PDF version: The Role of the “Noble Savage” in Environmental Social Activism
Context of discussion: Enbridge Northern Gateway Pipelines Project
This blog is to discuss what I call the “The Role of the Noble Savage” in the pursuit of environmental justice through social activism. I will use the Enbridge Northern Gateway Pipelines Project to provide context.
PDF version: Species at risk and an adjustment clause
Case considered: Matichuk v Quattro Holdings Ltd, 2013 ABQB 164.
The case of Matichuk v Quattro Holdings Ltd involves a contractual dispute over the sale of a parcel of agricultural land in St. Albert. The parties entered into a purchase and sale agreement in June 2012. The facts set out by Mr. Justice G.A. Verville suggest the Vendor was keen to sell and the Purchaser was keen to purchase in order to develop the land (I presume residential). Time was of the essence. The closing date was set for early October 2012. But the deal began to go sideways just a couple weeks before closing. The Purchaser sought an adjustment (reduction) on the purchase price to account for the facts that there are five wetlands on the property, some which may be Crown owned under section 3 of the Public Lands Act, RSA 2000, c P-30, and that a bird species listed as “special concern” under the Species at Risk Act, SC 2002, c 29 – was known to nest on the lands. The Vendor was not agreeable, and insisted on closing for the full purchase price. The parties filed counter claims and Mr. Justice G.A. Verville heard arguments in late February at the Court of Queen’s Bench. Justice Verville decided in favour of the Vendor, ruling the environment adjustments provision in the contract being relied upon by the Purchaser was so vague as to be meaningless and thus the Purchaser could not rely on it. Accordingly, Justice Verville found that the Purchaser had repudiated the contract by refusing to close the deal.
PDF version: Migratory Birds and the City
Decision considered: Podolsky v Cadillac Fairview Corp. [2013] OJ No 581 (QL) [Note as of date of writing this decision is not available online at Canlii or the Ontario Court of Justice].
In this recent decision of the Ontario Court of Justice, Justice Melvyn Green finds the corporate defendant property developers and managers not guilty of charges laid against them by Ecojustice as a private prosecutor under the federal Species at Risk Act, SC 2002, c 29 as well as the Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c O.36 and the Environmental Protection Act, RSO 1990, c E.19. The substance of these charges is the physical harm or death suffered by migratory birds when they collide with urban buildings. Justice Green rules the prosecution established beyond a reasonable doubt that the defendants committed the actus reus of the offences, and he also finds the defendants established on the balance of probabilities that they took reasonable steps to avoid the bird collisions. Accordingly, Justice Green acquits the defendants on all charges.
PDF version: No Public Interest Standing at the Alberta Environmental Appeals Board
Decisions considered: Alberta Wilderness Association v Alberta (Environmental Appeal Board), 2013 ABQB 44; Water Matters Society of Alberta et al v Director, Southern Region, Operations Division, Alberta Environment and Water, re: Western Irrigation District and Bow River Irrigation District (10 April 2012), Appeal Nos. 10-053-055 and 11-009-014-D (AEAB), (the “EAB Standing Decision”).
Over the past decade, Alberta Environment has amended water licenses held by irrigation districts (IDs) to allow these IDs to allocate water for commercial purposes other than irrigation. Some question the authority of Alberta Environment to approve these amendments under the Alberta Water Act, RSA 2000, c W-3. The general argument here is that such change-of-purpose license amendments should be handled as a transfer of license allocation under the Water Act. And this argument is grounded on several points, including that by using the license amendment route rather than a transfer the conservation holdback provision of the Water Act is avoided and the amendment approach involves significantly less opportunity for public oversight over water management. This latter point has borne out further as public interest groups have been consistently denied standing to contest these approvals by Alberta Environment and the Alberta Environmental Appeals Board (EAB). The summary point is that Alberta Environment and the EAB assert public interest groups do not qualify as “directly affected” by a license amendment, and thus have no standing to file a statement of concern with Alberta Environment and/or a notice of appeal with the Board under the Water Act to challenge the legality of these amendments.
PDF version: The Responsible Energy Development Act and the Water Act – cloudy confluences
After 18 consecutive hours of steamed debate Alberta Legislature passed Bill 2, the Responsible Energy Development Act, (REDA) into law on November 21st, 2012 (see Calgary Herald, 11-21-2012, here). The Bill received Royal Assent on December 10th, and except for some exceptions, comes into force on Proclamation (REDA, s 113). The ABlawg has distilled much of the Bill in its numerous discussions posted on Bill 2 (see posts under the category Responsible Energy Development Act here) and will continue its stream of comments on the REDA. This ABlawg post navigates some of the actual and potential impacts of the REDA on water management in the Province under the Water Act, RSA 2000, c W-3 (canlii), one of the “specified enactments” under the REDA. As will be seen, subject to forthcoming regulations, there could be a deluge of potential impacts, that could, unless the regulations are very clear, circumscribed, and publicized, obfuscate water management and perplex water users and the public.
