Category Archives: Environmental

“Wide and Deep”: Implications of the SCC’s Castonguay decision on the Interpretation of Environmental Protection Legislation, Fulfilling Reporting Requirements, Reporting Authorities’ Obligations and the Precautionary Principle

PDF Version: “Wide and Deep”: Implications of the SCC’s Castonguay decision on the Interpretation of Environmental Protection Legislation, Fulfilling Reporting Requirements, Reporting Authorities’ Obligations and the Precautionary Principle

Case commented on: Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52

On October 17, 2013, in Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52 [Castonguay] the Supreme Court of Canada dismissed the appeal of Castonguay Blasting Ltd. upholding a conviction under section 15(1) of the Ontario Environmental Protection Act, RSO 1990, c E 19 (EPA), for failing to report the discharge of a contaminant. As Justice Abella, writing for a unanimous Court, states at the outset of her judgment, the Court was asked to engage in an interpretative exercise to determine whether, on these facts, the reporting requirement was triggered. At the end of the day, the Supreme Court of Canada considered this a relatively straight forward exercise, in that “there is clarity both of legislative purpose and language: the Ministry of the Environment must be notified when there has been a discharge of a contaminant out of the normal course of events without waiting for proof that the natural environment has, in fact been impaired. In other words: when in doubt, report.” (at para 2).

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Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

PDF Version: Separation of Powers and the Government’s Response to the Judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567

Responses commented on: (1) “Still Alberta’s prerogative to say who speaks at oilsands reviews: Alison Redford” as reported by Canadian Press, Calgary Herald, October 4, 2013, and (2) “Environment minister defends officials in oil sands case”, as reported by James Wood, Calgary Herald, October 9, 2013

My colleague Shaun Fluker posted a comment on the judgment in Pembina Institute v Alberta (Environment and Sustainable Resources Development), 2013 ABQB 567 last week here. In that case Justice Marceau ruled that a Director within the Department of Environment and Sustainable Resources Development acted unlawfully when he decided that the Pembina Institute and the Fort McMurray Environmental Association were not entitled to file a statement of concern with respect to the MacKay River oil sands project. Justice Marceau ruled that the Director in making his decision took into account irrelevant and improper considerations – namely that the applicants were no longer as cooperative as they had been in their dealings with government in relation to oil sands developments and the environmental impacts of those developments.

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The Smoking Gun Revealed: Alberta Environment Denies Environmental Groups Who Oppose Oil Sands Projects the Right to Participate in the Decision-Making Process

PDF Version: The Smoking Gun Revealed: Alberta Environment Denies Environmental Groups Who Oppose Oil Sands Projects the Right to Participate in the Decision-Making Process

Cases Considered: Pembina Institute v Alberta (Environment and Sustainable Resource Development), 2013 ABQB 567

This decision by Justice Marceau exposes the very disconcerting trend in Alberta of public officials – in particular those with Alberta Environment – opposing the participation of environmental groups in resources and environmental decision-making. Think about this for a minute. Public officials who work on behalf of Albertans and are paid with public funds actively, and in some cases aggressively, oppose participation by organized members of the public seeking input into how public resources are allocated and developed. To be sure, there is something terribly amiss within the corridors of Alberta Environment. The Pembina Institute and the Fort McMurray Environmental Association have served Albertans generally in bringing attention to this by defending their right to participate in the decision-making process concerning a SAGD (Steam Assisted Gravity Drainage) oil sands project along the MacKay River.

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Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

PDF Version: Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here). Ostensibly, this is a ‘good news’ story about the separation of powers at work: The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

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Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

PDF version: Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

Cases commented on: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

James Madison, Federalist Papers No. 47

It is commonly understood that Canada’s Parliamentary system of democratic governance is an example of a “weak” separation of powers. In contrast to the United States, where generally speaking the Legislature (i.e. Congress) is responsible for passing laws, the Executive (i.e. the President) for implementing them and the Judiciary for interpreting them, in Canada — at least in “majority” situations — the Legislature (i.e. Parliament) is effectively (if not theoretically) controlled by the Executive (i.e. the Prime Minister and his Cabinet). The fairly predictable result is that laws passed by Parliament tend to give statutory delegates considerable discretion, which in turn allows them to implement government policy on a case-by-case basis without much restraint. In the environmental and natural resources context, most commentators regard this as a bad thing because it tends to favor short term economic and/or political gain over long term economic and environmental sustainability. But there is an emerging threat to the already weak separation of powers in Canada that should be of concern to all lawyers and academics, if not all Canadians. I refer to the Supreme Court of Canada’s (SCC) current approach to judicial review, and the standard of review in particular.

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