind them. As such, UVic’s ELC offers a refreshing antidote for the next time some grumpy elder from my generation holds forth about the failings of young people.
On scales that range from the intensely local to the national arena, there’s no doubt that students who have passed through the ELC have worked critically important transfigurations in the administrative fabric of Canada’s environment. And they’ve gone on to work as federal litigators, to clerk with federal and provincial supreme courts, and to join leadingedge lawfirms working with environmental, civil rights, and First Nations’ issues.
To find this quiet epicentre of change, visitors must navigate through the hushed expanse of the university’s newly-renovated Diana M. Priestly law library, with its vast high-tech access to more than a hundred extensive legal databases, and past a series of glass-fronted study and seminar rooms. Then—an abrupt change in atmosphere—through unmarked, metal crash doors and up a nondescript back stairwell graced with handrails of utilitarian steel pipe. Beyond the library’s upstairs book stacks with their 180,000 volumes, past the students lounging in a pair of moulded designer chairs and taking an introspective break with their AirPods, and down a drab corridor adorned with hand-scrawled directions, is the beating heart of environmental law reform in the province.
Presiding over this unassuming heavyweight is a triumvirate.
ELC'S Calvin Sanborn, Deborah Curran and Holly Pattison
There is executive director Deborah Curran, a scarily well-informed expert in land and water law who is also an associate professor in both the law faculty and the university’s school of environmental studies. Curran does vital work in the centre’s background on governance, fundraising, liaison with the university, and program development.
But in the foreground, Curran is also one of the centre’s big hitters. She has earned a reputation for a steely analysis of how those with environmental concerns can use something as simple as their own municipal bylaws to trigger powerful and effective protection for local ecosystems, particularly in terms of employing already existing regulatory tools to modify development so that it sustains and conserves healthy watersheds and clean water. She supervised one ELC study of urban storm water management that’s credited with transforming policy regarding urban rainfall runoff in Greater Victoria.
Holly Pattison, a former UVic student herself, directs the ELC’s day-to-day operations and conducts financial oversight. But Pattison, who graduated from the university’s fine arts faculty, also multi-tasks as a writer, photographer and documentary filmmaker, and manages the communications that are so critical to any public policy agency in these days of spin, greenwashing and fake news.
And last, but far from least, there’s Calvin Sandborn, whose formidable legal intellect on subjects as diverse as drilling regulations, the ethical duties of mining engineers, and the obligations of politicians to close statutory loopholes exploited at the expense of the environment, combines with a genial, avuncular style. He’ll bring his guitar to a legal seminar and deliver a not-bad rendition of some 60s protest song, invites human rights and environmental activists into his classes, and has pizza delivered to workshops on dry subjects like corporate media.
Sandborn might be a poster-boy for effective environmental activism. He’s certainly a metaphor for the perils of environmental inaction. Born in Alaska, he moved to California as a young child and grew up at the centre of what became the 2018 wildfire inferno that erased whole towns—one of them the community of his childhood, Paradise, where 85 people died.
“My entire childhood, turned to ash,” he muses.
That which hadn’t already been drowned. He says his heightened awareness of the importance of environmental integrity coalesced around the fate of the Feather River, in whose canyons he spent one of those nostalgic Huckleberry Finn boyhoods. “I grew up swimming in the Feather River,” he recalls, “then they built the dam and flooded my swimming holes!” To make things worse, a politician came to town and scoffed there’d never been anything there before the damn dam anyway.
That memory was a motivator in the ELC’s work to stop plans to log watersheds in the upper Skagit River Valley. Protecting the Skagit had been a joint Canadian and American environmental mission for an earlier generation of environmentalists, but then it came back for his students, some of whom hadn’t been born for the first go round.
Student Caitlin Stockwell, he says, looked at the original agreement between BC and the City of Seattle. She found that BC, by approving logging in the “doughnut hole”—an unprotected patch of forest in the Upper Skagit set aside because of mineral claims and now surrounded by three state and provincial parks, a BC recreation area, and a US wilderness zone—was infringing upon Seattle’s rights under the 30-year-old international agreement protecting wilderness, wildlife habitat, and recreational resource values.“She finds that its provisions give the city of Seattle unilateral ability to take the BC government to court over the international treaty!”
In 2018, on the basis of the ELC report, the mayor of Seattle politely reminded Premier John Horgan of this fact. Last December, the Province abruptly banned further logging in the ecologically sensitive valley on the US border.
Sandborn, educated at a Jesuit university in San Francisco (“The Summer of Love was about to happen, and there I was in this place full of priests!”), cut his activist teeth on the civil-rights movement, anti-war protests, and efforts to organize California’s agricultural workers.
He came to Canada to join his brother Tom, who had come north after ripping up his draft card and mailing it to President Lyndon B. Johnson. On arrival, Calvin promptly rolled up his sleeves and got involved helping organize farm workers in the Fraser Valley and setting up the now-iconic Downtown Eastside Resident’s Association that has successfully worked to reconfigure cruel stereotypes about the Vancouver neighbourhood and its often marginalized, low-income citizens.
Curran, who was born in Kamloops and graduated from Trent University, had her environmental epiphany while working in Pacific Rim National Park when the Clayoquot Sound protests erupted. And Pattison, who came to Campbell River from Guelph as a teenager 43 years ago, was working in Victoria law offices when the flood of Clayoquot defences—the protest generated the largest mass trial in Canadian history—transfixed the legal community.
IF THESE THREE REPRESENT the official face of the Environmental Law Centre, they are quick to point out that the real engine of environmental change is the ever-changing team of law students—about 30 a year—that cycles through its clinics, gaining experience in researching, writing, and advocating for the law reforms that have lasting community effects upon how we live and interact with our environment.
For example, there was the work done by law student Neal Parker, who in the summer of 2017 investigated and reported on the growing problem of private landholders encroaching upon public access to publicly-owned waterfront lands on the Gorge waterway.
Parker, under the guidance of Sandborn, found 11 public access points colonized as parking pads, misidentified with intimidating signage, developed as private recreation sites, incorporated into gardens, used as dumps for garden waste and construction debris, and blocked by structures, hedges, walls, car ports and private docks.
Half a dozen of these effectively preempted public rights-of-way from members of the Songhees Nation a few blocks to the south, whose Douglas Treaty rights guaranteed them unfettered access to traditional hunting and fishing grounds on the Gorge in perpetuity.
In Greater Victoria, Parker pointed out in a 77-page brief to both Saanich and Esquimalt municipal governments, that projected population growth of an estimated 100,000 people by 2040 means the inevitable loss of existing green space, at a time when it’s becoming even more valuable and important for urban livability. It also represents an attack upon the core values in some of the most successful marketing strategies and economic revival plans of forward-thinking cities in the world. It’s clear from what’s happening in cities like Austin, Texas; Lyon, France and even Winnipeg, which is upending its dowdy grey image, that cities embracing public access to green space are more livable, and that cities deemed more livable will be the economic winners over the decades ahead. Cities that don’t proactively develop public green space will have to reestablish it at great expense, if they are to compete with the Seattles, Portlands and Vancouvers.
As a result of Parker’s work, those public access points have since been restored, Sandborn says.
THE NON-PROFIT ELC, which celebrates its 25th anniversary in the fall of 2021, started as a dream, took shape as a hope, and was realized when professor Chris Toleffson, a specialist in environmental law, agreed to work with half a dozen students who wanted to study in the field. He became the ELC’s first executive director.
“There was no funding,” Curran says. “It was run without funding until Calvin came on board as legal director [in 2004].”
Sandborn didn’t even have an office to start. He was working from the students’ computer lab. Then entrepreneur Eric Peterson, who had made his fortune developing and then selling medical imaging technology and whom, with his wife Christina Munck, had created the non-profit Tula Foundation, provided the ELC with $1.1 million over a five-year period.
“We had 10 years of angel funding with very few strings attached,” Sandborn says.
Now there’s stable funding from BC’s Law Foundation, which provides 48 percent of the centre’s annual revenues, and from other philanthropic organizations, including the Oasis Foundation, Tides Canada, the Sitka Foundation, and the Vancouver Foundation. Small individual donors make up the rest.
What the ELC does with this funding is provide students with a hands-on opportunity to learn environmental law, while simultaneously using it to empower individuals, small community organizations, First Nations, environmental and other groups. The students offer—at no charge—the statutory research and advice that enables the public to use existing legal frameworks to hold private, corporate, and administrative agencies accountable for ensuring that environmental regulatory requirements are met. Or, in other cases, to help press for reforms to environmental laws, and their enforcement, so that they serve the public, and not private, interest.
Among their notable achievements, ELC students conducted research into the proximity of sour gas wells to schools, residences and other public buildings on behalf of the Peace Environment and Safety Trustees Society.
Sour gas contains hydrogen sulphide, a compound so toxic that it paralyzes olfactory nerves at concentrations as low as 100 parts per million. Respiratory failure begins at 300 ppm, and at 800 ppm, 50 percent of those exposed will die within five minutes. The ELC students discovered that during one leak at Pouce Coupe in 2009, sour gas was released for 27 consecutive minutes before emergency shutoff valves cut off the flow.
In 2013, ELC law student Jacqui McMorran, lawyer Tim Thielman, and Sandborn gathered information from DataBC and plotted it using Google Earth to locate active, suspended and abandoned wells capable of leaking sour gas.
They reported that 1,900 children at 9 schools in 2 northeastern school districts were at risk from sour gas wells that, under provincial law, could be located a scant 100 metres from schools or hospitals. Worse, there were no minimum setbacks at all for pipelines carrying sour gas—although in 2010 the Province said it planned to establish safety zones of 2,000 metres.
In some cases, provincial emergency plans for gas leaks were so primitive, they consisted of supplying classroom teachers with rolls of duct tape and instructions to seal cracks around doors and windows.
After this inconvenient political bombshell, the provincial government announced it would increase the safety buffer for sour gas wells adjacent to schools and other public buildings from 100 to 1,000 metres.
“Government seemed quite content to renege on their 2010 promise to extend the legislated safety buffer around schools—until we exposed the fact that the safety buffer had not been expanded,” Sandborn said at the time.
“What about all the other issues that never get publicized? Day to day, who is looking after the public interest? Who is watchdogging the regulators to make sure that the Province doesn’t weaken regulations?” he asked.
Luckily for the public, the ELC has been doing a first-rate job of watch-dogging. Among its most high-profile accomplishments:
The ELC’s complaint to the federal government in 2013 regarding the muzzling of scientists on controversial issues like climate change. It triggered such a robust public response that government can no longer mute the voices of its own scientists just because their message is politically vexing.
More locally, a complaint about metals contamination leaching from an old copper mine on the Jordan River beyond Sooke—it hadn’t even been checked for 20 years—prompted clean up efforts and a full scale remediation plan for later this year.
But that’s just a start. In the aftermath of the Mount Polley mine disaster, in which the failure of a tailings dam dumped the equivalent of 10,000 Olympic-sized swimming pools of contaminated waste into one of the biggest salmon rivers in the Fraser River watershed, the ELC produced a report calling for comprehensive mining reform. It found that BC taxpayers are liable for more than $1 billion in mine clean up costs, and called for the Province to begin fully checking and cleaning up 1,100 mines like the one that killed the lower Jordan River.
ELC students and lawyers also assisted local residents in the Interior, whose drinking water was being contaminated by nitrates leaching into an aquifer from agricultural applications of manure to fertilize fields. That work led to a new provincial code for agricultural waste management but, perhaps more important, it also earned a ruling from the Province’s information and privacy commissioner that government must promptly and proactively release, without charge, all government records that are in the public interest.
Working with the World Wildlife Fund, ELC students supervised by Sandborn and Curran prepared a study last fall calling for remediation of beaches around the Salish Sea that were once critical spawning habitat for forage fish that serve as foundation species for the chinook, and other salmon, upon which threatened resident orcas depend.
The ELC recently called for regulation of single-use plastics, and recommendations for how to go about it. It follows a report two years ago outlining legal reforms necessary to address the growing problem of marine plastic pollution.
There isn’t room in a short article like this to list all the work done on the public’s behalf, or to name the students who have passed through the ELC’s clinics and left their enduring mark upon the laws that frame our collective relationship with the world in which we live.
There is room to observe that for something that began with a handful of students, one professor who saw their potential and another willing to work from a computer lab to help them realize that potential, the ELC’s 25th birthday party will represent an extraordinary milestone in the evolution of BC.
Stephen Hume spent half a century as a journalist writing about Western Canada, the Far North, BC and the Island.