Martin Olszynski

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

On September 24, 2013

In Administrative Law, Constitutional, Environmental, Protection of Species

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.

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

By Martin Olszynski

On August 21, 2013

In Administrative Law, Constitutional, Environmental

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.

Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?

By Martin Olszynski

On July 31, 2013

In Energy, Environmental

PDF version: Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?

Decision commented on: Shell Canada Energy, Jackpine Mine Expansion Project, Application to Amend Approval 9756, 2013 ABAER 011/Decision 2013-011 (CEAA, 2012).

On July 9, 2013, the Joint Review Panel (JRP) for Shell’s Jackpine Mine Expansion Project released its long-awaited report (the Jackpine Report). Shell had applied to expand its existing Jackpine Mine, located roughly 70 km north of Fort McMurray, to increase bitumen production by 15,900 m³/day and bring total production to 47,700 m³/day. As further discussed below, the JRP concluded that the project, though likely to result in significant adverse environmental effects on several fronts, is nevertheless in the public interest.