Category Archives: Protection of Species

The Curious Case of the Greater Sage Grouse in Alberta

By Shaun Fluker

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Legislation commented on: Emergency Order for the Protection of the Greater Sage Grouse, PC 2013-2045

The Greater Sage Grouse is on the brink of disappearing from the Canadian landscape and, in doing so, is leaving its mark on the Species at Risk Act, SC 2002, c 29 (SARA). Readers may recall that the sage grouse recovery strategy prepared under SARA was the subject of dispute several years back over the extent to which critical habitat for a species listed as endangered or threatened must be identified in the strategy (See Nigel Bankes’ ABlawg post “Is SARA growing teeth?”). The sage grouse recovery strategy has recently been amended (2013) to include all known critical habitat – both mating sites and year-round habitat – in Canada and to identify threats to the sage grouse (see here). But since the overwhelming majority of sage grouse habitat falls on provincial lands in Alberta, SARA offers little real protection to the sage grouse here in the absence of an Order in Council from federal Cabinet directing that SARA apply to provincial lands. Cabinet issued an Emergency Protection Order under section 80 of SARA in December 2013 that, to my surprise, applies to Alberta lands and the Order comes into force on February 18, 2014. This comment discusses the significance of the Order, adding to existing commentary (see Martin Olszynski’s earlier ABlawg post here, Janice Walton of Blakes LLP here and Jason Unger of the Environmental Law Centre here).

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A Stay of Proceedings and Endangered Species at the Environmental Appeals Board

PDF Version: A Stay of Proceedings and Endangered Species at the Environmental Appeals Board

Decision commented on: Hanson and Lindberg v Director, Northern Region, Operations Division, Alberta Environment and Sustainable Resource Development, re: County of St. Paul (07 November 2013), Appeal Nos. 13-005 and 006-ID1 (AEAB).

This is a decision on preliminary matters by the Alberta Environmental Appeals Board (EAB) concerning an approval issued by Alberta Environment and Sustainable Resource Development (AESRD) under the Water Act, RSA 2000 c W-3 to fill a wetland in the County of St. Paul. The EAB hearing on the merits of the approval will be heard in January 2014. Before the EAB in this matter was a request by the Appellants for a stay of the approval pending the merit hearing. The EAB grants the stay, and I will comment on that here. I also note this decision for its discussion on how the federal Species at Risk Act, SC 2002, c 29 (SARA) applies to this case – keeping in mind SARA is federal legislation but does have some application within provinces and thus it is of ongoing interest to observe how SARA is considered and applied by provincial authorities.

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Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

PDF Version: Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here). Ostensibly, this is a ‘good news’ story about the separation of powers at work: The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

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Justice for the Blanding’s Turtle at the Ontario Environmental Review Tribunal

PDF version: Justice for the Blanding’s Turtle at the Ontario Environmental Review Tribunal

Case commented on: Prince Edward (County) v Ontario (Ministry of the Environment), [2013] OERTD No 40.

Sometimes an exploration into what is missing will reveal more than a study of what is. An examination of how differently things are done elsewhere can tell us a lot about our own ways. Okay, perhaps it is just easier for me to say this comment looks at a recent decision of Ontario’s Environmental Review Tribunal to explore what it reveals about Alberta law governing energy projects and endangered species. In this case, Ontario’s Environmental Review Tribunal (the Tribunal) revokes an approval issued by the Director (Ministry of the Environment) under the Green Energy Act, SO 2009, c 12 for the construction of a wind turbine project on a peninsula of Crown land bordering Lake Ontario. The Tribunal’s decision is based on its finding that the project would cause serious and irreversible harm to the Blanding’s turtle – a species listed as threatened under Ontario’s Endangered Species Act, RSO 2007, c 6.

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Species at risk and an adjustment clause

PDF version: Species at risk and an adjustment clause

Case considered: Matichuk v Quattro Holdings Ltd, 2013 ABQB 164.

The case of Matichuk v Quattro Holdings Ltd involves a contractual dispute over the sale of a parcel of agricultural land in St. Albert. The parties entered into a purchase and sale agreement in June 2012. The facts set out by Mr. Justice G.A. Verville suggest the Vendor was keen to sell and the Purchaser was keen to purchase in order to develop the land (I presume residential). Time was of the essence. The closing date was set for early October 2012. But the deal began to go sideways just a couple weeks before closing. The Purchaser sought an adjustment (reduction) on the purchase price to account for the facts that there are five wetlands on the property, some which may be Crown owned under section 3 of the Public Lands Act, RSA 2000, c P-30, and that a bird species listed as “special concern” under the Species at Risk Act, SC 2002, c 29 – was known to nest on the lands. The Vendor was not agreeable, and insisted on closing for the full purchase price. The parties filed counter claims and Mr. Justice G.A. Verville heard arguments in late February at the Court of Queen’s Bench. Justice Verville decided in favour of the Vendor, ruling the environment adjustments provision in the contract being relied upon by the Purchaser was so vague as to be meaningless and thus the Purchaser could not rely on it. Accordingly, Justice Verville found that the Purchaser had repudiated the contract by refusing to close the deal.

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