Category: Environmental Page 52 of 59

Topic: Federal environmental assessment and effective public participation update

Good environmental assessment followed by well crafted permits, regulation, monitoring and follow-up responsive to the assessment, results in better planned projects, fewer environmental impacts, and often net environmental and social sustainability gains. The legislative authority for the federal government to carry out the assessment is found in the Canadian Environmental Assessment Act (SC 1992, c 37) (“CEAA“) and regulations. The federal government may assess a project when it has constitutional jurisdiction over an area that may be impacted by a project, and, generally, where the federal government has permitting authority over the project or an aspect of it, all as set out in the CEAA and regulations. These areas include fisheries, navigation, migratory birds, federal lands, Aboriginal interests, nuclear facilities, interprovincial and international matters. Having the exclusive right to regulate in these and other areas, only the federal government can do a fully responsive job in assessing impacts. This is because only the federal government is in a position to know what information it needs in the environmental assessment process in order to determine whether it should provide the permit for the project when taking into account likely environmental impacts. If the project does go ahead (like most projects do) only the federal government is in a position to know what it needs during the assessment process in order to properly mitigate and regulate impacts, especially on areas within its jurisdiction. Such mitigation and alteration could include project alterations, monitoring, follow up conditions, and adaptive management measures that may require the proponent to change environmental management because of unexpected impacts. As well, as the responsible protector of the public interest with respect to matters under its jurisdiction, only the federal government can wholly take into account the public and national interest during the environmental assessment and following regulatory processes.

Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL

By Jocelyn Stacey

On September 25, 2011

In Environmental, Oil & Gas

By: Jocelyn Stacey

PDF Version: Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL

Decisions Commented On: United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Final Environmental Impact Statement for the Proposed Keystone XL Project (August 26, 2011); National Energy Board, TransCanada Keystone Pipeline GP Ltd., OH-1-2009 (March 2010)

For two weeks in August, thousands of protesters staged a sit-in at the White House to protest the imminent approval of TransCanada’s Keystone XL pipeline expansion project. The project would connect the Alberta oilsands to the Gulf Coast market. In one of the biggest acts of environmental civil disobedience in decades, over 1,200 people were arrested and fined, including big names such as Daryl Hanna, Naomi Klein and NASA climatologist, James Hansen. While the Canadian regulatory process caused barely a ripple in the Canadian public conscience, American protesters have launched a full frontal attack drawing support from celebrities, Senators, Congress members, State Governors and Nobel Prize laureates. Keystone XL has become the next chapter in Alberta’s increasingly hostile relationship with American environmentalists. This post explains the American context of the Keystone XL proposal. Why has it is inflamed environmentalists, and is this more than just politics?

Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

By Nigel Bankes

On September 22, 2011

In Environmental

PDF version: Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

Regulation commented on: Alberta Land Stewardship Regulation, Alta. Reg. 179/2011

The Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA) is a work in progress: see my earlier blog: “ALSA and the property rights debate in Alberta: a certificate of title to land is not a ‘statutory consent’” We won’t know how this beast or angel will turn until we see the first approved plans (see my blog on the draft Lower Athabasca Plan (“The proof of the pudding: ALSA and the Draft Lower Athabasca Regional Plan“) and a complete set of implementing regulations. Here we have the next piece of the puzzle in the form of a set of regulations primarily concerned to implement the 2011 amendments to the ALSA (Bill 10, the Alberta Land Stewardship Amendment Act, 2011) which I blogged at “Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act” .

I wasn’t exactly a fan of Bill 10. I thought that it created too many opportunities to put roadblocks in the way of implementing plans. I don’t believe that it is necessary to provide for both plan reviews and variance applications, and I am still of the view that the compensable taking provisions of Bill 10 will foster needless and expensive litigation.

The Elephant in the Courtroom

By Shaun Fluker

On September 1, 2011

In Administrative Law, Environmental, Intervenors and Standing

PDF version: The Elephant in the Courtroom

Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act

By Nigel Bankes

On August 18, 2011

In Aboriginal, Environmental

PDF version: First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act

Case commented on: Adam v Canada (Environment), 2011 FC 962

Woodland caribou are listed as threatened under the Species at Risk Act, SC 2002, c 29 (SARA). The species (and particular herds of the species) are threatened by the fragmentation of their habitat principally due to resource developments including coal mining (see West Moberly First Nation v British Columbia (Chief Inspector of Mines), 2011 BCCA 247), oil and gas exploration, oil sands projects (mining and in situ) and forestry projects, and by the linear land use disturbances often associated with these projects including seismic lines, roads, transmission lines and pipelines. The species is also negatively impacted by increased predation.

But what should we do about this? The answer of governments in Alberta, British Columbia and the federal government seems to be as little as possible and as slowly as possible – for fear that any real action to recover the various herds will be too disruptive of the governments’ shared resource development agendas.

Category: Environmental Page 52 of 59

The Fading Federal Presence in Environmental Assessment and the Muting of the Public Interest Voice

Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL

Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

The Elephant in the Courtroom

First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act