Category Archives: Protection of Spaces

Kananaskis Conservation Pass

PDF Version: Kananaskis Conservation Pass

Ministerial Order Commented On: Ministerial Order 51/2021 (Environment and Parks)

On May 27, the Minister of Environment and Parks (Jason Nixon) issued Ministerial Order 51/2021 to impose a fee to access Kananaskis Country. This new access fee applies to many popular parks and recreational areas in Kananaskis Country such as West Bragg Creek, Barrier Lake, Elbow Falls, Evans Thomas Creek, Spray Lakes, and Highwood Pass. Payment of the fee provides the purchaser with a Kananaskis Conservation Pass. The geographic scope of the fee requirement is curiously both over and under inclusive in relation to its name. The boundary map on the Alberta parks website (and attached to Ministerial Order 51/2021) indicates the access fee applies to areas outside of what is commonly known as Kananaskis Country (e.g. portions of the Bow Valley Wildland Park east of Canmore, including Grotto Canyon and Mount Yamnuska) and – as was pointed out by Nathan Schmidt (JD 2021) here – the fee does not apply to the McLean Creek area which is clearly within Kananaskis Country. This post critically examines the legislative changes made to implement the Kananaskis Conservation Pass requirement. Continue reading →

Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

By: Anna-Maria Hubert and Neil Craik

PDF Version: Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

Document Commented On: International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/72/249, provisionally available as document A/72/L.7

This past November, based on the recommendations of the Preparatory Committee (PrepCom) established under General Assembly Resolution 69/292, the UN General Assembly agreed in Resolution 72/249 to convene an intergovernmental conference “to consider the recommendations of the preparatory committee on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible” (para 1). Continue reading →

Triggering Federal Impact Assessment: Lessons from Down-Under

By: Sharon Mascher

PDF Version: Triggering Federal Impact Assessment: Lessons from Down-Under

Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

On April 5, 2017, the Expert Panel on the Review of Federal Environmental Assessment Processes released a report entitled Building Common Ground: A New Vision for Impact Assessment in Canada proposing major reforms to Canada’s federal environmental assessment processes. Professor Arlene Kwasniak has provided some background and an overview of key aspects of the report. Professor Shaun Fluker and Drew Yewchuk have commented on the Panel’s response to concerns raised by the University of Calgary’s Public Interest Law Clinic on behalf of the Canadian Parks and Wilderness Society (CPAWS) Southern Alberta Chapter in relation to discretion, transparency and accountability.

The focus of this post is to comment on the Panel’s recommendations relating to the first of three fundamental questions it considered – what should require federal impact assessment (IA)? In answering this question, the Expert Panel reached the overall conclusion that “[t]here should be an appropriate threshold for effects on federal interests so that a trivial impact does not trigger IA. This threshold, defined as a consequential impact, should be tied to the sustainability framework.” To achieve this outcome, the Expert Panel recommends three different triggering mechanisms for projects, plans and policies clearly linked to matters of federal interest. The Expert Panel notes that Australia takes a similar approach, with environmental assessments required when a proposed action is “likely to have a significant impact on a matter of national environmental significance.” This post explores the similarities and differences between the Panel’s recommendations and the approach taken in Australia to ask what lessons can be learned from the Australian experience. Continue reading →

Municipal Government Board Rules on Development Impacts to the G8 Legacy Wildlife Underpass in the Bow Valley

By: Shaun Fluker

PDF Version: Municipal Government Board Rules on Development Impacts to the G8 Legacy Wildlife Underpass in the Bow Valley

Case Commented On: Town of Canmore v M.D. of Bighorn No. 8, 2017 ABMGB 10

Say again? The Municipal Government Board created by the Municipal Government Act, RSA 2000, c M-26 to adjudicate on municipal affairs such as linear property assessment, annexation, subdivision, and inter-municipal disputes has ruled on a significant wildlife issue in the Bow Valley? And not just any wildlife issue – a dispute concerning the functionality of the G8 Legacy Wildlife Underpass – a key wildlife connectivity feature located just east of Canmore and built with funds provided from the G8 Economic Summit hosted in Kananaskis during June 2002. How can this be? Well really, it should not be. There is a longstanding and seemingly bitter municipal dispute ongoing between the MD of Bighorn and Canmore over urban development in the Bow Valley, and the Board has just ruled in favour of proposed development by the MD of Bighorn for the hamlet of Dead Man’s Flats. However, the dispute between the MD of Bighorn and Canmore over development is just smoke and mirrors for what is really at stake here – the integrity of the G8 Legacy Wildlife Underpass as a highly used connectivity feature that allows wildlife to avoid crossing the highway while moving through the human-congested Bow Valley. With all due respect to the members of the Municipal Government Board who heard this matter and deliberated on the issues, I think the Board accepted pie-in-the-sky solutions to a serious and escalating land use problem in the Bow Valley. In my humble opinion the Board ought to have declined jurisdiction to hear this dispute. For reasons set out below, I suggest the Lieutenant Governor in Council should refer this to the Natural Resources Conservation Board pursuant to section 4(f) of the Natural Resources Conservation Act, RSA 2000, c N-3. Continue reading →

Assessing Adaptive Management in Alberta’s Energy Resource Sector

By: Martin Olszynski

PDF Version: Assessing Adaptive Management in Alberta’s Energy Resource Sector

Research Commented On: “Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (UBC L Rev) (Forthcoming)

It was three years and six months ago – almost to the day – that I published my first ABlawg post. The Joint Review Panel (JRP) assigned to conduct the environmental assessment of Shell’s then-proposed Jackpine oil sands mine expansion project had just released its report. That report was notable for several reasons, including that it was the first to conclude that an oil sands mine was likely to result in “significant adverse environmental effects” pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012). In Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?, however, I focused on the role that adaptive management had played in the Joint Review Panel’s determination of the project’s environmental effects. Briefly, adaptive management is defined by the Canadian Environmental Assessment Agency as “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” The concern that I have expressed over the past few years is that, as practiced in Canada, adaptive management appears to be seldom planned or systematic. The problem was that I couldn’t show this to be the case – until now.

In a recent paper, I examine the implementation and effectiveness of adaptive management in Alberta’s energy resources sector. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, I collected the environmental impact statements, environmental assessment reports (e.g. the Shell Jackpine JRP Report), statutory approvals and required follow-up reports for thirteen energy projects in Alberta: two coal mines, three oil sands mines, and eight in situ oil sands operations. In each case, the proponent proposed adaptive management for at least one environmental issue or problem. I then analyzed these various documents to determine the conception, implementation, and, to the extent possible, effectiveness of adaptive management with respect to each project throughout the regulatory cycle (i.e. from the proposal stage through to approval and reporting). Simply put, I set out to determine how adaptive management was actually being applied in this context.

Unfortunately, the results confirm longstanding concerns about the implementation of adaptive management in natural resources development. Continue reading →