Category Archives: Protection of Species

Triggering Federal Impact Assessment: Lessons from Down-Under

By: Sharon Mascher

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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 →

Assessing Adaptive Management in Alberta’s Energy Resource Sector

By: Martin Olszynski

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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 →

Comments on the Proposed Species at Risk Act Permitting Policy

By: Shaun Fluker and Drew Yewchuk

PDF Version: Comments on the Proposed Species at Risk Act Permitting Policy

Proposed Policy Commented On: Government of Canada. Species at Risk Act Permitting Policy [Proposed]

Environment and Climate Change Canada has released a series of proposed new guidelines for interpreting various portions of the Species at Risk Act, SC 2002, c 29 (SARA). One of these new proposals is policy guidance on how section 73 of SARA will be interpreted and applied – the Species at Risk Act Permitting Policy. Section 73 is the provision in SARA which allows for the authorization of harm to listed endangered or threatened species or their critical habitat. In the absence of a section 73 permit, such harm constitutes an offence under SARA. The Public Interest Law Clinic was retained by the Alberta Wilderness Association and the Timberwolf Wilderness Society to assist them in formulating a submission to Environment and Climate Change Canada on this proposed new policy guidance for section 73, and this post reproduces the essence of that submission below.

This submission begins by setting out principles which should guide the interpretation of the Species at Risk Act, SC 2002, c 29 [SARA]. This submission then provides the relevant portions of section 73 along with judicial consideration thereof. This submission then proceeds by providing our comments on the proposed policy guidance. Continue reading →

Fisheries Act Review Should Be Evidence-Based

By: Martin Olszynski

PDF Version: Fisheries Act Review Should Be Evidence-Based

Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful. Continue reading →

Habitat Protection for the Westslope Cutthroat Trout in Alberta

By: Shaun Fluker

PDF Version: Habitat Protection for the Westslope Cutthroat Trout in Alberta

Matter Commented On: Critical Habitat of the Westslope Cutthroat Trout (Oncorhynchus clarkii lewisi) Alberta Population Order, SOR/2014-241 (November 20, 2015)

On December 2, 2015, the Minister of Fisheries and Oceans Canada published a critical habitat protection order issued under sections 58(4) and (5) of the Species at Risk Act, SC 2002, c 29 (SARA) covering identified critical habitat for the westslope cutthroat trout located on Alberta public lands. Over the last 12 months the Faculty’s Environmental Law Clinic assisted the Alberta Wilderness Association and the Timberwolf Wilderness Society in their efforts to see this Order issued by the Minister. This comment revisits the process that ultimately led to this Order and describes the Order itself. At the outset it is worth noting this is only the second critical habitat protection order issued to date under sections 58(4) and (5) of SARA, and the first such order to be applied on provincial lands.

Continue reading →