Canada: The Shape Of (Our) Water

Last Updated: April 9 2018
Article by Kurt A. Johnson

For years now, Hollywood has tickled the moral nerve endings of moviegoers with David & Goliath-type tales pitting small but determined activists against big, evil-mongering corporations. Think of Julia Roberts' highly-acclaimed portrayal of Erin Brockovich, or the role of plaintiff's attorney Jan Schlichtmann capably played by John Travolta in A Civil Action. The story of the little guy seeking justice for wrongs committed against the common good have long captured the imagination and heart strings of the viewing public. There has always been something compelling about standing up for principle and fighting back in the face of adversity, particularly when it's done on behalf of someone (or something) having little or no voice – like the environment, for example.

One such story recently played out in the tiny Gaspésian community of Ristigouche-Sud-Est, a village of only 160 inhabitants quietly nestled at the mouth of Baie-des-Chaleurs. On February 28, 2018, Superior Court Justice Nicole Tremblay released an important judgment dismissing a lawsuit brought by Montreal-based oil & gas company Gastem Inc. (Gastem Inc. v. Municipalité de Ristigouche-Partie-Sud-Est, 2018 QCCS 779). Gastem had sued the municipality for $1.5 Million in damages following the passing of a by-law in March 2013 that effectively established a two-kilometre no-drill zone near the source of any artesian or surface well located in the municipality. The by-law put an early end to exploration activities that had been undertaken for several years already by Gastem, which activities included the construction of a fracking platform situated within the prohibited zone, but that was otherwise in conformity with provincial regulations and permits and approved by agreement with the relevant land owners. By all appearances, Gastem was not amused.

But neither was Justice Tremblay. She characterized Gastem's action as "difficile à décrire et à comprendre"1, "exagérée"2 and concluded that it was an abuse of legal procedure within the meaning of Article 51 of the Code of Civil Procedure3. And while these findings may be interesting to, even relished by the supporters of David in his ongoing figurative battles with Goliath, what is perhaps more noteworthy is the judge's characterization of the municipality's actions.

Gastem's claim was to the effect that Ristigouche had adopted its by-law « de manière illégale, ciblée et intempestive afin de l'empêcher de poursuivre ses activités sur le site où elle est installée, ce qui lui cause les dommages réclamés ».4 Justice Tremblay rejected the claim, and instead practically applauded the municipality and its elected officials for carefully and thoughtfully fulfilling the wishes and aspirations of their citizens. Like many small municipalities on the Gaspé peninsula, Ristigouche does not have a municipal aqueduct servicing its territory, and the townsfolk had early on petitioned their council to take all necessary measures to protect their individual sources of water.

With a nod to the relative immunity afforded to elected officials under relevant principles of municipal law, the Court first defined the case which Gastem would have to meet in order to succeed in its claim for damages:

[29] [...] Gastem doit convaincre le Tribunal de la mauvaise foi des élus ayant agi de façon téméraire et grave afin de pouvoir atteindre son objectif d'obtenir des dommages.

After summarising the painstaking research and consultation process undertaken by the municipality before adopting its by-law, Justice Tremblay quickly concluded that Gastem simply couldn't make its case:

[33] Loin d'être adopté de façon intempestive et précipitée, le règlement résulte d'un travail sérieux afin de répondre aux préoccupations et revendications des citoyens de Ristigouche.

But the Court didn't stop there. Rather, Justice Tremblay took a step back and looked at the question from a more macro level, perhaps recognizing that the issue of resource development in general – oil & gas exploration in particular – has become a source of much preoccupation for municipalities around the province. She added:

[49] L'intérêt public, le bien-être collectif d'une communauté et la sécurité des citoyens doivent être soupesés dans tous les projets introduits dans une municipalité.

  [50] Les municipalités sont reconnues comme palier gouvernemental et doivent assumer leurs responsabilités dans la protection de l'environnement sur leur territoire en respect du principe de la subsidiarité. [26]


[52] Le Tribunal rappelle qu'une municipalité a le devoir de faire respecter sur son territoire le principe de précaution, lequel est maintenant enchâssé dans la  Loi sur le développement durable. [28]

  [53] La balance des inconvénients pour les 158 résidents de Ristigouche s'avère certes plus probante pour justifier l'adoption du règlement que les dommages en découlant pour Gastem.

  [54] L'adoption du règlement visait à protéger les sources d'eau sur le territoire de Ristigouche.

The Court's reliance on the organizing principle of subsidiarity is important. As the Supreme Court put it back in 2001:

"[Subsidiarity] is the proposition that lawmaking and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity."5

The provincial regulations governing Gastem's exploration activities establish a protective perimeter of only 500 metres from any water source. The Ristigouche by-law extended the perimeter over four times that distance. Despite this, the Court concluded not only that Ristigouche was acting in good faith, but that its actions were in compliance with its duty "de faire respecter sur son territoire le principe de précaution". The precautionary principle stems from international law, and has been defined as follows:

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.6

It strikes me that the people and town council of Ristigouche got this one dead right. They had legitimate and substantiated concerns that their drinking water was at risk and could not bear the pressure of fracking operations so close to their wells. Whether or not Gastem's activities were permitted under provincial environmental legislation, Ristigouche appeared to have every reason to intervene on the local level and ensure that irreparable harm was not being done to the municipality's unique water supply.

Whether Justice Tremblay got this one right as well remains to be seen. As I've said in this space many times before, c'est un dossier à suivre!!


1 Para. 90

2 Ibid

3 Para. 104

4 Para. 1<6/p>

5 114957 Canada Ltée v. Hudson, [2001] 2 S.C.R. 241 at para. 3

6 Ibid., at para. 31

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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