Environmental legal defence fund needed in New Brunswick
There is a well-known French proverb that says “L’argent est le nerf de la guerre”. Roughly translated, “Money is the sinews of war”. Although I hesitate to characterise the current environmental battles being waged in New Brunswick as war, I believe the analogy is useful when suggesting that environmental activists here need to invest strategically in order to better arm themselves for legal battles.
Despite the fact I am legal counsel for New Brunswick’s only public interest environmental law organization, I will be the first to say that using the legal route to fight environmental battles should be a last resort. Unfortunately, as we have discovered this summer with the shale gas protests, the law is being imposed on many activists so as to force them to defend themselves in court. I’m referring to the arrests of over 30 protesters in Kent county. The NBELS has received over a dozen calls about these arrests and we have responded by providing legal information and offering representation to those charged. Our work has been of a pro-bono nature, which means our lawyers are not paid for their work.
This is not the first time we’ve been called upon to represent New Brunswickers. Since the creation of the NBELS eight years ago, we have been working with citizens and environmental organizations on a variety of projects and we have represented people in front of the courts on various occasions. Affiliated lawyers have given hundreds of hours of volunteer work. Other times, they worked on limited retainers or cut their fees by over 50%.
The NBELS and its affiliated lawyers understand that money is scarce for most groups and individuals who need our help. That said, pro-bono work has its limits and new formulas must be found to better respond to the needs of New Brunswickers and their organizations.
Our proposal is for the creation of an environmental legal defence fund.
Our idea is not a new one. For example, in the U.S., legal funds have been part of the reality of the environmental movement for close to 50 years. Indeed, the U.S. has a long tradition of private foundations donating millions of dollars to a great number of non-profit groups and charities.
In Canada, our society is structured differently. There has traditionally been less wealth and thus fewer private financial donations to non-profit groups. Canadians have relied more on governments to fund projects such as here in New Brunswick with the Environmental Trust Fund. Unfortunately, that fund has been the source of controversy in recent years. Contributions to the fund have diminished significantly and some monies have perhaps even been diverted by the provincial government. One thing is certain, the government funds who it wants to fund. Projects that run counter to the government agenda are most always rejected.
That is why a new formula must be found here in New Brunswick. And, citizens must be willing to endorse a funding strategy that supports not only their own local battles but also battles happening elsewhere in the province.
One case that could have benefited from this type of strategy was the fight by citizens of Penobsquis who were up against two powerful companies suspected of having contributed to the loss of over 60 water wells in that tiny community in south-central New Brunswick. In 2010, the Concerned Citizens of Penobsquis (CCP) brought a legal challenge before the Mining Commissioner with the hope that he would conduct an inquiry to determine whether seismic testing and mining activities were responsible for the lost water. CCP was granted a hearing but it required financial help to pay legal costs. Although NBELS lawyers cut their fees significantly during the hearing and provided essentially pro-bono work for trial preparation, CCP struggled to put together the necessary funds. Had they received support from other New Brunswickers, it would have been possible to address the potential dangers of shale gas seismic testing as early as 2010. It could also have been a test case for potential lawsuits down the road. As it turned out, the Mining Commissioner refused to take a proactive role and essentially forced CCP to prove its case much as would be required in front of a court. That, combined with insufficent funds, compromised their legal challenge.
No one is to blame for the outcome in Penobsquis. However, had an environmental legal defence fund been in place, it would have been possible to do more.
An environmental legal defence fund is a trust fund into which citizens and groups contribute small amounts of money, year over year. This allows the fund to grow.
Again, the fund is held in trust with clear rules on how the monies are to be disbursed with the overall goal of growing the fund and using as little as possible of the capital.
A fund allows planning for big cases but it also provides for emergency responses, such as when individuals are arrested for protecting the environment. Those arrested would receive legal representation quickly and at reduced costs. Lawyers would still be asked to provide essentially pro-bono work but at least their costs would be covered.
We understand it is not an easy proposition. New Brunswickers are not in the habit of building such funds. But the concept is not a new one. In fact, Canada’s premier environmental law organization, Ecojustice, began by creating such a fund. The organization was actually called Sierra Legal Defence Fund for the first fifteen years of its existence.
If we were to create such a fund here, it could easily be expanded to include the other Maritime provinces. The NBELS is currently promoting the idea and we’d like your feedback.