October 28, 2016
For Allard Law Assistant Professor Jocelyn Stacey, litigation is more than just a means to an end, particularly when it comes to the environment.
“My research conceives of litigation as a critical means of participation in the democratic process—a means of last resort, to be sure—but one that recognizes the unique role of the courts in facilitating public deliberation about how we go about governing the environment,” she says.
So it is no surprise that Stacey is a founding Board Member of the Pacific Centre for Environmental Law and Litigation (CELL), a legal non-profit with a combined focus on public interest environmental litigation and education.
“Particularly with respect to major development projects, litigation is complex, labour intensive, time consuming and demands a great deal of technical expertise in the environmental context,” Stacey explains. “CELL’s mission is to provide law students and young lawyers with hands-on experience with these challenging litigation files.”
The goal is to “prepare the next generation of environmental defenders” by getting them involved in complex litigation early in their careers. As a professor, Stacey says that legal education is always “at the forefront” of her mind, and that opportunities for student involvement are one of the most exciting possibilities about CELL.
Stacey also adds that this is important in improving access to justice in BC, and that this is another key reason why CELL’s mission resonates with her personally.
“BC is home to some of the most interesting and controversial environmental issues in the country. More public interest environmental lawyers means that the people affected by these developments and those concerned about the environmental effects will be better able to advance their concerns through the legal system.”
One of those controversial topics is the Site C dam. Stacey and CELL are involved in “one small part in the complex matrix” of litigation related to the project. At issue in their case is that the BC government issued an “emergency exemption” allowing BC Hydro to circumvent the usual wildlife permitting requirements needed to relocate amphibians during the construction of the dam.
“I became involved in this litigation when DeSmog, an environmental news organization, contacted me to comment on the legality of the emergency exemption and its implications,” she says. This case is especially unique because the government official who granted the exemption noted in an email that he “was aware he did not have the legal authority to issue the exemption, but there was prior practice in the Ministry of doing so.”
She says that often these kinds of decisions are “shrouded in secrecy”, so suspicions about inappropriate motives often have no tangible basis, making it very hard to bring or maintain a legal challenge.
“I was initially quite taken aback by the brazen email,” she says, “but the fact that there was a record of the official’s decision and reasons for the decision meant that this was a unique opportunity to obtain a clear judicial reprimand of the conduct.”
This was what motivated her to contact her CELL colleagues and file a petition for judicial review. While the amphibians in this case have long been moved after the emergency exemption was issued, the plaintiffs that CELL represent are asking the court for a declaration that the exemption was illegal.
Stacey says this is an example of litigation’s importance in ensuring government accountability to more than just developers.