Category: Environmental Page 44 of 60

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

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between the federal and provincial outcomes was noted at the time and in the ensuing debate over the fate of the since-repealed Canadian Environmental Assessment Act, SC 1992, c-37).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.

“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

By Sharon Mascher

On November 1, 2013

In Environmental

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

By Nigel Bankes

On October 11, 2013

In Environmental

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.

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

By Shaun Fluker

On October 3, 2013

In Access to Justice, Environmental, Intervenors and Standing

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.

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

By Martin Olszynski

On September 24, 2013

In Administrative Law, Constitutional, Environmental, Protection of Species

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.