University of Calgary Faculty of Law ABLawg.ca logo over mountains

Category: Environmental Page 46 of 59

Migratory Birds and the City

By

On February 25, 2013

In Environmental, Protection of Species

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.

Read More

No Public Interest Standing at the Alberta Environmental Appeals Board

By

On February 15, 2013

In Environmental, Intervenors and Standing, Water Law

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.

Read More

The Responsible Energy Development Act and the Water Act – cloudy confluences

By

On January 7, 2013

In Environmental, Oil & Gas, Responsible Energy Development Act, Water Law

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.

Read More

How the Canadian Forces defended the Sprague’s Pipit

By

On December 13, 2012

In Environmental

PDF version: How the Canadian Forces defended the Sprague’s Pipit

Decisions considered:

Decision Statement issued November 30, 2012 re: Cenovus (formerly EnCana) Shallow Gas Infill Development Project proposed for the Suffield National Wildlife Area, online here.

Re: EnCana Shallow Gas Infill Development Project – Review Panel Report under the Canadian Environmental Assessment Act, EUB Decision 2009-008, online here (the “2009 Panel Report”).

 In October 2008 a joint review panel constituted under the Canadian Environmental Assessment Act, SC 1992, c 37 heard submissions and evidence from EnCana Corporation as the proponent of a proposed shallow gas well project (up to 1275 wells) to be located at the Canadian Forces Base Suffield National Wildlife Area in southeastern Alberta (the “Cenovus gas project”).  The panel also heard submissions and evidence from other interested parties such as Environment Canada, the Department of National Defence, and a coalition of environmental groups including the Alberta Wilderness Association.  Being a project located on federal lands (a national wildlife area designated under the Canada Wildlife Act, RSC 1985, c W-9), provincial departments such as Alberta Environment and Sustainable Resource Development played a minimal role in the proceedings.  The joint review panel issued its assessment on January 27, 2009, essentially recommending to the federal Minister of Environment that the Cenovus gas project should not proceed until (1) critical habitat was designated for 5 listed species under the Species at Risk Act, SC 2002, c 29 [SARA], and (2) the project was designed to ensure it would not be located within these designated critical habitat areas or alternatively was expressly permitted to do so under the Species at Risk Act (2009 Panel Report at 171).  The Minister of Environment responded on November 30, 2012 with a Decision Statement issued under section 54 of the Canadian Environmental Assessment Act 2012, SC 2012, c 19, s 52 (CEAA 2012) declaring that the Cenovus gas project was likely to cause significant adverse environmental effects that are not justified in the circumstances.  Section 6 of CEAA 2012 prohibits Cenovus from proceeding with the Cenovus gas project and section 7 prohibits a federal authority from approving the project.  That is the news.  What follows is some commentary.

Read More

Bill 2 the Responsible Energy Development Act and the Duty to Consult

By

On November 19, 2012

In Administrative Law, Environmental, Natural Resources, Oil & Gas, Responsible Energy Development Act

PDF version: Bill 2 the Responsible Energy Development Act and the Duty to Consult

Proposals commented on: Bill 2, the Responsible Energy Development Act, Alberta and the First Nations Consultation Policy, Discussion Paper, (Fall 2012).

There has been a lively debate in the courts, tribunal decisions and the literature over the last few years as to the role of administrative tribunals in discharging or examining the Crown’s duty to consult aboriginal peoples when contemplating making decisions and developing policies which may adversely affect aboriginal or treaty rights.  There are two guiding rules.  First, a tribunal that has the authority to decide questions of law is presumed to have the jurisdiction to decide questions of constitutional law including the question of whether or not the Crown has satisfied its constitutional duty to consult and accommodate – provided that the constitutional question is rationally connected to a power or jurisdiction that the tribunal is exercising.  The legislature may rebut that presumption by removing all or part of that jurisdiction from a tribunal.  Second, a tribunal does not have the authority to discharge the Crown’s duty to consult and accommodate unless that authority is expressly delegated to the tribunal.  The principal authority for all of this is Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 which I blogged at here.

Read More

Page 46 of 59

Previous

Next

Powered by WordPress & Theme by Anders Norén