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Neighbours of the notorious Sydney tar ponds expect their class action to be certified this month. The neighbours want to sue the Federal and Provincial governments for exposing them to contaminants from the old Sysco steel plant, coke works and tar ponds. The motion judge required the would – be plaintiffs to come back with a narrower definition of the class and a revised litigation plan, which he will rule on mid-month.

The case has many ironies. For one, the Sysco plant was kept operating (and polluting) long after it should have closed, by huge federal subsidies. This was political pork to preserve coal-mining and steel making jobs (and property values) in Nova Scotia, paid for largely by taxes from outside Nova Scotia.

For another, the Federal and Provincial governments are now spending more hundreds of millions cleaning up the waste left behind by this hugely inefficient, plant. It would have been cheaper to buy out the plaintiffs than to do the cleanup; now the rest of the country may have to do both.

The most interesting part of the judgment will be how it treats pollution impacts on human health. Until now, Canadian judges have refused to certify class actions for health damage from long term pollution. The MacQueen plaintiffs hope to surmount this obstacle by seeking damages for battery, i.e. for exposure to harmful pollutants, rather than for the health damage that may have resulted. If they succeed, it would create an important precedent for communities across Canada who are exposed to chronic air or water pollution.

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