Private
Continued From Page 9
dewatered parts of the huge
Oak Ridges Moraine aquifer,
drying up wells, creeks, and fish
habitat. There was far more
environmental impact than originally predicted, and the
region did not obtain either a
federal environmental assessment or a Fisheries Act permit
for the dewatering.
Some prosecutions by the
British Columbia Fraser River
Waterkeepers have also been
taken over and dismissed.
Still, even prosecutions that
fail to result in convictions can
have an impact. In R. v. MOE,
the private prosecutor charged
the MOE with failing to stop
arsenic leaking from the abandoned Moira River gold mine.
The MOE had taken over
Ontario’s most contaminated
site as a “remediator of last
resort” in 1979. By 1997, it had
not complied even with its own
certificate of approval. The
MOE was acquitted after a long
trial, for reasons that remain
unclear and certainly would not
have amounted to due diligence
for other defendants. But if not
for these charges, the remediation funding might well have
been cut again.
The Lake Ontario Water-keeper also claimed a hard-earned victory when it withdrew charges of mercury
pollution against DTE Energy,
in exchange for a U.S. government pledge to take action on
mercury emissions from coal
plants (see www.waterkeeper.
ca/2007/03/08/edwards-v-dte-
energy-information-page/).
Public prosecutors are less
likely to discontinue a private
prosecution today than they
used to be, and are supposed to
do so only when:
Dianne Saxe is an environ-
mental law specialist and heads
the environmental law boutique
Saxe Law Office in Toronto.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca ;
“A generation ago,
if environmental
groups escaped
having their charges
withdrawn by the
attorney general,
they received a
cold welcome from
the courts.
I'll be a little late for dinner, dear.
Janet Fletcher provoked millions of dollars’ worth of corrective work by laying private
charges against the City of
Kingston for oozing landfill
leachate into the Cataraqui
River. Both the city and the
MOE had known about this for
years, but neither had done
anything about it. Once the private charges were laid, the
MOE was shamed into action,
and quickly levelled their own
charges against the city and its
Director of Environmental Services. The city then began an
aggressive (and overdue) campaign to contain and treat the
leachate. Although the Court of
Appeal set aside the convictions
on Fletcher’s charges, this was a
major success, and led to similar charges and a guilty plea by
the City of Moncton.
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