Category: Environmental Page 2 of 53

Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act

On January 30, 2024

In Constitutional, Energy, Environmental, Oil & Gas

By: Nathan Murray and Martin Olszynski

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act

This post is the seventh ABlawg commentary on the Supreme Court of Canada’s Reference re: Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) decision from October 2023. In the most recent of those posts, one of us briefly noted the majority’s preoccupation with the concept of “adverseness” when delineating the scope of federal environmental jurisdiction under the Impact Assessment Act, SC 2019, c 28, s 1 (IAA). The majority’s preoccupation with that concept actually pervades the IAA Reference decision. Here, we focus squarely on the majority’s treatment of the concept of “adverseness” and its role in the public interest decision-making stage of federal impact assessment.

Triviality and Significance of Federal Environmental Effects after Reference re: Impact Assessment Act

By Martin Olszynski

On January 15, 2024

In Energy, Environmental, Supreme Court of Canada

By: Martin Olszynski

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Triviality and Significance of Federal Environmental Effects after Reference re: Impact Assessment Act

This is the sixth ABlawg post regarding the Supreme Court of Canada’s recent opinion in Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) (see the first five posts here). In this post, I address the thorny issue of thresholds, i.e., the level or point at which an effect becomes material or relevant under the Impact Assessment Act, SC 2019, c 28, s 1 (IAA). Since the opinion’s release last fall, I have read and heard concerns that the majority has imposed some kind of minimum threshold regarding the magnitude of effects required to trigger federal jurisdiction, or that the federal government could only refuse to deem such effects to be in the public interest if they are significant (see here for a thoughtful commentary on the practical problems with such an approach). As noted by Justices Andromache Karakatsanis and Mahmud Jamal in their dissent, however, it has actually long been an interpretive rule – since the Supreme Court of Canada’s environmental law decision in Ontario v Canadian Pacific Ltd, 1995 CanLII 112 (SCC), [1995] 2 SCR 1031 (Canadian Pacific) – that broadly worded environmental legislation is to be interpreted in a manner that does not capture trivial, or de minimis, impacts (IAA Reference at para 278). Importantly, however, and as I discussed almost a decade ago in “Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-Based Regulation” (2015) 40-2 Queen’s Law Journal 705, 2015 CanLIIDocs 5272, (“Ancient Maxim, Modern Problems”), non-triviality is a very low bar; between trivial and significant lies a wide spectrum of impacts, which at the very least includes low and moderate impacts. Trivial or de minimis impacts are essentially only those impacts that a regulatory regime could systematically ignore while still obtaining its objectives – they are treated the same as no impacts whatsoever.

What Are “Unrelated Assets” When It Comes to Environmental Reclamation Obligations? The Lending Industry Needs to Know

By Jassmine Girgis

On November 15, 2023

In Corporate / Commercial, Creditors’ Remedies, Environmental, Insolvency, Oil & Gas

By: Jassmine Girgis

Case Commented On: Mantle Materials Group, Ltd v Travelers Capital Corp, 2023 ABCA 302 (CanLII)

PDF Version: What Are “Unrelated Assets” When It Comes to Environmental Reclamation Obligations? The Lending Industry Needs to Know

In recent years, the courts have seen many cases dealing with unfunded environmental reclamation obligations. Although these obligations have long raised issues, the Supreme Court of Canada’s decision in Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (CanLII) (“Redwater”) commenced a new era for determining the priority for environmental end-of-life obligations in Canadian insolvencies (see my earlier post on Redwater, Lessons from Redwater: Disregard the AbitibiBowater Test and Legislate Super Priority for the Regulator).

Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

By David V Wright

On November 10, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: David V. Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

The Supreme Court of Canada (SCC) recently released its opinion on the constitutionality of the federal impact assessment (IA) regime. In a 5:2 majority opinion, Chief Justice Richard Wagner concluded that much of the scheme is unconstitutional for projects falling primarily within provincial jurisdiction. ABlawg has published initial reflections (see here and here), as well as a primer.

One aspect of the majority opinion and any forthcoming legislative amendments that is in need of further attention is the Court’s analysis of greenhouse gas emissions. This post focuses on that aspect. In short, the majority reiterated that there is no plenary federal power to regulate greenhouse gas emissions, and found that Canada had not adequately made the legal argument to support inclusion of a designated project’s greenhouse gas emissions as a basis for triggering the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) or for making final decisions. However, the majority left the door open on this aspect, while also clarifying that there are no constitutional constraints during the assessment phase (i.e. information gathering phase) of the federal process. At the present juncture, the SCC opinion provides some valuable additional clarity regarding greenhouse gas emissions, but very far from total clarity. Uncertainty remains, and that is unfortunate. In the following discussion, I lay out what the majority said and did not say on greenhouse gas emissions, what that means, and what’s next.

The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

By Nigel Bankes

On November 1, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: Nigel Bankes and Andrew Leach

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: The Word “Exclusive” Does Not Confer a Constitutional Monopoly, Nor a Right to Develop Provincial Resource Projects

The majority opinion of the Supreme Court of Canada in the Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) concludes that the federal government has arrogated to itself decision-making powers that properly belong to provincial governments; powers, that is, with respect to resource projects and other works and undertakings located entirely within a province (for short, “provincial resource projects”). (For an overview of the IAA Reference see Olszynski et al, “Wait, What!? What the Supreme Court Actually Said in the IAA Reference”.) Given that conclusion, it is not surprising that Premier Danielle Smith, as well as former premier Jason Kenney, who initiated the Reference, have celebrated the decision. But in doing so they have both significantly overstated the majority’s conclusions by suggesting that the majority endorsed a strong theory of exclusive provincial jurisdiction over provincial resource projects. Premier Smith, echoing language in the Alberta Court of Appeal majority opinion in the IAA Reference (which we commented on here), would extend this interpretation further to a right of development and to a form of interjurisdictional immunity for projects falling outside the exceptions in section 92(10) of the Constitution Act, 1867. We provide concrete examples of Premier Smith’s use of the word “exclusive” (or its synonyms) and references to a “right to develop” from the Premier’s press conference on the IAA Reference decision and an interview prior to the decision in Appendix A to this post, and a link to the views of the Hon. Jason Kenney in Appendix B.