Big Pipe court
fight goes ahead
region's challenge Fish habitat dying:
Jan. 19, 2005
A court fight
over the Big Pipe sewer link in Markham has been allowed to
A Superior Court judge rejected a bid by York Region lawyers to
quash a private prosecution on Friday.
The court action alleges construction of the Big Pipe sewer
link is killing fish habitat and draining aquifers.
In his private prosecution, environmentalist Jim Robb is
alleging that construction of the Big Pipe is critically damaging
an important fish-spawning creek that flows into Rouge Park.
When finished, the Big Pipe will move up to 740 million litres
of raw sewage daily from communities across York and Durham to
treatment facilities on Lake Ontario in Pickering.
"I do not find the summons was issued without jurisdiction and
contrary to the law," Mr. Justice David Logan said in his written
"Donnelly said construction of the sewer link has
caused Robinson Creek to virtually dry up, killing
This places the region, which is building the
Big Pipe, in direct contravention of the federal
Fisheries Act, claims the private prosecution, which
goes to court Feb. 11."
York Region lawyer Doug Hamilton told Logan during the one-day
hearing last week that a Newmarket justice of the peace wrongly
excluded the region from a pre-inquiry hearing where a decision
was made on whether to proceed to trial.
But lawyer Peng Fu, with the law firm Gilbert's LLP and acting
for Robb, argued that as a potential accused, the region had no
right to participate in a hearing at such an early stage.
In fact, to allow an accused such access before charges are
laid is something "very rarely granted" by the courts, Fu said.
David Donnelly, a lawyer with Environmental Defence Canada,
which is bankrolling the case, said Logan recognized that an
important legal principle was at stake in excluding an accused
from hearings before charges are laid.
York spokesperson Patrick Casey said the region's lawyers will
defend the charges in court.
Donnelly said construction of the sewer link has caused
Robinson Creek to virtually dry up, killing fish habitat.
This places the region, which is building the Big Pipe, in
direct contravention of the federal Fisheries Act, claims the
private prosecution, which goes to court Feb. 11.
Under the conditions of a provincially issued water-taking
permit, the region has been permitted to pump 27 billion litres of
water from a giant underground aquifer.
This protects workers during construction of a tunnel 50 metres
below the surface, where the Big Pipe is laid. But that means
streams and rivers that rely on the pumped-out water to replenish
flow are drying up, critics say.
The Toronto Star