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Author: Sharon Mascher Page 1 of 3

B.Ed. (McGill), LL.B. (Calgary), LL.M. (Calgary).
Professor. Member of the British Columbia Bar.
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As Bill C-69 Receives Royal Assent, Will the Project List Deliver on the Promise?

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On June 25, 2019

In Energy, Environmental, Oil & Gas

By: Sharon Mascher

PDF Version: As Bill C-69 Receives Royal Assent, Will the Project List Deliver on the Promise?

Matter Commented On: Discussion Paper on the Proposed Project List

Last week, Bill C-69 finally passed through the Senate and received Royal Assent. That the legislative process has been long and fraught goes without saying. On its first passage through the Senate, a total of 229 amendments were made to the legislation. While 130 of those amendments were ultimately rejected, Bill C-69 incorporates 99 of them – 62 as proposed by the Senate and 37 with government alterations. This reportedly is “the highest number of amendments on any piece of legislation since at least 1946.”

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In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

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On May 6, 2019

In Aboriginal

By: Sharon Mascher

PDF Version: In Pausing Taseko’s New Prosperity Mine Exploration Program BCCA Recognizes Unsettled Questions Relating to the Duty to Consult; Consent and Justification Analysis and Proven Aboriginal Rights

Case Commented On: William v British Columbia (Attorney General), 2019 BCCA 112 (CanLII)

On April 1, 2019, the British Columbia Court of Appeal (BCCA), in William v British Columbia (Attorney General) granted Chief Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations Government and the Tsilhqot’in Nation (the Applicants), a stay of an order allowing an exploratory drilling program in relation to the New Prosperity Mine Project to proceed pending the outcome of an application for leave to appeal to the Supreme Court of Canada (SCC). The application for leave to appeal relates to a petition for the judicial review of a Notice of Work Approval granted to Taseko Mines Limited (TML) by the Province of British Columbia on July 17, 2017 allowing the exploratory drilling work to proceed. Chief William’s petition for judicial review of the Approval was dismissed by a chambers judge (William v British Columbia, 2018 BCSC 1425 (CanLII)) who found that the Province’s decision was reasonable and that the Province’s consultation process and degree of accommodation had maintained the honour of the Crown. On March 1, 2019, the BCCA (William v British Columbia (Attorney General), 2019 BCCA 74 (CanLII)) agreed with the findings of the chambers judge and dismissed Chief William’s appeal.

In reaching a decision that the stay should be granted, and specifically that the Applicants have met the merits test, Justice Bruce Butler rejects TML’s argument that this is just another duty to consult case applying a long line of settled law. In so doing, Butler JA recognizes that the law relating to sufficiency of consultation and accommodation, the role of consent, and the justification analysis from Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII) is unsettled when proven s 35 Aboriginal rights are at issue.

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Bill C-69 and the Proposed Impact Assessment Act: Rebuilding Trust or Continuing the “Trust Us” Approach to Triggering Federal Impact Assessment?

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On March 29, 2018

In Environmental

By: Sharon Mascher

PDF Version: Bill C-69 and the Proposed Impact Assessment Act: Rebuilding Trust or Continuing the “Trust Us” Approach to Triggering Federal Impact Assessment?

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)

Consultation Paper Commented On: Consultation Paper on Approach to Revising the Project List: A proposed Impact Assessment System

On February 8, 2018 the Government of Canada tabled Bill C-69. My colleague Martin Olszynski provided an initial overview of Part 1 of the Bill, the proposed Impact Assessment Act (IAA), in an earlier post. Several of my colleagues have now posted on various aspects of the proposed IAA, including Nigel Bankes, Shaun Fluker, David Wright, Kristen van de Biezenbos, Alastair Lucas, David Laidlaw, and Arlene Kwasniak. This post focuses on the question of what projects will trigger the federal impact assessment process under the proposed IAA. As I have noted previously, how this question is answered is essential to assessing whether the proposed IAA fulfills the Liberals’ promise to develop a new impact assessment process that restores the trust of Canadians and protects our environment. It goes without saying that in order for the impact assessment process to become relevant, it must first be initiated. Without effective and transparent triggers, therefore, the rest of the process becomes immaterial.

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What Should Require Federal Impact Assessment? Proposed Triggers for a Credible Federal Impact Assessment Regime

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On August 22, 2017

In Environmental

By: Sharon Mascher

PDF Version: What Should Require Federal Impact Assessment? Proposed Triggers for a Credible Federal Impact Assessment Regime

Document Commented On: Environmental and Regulatory Reviews Discussion Paper, Government of Canada, June 2017

On June 29, 2017, the Government of Canada released a Discussion Paper outlining a series of “system-wide changes” under consideration “to strengthen Canada’s environmental assessment and regulatory processes” (at 7). In earlier posts, I provide an overview of the Discussion Paper; Professor Bankes discusses the Discussion Paper’s response to the Report of the Expert Panel on the Modernization of the National Energy Board; and Professor Kwasniak considers how to fill the gaps in the Discussion Paper to regain public trust in federal assessment processes. Professor Kwasniak’s post focuses, in particular, on the core questions of what impacts should be assessed, to what end impacts should be assessed, and how assessments should figure in decision-making relating to project approval or disapproval. This post focuses on filling the gaps in the Discussion Paper relating to another core question—what should require federal impact assessment? The answer to this question is, of course, central to the Government of Canada’s commitment to deliver credible impact assessment and regulatory processes that both regain public trust and protect the environment.

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An Overview of the Environmental and Regulatory Reviews Discussion Paper – Let the Discussion Begin

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On July 13, 2017

In Environmental

By: Sharon Mascher

PDF Version: An Overview of the Environmental and Regulatory Reviews Discussion Paper – Let the Discussion Begin

Document Commented On: Environmental and Regulatory Reviews Discussion Paper, Government of Canada, June 2017

On June 29, 2017, the Government of Canada released a Discussion Paper outlining a series of “system-wide changes” the Government “is considering to strengthen Canada’s environmental assessment and regulatory processes”. The changes are directed at the Government’s commitment to “deliver environmental assessment and regulatory processes that regain public trust, protect the environment, introduce modern safeguards, advance reconciliation with Indigenous peoples, ensure good projects go ahead, and resources get to market” (at 3).

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