Category Archives: Environmental

Federal Court of Appeal Provides Reasons in TMX Leave Applications

By: Nigel Bankes, Martin Olszynski and David Wright

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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 →

Open Access: A Request to the Alberta Court of Appeal

By: Admin

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Matter Commented On: Reference re Greenhouse Gas Pollution Pricing Act (Alberta)

There is considerable public interest in questions as to the validity of the federal Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA) and the References that have been made to different provincial Courts of Appeal. We now have judgments rendered by both the Saskatchewan and Ontario Courts of Appeal upholding the federal government’s GHG pricing regime: Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 (CanLII) and Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 (CanLII). Appeals are pending in each of these cases. Continue reading →

The Elephant in the Courtroom Redux

By: Shaun Fluker

PDF Version: The Elephant in the Courtroom Redux

Case Commented On: Zoocheck Canada Inc v Alberta (Minister of Agriculture and Forestry), 2019 ABCA 208 (CanLII)

Lucy the Elephant lives at the Edmonton Valley Zoo and, for more than a decade, her advocates have been calling on government officials to facilitate her transfer to a warmer climate. She is a long-time resident at the Edmonton Zoo (since 1977), and zoo officials responsible for her well-being assert that Lucy is well-cared for at the zoo and that it is not in her best interest to be moved. Her advocates dispute this position, and there is a dedicated campaign for an independent scientific assessment of Lucy that would produce an expert veterinarian opinion on whether she can and/or should be moved. In addition to this battle of medical experts, Lucy’s advocates have appeared before Alberta courts seeking to use the force of law to get the Edmonton Zoo to acquiesce on the move of Lucy. They have been unsuccessful at each turn. The first set of proceedings was almost 10 years ago, and I commented on them in Lucy the Elephant v. Edmonton (City) and in The Elephant in the Courtroom. The focus of this comment is the more recent proceedings and, in particular, the Court of Appeal’s ruling that Lucy’s advocates do not have standing to engage in legal proceedings to challenge the renewal of a permit for the Edmonton Zoo. Continue reading →

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

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.” Continue reading →

Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

By: Martin Olszynski and Nigel Bankes

PDF Version: Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

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

Alberta’s new premier has recently threatened to sue the federal government over Bill C-69, the Liberal government’s attempt to restore some credibility to Canada’s environmental assessment regime. More specifically, Premier Kenney has recently been asserting that section 92A of the Constitution Act, 1982, which gives the provinces jurisdiction over the development of non-renewable natural resources, precludes the federal government from assessing what the Premier describes as “provincial projects”: “[BillC-69] gives a new federal agency the power to regulate provincial projects, such as in situ oil sands developments and petrochemical refineries, which are entirely within a province’s borders and already subject to provincial regulation. It disregards a landmark Supreme Court ruling on jurisdiction and the balance between federal and provincial powers spelled out in the Constitution — including section 92A in which provinces have exclusive authority over non-renewable resource projects.” In making these comments, the Premier contradicts almost three decades of settled jurisprudence with respect to the federal and provincial division of powers over the environment generally, and federal jurisdiction to conduct environmental assessments specifically. Continue reading →