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The successful class action by Port Colborne residents, Smith v. Inco, has opened the door to a similar class action against the tar sands.  In Inco, nickel particles were emitted from the refinery for 80 years.  There was no proof that Inco ever operated illegally or negligently, or failed to comply with its provincial permits for air emissions.  Nevertheless, Justice Henderson of the Ontario Superior Court has ordered Inco to pay its former neighbours $36,000,000 in damages for lost property value, in private nuisance and under the old strict liability case, Ryland’s v. Fletcher.  Operating a refinery was, he said, a “non-natural” use of land.

The same logic applies, with equal or greater force, to those downwind of Alberta’s tar sands.  Hydrogen sulfide, particulates, and other air pollutants emitted by the tar sands are reported to adversely affect their neighbours as far as away as Saskatchewan.  Whether or not  Suncor and Syncrude  are complying with provincial and/or federal permits for their emissions, these permits don’t protect them from civil liability in private nuisance and Ryland’s v. Fletcher.

Thus, those downwind of the Tar Sands now have a strong precedent for a class action against Suncor and Syncrude, at least for lost property  value and similar damages. (It may be too difficult to bring health claims in a class-action; this was not permitted in the Inco case.)  If Saskatchewan wheat farmers are suffering reduced yields, they may be able to bring such a claim in their home province, which may be more hospitable to the lawsuit.

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