B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley).
Assistant Professor.
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By: Mark Mancini and Martin Olszynski
PDF Version: Reviewing Regulations Post-Vavilov: Ecology Action Centre v Canada (Part II)
Case Commented On: Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367 (CanLII)
This is the second post on the Federal Court’s recent decision in Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367 (CanLII). For the background on this decision, see Martin Olszynski’s first post here.
By: Martin Olszynski
Case Commented On: Ecology Action Centre v Canada (Environment and Climate Change), 2021 FC 1367 (CanLII)
The applicants sought judicial review in Federal Court of the “Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador” (the Offshore Exploratory Regional Assessment), initiated as a “regional study” under the previous Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (CEAA, 2012) but converted into a “regional assessment” under the current Impact Assessment Act, SC 2019, c 28, s 1 (IAA) when the latter came into force in 2019. The Offshore Exploratory Regional Assessment and Report were prepared by a committee established by both the federal and provincial governments and submitted to the Minister of Environment and Climate Change Canada (the Minister). The applicants also sought judicial review of the subsequently promulgated Regulations Respecting Excluded Physical Activities (Newfoundland and Labrador Offshore Exploratory Wells) (the Offshore Exploratory Regulations) pursuant to paragraph 112(1)(a.2) of the IAA, the effect of which was to exclude offshore exploratory drilling from undergoing individual impact assessments on a go-forward basis. Both applications were dismissed.
By: Martin Olszynski and Sharon Mascher
PDF Version: Beyond Carbon Pricing: An Assessment of the Major Parties’ Other Environmental Policies
Matter Commented On: Secure the Future (Conservative Party of Canada); Forward, For Everyone (Liberal Party of Canada); Ready For Better (New Democratic Party); Be Daring (Green Party of Canada)
Climate change is widely recognized as the most important environmental problem facing humanity. Indeed, in its recent opinion upholding the constitutionality of the federal Liberals’ carbon pricing regime, the Supreme Court of Canada acknowledged not only that climate change is real and caused by human activity, but also that “it poses a grave threat to humanity’s future” (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) at para 2). The unsurprising result is that climate change now dominates environmental law and policy discourse. Indeed, at times – such as the current election period – it feels like climate policy has displaced all other environmental policy entirely. As one manifestation of this, Canadian voters have access to several independent and expert assessments of the parties’ climate policies (see here, here, here, and here), but very little with respect to the parties’ remaining environmental commitments. This post is intended to help remedy that situation by focusing on the non-climate aspects of each of the major federal parties’ environmental policies. We do also provide some relatively minor commentary on those aspects of the parties’ climate policies that we feel haven’t been sufficiently addressed.
PDF Version: Conflating Dissent with Disloyalty, Allan Inquiry sets a Dangerous Precedent
Matter Commented On: The Public Inquiry into Anti-Alberta Energy Campaigns
It’s late fall 2022. A popular mayor of a southern Alberta town wakes up to a peculiar email: the Second Public Inquiry into Anti-Alberta Energy Campaigns has reviewed several news reports from 2020 and 2021, as well as his social media account, and has determined that he engaged in an “anti-Alberta energy campaign.”
Just a bit down the highway, a popular Alberta country singer finds a similar email. They’ve each been given two weeks to respond. Confused, each writes back to the Inquiry to insist that they’re absolutely not anti-Alberta: they’re proud Albertans who care deeply about its lands and waters, especially the eastern slopes of the Rockies and the vital headwaters found there.
By: Nigel Bankes, Andrew Leach and Martin Olszynski
PDF Version: The Curious Demise of Alberta’s Turn Off the Taps Legislation
Matters Commented On: Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) reversing British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 (CanLII), and Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5
The Turn Off the Taps legislation ((or, more properly, Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5) (PCEPA)) was passed under the Notley government in 2018. There have always been serious doubts as to the constitutional validity of the legislation (for discussion of the principal objections to the legislation, see ABlawg here) and it is hardly surprising that the Attorney General of British Columbia (AGBC) commenced actions first in the Alberta Court of Queen’s Bench and later in the Federal Court seeking to test the validity of the Act. As described by a majority of the Federal Court of Appeal in Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) [Turn off the Taps IV], the AGBC had two main arguments. The first was that PCEPA is inconsistent with s 121 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3; the second was that the PCEPA is a law in relation to interprovincial trade that falls outside the protection offered by s 92A(2) of the Constitution Act, 1867, the so-called ‘resource amendment’ to the Constitution. In particular, the AGBC noted that s 92A only protects laws pertaining to “primary production” as defined in the Sixth Schedule, and yet the PCEPA purported to apply to refined fuels which fell outside that definition. The Sixth Schedule provides as follows:
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