Category Archives: Environmental

Fortress Mountain and the Sale of Water from Kananaskis Country

By: Shaun Fluker

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Matter commented on: Fortress Mountain Holdings Ltd. Application No. 003-00037369 under the Water Act, RSA 2000 c W-3

This is a short comment to raise awareness about a systemic problem in how Alberta Environment and Parks (AEP) administers its decision-making powers concerning the development of natural resources and assesses the environmental impacts associated with this development. It is a problem of transparency and more particularly, the absence of transparency and lack of any meaningful opportunity for public participation in the AEP decision-making process. This is not a new problem, and it is one which I canvassed more thoroughly in The Right to Public Participation in Resources and Environmental Decision-Making in Alberta published by the Alberta Law Review in 2015. In short, decisions made by AEP under the Environmental Protection and Enhancement Act, RSA 2000 c E-12 (EPEA) or the Water Act concerning the use or development of natural resources are generally made behind closed doors with no opportunity for public input and minimal disclosure. This makes a mockery of the statements of purpose set out in section 2 of EPEA and section 2 of the Water Act, which state that a purpose of each Act is to provide opportunities for citizens to give advice on decisions affecting the environment. Continue reading →

Public Interest Standing and Wild Horses in Alberta

By: Shaun Fluker

PDF Version: Public Interest Standing and Wild Horses in Alberta

Case commented on: Alberta’s Free Roaming Horses Society v Alberta, 2019 ABQB 714 (CanLII)

This decision grants public interest standing to Alberta’s Free Roaming Horses Society and one individual (the ‘Applicants’) seeking declarations and mandamus in relation to a 2005 ministerial designation of public lands under section 9 of the Stray Animals Act, RSA 2000, c S-20. The Applicants assert that the Minister responsible for the administration of public lands under the Act failed to comply with a statutory requirement to form an opinion in relation to designating lands upon which persons may be licensed to capture and dispose of wild horses. They accordingly sought a judicial declaration that the 2005 land designation is void and an order requiring the Minister to form the opinion and publish it prior to making any future land designations under section 9 of the Act. The Province responded that the Applicants do not have standing to commence these proceedings and that the proceedings should be struck as an abuse of process. The Province also sought summary dismissal on the basis that the Applicants’ claim is barred by a limitation period. In this decision, Mr. Justice B.A. Millar ruled that the Applicants have public interest standing, but he summarily dismissed the application because the proceedings relate to a decision made in 2005 which is far beyond the 6 month time limitation for seeking judicial review under section 3.15(2) of the Alberta Rules of Court, Alta Reg 124/2010. Continue reading →

Federal Court of Appeal Rejects Another Attempted Appeal of the TMX Leave Decision

By: David V. Wright, Martin Olszynski, and Nigel Bankes

PDF Version: Federal Court of Appeal Rejects Another Attempted Appeal of the TMX Leave Decision

Case Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259

The FCA has released another ruling in relation to its earlier leave decision on the consolidated TMX legal challenges (Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 (Can LII); for our post on that decision see here). In this latest ruling the panel (including Justice David Stratas – who had authored the original decision) dismissed an attempted appeal (at para 4) brought by two NGOs. The panel reiterated Justice Stratas’ previous conclusion in Ignace v Canada (Attorney General), 2019 FCA 239 (for our post on that decision see here) that “appeals cannot be brought from this Court to this Court” and again pointing to the lack of any statutory basis for the FCA to hear such an appeal (at paras 7-9). Continue reading →

Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

By: David V. Wright

PDF Version: Crown Consultation Obligations and a National Infrastructure Corridor: Simple Meets Complex

Matter Commented On: National Infrastructure Corridor

Renewed interest in a cross-Canada infrastructure corridor has surfaced in recent months and weeks, including as a federal election issue. Details were thin in the recent Conservative campaign announcement, but a substantial amount of information about a similar concept can be found in a 2017 report from the Senate Committee on Banking Trade and Commerce (the focus of the former is on an ‘energy corridor’ while the focus of the latter and the below-cited article by Sulzenko and Fellows is on a multi-modal infrastructure corridor). That report rightly acknowledges that “such a major undertaking – which would require the accommodation of a multitude of varying interests and priorities – would undoubtedly be difficult to complete, and a number of complex issues – including in relation [to] Indigenous peoples, financing and the environment – would need to be addressed” (p 12). In this post, I provide a brief overview and initial comments in relation to a fundamental “complexity” pertaining to the corridor concept: Crown consultation and accommodation duties with respect to the Indigenous peoples of Canada. Continue reading →

Federal Court of Appeal Provides Reasons in TMX Leave Applications

By: Nigel Bankes, Martin Olszynski and David Wright

PDF Version: Federal Court of Appeal Provides Reasons in TMX Leave Applications

Decision Commented On: Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224.

On September 4, 2019, the Federal Court of Appeal (FCA) granted leave to six of the twelve parties who had applied for judicial review of Cabinet’s decision to re-approve the Trans Mountain Expansion (TMX) project. This post situates this most recent development in the broader TMX context and examines this rare instance of the FCA providing reasons in a leave decision. Continue reading →