If there’s a “Henry Kissenger” of Canadian Environmental Law, it’s David Estrin. The name is almost synonymous with Environmental Law itself – as well as scandal. He’s taught at Ryerson, Waterloo, Humber, Western, Ottawa and York. He’s written books, authored laws and fought on both sides of a number of conflicts (sometimes both sides of the same conflicts, too…). His firm, Gowlings, is one of our country’s largest and most powerful law firms. It isn’t just that this guy wins awards – he has awards named in his honor.

And so, with all the fanfare about the man and his achievements (like helping create the Environmental Assessment Act in Ontario), it’s easy to glaze over the details. Once you start digging, though, his name appears everywhere, from the Red Hill Valley to the Tar Sands. And when you keep digging, the same types of stories start piling up – billing millions from struggling cities to bully opponents with vengeful lawsuits.

My own experience with the man has been, in a word, infuriating. As legal advisor to the City of Hamilton, he supervised no end of mischief on behalf of the Red Hill Expressway. Even years before construction began, he was caught quietly paying off lobbying firms and fighting the Provincial Government’s calls for an Environmental assessment. When construction was to begin, and protesters set up camp, Estrin took up the role of an almost Darth Vader-ish advisor and “executioner”. Using a court injunction – a favourite tactic of such projects across the country because it bypasses the law and simply asks a Judge to make an order (in this case, barring protests). “Violating an injunction” gets you found in contempt – and the judge can simply order you off to jail without facing trial, or cost you enormous sums of money. There was a serious threat from the beginning that many of the “leaders” would lose their homes over it. While these battles took place in court throughout the first month of the process, though, nobody was charged with contempt throughout the entirety of the protests, including the tree-sits the next summer – largely thanks to restraint on behalf of the Police. A year later, though, in a ruthless act of judicial vengence, Estrin convinced council, in private, to press charges against not only a group of protesters involved in the tree sits. Unlike the McMaster professors and others initially threatened though, none of these young activists had any assets to their names. All of them were friends of mine, some very close, and the effects on them and their families was horrific. Most could be described as “a bunch of broke kids” and the city was going after each one for enough to buy a small house. A deal was quickly reached (by that point, we were pretty seasoned in court), but the whole ordeal was Kafka-esque in more ways than I can list here. If the picture of Estrin sending process servers to a high school after a former protester doesn’t give you a good sense of his character, keep reading.

At the same time as he convinced the city to sue us, he also convinced council to sue the Federal Government for tens of millions in damages. Their crime, attempting to use the same Environmental Assessment Act which he helped draft, to get an assessment done on the pending construction of the Expressway. This was illegal, apparently (and this lawsuit is still going on), because the project had began in the 1980s, even though it had since been canceled and re-started since and had changed in many significant ways. For all of this he billed millions in legal costs, and through Gowlings a number of secretive contracts went out to other lobbyists, consultants and private security contractors, allowing them to get around the reluctance of the Police Department to do more than simply enforce the law. Friends of mine were followed home by undercover “private security consultants”, photographed, and even had charges fabricated against them. It was nightmarish.

More recently, Estrin has been up to many of the same tricks in Windsor, Ont. This time, involving another truck highway through natural areas (a dispute over a bridge between Windsor and Detroit). Not only has he, again, used threats and lawsuits against the Federal and Provincial governments over issues of funding and project design. Billing over six and a half million dollars so far, he’s also been involved in an ugly American court battle over a conflict of interest where Gowlings was also advising one of the American companies hoping to built the highway against the City.

And what discussion of Canadian Environmental law could be complete without discussion of the Tar Sands in Estrin’s home of Alberta, an issue he knows intimately, having represented both sides at various points. In one of the most startling instances of the massive scale of damage caused by the Tar Sands developments, a thousand or so ducks died when they landed in one of the massive tailings ponds. The resulting charges against Syncrude were intense, but thankfully David Estrin came to the rescue of toxic waste nationwide. What was at stake, he warned, was that taken literally, Canadian law doesn’t actually allow tailings ponds at all, and that if Syncrude were forced to close theirs, it would mean that everyone else nationwide, from percious metals to uranium, might have to close theirs too (cry me a tailings pond…). In nationwide newspaper and radio interviews, he urged “moderation” when it comes to dealing with Syncrude and others, and congratulated the legal system for it’s swift imposition of environmental justice.

One of the many justifications for the existence of the state is that it can impose things like environmental laws to protect all of us from heavy industries and development projects. Unfortunately, that law can be bought. Through unbelievably expensive litigation, underpaid civil servants can easily be pushed around, and the general public is nearly completely at their mercy. How many people do you know that could afford to even show up in court against this caliber of law firm? Because we all are, often, not only paying his bills but also those of his defendents (taxpayers on all accounts). Estrin is a prime example – if not the prime example – of how we’re able to spend so much on environmental law without actually protecting the environment. Because things like strip mining, truck highways and tailings ponds are taken as a given, all of the effort (and millions of dollars) goes into petty squabbles over loopholes. Like so many other arenas (international aid, criminal law etc) it’s become a playground for rich and privileged lawyers and consultants who act like their lives are one of this fall’s many new courtroom dramas. As someone who lived years of his life as a courtroom drama thanks largely to this man, I have nothing but contempt.

So given all that, you can imagine my surprise and bemusement when the man popped up in our news again, in what might be the most fitting role imaginable. David Estrin has been hired on by the City of Hamilton once again to promote the stadium. I’m not kidding. In his new quest to lobby and pressure higher levels of government, he’s brought along infamous Strategycorp, the lobbying firm with both Liberal and Conservative insiders. This guarantees several outcomes. While I can’t guarantee that he’ll sue the Federal Government again, I can safely predict terms like “antics,” “outrageously expensive” and “scandalous” will soon apply, as well as countless references to a certain high-nitrogen organic fertilizer. It’s clearly a response to the new funding shortfall of up to $70 million because of choice to build at the Aberdeen CP rail yards. Spending a few million on Estrin’s “advice” isn’t going to make that any cheaper

At the end of the day, taxpayers fund the government. And when one part of the government goes after another in this manner is like a snake eating it’s tail. It’s expensive, and spending millions bickering over tax dollars only raises our bills. Lawyers like Estrin raise everyone’s costs and turn environmental protections into a farce. If environmental laws can be bought by the highest bidder, then they are not, in fact, environmental laws at all. Instead they become one more set of expensive and convoluted bylaws, like Zoning regulations or building codes, which exclude everyone but the wealthiest and most powerful from participating in development.

Advertisements