Category: Environmental Page 9 of 53

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

On April 28, 2021

In Climate Change, Environmental, Supreme Court of Canada

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.

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

By Dana Poscente

On April 23, 2021

In Environmental, Protection of Species

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).

Coal Law and Policy Part Six: Coal Consultation Terms of Reference

By Nigel Bankes

On April 21, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Coal Law and Policy Part Six: Coal Consultation Terms of Reference

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

This is the sixth 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, and Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

These previous posts have traced recent developments in coal law and policy in Alberta, including the revocation of the Coal Development Policy of 1976 effective June 1, 2020, the limited reinstatement of that Policy on February 8, 2021 following broad opposition from civil society, and the promise by the Minister of Energy, Sonya Savage to engage in “widespread consultations on a new coal policy.”

Following that last announcement (which was also accompanied by a Ministerial Directive to the Alberta Energy Regulator, available as an appendix to Department of Energy, Information Letter IL 2021-07) and a second (February 23, 2021) news release promising “a comprehensive consultation plan”, the Minister went on most recently to establish (March 29, 2021, Engaging with Albertans on a modern coal policy) the Coal Policy Consultation Committee (CPCC). The Committee is to be chaired by Ron Wallace, a former member of the National Energy Board. The four other members are Fred Bradley, a former conservative MLA and former Alberta minister of the environment, Natalie Charlton, the executive director of the Hinton and District Chamber of Commerce, Bill Trafford, the president of the Livingstone Landowners’ Group, and Eric North Peigan, who is a small business owner and a member of Piikani Nation.

Indigenous Law, the Common Law, and Pipelines

By Kent McNeil

On April 8, 2021

In Aboriginal, Energy, Environmental

By: Kent McNeil

PDF Version: Indigenous Law, the Common Law, and Pipelines

Matter Commented On: Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII)

The extent to which Indigenous law is part of Canadian law along with the common law and civil law has become a major issue over the past two decades. Judges have been reluctantly wading into the matter, expressing somewhat inconsistent opinions. A recent example is in Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII), involving an application by a pipeline company for an interlocutory injunction.

Members of the Wet’suwet’en Nation in British Columbia oppose construction through their territory of a natural gas pipeline that would terminate at Kitimat on the West Coast (Shiri Pasternak, “No, those who defend Wet’suwet’en territory are not criminals”, The Globe and Mail (12 February 2020)). They set up blockades on service roads to prevent the project from proceeding, leading to the injunction application, which Justice Marguerite Church of the BC Supreme Court granted.

Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

By Aimee Huntington

On April 7, 2021

In Administrative Law, Energy, Environmental

By: Aimee Huntington, Niall Fink & Peter Shyba

PDF Version: Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

Cases Commented On: Blades et al v Alberta; TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII)

This is the sixth ABlawg post on Alberta Energy’s decision to rescind the 1976 Coal Development Policy for Alberta (the “Coal Policy”) in May of 2020 (the “Rescission”). Much has happened since May. At the time of writing, Energy Minister Sonya Savage has temporarily reinstated the Coal Policy with a commitment to “engage with Albertans in the first half of 2021 about the long-term approach to coal development in Alberta.” A Coal Policy Committee has been established, although details on public consultation remain unclear. It is also unclear whether the reinstatement renders moot the case of Blades et al v Alberta, an application for judicial review by two cattle ranchers initiated in July of 2020 (the “Blades Application”). Finally, it is still unclear how the reinstatement will affect approvals for coal exploration granted between rescission and reinstatement (on this point, see Nigel Bankes’ previous post). What is clear is that the government’s duty to consult stakeholders on changes to the Coal Policy will remain contentious in the foreseeable future.

The Blades Application highlighted multiple potential sources of an obligation to consult stakeholders, including provisions in the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), the common law, and constitutional claims raised by Indigenous intervenors. This post considers one particular source for this obligation: the legitimate expectations of stakeholders in the South Saskatchewan Region. We do so in light of the recent treatment of the doctrine of legitimate expectations in TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII).