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.

(Final?) Brief re: Bill C-69 to the Senate Committee on Energy, Environment and Natural Resources

By: Martin Olszynski

Legislation Commented On:Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts

PDF Version: (Final?) Brief re: Bill C-69 to the Senate Committee on Energy, Environment and Natural Resources

The Senate Committee on Energy, Environment, and Natural Resources (the Committee) is in the final stages of its hearings into Bill C-69, which if passed will replace the current federal environmental assessment regime pursuant to the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA, 2012). What follows is a slightly edited version of the brief that I submitted to the Committee last week, following my appearance before it on April 9, 2019, here in Calgary.

I am pleased to submit this brief to the Committee as part of your review of Bill C-69 – and the proposed Impact Assessment Act (IAA) in particular. Much has been said and written about Bill C-69. In addition to this brief, I myself have written or co-written the following articles/blogs since Bill C-69 was passed in the House of Commons:

My own contributions have been spurred less by a desire to defend the Bill and more to simply set the record straight. That is the spirit that animated my remarks to the Committee on April 9, 2019 and that is at the core of this brief, which is organized as follows: Continue reading →

What is the Concern with Recognizing GHGs as a Matter of National Concern?

By: Martin Olszynski

PDF Version: What is the Concern with Recognizing GHGs as a Matter of National Concern?

Matter Commented On: Reference re: Greenhouse Gas Pollution Pricing Act 

All eyes are on Saskatchewan this week, as the Saskatchewan Court of Appeal prepares to hear arguments in the federal greenhouse gas pricing reference. To most observers, this reference may appear to be simply about the constitutionality – or not – of the federal government’s greenhouse gas (GHG) pricing regime set out in the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). As further set out in this post, however, for constitutional and environmental lawyers and scholars, this reference is less about whether the federal government can regulate GHGs but rather the basis upon which it can do so.

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Bill C-69’s Detractors Can Blame Harper’s 2012 Omnibus Overreach (Blog Edition)

By: Martin Olszynski

PDF Version: Bill C-69’s Detractors Can Blame Harper’s 2012 Omnibus Overreach (Blog Edition)

Legislation Commented On: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts (Bill C-69)

Last week, Postmedia columnists Licia Corbella and Don Braid both set their sights on Bill C-69, the federal Liberal’s environmental law reform bill that proposes new impact assessment legislation and the replacement of the current National Energy Board with a new Canadian Energy Regulator. Ms. Corbella claimed that Bill C-69 is “so destructive it just might be the bookend to [the] disastrous and infamous National Energy Program.” Mr. Braid suggested that it poses a “grave danger” to the already beleaguered Trans Mountain pipeline and implored for the Bill to be “ritually slaughtered” by the Senate when it comes before it later this fall.

The problem is that Bill C-69 poses no such danger. In fact, the relevant transitional provision (s 182) makes clear that a project like Trans Mountain, whose assessment began under the current Canadian Environmental Assessment Act, 2012, SC 2012 c 19 s 52 (CEAA, 2012), would remain under that regime even if that assessment is not completed when the law comes into force. Unfortunately, almost all of Ms. Corbella and Mr. Braid’s assertions about Bill C-69, as well as those of the Canada West Foundation’s Martha Hall Findlay and former Conservative Party leadership candidate Rick Peterson, on which both columnists rely, do not withstand scrutiny.

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Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly

By: Martin Olszynski

PDF Version: Federal Court of Appeal Quashes Trans Mountain Pipeline Approval: The Good, the Bad, and the Ugly

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

Last Thursday, the Federal Court of Appeal released its decision in Tsleil-Waututh Nation v. Canada (Attorney General). Those following Canada’s contentious pipeline debate will know that this was the primary legal challenge to Kinder Morgan’s certificate of public convenience and necessity (CPCN or certificate) for its Trans Mountain Expansion Project (TMX) (for a series of related ABlawg posts, see here). The Federal Court of Appeal quashed the CPCN on two grounds: first, the Court held that the National Energy Board’s (NEB) decision to exclude the increased marine traffic associated with the project from the environmental assessment (EA) conducted pursuant to the Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012) was unreasonable; and second, Canada did not adequately discharge its constitutionally-rooted duty to consult and accommodate affected Indigenous peoples. This post focuses primarily on the first ground, although as will be seen the two are related. As further discussed below, the Federal Court of Appeal’s analysis with respect to marine traffic appears to be on solid footing (the Good). More problematic is the Court’s approach to the reviewability of EAs generally (i.e. the ability to challenge such reports in court) (the Bad). Most problematic, however, has been the decision’s reception and distortion by various groups and individuals to make various claims that the decision simply does not substantiate (the Ugly).

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New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

By: Martin Olszynski

PDF Version: New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

Report Commented On: Responsible Risk: How putting a price on environmental risk makes disasters less likely

Anyone following the public debate with respect to carbon taxes in Canada will likely have heard of the Ecofiscal Commission – a policy shop operating at McGill University that for the past couple of years has been championing the use of carbon pricing as the most efficient way to tackle climate change. The Commission is not, however, a one-trick pony; it has also published reports on municipal water pricing, urban congestion, and biofuel subsidies, to name but a few.

In its most recent report, “Responsible Risk: How putting a price on environmental risk makes disasters less likely” (“Responsible Risk”), the Commission has set its sights on the environmental risks that inevitably accompany economic growth and development in Canada. In the report, the Commission makes the case for a more widespread use of “financial assurance” tools (e.g., bonds, insurance, industry funds) in order to more effectively and efficiently manage these risks.

As someone who researches and writes about environmental law and policy and who spent nearly half a dozen years working for a regulator, it is clear to me that this report should be mandatory reading for regulators, regulatory lawyers, and law students interested in environmental and natural resources law.

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