Does logging on First Nations land violate the Charter?

By Daniel Kitts - Published on September 21, 2015
Grassy Narrows First Nation
Between 1962 and 1970, a Dryden paper mill dumped approximately nine metric tonnes of mercury into the English-Wabigoon river system, poisoning the waters around Grassy Narrows.

The Charter of Rights and Freedoms does not guarantee the right to a healthy environment. But that could change.

A small First Nations community in Northwestern Ontario has launched a legal challenge arguing that clearcut logging on its land would violate individual freedoms protected by the Charter. If the case is successful, it could open the door for more court cases arguing that activities harmful to the environment violate Canadians’ fundamental rights.

The case has been launched by the Asubpeeschoseewagong people, more commonly known as Grassy Narrows First Nation, located about 50 kilometres northeast of the city of Kenora. For more than a decade, the people of Grassy Narrows have fought plans for logging in their area. While much of the surrounding region has hosted logging operations in recent years, Whiskey Jack Forest, where Grassy Narrows is located, has not. That is because the Asubpeeschoseewagong people have mounted a 12-year blockade preventing logging trucks on their traditional land – one of the longest-standing blockades in the country. They argue that clearcutting would worsen the already-high mercury levels in the surrounding water system. 

Between 1962 and 1970, a Dryden paper mill dumped approximately nine metric tonnes of mercury into the English-Wabigoon river system, poisoning the waters around Grassy Narrows. More than 50 years after mercury entered their water system, mercury levels in local waterways remain up to 20 times above normal levels, and fish have up to 15 times more mercury in them than consumption guidelines suggest is safe. Residents of Grassy Narrows continue to exhibit symptoms of mercury poisoning, including weak and tingling limbs, as well as difficulty moving, speaking and swallowing. Children affected by mercury poisoning can struggle with important mental skills such as memory, attention, and fine motor skills. 

Grassy Narrows Deputy Chief Randy Fobister says for a community of just 1,500 people, there is a great deal of sickness.

“Our community members have kidney problems, liver problems, epilepsy, seizures,” he says. If the City of Toronto had such a proportion of illness among its population, he adds, a state of emergency would be declared.

In addition to the negative impact on the health of the Asubpeeschoseewagong people, the high mercury levels affect their food security and cultural practices. The catching and consuming of fish from local waters is central to life in Grassy Narrows, but high levels of mercury make it impossible to continue that practice in some cases, presenting an existential risk to the community.

“Under Aboriginal law, their traditional territory is the only place they can go to fish, and if they can’t fish there they either give up that part of their culture, which is central to their identity, or they continue to eat the fish that they catch and continue to be poisoned,” says Joseph Castrilli of the Canadian Environmental Law Association (CELA), who is acting on behalf of Grassy Narrows residents in the legal case.

Even if the Asubpeeschoseewagong people somehow managed to turn away from a centuries-long tradition of eating local fish, says Fobister, other staple foods, including moose, beaver, and wild rice are also affected by mercury.

Grassy Narrows First Nation says scientific research indicates that clearcut logging can disturb soil contaminated with mercury, which then runs off into lakes and rivers. The community requested the Ontario government do an environmental assessment to evaluate the impact logging would have on mercury levels on their land. The government refused, and gave the go-ahead for logging to begin in Whiskey Jack Forest as early as next year.  

Ontario’s Ministry of Natural Resources and Forestry declined to respond to the allegations, saying the matter is now before the courts.

Grassy Narrows will argue in court that allowing logging in the area would violate the Asubpeeschoseewagong people’s right to security of the person under Section 7, and violate their right to be treated equally under the law without discrimination under Section 15 of the Charter of Rights and Freedoms.

Castrilli says since it came into effect 30 years ago, there have been several cases that have used the Charter to make similar arguments around protecting the environment that the Grassy Narrows case will. None has succeeded. However, Castrilli says he believes the special circumstances at Grassy Narrows will make this case different.

“You’re dealing with an already disadvantaged community which is being disadvantaged from the same substance entering the water system again, just through a slightly different method,” says Castrilli. “So, arguably, where previous cases have faltered because they couldn’t produce evidence to make the link between the discharge and the ultimate harm, in this case effectively that’s already been done because of the unhappy track record already in play in this particular region of the province. So the factual foundation we argue in this case is a lot stronger than any previous case where the Charter has been invoked.”

“This case raises some very important questions,” says Dayna Scott, Associate Professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University.

“As you know, it is not the first or the only such claim, but if it is successful, it would be the first time a Canadian court recognizes that a Section 7 guarantee applies to chronic, low-dose pollution risks. This is critical, because much of the contemporary harm from pollution arises from low-level, everyday exposures to toxics.”

Scott says the case may catalyze a process of change for other communities facing similar struggles. More broadly, it could lead courts to give environmental concerns greater weight in future cases.

“Definitely we’re overdue in Canada for the courts to recognize, I think, that our constitution extends protection to cover the right to a healthy environment,” she says.

“People should not be expected to endure grave risks to their health just because of where they live and who they are. Do we mean it when we say the Charter protects 'everyone'?”

Scott says many countries with newer constitutions than Canada have a right to a healthy environment stated explicitly within the text of the constitution. There are also other countries that in recent years have reinterpreted existing constitutional provisions to include that kind of a protection.

Once courts begin to see environmental protection as a fundamental right, the implications can be considerable: In a landmark case earlier this year, a court in the Hague ruled that the Dutch government’s plans to cut carbon dioxide emissions by 14 to 17 per cent compared to 1990 levels by 2020 was unlawful, and ordered an emissions cut of at least 25 per cent in five years. 

Yet for the people of Grassy Narrows, the legal implications are secondary. Preventing further harm to their community is the priority. Their long-running blockade of logging trucks continues, and Fobister says they will remain committed to their land and way of life, even if the case fails.

“We’ll still keep fighting,” he says. “As long as the mercury is there, we’ll be there.” 

Update: The original version of this article gave the impression that Whiskey Jack Forest has never been the site of logging. In fact, extensive logging did take place in Whiskey Jack before the Grassy Narrows blockade began, and there were still some logging operations in the forest until 2008. The article has been updated to reflect that information. 

Image credit: Rainforest Action Network/flickr.com

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