Category Archives: Environmental

Shell Jackpine Mine Expansion Project: The Mysterious Case of the Missing Justification

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Document commented on: Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012 re: Shell Jackpine Mine Expansion Project (2013 ABAER 011/Decision 2013-011)

Last Friday (December 6, 2013), the federal Minister of the Environment, Leona Aglukkaq, released the long-awaited decision statement for Shell’s Jackpine Mine Expansion project. As I wrote here, the joint review panel concluded – for the first time in the oil sands context – that the project was likely to result in numerous significant adverse environmental effects. This conclusion triggered the application of subsection 52(2) of the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 (CEAA, 2012), pursuant to which the Governor in Council (GiC) must determine whether the project is nevertheless “justified in the circumstances.”  This the GiC did.  Or at least, we are told that it did.

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A Stay of Proceedings and Endangered Species at the Environmental Appeals Board

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Decision commented on: Hanson and Lindberg v Director, Northern Region, Operations Division, Alberta Environment and Sustainable Resource Development, re: County of St. Paul (07 November 2013), Appeal Nos. 13-005 and 006-ID1 (AEAB).

This is a decision on preliminary matters by the Alberta Environmental Appeals Board (EAB) concerning an approval issued by Alberta Environment and Sustainable Resource Development (AESRD) under the Water Act, RSA 2000 c W-3 to fill a wetland in the County of St. Paul.  The EAB hearing on the merits of the approval will be heard in January 2014. Before the EAB in this matter was a request by the Appellants for a stay of the approval pending the merit hearing. The EAB grants the stay, and I will comment on that here.  I also note this decision for its discussion on how the federal Species at Risk Act, SC 2002, c 29 (SARA) applies to this case – keeping in mind SARA is federal legislation but does have some application within provinces and thus it is of ongoing interest to observe how SARA is considered and applied by provincial authorities.

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New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

PDF Version: New Prosperity Mine Panel Report: A “Liberal and Generous,” “Complex,” and Rigorous Interpretation of CEAA 2012

Report commented on: Report of the Federal Review Panel – New Prosperity Gold-Copper Mine Project (October 31, 2013)

Last Thursday (October 31, 2013), the Canadian Environmental Assessment Agency (the Agency) released the highly anticipated federal panel report for Taseko’s proposed New Prosperity Mine project (New Prosperity Report). As many readers will know, this marks the second time that this particular proponent has been through the federal environmental assessment (EA) process.  A first attempt with respect to what was then referred to simply as the Prosperity Mine project was approved by British Columbia’s Environmental Assessment Office in 2009 but was thwarted in 2010 by several findings of significant adverse environmental effect (SAEE) by an initial federal panel, including the total destruction of Fish Lake, also known as Teztan Biny by the Tsilhqot’in First Nation. (As an aside, the discrepancy between the federal and provincial outcomes was noted at the time and in the ensuing debate over the fate of the since-repealed Canadian Environmental Assessment Act, SC 1992, c-37). Undeterred (and seemingly prompted by the federal government), Taseko quickly revised its project with a view first and foremost towards avoiding the outright destruction of Fish Lake and in 2011 re-submitted it to the federal EA process.  Alas for the company, two deficiency statements and one 24-day public hearing later, it appears to be no closer to realizing its project than it was three years ago, the second federal panel having now concluded that the New Prosperity Mine project is also likely to result in SAEE on several fronts.

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“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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