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Earlier this month, the Report of the Commissioner of the Environment and Sustainable Development (the “Report”) was released.   This Report is the first issued by Julie Gelfand, the recently appointed Commissioner of Environment and Sustainable Development.

Several important questions are posed in the Report (page 1). Are federal departments prepared to meet the challenges of the future?  Are federal departments gathering sufficient information to manage the environmental and social risks that economic development can bring?  And if so, are they acting on this information to reduce these risks?  In answering these questions, the Report looks at:

  • the reduction of greenhouse gas (GHG) emissions,
  • environmental monitoring of oils sands development,
  • marine navigation in the Canadian Arctic,
  • implementation of the Canadian Environmental Assessment Act, 2012 (CEAA 2012), and
  • selected federal departments’ progress in integrating environmental considerations into their policies, plans and programs through their strategic environmental assessment processes.

As usual, the Report also includes a review of environmental petitions over the audit period. Many of the recommendations contained in the Report were focused either on the federal government’s reduction of GHG emissions or implementation of CEAA 2012.

Reduction of greenhouse gas emissions

Relevant to GHG emission reduction, the Report focuses on progress in four areas: establishing measures to reduce GHG emissions; assessing the success of the measures; working with provinces and territories; and developing plans to achieve the 2020 Copenhagen Accord target.  The Report concludes that progress in these four areas has been unsatisfactory.

In particular, the Report states that climate change planning has been ineffective, and that those actions which have been taken have been slow and not well coordinated. It points out that the federal government lacks a process for coordinating actions with the provinces and territories.  The Report also states that it is concerned Canada will not meet its 2020 emission reduction target and notes that the federal government does not yet have a plan for how it will work toward the greater reductions required beyond 2020.

The Report contains several recommendations for improvement of the federal government’s efforts to reduce GHG emissions. Many of the recommendations focus on transparency issues such as publication of plans for future regulations, reporting on effects of current regulations and regular reporting to Parliament on progress.  As well, the Report recommends several improvements to the federal government’s planning process for GHG emission reduction.

Implementation of the Canadian Environmental Assessment Act, 2012

In light of recent changes to the federal environmental assessment regime, the Report focused on whether systems and practice necessary for implementation of CEAA 2012 have been put in place.  Two critical areas for meeting the objectives of CEAA 2012 were identified.

Firstly, there is a need for clarity and transparency around the basis on which projects are designated and screening decisions are made. The Report states that the Canadian Environmental Assessment Agency’s rationale for identification of projects for assessment is unclear.  This lack of clarity applies to the manner in which projects were or may be selected for inclusion or exclusion in the Regulations Designating Physical Activities), the process for recommending case-by-case designation of projects for environmental assessment and the screening process.

Secondly, there must be mechanisms to ensure meaningful participation by the public and Aboriginal peoples in environmental assessments. The Report states that there are such mechanisms in place; however, there are gaps which need to be addressed. These gaps include a lack of transparent guidance as to who may participate in public hearings and a lack of a systematic process for engaging with Aboriginal peoples on policy issues.

The Report contains several recommendations for improving the implementation of CEAA 2012.  These recommendations address the need for clarity and transparency around the basis on which projects are designated and screening decisions are made, and the mechanisms for ensuring meaningful public participation.  As well, the Report recommends that improvements be made to cumulative effects guidance for projects regulated under the Canada Oil and Gas Operations Act.

What does this mean?

Once again, the federal government is failing to meet Canada’s environmental challenges (see our posts on the Fall 2012 Report and the Fall 2013 Report).   As stated in the Report (page 5):

To prepare for resource development, federal departments need to take a more integrated approach to decision making, one that recognizes the many linkages between the economy, the environment, and society. They can do this by investing in better information, acting on the knowledge they acquire, and engaging Canadians in their decisions.

Pursuant to a desire to “streamline” environmental regulation, the federal government has made significant changes to Canada’s environmental laws (see our summary of changes here and here).  In our view, regulatory “streamlining” should not occur at the expense of meaningful public engagement, well informed decision-making or sufficient environmental protection.  As the Report states, “[l]eft unmanaged, today’s environmental risks will impose future economic and social costs” (page 2).

In recent months, there have been several interesting environmental law decisions issued by the Federal Court of Canada. In both Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII) and Council of the Innu of Ekuanitshit v Canada (Attorney General), 2014 FCA 189 (CanLII), the Court provides guidance on the federal environmental assessment regime.  Both these cases consider the previous Canadian Environmental Assessment Act (CEAA) but, despite massive changes to federal environmental assessment law, assist in interpreting and applying the new Canadian Environmental Assessment Act, 2012 (CEAA 2012).

In the Council of the Innu of Ekuanitshit decision, the Court considered an appeal from judicial review of an environmental assessment for the proposed Lower Churchill Hydroelectric Project.  In this case, the proposed project was reviewed by a Joint Review Panel, which found that the project was likely to result in significant adverse environmental impacts that the federal Cabinet found to be “justified in the circumstances.”  The Council of the Innu of Ekuanitshit challenged the decision on several grounds, including the justifiable adverse environmental impacts determination.

From the perspective of federal environmental assessment law, this decision is interesting because it considers the equivalent of section 52 of CEAA 2012, which requires the federal cabinet to decide whether significant environmental impacts can be “justified in the circumstances.” The Court stated that:

[paragraph 40] …the Court will only intervene with the GIC and Responsible Ministers’ decisions under subsections 37(1.1) and 37(1) if it finds that: 1) the CEAA statutory process was not properly followed before the section 37 decisions were made; 2) the GIC or Responsible Ministers’ decisions were taken without regard for the purpose of the CEAA; or 3) the GIC or Responsible Ministers’ decisions had no reasonable basis in fact; which is tantamount to an absence of good faith.

In his Ablawg post Professor Martin Olszynski argues – and we agree – that this decision suggests that the federal Cabinet decision must provide reasons for its determination that significant adverse environmental effects are “justified in the circumstances.” Typically, such reasons are not provided.  For example, the Cabinet decision in Northern Gateway simply stated that significant adverse impacts on woodland caribou and grizzly bear populations were justified in the circumstances.

In Greenpeace Canada v Canada (Attorney General), the Court considered the decision of a Joint Review Panel for the Darlington New Nuclear project proposed by Ontario Power Generation.  In this case, the environmental impact assessment was prepared by the project proponent using a plant parameter envelope approach since no particular nuclear reactor technology had been selected.  The Joint Review Panel accepted the plant parameter envelope approach and, ultimately, concluded that the project was not likely to cause significant adverse environmental effects.

Greenpeace challenged the adequacy of the environmental assessment and the Joint Review Panel report on the grounds that it was not possible to conduct an environmental assessment that met the requirements of CEAA when the reactor technology had not been chosen.  Greenpeace noted that other key project components, such as the site design layout, cooling system option, used nuclear fuel storage option and radioactive waste management option, also remained unspecified.

In the course of its decision, the Court clarified the role of review panels in the context of the federal environmental assessment regime:

[Paragraph 58] While review panels do not decide whether projects should be permitted to proceed, Parliament has entrusted them with the important, non-delegable responsibility of assessing and reporting upon major projects so that responsible authorities can make informed EA decisions. Since the Act does not expressly empower review panels to delegate their obligations under s. 34, they must fully complete their duties before they can lawfully report to the Minister. While a Panel might be permitted to leave minor details of confirmation, monitoring or mitigation for other agencies to deal with where a project has otherwise been fully assessed, most of the Panel’s recommendations in this case were aimed at generating critically important information to backfill significant evidentiary gaps. This level of delegation is not permissible.

The Court further stated:

[Paragraph 106] However, the Panel’s role as it pertains to the decision-making aspect of environmental assessment is to ensure that decision-makers have the necessary factual basis to make a scientifically informed decision. … the Panel’s role does not extend to the elimination of all uncertainty; rather, it must be possible for decision-makers to reasonably conclude that a project is likely, or is not likely, to cause significant adverse environmental effects, keeping in mind the guiding principles set out below, including the principle of precaution.

In other words, the Court draws a clear distinction between the environmental assessment process and subsequent regulatory decision-making. The role of the environmental assessment process and review is to consider potential environmental impacts of proposed projects.  This role cannot be fulfilled during subsequent regulatory decision-making processes.  The environmental assessment process must provide the necessary factual basis upon which to base the regulatory decisions to follow.

Another interesting recent decision – although not dealing with environmental assessment law – is Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776.  In this case, a provision of the federal Renewable Fuel Regulations made pursuant to the Canadian Environmental Protection Act, 1999 was subject to a constitutional challenge.  This provision required that diesel fuel produced, imported or sold in Canada contain at least 2% renewable fuel.  In its challenge, Syncrude argued that the dominant purpose of the impugned provision was to regulate non-renewable resources and promote the economic benefits of protecting the environment, and to create a demand for biofuels in the Canadian marketplace.  In essence, Syncrude argued that the provision was not a constitutionally sound use of the federal criminal law power as any prohibition of harm was merely ancillary.

The Court upheld the constitutionality of the impugned provision. In response to Syncrude’s assertion that the production and consumption of petroleum fuels is not dangerous and does not pose a risk to human health or safety, the Court stated:

[paragraph 83] … there is a real evil and a reasonable apprehension of harm in this case. The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage. Contrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented.

The Court continued:

[paragraph 85] For these reasons, I find that the dominant purpose and effect of subsection 5(2) of the RFR is to make a significant contribution to the reduction of air pollution, in the form of reducing GHG emissions. Parliament chose to do so by using its criminal law power. Protection of the environment is itself a valid criminal purpose, and the impugned provision creates a valid prohibition backed by a penalty, although the prohibition does not take the form of a direct, targeted, restrictive prohibition.

This decision reaffirms the view previously expressed by Canadian courts: protection of the environment is a valid criminal purpose. We hope that the federal government will take heed and use its criminal law power to strongly address the environmental challenges – including climate change – facing Canada.

The Board of Directors of the Environmental Law Centre is pleased to announce the appointment of Josephine Victoria Yam to the position of Executive Director, effective November 10th.

Josephine is an international lawyer who has been admitted to practice law in Alberta, Ontario, New York and the Philippines. She has over 20 years of professional legal, regulatory, policy and leadership experience in Canada and internationally.

Before her appointment to the ELC, Josephine was Lead Advisor for Consulting with the Pembina Institute, one of Canada’s leading environmental think tanks. For more than five years, Josephine was Senior Legal Counsel with the Government of Alberta, working at the Department of Energy and Department of Justice on large infrastructure projects. Prior to that, her private practice included working at the international law firm Baker & McKenzie in its Hong Kong, Manila and Toronto offices and with the Asian Development Bank.

Josephine has been interviewed on international television such as CNN and CNBC and was featured in international magazine Newsweek’s “Rise of the Asian Woman” issue. She has completed advanced courses at Harvard Law School and has obtained a Certificate in Renewable Energy and Carbon Finance from the University of Toronto. She is currently completing her Master of Laws with specialization in Natural Resources, Energy and Environmental Law at the University of Calgary, Faculty of Law.

Josephine is looking forward to connecting with our friends, partners, donors and colleagues when she assumes her role as Executive Director.

The board and staff would once again like to thank Cindy Chiasson for her 17 years of service and leadership to the Centre. Her personal and professional contributions over these many years cannot be understated. Under her leadership, the ELC garnered a reputation for thorough, balanced and well-reasoned law reform; for that we cannot thank her enough. We will miss her, but wish her all the best as she prepares to leave the Executive Director’s position on September 30th.

We would also like to thank Jason Unger, Staff Counsel, for stepping up to serve as Acting Executive Director in the interim weeks.

While this is a big transition for the ELC, we anticipate a smooth one. We are, as always, dedicated to providing our community with the excellent resources and services you’ve come to expect.

If you have any questions about this transition, please direct them to me at (403) 607-8525.

Sincerely,

Dave Poulton
ELC Board President

As indicated in previous posts, the Alberta government is currently reviewing the Municipal Government Act (MGA). Given the key role that municipalities play in the management and protection of Alberta’s environment, we have participated in this review by making written submissions. Ultimately, we would like to see the MGA amended to require and empower municipalities to manage and protect the local environment.

At the end of July, the government released its first What We Heard document summarizing public and technical consultations held from February to April of this year. This document organizes concerns raised during consultations into 54 policy issues. While several of these policy issues are relevant to environmental matters, there is little discussion of environmental concerns in the What We Heard document. The government has indicated that additional documents will be issued throughout the summer and fall summarizing the workbook and written submissions (these will be available on the MGA Review website).

According to the first What We Heard document, the next steps in the MGA review are collaboration among government ministries and targeted consultations with key stakeholders (see page 18). In mentioning the focus group process designed to engage stakeholders, the government highlights only industry as a key stakeholder. It is certainly our hope that the government will seek the input of environmental stakeholders as well.

The government indicates that legislative drafting will occur later this year. Our key recommendations for strengthening the MGA are:

  1. Protection and management of the environment is a valid municipal planning purpose and, as such, should be expressly recognized in the MGA.
  2. The MGA should incorporate by-law purposes specific to protection and management of the environment.
  3. The MGA should expand the enforcement tools available to municipalities for the purposes of environmental protection and management.
  4. The MGA should expand the revenue generation options available to municipalities to enable environmental stewardship and, particularly, land conservation.
  5. The MGA should enhance opportunities for public participation in municipal planning processes.

We believe that these amendments will empower municipalities to play a pivotal role in the protection and management of Alberta’s environment.

This question was raised at the Oldman Watershed Council Annual General Meeting. The “dry dam” proposed for the Elbow River is no small deal. It could be the same type of towering concrete wall that contains permanent reservoirs except that it would usually sit empty. If it is allowed to remain full for long enough to reduce flooding downstream then it might kill the underlying vegetation. The photo of a mountain valley turned into a dustbowl by a similar project elsewhere was one of the more striking images at the meeting.

To figure out whether an environmental impact assessment (EIA) is required you need to find out the height of the dam and how much water it would hold.  A provincial assessment is required for a dam greater than 15 metres in height when measured to the top of the dam “from the natural bed of the watercourse at the downstream toe of the dam.” If the dam isn’t across a watercourse then the measurement is from “the lowest elevation at the outside of the dam.” A provincial assessment is also required for a water reservoir with a capacity over 30 million cubic metres no matter how high the dam is.

The other project being considered as I understand it is to divert the Highwood River around the town of High River. In this case a provincial assessment would be required for a “water diversion structure and canals with a capacity greater than 15 cubic metres per second.” Even if the project doesn’t meet these technical requirements the Minister of Alberta Environment and Sustainable Resource Development could still order an EIA but there would be no way to force one.

If there is a provincial assessment it will trigger an NRCB review of a “water management project.” No person can start such a project without an NRCB review and it shouldn’t matter that the government is the project proponent as the NRCB Act is binding on the Crown. A “water management project” is defined by the NRCB Act as a project for which an environmental impact assessment is required so getting the environmental assessment is the key to getting an NRCB review. As part of the review the NRCB can make investigations or inquiries, prepare studies or reports, or hold hearings. This review could get underway with low key studies or reports. The NRCB only has to hold a public hearing if someone is directly affected. If a hearing is triggered then further persons can apply to participate. Regardless of the review format the NRCB must provide 30 day notice of any necessary proceedings. This notice would likely be in local newspapers, prominent community locations or provided to persons in the area who may be directly affected.

The chance of a federal environmental assessment is lower since the 2012 reforms. For a dam, a federal assessment is required for: “the construction, operation, decommissioning and abandonment of a new dam or dyke that would result in the creation of a reservoir with a surface area that would exceed the annual mean surface area of a natural water body by 1 500 ha or more.” For a diversion project, a federal assessment is required for: “The construction, operation, decommissioning and abandonment of a new structure for the diversion of 10 000 000 m3/year or more of water from a natural water body into another natural water body.” Federal assessments are now only required for listed projects. They will no longer be triggered based on the need for fisheries act permits. Likewise the Elbow and Highwood Rivers are no longer protected under the Navigable Waters Protection Act as reforms reduced protection to listed water bodies. If a Federal assessment is required then the federal government can substitute an equivalent provincial assessment to meet its own requirement. There is no more need for joint provincial-federal panel reviews as there was before 2012.

I have been misrepresented by the Lethbridge Herald in the June 26th article “Nobody at the Wheel.” This needs to be corrected because providing the public with accurate legal information is my job.

Managing recreational use of public land is hard and complicated.  Responsible recreational users might be the first to tell you there needs to be enforcement, education, and a movement towards real trails and campsites instead of industrial disturbances not built for these uses.  That is a lot of work and there are serious legal barriers to moving forward.

The root problem in Alberta is that public land agencies lack clear legislated direction to make recreation management their job.  This lack of mandate is compounded by lack of funding, and currently most users don’t pay for their experience or their impacts. To aggravate matters, improving physical infrastructure creates fear of legal liability should someone be injured.

These problems are way bigger than the polarized debate over “access” to public land. When it comes to access, apparently my position wasn’t clear. If all you want is access, there absolutely are not “too many gatekeepers” or bureaucratic hurdles as the Herald suggests. Public land in Alberta is legally “open unless closed.”  It’s almost hard to remember that recreational access is a privilege, not a right.  The barriers that concern me only come up when one tries to take action.  Under the current regime, efforts to formalize the recreation system can be spun as a rollback as much as an improvement.

The Americans do it differently and arguably better. The Herald has me wrong when it says that American states are creating single agencies. States have just as many public land agencies as we do, more if you count the federal government.  The key is that American legislation gives these numerous agencies similar direction to create recreational opportunities and mitigate impacts. Inside or outside parks, it will be someone’s job. They can get money from users for these purposes and they’re protected from lawsuits when accidents happen.  Their access system is “closed unless open,” but that tired debate becomes academic given the opportunities for responsible use.  We can do this in Alberta, too. The public and our land deserve no less.

Late last year, the National Energy Board (NEB) released its decision on the Northern Gateway Project and recommended approval of the project subject to 209 conditions (see here for our summary of that decision). While the NEB conducted the public hearing and issued a decision, the final decision to approve or not approve the project rested with the federal Cabinet. On June 17th, Cabinet announced that it has accepted the NEB decision in its entirety (see here).

Cabinet’s decision

With Cabinet approval secured, the NEB will now proceed to issue certificates of public convenience and necessity under section 52 of the National Energy Board Act. Issuance of the certificates of public convenience and necessity is merely one step toward full approval of the project. Cabinet’s press release indicates that Enbridge is still required to acquire other permits and approvals. These may be federal (for example, approvals under the Fisheries Act) or provincial (both Alberta and British Columbia).  As well, according to the press release, Enbridge is still required to consult with affected communities and aboriginal peoples.  And, of course, many of the 209 conditions must be met by Enbridge before the project can proceed.

Will the project actually proceed?

Despite approval by Cabinet, a good question is whether or not the project will actually proceed? There are several factors to keep in mind when answering this question:

  • There are still outstanding legal challenges to the NEB’s decision report (there are at least five applications for judicial review filed by either First Nations or environmental groups).
  • Several aboriginal communities have expressed staunch opposition to the project. Aboriginal peoples have a constitutional right to be consulted and accommodated where their aboriginal rights may be affected. While Cabinet’s press release suggests that Enbridge must fulfill the duty to consult and accommodate, this duty actually rests with the provincial and federal governments.
  • The B.C. government has indicated its rejection of this project unless Enbridge can meet five conditions set by the province (see our previous post). This may impact on Enbridge’s ability to obtain the necessary permits and approvals from the B.C. government.
  • There is strong public opposition to this project, especially in British Columbia, which may impact on Enbridge’s consultation efforts and ability to obtain general public acceptance for the project.

So, even though the Northern Gateway project has won Cabinet approval, it is foreseeable that these factors may impact its actual progress.

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