Category: Environmental Page 25 of 59

Case Commented On: Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153

Last Thursday, the Federal Court of Appeal released its decision in Tsleil-Waututh Nation v. Canada (Attorney General). Those following Canada’s contentious pipeline debate will know that this was the primary legal challenge to Kinder Morgan’s certificate of public convenience and necessity (CPCN or certificate) for its Trans Mountain Expansion Project (TMX) (for a series of related ABlawg posts, see here). The Federal Court of Appeal quashed the CPCN on two grounds: first, the Court held that the National Energy Board’s (NEB) decision to exclude the increased marine traffic associated with the project from the environmental assessment (EA) conducted pursuant to the Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 (CEAA, 2012) was unreasonable; and second, Canada did not adequately discharge its constitutionally-rooted duty to consult and accommodate affected Indigenous peoples. This post focuses primarily on the first ground, although as will be seen the two are related. As further discussed below, the Federal Court of Appeal’s analysis with respect to marine traffic appears to be on solid footing (the Good). More problematic is the Court’s approach to the reviewability of EAs generally (i.e. the ability to challenge such reports in court) (the Bad). Most problematic, however, has been the decision’s reception and distortion by various groups and individuals to make various claims that the decision simply does not substantiate (the Ugly).

New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

By Martin Olszynski

On July 24, 2018

In Environmental

By: Martin Olszynski

PDF Version: New Report Provides a Framework for Thinking about Environmental Risk in the Regulatory Context

Report Commented On: Responsible Risk: How putting a price on environmental risk makes disasters less likely

Anyone following the public debate with respect to carbon taxes in Canada will likely have heard of the Ecofiscal Commission – a policy shop operating at McGill University that for the past couple of years has been championing the use of carbon pricing as the most efficient way to tackle climate change. The Commission is not, however, a one-trick pony; it has also published reports on municipal water pricing, urban congestion, and biofuel subsidies, to name but a few.

In its most recent report, “Responsible Risk: How putting a price on environmental risk makes disasters less likely” (“Responsible Risk”), the Commission has set its sights on the environmental risks that inevitably accompany economic growth and development in Canada. In the report, the Commission makes the case for a more widespread use of “financial assurance” tools (e.g., bonds, insurance, industry funds) in order to more effectively and efficiently manage these risks.

As someone who researches and writes about environmental law and policy and who spent nearly half a dozen years working for a regulator, it is clear to me that this report should be mandatory reading for regulators, regulatory lawyers, and law students interested in environmental and natural resources law.

Columbia River Treaty Negotiations to Commence

By Nigel Bankes

On May 25, 2018

In Aboriginal, Environmental

By: Nigel Bankes

PDF Version: Columbia River Treaty Negotiations to Commence

Announcements commented on: (1) Global Affairs Canada, Canada and United States launch negotiations to renew Columbia River Treaty, May 22, 2018, (2) US Department of State, Launching negotiations to modernize the Columbia River Treaty regime, May 22, 2018, (3) British Columbia, Statement on Upcoming Treaty Negotiations, May 22, 2018, (4) Okanagan Nation Alliance, Shuswap Nation Council and Ktunaxa Nation Council, Canada Excludes Indigenous First Nations form International Columbia River Treaty Re-Negotiation, May 23, 2018.

The Governments of Canada and the United States have announced that they will begin negotiations (May 29 and 30, 2018, Washington DC) to “modernize” the Columbia River Treaty. For background on this issue see my previous post here. British Columbia and three First Nation groups have also issued press releases.

Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

By Jennifer Koshan

On May 2, 2018

In Energy, Environmental

By: Jennifer Koshan

PDF Version: Bills C-68 and C-69 and the Consideration of Sex, Gender and Other Identity Factors

Legislation Commented On: An Act to amend the Fisheries Act and other Acts in consequence (Bill C-68) and 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)

Over the past couple of months, several of my colleagues have posted comments on Bill C-68 and Bill C-69 (see here). My focus in this post is on one section that is common to Bills C-68 and C-69, which provides that when making a decision under the relevant Act, the decision-maker may or indeed must consider, among other things, “the intersection of sex and gender with other identity factors” (see proposed section 2.5(i) of the Fisheries Act (“may”), section 22(1)(s) of the proposed Impact Assessment Act (“must”), and sections 183(2)(c), 262(2)(c) and 298(3)(c) of the proposed Canadian Energy Regulator Act (“must”)). The preamble of Bill C-69 also states that “the Government of Canada is committed to assessing how groups of women, men and gender-diverse people may experience policies, programs and projects and to taking actions that contribute to an inclusive and democratic society and allow all Canadians to participate fully in all spheres of their lives.”

Disappointment at the Bank: The Fish Habitat Banking Provisions of Bill C-68

By Dave Poulton

On April 17, 2018

In Environmental, Fisheries Regulation, Protection of Species

By: Dave Poulton

PDF Version: Disappointment at the Bank: The Fish Habitat Banking Provisions of Bill C-68

Legislation Commented On: Bill C-68: An Act to amend the Fisheries Act and other Acts in consequence

Over the past weeks several ABlawg contributors have posted their summaries and commentary on the suite of environmental assessment and protection legislation introduced by the federal government in the form of Bills C-68 and C-69. The series started with Martin Olszynski’s overview of the two pieces of legislation, to which readers are referred for background to my contribution.

The purpose of this post is to examine fish habitat banking, a fisheries management tool that for the first time stands to be legislated through the amendments to the Fisheries Act, RSC 1985, c F-14 found in Bill C-68. Habitat banking is a mechanism to enable the provision of habitat “offsetting”. To understand habitat banking, therefore, it is necessary to start with the concept of offsetting.