Author Archives: Martin Olszynski

About Martin Olszynski

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley). Assistant Professor. Please click here for more information.

The Not Quite Twelve Days of Northern Gateway

By Martin Olszynski

PDF Version: The Not Quite Twelve Days of Northern Gateway

Decision Commented On: Report of the Joint Review Panel for the Enbridge Northern Gateway Project

When the Joint Review Panel’s report for the Northern Gateway Project (the NGP Report) was first released, I knew that exam marking and other commitments would prevent me from posting a timely comment (in contrast, see here and here).  I had hoped to make up for my tardiness by eventually writing a post using a holiday theme, as the Environmental Law Centre’s Jason Unger did so well with respect to other environmental law developments here. My own idea was to write something along the lines of ‘The Twelve Days of Christmas.’ Alas, it is mid-January and it seems that the time for such ornamentation has passed; a plain and simple discussion of some of the more interesting aspects of the NGP Report will have to do. Continue reading →

Shell Jackpine Mine Expansion Project: The Mysterious Case of the Missing Justification

PDF Version: Shell Jackpine Mine Expansion Project: The Mysterious Case of the Missing Justification

Document commented on: Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012 re: Shell Jackpine Mine Expansion Project (2013 ABAER 011/Decision 2013-011)

Last Friday (December 6, 2013), the federal Minister of the Environment, Leona Aglukkaq, released the long-awaited decision statement for Shell’s Jackpine Mine Expansion project. As I wrote here, the joint review panel concluded – for the first time in the oil sands context – that the project was likely to result in numerous significant adverse environmental effects. This conclusion triggered the application of subsection 52(2) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 (CEAA, 2012), pursuant to which the Governor in Council (GiC) must determine whether the project is nevertheless “justified in the circumstances.”  This the GiC did.  Or at least, we are told that it did.

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New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

PDF Version: New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

Report commented on: Report of the Federal Review Panel – New Prosperity Gold-Copper Mine Project (October 31, 2013)

Last Thursday (October 31, 2013), the Canadian Environmental Assessment Agency (the Agency) released the highly anticipated federal panel report for Taseko’s proposed New Prosperity Mine project (New Prosperity Report). As many readers will know, this marks the second time that this particular proponent has been through the federal environmental assessment (EA) process.  A first attempt with respect to what was then referred to simply as the Prosperity Mine project was approved by British Columbia’s Environmental Assessment Office in 2009 but was thwarted in 2010 by several findings of significant adverse environmental effect (SAEE) by an initial federal panel, including the total destruction of Fish Lake, also known as Teztan Biny by the Tsilhqot’in First Nation. (As an aside, the discrepancy between the federal and provincial outcomes was noted at the time and in the ensuing debate over the fate of the since-repealed Canadian Environmental Assessment Act, SC 1992, c-37). Undeterred (and seemingly prompted by the federal government), Taseko quickly revised its project with a view first and foremost towards avoiding the outright destruction of Fish Lake and in 2011 re-submitted it to the federal EA process.  Alas for the company, two deficiency statements and one 24-day public hearing later, it appears to be no closer to realizing its project than it was three years ago, the second federal panel having now concluded that the New Prosperity Mine project is also likely to result in SAEE on several fronts.

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Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

PDF Version: Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here).  Ostensibly, this is a ‘good news’ story about the separation of powers at work:  The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

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Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

PDF version: Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

Cases commented on: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

James Madison, Federalist Papers No. 47

It is commonly understood that Canada’s Parliamentary system of democratic governance is an example of a “weak” separation of powers. In contrast to the United States, where generally speaking the Legislature (i.e. Congress) is responsible for passing laws, the Executive (i.e. the President) for implementing them and the Judiciary for interpreting them, in Canada — at least in “majority” situations — the Legislature (i.e. Parliament) is effectively (if not theoretically) controlled by the Executive (i.e. the Prime Minister and his Cabinet).  The fairly predictable result is that laws passed by Parliament tend to give statutory delegates considerable discretion, which in turn allows them to implement government policy on a case-by-case basis without much restraint.  In the environmental and natural resources context, most commentators regard this as a bad thing because it tends to favor short term economic and/or political gain over long term economic and environmental sustainability. But there is an emerging threat to the already weak separation of powers in Canada that should be of concern to all lawyers and academics, if not all Canadians. I refer to the Supreme Court of Canada’s (SCC) current approach to judicial review, and the standard of review in particular.

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