Environmental Law in Canada Comes of Age : Regulation: The country may be known for its pristine wilderness, but government standards fall short of those in the United States. Recent court rulings may change that.

Here in Alberta, the stands of aspens stretch as far as the eye can see, covering an area the size of Great Britain. With such vast boreal forests, with its emerald lakes and with its famously beautiful Canadian Rockies, Alberta is the stuff of tourist-poster fantasies--hardly the sort of place one would equate with environmental degradation.

But over the past few months, Alberta’s pristine image has been tarnished. Critics have taken to calling the province an “environmental law-free zone.” And Alberta citizens--generally a conservative, pro-development crowd--have accused provincial officials of signing away a good many of those whispering aspen trees to pulp-and-paper interests, without asking first.

The scene in Alberta reflects a number of changes on the Canadian environmental front, a ferment that calls to mind American environmentalism of the 1970s--the era of the renowned snail darter case, in which a tiny fish nearly halted construction of a huge dam.

“I don’t think there’s any question that there’s an Americanization of Canadian environmental law going on,” says Barry Rabe, an assistant professor of political science at the University of Michigan who has been comparing regulation in the two countries.

The question for Rabe and other observers, though, is whether such a trend will lead to better protection of the Canadian environment. And differences of opinion on the subject highlight the sharp divergence of Canadian and American attitudes on the role of government in protecting society.

The assertion that America might have anything to teach Canadians about environmentalism would probably get a hoot from the average man on the street in this country. Ever since the U.S. Environmental Protection Agency, under President Ronald Reagan, backed away from bilateral talks on acid rain, Canadians have looked askance at Washington’s professed concern for the air and water.

“One of the things Canadians came to think was that we didn’t have good laws,” says Jean Hennessey, director of the Institute on Canada and the United States at Dartmouth University. In fact, she says, and other environmental analysts agree, America’s laws are far stricter.

“During the Reagan Administration, we just didn’t enforce them,” she explains.

Canada, meanwhile, has long had the luxury of a small population in a big, largely empty territory, and until lately it did not feel compelled to set American-style environmental standards on a federal level.

For all its unspoiled wilderness, its sapphire skies and crystal rivers, Canada has no counterparts to America’s laws prohibiting interstate transport of wildlife, protecting whales, eagles and burros, or controlling air and water quality nationwide. Fines slapped on polluters in Canada are generally lower than fines in the United States. And Canadian citizens who feel that they have been injured by industry have a much harder time suing than do their American neighbors.

Canada, on the other hand, tends to give provincial officials great power to negotiate environmental standards with industries, one on one. Lawyers on each side of the border see both good and bad in this.

On the good side, the process is less adversarial, so there is less time and money wasted on courtroom stalling and maneuvering. On the negative side, by giving power to the provinces rather than Ottawa, Canada runs the risk that provincial officials will let their guard down for fear of losing industry.

Now, though, there are the beginnings of change.

In Alberta, the stage was set for an environmental showdown in the mid-1980s, when provincial officials began to see in all those whispering aspens a magnificent way of diversifying the province’s oil-reliant, boom-and-bust economy. They invited local and foreign forestry companies in for talks and offered incentives, including hundreds of millions of dollars in loan guarantees and infrastructure development.

Before long, plans were under way for logging vast expanses of aspens, constructing seven new pulp mills and expanding three existing mills.

In the north-central Alberta town of Athabasca, local officials and business people saw what was coming to the province and lobbied hard for their share. They wanted the tax revenue. And in December, 1988, it seemed that they would be getting their wish: Alberta-Pacific Industries Inc., a subsidiary of a British Columbia concern that is controlled by Mitsubishi Corp. and Honshu Paper Co., elected to build a $1.1-billion pulp mill just outside of town.

“I think it’s a godsend,” said Duane Evans, an Athabasca real estate agent who sports a baseball cap with the logo “Friends of the Mill.”

But as the Alberta-Pacific proposal moved forward, and as approximately $2 billion in other pulp-and-paper investment began to take shape elsewhere across the province, the presumed beneficiaries--taxpaying Albertans--set up a howl of protest.

The Alberta-Pacific pulp mill was to be built in the hamlet of Prosperity, a clutch of about 30 farmhouses half an hour’s drive from Athabasca, set amid snow-swept farmland and broken stands of aspens and spruce. The Athabasca River was to receive the effluent and carry it northward to the Arctic, into the Mackenzie River and finally into the Beaufort Sea.

Prosperity grain and cattle farmer Emil Zachkewich lives just a mile from the proposed mill site. He studied the plans for the project and discovered that, based on the height of the smokestack, his home stood at the peak impact point for air emissions.

Worse, he began to hear about other pulp mills leaking toxins into the soil and water. Bleached kraft pulp mills--the kind that Alberta-Pacific proposed to build--are particularly notorious for giving off organohalogens, a family of chemical compounds that includes dioxin. The type of dioxin found in pulp mill effluent promotes cancer.

In neighboring British Columbia, Zachkewich learned, dioxin from pulp mills has turned up in such high concentrations along parts of the Pacific shoreline that the government has had to curtail crab, prawn and oyster fishing. Hundreds of seasonal fishermen were thrown out of work. Zachkewich found himself sick with worry that the same thing might one day happen in Prosperity.

“It isn’t a very pleasant situation to see mature adults cry themselves to sleep at night in sheer frustration,” he says.

Alberta-Pacific argued that its milling techniques would be far cleaner than those of most existing pulp mills in Canada. But Zachkewich and others in Alberta weren’t convinced, and they complain bitterly that as the plans steamed ahead, they had no real way of spelling out their objections or finding out what was going on.

For that is another way in which Canadian environmental law has differed from its U.S. counterpart: Until now, there have been no hard-and-fast nationwide requirements on environmental impact statements, even on huge developments such as billion-dollar pulp mills.

Canada has long had a federal “order in council” calling for such would-be polluters to submit to environmental impact assessments and offering guidelines, but no one saw how this order could be enforced. In practice, the federal government left the order to be carried out by the provinces, and the provinces haven’t always lived up to federal ideals.

In the case of Alberta’s pulp mills, for instance, the developers were essentially permitted to write their own environmental impact statements.

“In U.S. law, there are prohibitions against people who have a conflict of interest writing the environmental impact statements,” says John Bonine, a professor of environmental law at the University of Oregon.

Alberta provincial officials say that does not mean that they caved in to industry or tried to keep secrets from the public. They note that the provincial government announced clearly in 1985 that it hoped to get into commercial forestry. Two years later, it held a widely publicized “forestry management” conference.

“It shouldn’t have been a mystery that this was what was going on,” said an aide to LeRoy Fjordbotten, provincial minister of forestry, lands and wildlife.

But citizens beg to differ.

“There was no public involvement in any land-use decisions,” says Louis Schmitroth, a retired computer science professor who lives on a farm a few miles out of Athabasca. “This isn’t the way you do things in a democratic society. If . . . you were dealing with some two-bit sultan, that would be one thing. But that’s exactly what it smells like here. Talk about banana republics!”

It was at this unhappy impasse that something happened in another province that changed everything for Alberta--and, perhaps in the end, for Canada.

In an unrelated court case involving a dam under construction in Saskatchewan, a judge ruled that the builders had acted improperly in going ahead with the project without a full-fledged environmental impact statement meeting federal guidelines.

It was a landmark decision for Canada, comparable, lawyers say, to American court cases of the early 1970s when judges began ruling that environmental impact statements were mandatory for all major federally licensed developments. Once the American judges had set this precedent, they say, environmental groups rushed to file more suits and block other projects. Canadian environmental lawyers now think that, for better or worse, something similar could happen here.

“Finally, animals and fishes are starting to shut projects down,” Alberta environmental lawyer William Tilleman says. “This is routine in the United States, but in Canada, this was the first time.”

Indeed, a few months after the Saskatchewan ruling, another federal judge stopped construction of yet another dam, again for want of an environmental impact assessment. Environmentalists in Alberta saw their chance and filed suit against the federal government to force Daishowa Canada Co. to carry out a full-fledged assessment of a pulp mill it had planned. And in Edmonton, the provincial capital, environmental officials quickly set up a complete environmental impact assessment for the Alberta-Pacific mill.

The assessment may have come late, but it was extremely rigorous. A panel of experts heard public testimony for weeks, and the government even allocated funds to citizens who wanted to hire technical experts to represent them.

“That’s a very admirable feature of Canadian law that is almost completely missing from environmental impact statements in the United States,” the University of Oregon’s Bonine says. In early March, the panel ruled that the Alberta-Pacific pulp mill should be shelved until extensive studies are done on the Athabasca River’s ability to handle the effluent.

To some, this is thrilling.

“The whole issue of environmental regulation in Canada has been a regulatory backwater,” says Alberta environmental lawyer Jerome Slavik, who has been representing Indian groups in their bids to battle the pulp mills. Now, he says, his clients “find they have a new vehicle for asserting their rights.”

But other Canadians are less sanguine about the benefits of American-style legal actions. And they aren’t just developers. A number of Canadian environmentalists perceive America, for all its stringent standards, as an excessively litigious place, and they wonder what might happen if America’s adversarial spirit were to influence the Canadian way.

Paul Griss, executive director of the Canadian Nature Federation, for one, says it would be “a nightmare” if Canada were to begin requiring full environmental impact statements for every new project.

“The only people who would welcome that are lawyers,” he says. “My attitude has always been that if you have to hire a lawyer and go to court, you’ve lost before you start.”