Category Archives: Environmental

The AER Does Not Have the Jurisdiction to Consider New Coal Applications for the Grassy Mountain Coal Deposit

By: Nigel Bankes

Matter commented on: Applications by Northback Holdings Corporation for a Coal Exploration Program on the Grassy Mountain Coal Deposit, including Application Number 1948547, Deep Drilling Permit

PDF Version: The AER Does Not Have the Jurisdiction to Consider New Coal Applications for the Grassy Mountain Coal Deposit

On September 5, 2023, Northback Holdings Corporation filed an application with the Alberta Energy Regulator (AER) for a Deep Drilling Permit in support of a coal exploration program on the Grassy Mountain coal deposit. This deposit is located north of Blairmore, Alberta on a combination of Crown coal lands and Northback’s privately owned land. Northback proposes to commence its exploration program as soon as possible. Northback’s applications have triggered an outpouring of opposition from the coalition of interests that fought the original Grassy Mountain coal project: see here (CPAWS) and here (Corb Lund). There has also been considerable media coverage of this latest development: see here (Bob Weber) and here (Andrew Nikiforuk). My purpose in writing this post is to make the case that (1) Northback was not entitled to make these applications to the AER, and (2) the AER has no business considering the merits of these applications because Northback’s new applications are subject to the general “no new coal rule” contained in a 2022 Ministerial Order directed at the AER (details below). Others have also made this case, including Canadian Parks and Wilderness Society (Southern Alberta Chapter) (CPAWS-SAB) and the Timberwolf Wilderness Society, but it still seems useful to summarize the arguments. Continue reading →

EIA Law Class Recommendations for Reforming Provincial Environmental Assessment

By: David V. Wright and the EIA Law Class

Matter Considered: Nova Scotia Environmental Assessment (EA) Modernization initiative and other existing and future initiatives to reform provincial assessment regimes

PDF Version: EIA Law Class Recommendations for Reforming Provincial Environmental Assessment

Last week, my Environmental Impact Assessment (EIA) Law class generated recommendations to submit to the Nova Scotia Environmental Assessment (EA) Modernization initiative. To do so, we employed a “policy lab” approach, which entails an open and collaborative space where students can be innovative and apply the expertise and knowledge they’ve gained through the course to date. The idea is essentially collaborative problem-solving that resembles what students will hopefully encounter in their future careers in law and policy reform, be it in private, public, not-for-profit, or other settings. In class, students worked in small groups focused on particular issues and areas (e.g. climate change, public participation) and then generated preliminary draft recommendations, workshopped those drafts with peers and professor, and then fine-tuned to finalize. The final version was submitted to the Nova Scotia engagement process. Nova Scotia was a natural focus because that jurisdiction is currently engaged in reform. Notably, this EA “modernization” is actually required by law, as it is an explicit commitment set out in s 12 of Nova Scotia’s Environmental Goals and Climate Change Reduction Act, SNS 2021, c 20 (EGCCRA) (for context about using a legislated approach to strengthen environmental governance, see this excellent article by Meinhard Doelle and William Lahey). Continue reading →

Supreme Court of Canada Will Soon Rule on the Constitutionality of the Federal Impact Assessment Act. Here’s What to Watch for…

By: David V. Wright

Matter Commented On: Forthcoming Supreme Court of Canada reference case in the Matter of 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, SC 2019, c 28 and the Physical Activities Regulations, SOR/2019-285; and the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal of Alberta under the Judicature Act, RSA 2000, c J-2, s 26

PDF Version: Supreme Court of Canada Will Soon Rule on the Constitutionality of the Federal Impact Assessment Act. Here’s What to Watch for…

For anyone interested in impact assessment in Canada, this is a suspenseful time. The Supreme Court of Canada (SCC) is expected to soon release its ruling on the constitutionality of the federal Impact Assessment Act, SC 2019, c 28 [IAA] and the associated Physical Activities Regulations, SOR/2019-285 (the latter setting out the list of projects that trigger application of the regime). My Environmental Impact Assessment Law seminar students and I are set to dive deeply into the decision as soon as it drops, and no doubt many others plan to do similar. For now, this short post sets out ten things to watch for. (For those interested in deeper dives into this statutory regime and how we got here, see my previous publications here, here and here). Continue reading →

Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

By: Martin Olszynski

Case Commented On: Yahey v British Columbia, 2021 BCSC 1287 (CanLII)

PDF Version: Counting Straws: Yahey v British Columbia and the Future of Cumulative Effects Management in Canada

Much has already been written about the British Columbia Supreme Court’s ground-breaking decision in Yahey v British Columbia, 2021 BCSC 1287 (CanLII) (also referred to as Blueberry River First Nation, BRFN, or simply Blueberry throughout). In Yahey, the Court agreed with the BRFN that, in the context of BFRN’s traditional territory in Northeastern British Columbia, “the cumulative effects of industrial development authorized by [British Columbia] have significantly diminished the ability of Blueberry members to exercise their rights to hunt, fish and trap in their territory as part of their way of life and therefore constitute an infringement of their treaty rights” (at para 3). My colleague Professor Robert Hamilton and former UCalgary Law JD student (now alumnus) Nick Ettinger wrote two outstanding blogs on the decision when it first came out: a first post summarized the decision, while a second focused on Yahey’s standard for treaty infringement, i.e., “meaningful diminishment”. They also published a law review article on the decision: Robert Hamilton and Nicholas P. Ettinger, “The Future of Treaty Interpretation in Yahey v British Columbia: Clarification on Cumulative Effects, Common Intentions, and Treaty Infringement,” 2023 54-1 Ottawa L Rev 109. In this (very) belated post spurred on by a presentation that I gave at an environmental law conference last month, I focus on the Court’s findings with respect to British Columbia’s approach to resource development, and specifically its failure to effectively manage the cumulative effects associated with oil and gas and forestry. In my view, and as further set out below, these findings and analysis are relevant to every level of government in Canada: federal, provincial, territorial, Indigenous, and municipal. Continue reading →

Biodiversity Offsets and the Species at Risk Act (Canada)

By: Shaun Fluker

Matter Commented On: Environment and Climate Change Canada Draft Offsetting Policy for Biodiversity

PDF Version: Biodiversity Offsets and the Species at Risk Act (Canada)

The federal government has a laudable objective of ‘no net loss’ for development projects that will harm biodiversity in Canada. For threatened species who will lose habitat because of development, the concept of ‘no net loss’ means either avoidance, mitigation, or offsets. Avoidance of habitat loss (e.g. no project) is rarely seriously considered – and is really nonsensical when a project footprint overlaps with habitat – and efforts aimed at mitigation of adverse effects on threatened species are widely known to be pie-in-the-sky measures with little or no effectiveness (see here). Thus, a ‘no net loss’ outcome in the context of choosing between development and protecting habitat necessarily means the use of biodiversity offsets. David Poulton has written extensively for ABlawg on the topic of biodiversity offsets and resource development (see e.g. here), and a constant theme in this topic is the legal and policy vacuum on biodiversity offsets. In 2016, the Public Interest Law Clinic submitted comments on a proposed offsets policy under section 73 of the Species at Risk Act, SC 2002, c 29 (Drew Yewchuk and I posted that submission to ABlawg here). Environment and Climate Change Canada (ECCC) has recently issued a draft Offsetting Policy for Biodiversity which will replace its 2012 policy, and this post publishes my submission letter giving comments to ECCC on the Offsets Policy as it relates to threatened species, in response to the public engagement which closed on February 17, 2023. Continue reading →