A law professor with the University of Victoria’s Environmental Law Centre has taken his students into the litigation phase of the Enbridge Northern Gateway Project Joint Review Panel hearings.
“For the ELC it is somewhat of a new role,” says executive director Chris Tollefson, a law professor and Hakai Chair in Environmental Law and Sustainability at the university.
Tollefson, who founded the ELC, offers clinics where senior law students and articling students can gain hands-on experience working with public-interest groups providing legal support and research. Students undertaking the clinic’s classes, offered throughout the year, are given university credit for their contributions.
However, several years ago Tollefson says he had discussions with a funding body that supports the ELC to determine how its work might be “taken to a new level.”
“A thing we wanted to do is provide to the client some litigation support and representation in tribunals,” says Tollefson.
The ELC was fortunate to receive the needed funding to take the next step in 2011 with a $2.75-million grant from the Tula Foundation to promote research and teaching opportunities for students. It allowed the ELC to hire lawyer Mark Haddock to assist in litigation.
The ELC has been involved with public interest groups preparing for the pipeline hearings but last summer Tollefson realized some groups were heading into the hearings without legal representation. He analyzed the evidence, finding conservation groups BC Nature and Nature Canada, both interveners working jointly, could use legal support. Discussions followed.
“Their interests and our interest were very much the same,” he says. The ELC and the conservation bodies wanted to ensure the most comprehensive information was brought before the hearing panel sitting in Prince George, B.C., and Prince Rupert, B.C., and that the review be “as robust as possible.”
“In August, we became their lawyers,” says Tollefson. Since then, two lawyers and two students from the ELC have been preparing for and attending the hearings. Tollefson has assumed the role of cross-examining pipeline-advocate Enbridge’s witnesses and information while Haddock is handling the witness appearances on behalf of ELC’s clients. Two juniors — one an articling student — are assisting.
“It is a challenging and rich file,” says Tollefson, even for an experienced lawyer but equally so as a teaching vehicle for students as it offers the potential to participate in a major hearing and make a contribution.
“As lawyers, we would not be able to do this without the assistance of juniors,” he says. “They are incredibly hard-working and focused in this field.”
Students are involved in the lead-up and preparation of the cross-examination. They are also able to attend the hearings and “see how the lawyers interact with each other and with the witnesses,” he says.
At recent hearings ELC has been attempting to examine, on behalf of its clients, how the caribou population native to the region will be affected by the pipeline and what means of protection will be in place to prevent the herd’s disruption. In early November, Tollefson was able to have the panel enter into record one of two studies on the woodland caribou. He entered the newly released, federal Boreal Caribou Recovery Strategy, which dealt with the woodland caribou population’s summer and winter habitat through which the pipeline will run.
“We have been able to ask some tough questions of the proponents and we are still in the process of pursuing that line of questioning,” he says. In mid-November ELC was attempting to get evidence from a second B.C. government report on the caribou, released in October, on record. The challenge, he points out, was the B.C. government had not participated in the hearing on the caribou and had not sent a witness.
Tollefson says the entry into the litigation by the ELC has been “a gratifying experience” and “the student feedback has been positive.” He has been able to develop a system for students to seamlessly hand over work being done when the clinic semesters ends and a new student takes over.
“The thing that has emerged that we can see even more clearly is how important the role is that we can play in a hearing like this,” says Tollefson. “There are, of course, organizations that represent public interests in Canada and do litigation — and they do a good job — but there is a need for more capacity to hold corporations and governments accountable in our courts and tribunal. We are hopeful we can continue to do the same in a more ambitious way.”
The clinic’s students, who take on ELC files, come from across Canada as students are eager to get the experience. “Many of the top U.S. universities are moving to the more clinic-based model for legal education,” he says.
Tollefson, who still runs Canada’s only independent environmental law school clinic, says they also bring challenges such as greater commitment to student monitoring and the need to fundraise. “We have grown quite significantly during the past five years” as the ELC now has four lawyers on staff and has undertaken a growing list of projects with students.
“It is an interesting partnership,” he says. “The university plays an important role; they host us, provide office space and credits for the students and are supportive partners.”
The ELC, its society, and board of directors share responsibility for raising funds, determining files, and the strategic direction.
Note: a correction was made to the original story to correct some names.
