Category Archives: Environmental

Coal Development Consultation Terms of Reference Revisited

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Matter Commented on: Terms of Reference for the Coal Policy Consultation Committee, dated March 29, 2021

This is the seventh instalment in the ABlawg series on coal law. See Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?, Part Four: The Regulation of Coal Exploration, Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?, and Part Six: Coal Consultation Terms of Reference.

Nigel Bankes’ post “Part Six: Coal Consultation Terms of Reference” concerns the Terms of Reference (ToR) for the Coal Policy Consultation Committee (CPCC). The CPCC is responsible for consulting with Albertans as part of the process leading to the provincial government’s development of a “modern coal development policy” to replace the 1976 A Coal Development Policy for Alberta (the 1976 Coal Policy). In his post on the ToR, Professor Bankes, like most commentators, construed the ToR as being very narrow and precluding meaningful discussion of coal development, environmental and water matters, and land-use planning. Professor Bankes observes:

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Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part III (Commentary)

By: Nigel Bankes, Andrew Leach & Martin Olszynski

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Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the third in a series of posts regarding the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA)). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. The second post summarized the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. In this post, we provide commentary on four aspects of the Reference: the breadth of the matter and the characterization of the GGPPA, the constitutional implications of minimum national standards as defined in this case, the role of provincial inability and extraprovincial effects, and finally the role of domestic courts in adjudicating a global problem like climate change

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Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part II (The Dissents)

By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part II (The Dissents)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

This is the second in a series of posts on the Supreme Court of Canada’s much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime: Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference) (Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). The first post summarized the legislation and the majority opinion written by Chief Justice Richard Wagner. In this post, we summarize the dissenting opinions of Justices Suzanne Côté, Russell Brown and Malcolm Rowe. Our goal in reviewing the dissents is to highlight areas of agreement and disagreement between the majority and the dissents.

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Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)

By: Nigel Bankes, Andrew Leach & Martin Olszynski

PDF Version: Supreme Court of Canada Re-writes the National Concern Test and Upholds Federal Greenhouse Gas Legislation: Part I (The Majority Opinion)

Case Commented On: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII)

The essential factual backdrop to these appeals is uncontested. Climate change is real. It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions… (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) at para 2)

On March 25, 2021, the Supreme Court of Canada released its much-anticipated reference opinion regarding the constitutionality of the federal government’s greenhouse gas (GHG) pricing regime. In Reference re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11 (CanLII) (GGPPA Reference or the Reference), a majority of the Supreme Court held that the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA) fell within Parliament’s residual power to make laws for “peace, order, and good government” (POGG), as set out in section 91 of the Constitution Act, 1867. Writing for the majority, Chief Justice Richard Wagner concluded that setting minimum national standards of GHG price stringency to reduce GHG emissions was a “matter of national concern” (at para 4), a recognized branch of the POGG power. Justices Suzanne Côté, Russell Brown, and Malcolm Rowe dissented, each for different reasons. Importantly, Justice Côté agreed with the majority on the national concern issue.

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Reporting Obligations Under the Species at Risk Act: A Review of the Westslope Cutthroat Trout Recovery Strategy Implementation Progress Report

By: Dana Poscente and Drew Yewchuk

PDF Version: Reporting Obligations Under the Species at Risk Act: A Review of the Westslope Cutthroat Trout Recovery Strategy Implementation Progress Report

Matter Commented On: Fisheries and Oceans Canada, Report on the Progress of Recovery Strategy Implementation for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population (also known as the Saskatchewan-Nelson River Populations) in Canada for the Period 2014 to 2019 (Species at Risk Act Recovery Strategy Report Series) (Ottawa: Fisheries and Oceans Canada, 2021)

This post discusses the recent “Report on the Progress of Recovery Strategy Implementation for the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population” (WSCT Implementation Report), assesses whether the WSCT Implementation Report meets the criteria set out in the Species at Risk Act, SC 2002 c 29 (SARA), and describes the overall problems with implementation reports under SARA.

The Westslope Cutthroat Trout is a freshwater fish native to western North America, recognizable for the orange-red slashes under its lower jaw. Throughout much of its range, this species is the only native true trout, and as such it plays an important role in its ecosystems and is viewed as an indicator species of general ecosystem health (SARA Registry, “Species Details”). The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) assessed the Alberta population of Westslope Cutthroat Trout as threatened in both 2006 and 2016. The reason for this designation was that the population had been reduced by almost 80 percent through over-exploitation, habitat degradation, and hybridization and competition with introduced, non-native trout. As well, the range of the Westslope Cutthroat Trout is currently less than 20 percent of its observed historical range, and the existing range is severely fragmented (WSCT Implementation Report at 3, citing the 2016 COSEWIC Assessment).

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