Category Archives: Environmental

The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

By: Shaun Fluker and Drew Yewchuk

PDF Version: The Expert Panel Report on Federal Environmental Assessment: Discretion, Transparency, and Accountability

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

Last November, the University of Calgary’s Public Interest Law Clinic, on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter, presented to the Expert Panel responsible for Canada’s federal environmental assessment process. The presentation focused exclusively on problems with the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52 (CEAA 2012). We described that presentation here, and the full written submission to the Panel including exhibits is available here (CPAWS Submission). The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada, was released April 5, 2017. Professor Arlene Kwasniak provided some background and an overview of key aspects of the report here. CPAWS left the Expert Panel with three messages in relation to the current federal environmental assessment process in the national parks: there is (1) too much discretion; (2) not enough transparency; and (3) a complete lack of accountability. In this post, we comment on how the Report addresses each of these points.

As an overall comment, it is disappointing the Expert Panel did not specifically address environmental assessment in the national parks. The Report focuses on sustainability as the measuring stick for impact assessment: “Federal IA [impact assessment] should provide assurance that approved projects, plans and policies contribute a net benefit to environmental, social, economic, health and cultural well-being.” (at 2.1.3) While sustainability is a commendable objective generally, this commitment to sustainability and its polycentric consideration of factors is not consistent with the legislated priority of maintaining or restoring ecological integrity in the national parks. The legislated ecological integrity mandate set out in section 8(2) of the Canada National Parks Act, SC 2000 c 32 demands an assessment process which skews in favour of environmental protection over economic and other social considerations. Perhaps, however, the Expert Panel was thinking of national parks and the ecological integrity mandate in its recommendation for regional impact assessments. The Report specifically calls for regional impact assessments that address matters such as baseline conditions and thresholds for federal lands with the potential for cumulative effects problems (at 3.5). Continue reading →

Federal Environmental Assessment Re-Envisioned to Regain Public Trust – The Expert Panel Report

By Arlene Kwasniak

PDF Version: Federal Environmental Assessment Re-Envisioned to Regain Public Trust – The Expert Panel Report

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

This post considers the report of the Expert Panel (Panel) on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada released April 5, 2017 (EP Report). It provides background to the Report and focusses on three issues: The Purpose of Assessment, Who Assesses, and Interjurisdictional Assessments. Other faculty members may be providing further comments on the EP Report in future posts.

About the Panel and the EP Report

The Prime Minister’s November 2015 Environment and Climate Change mandate letter instructed Minister Catherine McKenna to commence a number of law review and reform initiatives, including to “immediately review Canada’s environmental assessment processes to regain public trust ….” Minister McKenna followed through by establishing the Panel. Through September to December the Panel held public and indigenous meetings in numerous locations in Canada, invited written and online submissions, and formed a Multi-Interest Advisory Committee (MIAC) to provide perspective and advice. Professor Shaun Fluker with Anne Marie Syslak, Executive Director of the Canadian Parks and Wilderness Society, presented to the Panel in Calgary on November 23 (see ABlawg post here), and Professors Martin Olszynski and Arlene Kwasniak separately presented on November 21 (Olszynski’s ABlawg post is here). All written submissions to the Panel are accessible on the Panel’s website. At the Panel’s behest, Professors Kwasniak and Olszynski additionally provided expert written advice, and participated in a meeting hosted by the Panel in Ottawa in February. The Panel received over 800 written submissions, heard over 400 oral presentations, and received 2,673 responses to the online Choicebook, a survey-like tool designed to gauge views on assessment reform. The public has until May 5th to comment on the EP Report, through the website Let’s Talk Environmental Assessment. From my reading of the Report, the Panel clearly took its mission to regain public trust in federal environmental assessment very seriously and, excepting for reservations mentioned later, will be successful in its mission if government follows through with legislation that faithfully reproduces its bold vision in legislative details. Continue reading →

Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

By: Shaun Fluker

PDF Version: Jurisdictional Matters Concerning Environmental Protection Orders Under the Environmental Protection and Enhancement Act

Case Commented On: Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII)

During April and May of 2010 a significant gasoline spill occurred at a gas station located at 6336 Bowness Road in Calgary. The underground petroleum plume spread to adjacent properties, and in December 2010 the Director of Alberta Environment issued a remediation order under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). The site is now an empty lot, and while remediation activities have been conducted there is disagreement on whether the property is fully cleaned up. Metaphorically speaking, this petroleum plume also spread to the Alberta legal system. A preliminary search in preparation for writing this comment revealed no less than 10 decisions concerning the spill: (1) the Director’s December 2010 remediation order; (2) a December 2011 decision by the Alberta Environmental Appeals Board concerning an appeal of the December 2010 remediation order (Gas Plus Inc and Handel Transport v Director (Alberta Environment), Appeals No 10-034, 11-002, 008 & 023R; (3) a revised remediation order issued in January 2012 incorporating the Board’s recommendations; (4) an Order of the Court of Queen’s Bench issued in December 2012 concerning the January 2012 revised remediation order; (5) 2 interlocutory decisions by the Court of Queen’s Bench in relation to civil proceedings concerning the spill (Floate v Gas Plus, 2015 ABQB 545 (CanLII) and Floate v Gas Plus, 2015 ABQB 725 (CanLII)); (6) a decision by the Calgary Development Authority to deny a permit to construct a new gas station on the site and a March 2015 decision by the Calgary Subdivision and Development Appeal Board dismissing an appeal of the development decision (Re SDAB2014-0146, 2014 CGYSDAB 146 (CanLII)); and (7) a decision issued in January 2017 by the Honourable Mr Justice P.R. Jeffrey quashing a mediation order issued by the Honourable Judge H.A. Lamoureux in relation to the dispute over remediation. This comment examines this most recent decision by Justice Jeffrey in Director (EAP) v Alberta (Provincial Court), 2017 ABQB 3 (CanLII), which addresses jurisdictional matters concerning environmental protection orders under EPEA and the inherent authority of the court. Continue reading →

Assessing Adaptive Management in Alberta’s Energy Resource Sector

By: Martin Olszynski

PDF Version: Assessing Adaptive Management in Alberta’s Energy Resource Sector

Research Commented On: “Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (UBC L Rev) (Forthcoming)

It was three years and six months ago – almost to the day – that I published my first ABlawg post. The Joint Review Panel (JRP) assigned to conduct the environmental assessment of Shell’s then-proposed Jackpine oil sands mine expansion project had just released its report. That report was notable for several reasons, including that it was the first to conclude that an oil sands mine was likely to result in “significant adverse environmental effects” pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012). In Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?, however, I focused on the role that adaptive management had played in the Joint Review Panel’s determination of the project’s environmental effects. Briefly, adaptive management is defined by the Canadian Environmental Assessment Agency as “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” The concern that I have expressed over the past few years is that, as practiced in Canada, adaptive management appears to be seldom planned or systematic. The problem was that I couldn’t show this to be the case – until now.

In a recent paper, I examine the implementation and effectiveness of adaptive management in Alberta’s energy resources sector. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, I collected the environmental impact statements, environmental assessment reports (e.g. the Shell Jackpine JRP Report), statutory approvals and required follow-up reports for thirteen energy projects in Alberta: two coal mines, three oil sands mines, and eight in situ oil sands operations. In each case, the proponent proposed adaptive management for at least one environmental issue or problem. I then analyzed these various documents to determine the conception, implementation, and, to the extent possible, effectiveness of adaptive management with respect to each project throughout the regulatory cycle (i.e. from the proposal stage through to approval and reporting). Simply put, I set out to determine how adaptive management was actually being applied in this context.

Unfortunately, the results confirm longstanding concerns about the implementation of adaptive management in natural resources development. Continue reading →

Legal Designation of the New Castle Wilderness Protected Areas

By: Shaun Fluker

PDF Version: Legal Designation of the New Castle Wilderness Protected Areas

Orders in Council commented on:

Order in Council 020/2017 (amendments to South Saskatchewan Regional Plan under Alberta Land Stewardship Act)

Order in Council 021/2017 (amendments to Forest Provincial Recreation Areas Order)

Order in Council 022/2017 (designation of the Castle Provincial Park under Provincial Parks Act)

Order in Council 023/2017 (designation of the Castle Wildland Provincial Park under Provincial Parks Act)

Order in Council 024/2017 (amendments to the Public Lands Administration Regulation)

On January 20, 2017 the Lieutenant Governor in Council issued 5 Orders in Council and thereby followed thru on Alberta’s commitment announced back in September 2015 to legally protect the area in southwestern Alberta known as the Castle wilderness with a new wildland provincial park and a new provincial park. What remained to be seen back in September 2015 was what this legal protection would exactly amount to, and these Orders in Council provide us with the important details. At the time of the announcement back in September 2015 I provided some context for these new designations in At Long Last – Legal Protection for the Castle Wilderness. Collectively these Orders in Council create the Castle Wildland Provincial Park and the Castle Provincial Park effective February 16, 2017, and implement consequential amendments to existing regulations to accommodate these new designations. Continue reading →