Category Archives: Environmental

CPAWS Presents to the Expert Panel for Environmental Assessment

By: Shaun Fluker, Kristina Roberts, and Drew Yewchuk

PDF Version:  CPAWS Presents to the Expert Panel for Environmental Assessment

Case Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime continues to hear presentations on recommended amendments to the federal environmental assessment process (Professor Martin Olszynski published his presentation to the Panel in an earlier post). The University of Calgary’s Public Interest Law Clinic was retained to advise and assist the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter and National Office in making recommendations to the Panel. On November 23, 2016, Professor Shaun Fluker together with Anne-Marie Syslak, the Executive Director of CPAWS – Southern Alberta, co-presented to the Panel on behalf of CPAWS. This submission focused exclusively on the current state of the federal environmental assessment process in Canada’s national parks under the Canadian Environmental Assessment Act 2012, SC 2012 c 19 s 52, a process which is perhaps best summarized as non-transparent, unaccountable, and completely discretionary. What follows is an excerpt from the CPAWS presentation to the Panel. Continue reading →

Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

By: Martin Olszynski

PDF Version: Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

Matter Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime lands in Calgary this week. Professor Emeritus Arlene Kwasniak and I are presenting to the Panel later today, while Professor Shaun Fluker and students from University of Calgary’s Public Interest Law Clinic will be presenting on Wednesday. In this post, I step back a bit from the nuts and bolts of environmental assessment and consider the nature of modern environmental law – and environmental assessment law in particular – as primarily a decision-making process and whether this is sufficient going forward. My full submission – indeed all submissions to the Panel – can be found on its website. Continue reading →

Comments on the Proposed Species at Risk Act Permitting Policy

By: Shaun Fluker and Drew Yewchuk

PDF Version: Comments on the Proposed Species at Risk Act Permitting Policy

Proposed Policy Commented On: Government of Canada. Species at Risk Act Permitting Policy [Proposed]

Environment and Climate Change Canada has released a series of proposed new guidelines for interpreting various portions of the Species at Risk Act, SC 2002, c 29 (SARA). One of these new proposals is policy guidance on how section 73 of SARA will be interpreted and applied – the Species at Risk Act Permitting Policy. Section 73 is the provision in SARA which allows for the authorization of harm to listed endangered or threatened species or their critical habitat. In the absence of a section 73 permit, such harm constitutes an offence under SARA. The Public Interest Law Clinic was retained by the Alberta Wilderness Association and the Timberwolf Wilderness Society to assist them in formulating a submission to Environment and Climate Change Canada on this proposed new policy guidance for section 73, and this post reproduces the essence of that submission below.

This submission begins by setting out principles which should guide the interpretation of the Species at Risk Act, SC 2002, c 29 [SARA]. This submission then provides the relevant portions of section 73 along with judicial consideration thereof. This submission then proceeds by providing our comments on the proposed policy guidance. Continue reading →

Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

By: Nigel Bankes

PDF Version: Oil Sands Emission Limit Legislation: A Real Commitment or Kicking It Down the Road?

Legislation Commented On: Bill 25: The Oil Sands Emission Limit Act

Alberta’s Climate Leadership Plan has four key planks:

  1. Phasing out emissions from coal-generated electricity and developing more renewable energy
  2. Implementing a new carbon price on greenhouse gas emissions
  3. A legislated oil sands emission limit
  4. Employing a new methane emission reduction plan

The province introduced legislation to implement an economy-wide carbon price in June (the Climate Leadership Implementation Act) and in the resumed session this fall (2016) it has introduced Bill 25: The Oil Sands Emission Limit Act to implement the third objective, a legislated oil sands emission limit. This was not something that the Leach Report had recommended but here is what the Government said in making this commitment: Continue reading →

Extending Limitation Periods for Environmental Actions

By: Nickie Nikolaou

PDF Version: Extending Limitation Periods for Environmental Actions

Case Commented On: Lakeview Village Professional Centre Corporation v Suncor Energy Inc, 2016 ABQB 288 (CanLII)

The nature of environmental contamination often requires the bending of usual legal rules. Because contamination can take years to develop or be discovered, the application of traditional limitation periods to actions for the recovery of damages from environmental contamination could result in unfairness. It could also mean the ultimate costs of clean-up would fall to the public purse if no financially viable party is liable for the clean-up. Alberta has modified its statutory limitation periods to address this problem. Section 218 of the Environmental Protection and Enhancement Act, RSA 2000, c. E-12 (EPEA) allows a court to extend a limitation period “where the basis for the proceeding is an alleged adverse effect resulting from the alleged release of a substance into the environment.” After years on the books, this is the first case to clarify the procedure courts should follow under section 218 of the EPEA. Continue reading →