World Water Day: Celebrating a public resource, now about those laws…

When my three year old and six month old see water they vibrate with excitement and want to jump right in. If they had their druthers they would stay in it until they were little prunes. They celebrate every time their toes are about to touch the water. Lucky for them they live in a country (and a region of the province) where water is relatively clean and relatively abundant, so they get many opportunities to celebrate. What they don’t understand yet is that our behaviours have direct impacts on the water resource and this has implications for others who may want to use the same resource.

When we treat water as a private resource, we disregard its fundamental nature and invariably impact others’ enjoyment and celebration. We might use it, pollute it and discard it, trusting that new high quality water is on its way down the stream. This in turn begs the question, how can we ensure we recognize water as a shared, common resource that benefits everyone? This is a timely question for those in government as they consult on various water issues around the province as part of their “water conversation.”

My message to government is that we need to treat water properly as a public resource and update our laws to reflect this. To this end, the ELC has produced a backgrounder on the topic of water as a public resource and this forms part of ELC recommendations to government around how water law and policy should evolve.

In brief, the ELC recommends amending the Water Act to ensure the public interest and environmental sustainability, as one pillar of the public interest, are fully embodied in our legislation. We can look to the common law as illustrative of how protection of water has traditionally been viewed as a public goal. Aspects of the Water Act advocate for shared responsibility over water resources, but in other areas the Act fails to adequately recognize the public nature of the resource.

We as individuals need to recognize our impacts on water, and we need to share and celebrate this vital resource. We also will need our governments to commit to recognizing water as a public resource. Our daughters and generations that follow should be able to enjoy their watery celebrations, but it takes more than conversations to make it so.

Be sure to participate in the government’s conversation.

The image from the Government of Alberta’s “Water Conversation” website. A very laudible sentiment but let’s make it a reality.

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Filling in the gaps – more reasons to speak up about Alberta’s new energy regulator

Image courtesy of Rosemary Ratcliff / http://www.freedigitalphotos.net

Alberta Energy is now half-way through its consultation workshops on regulations under the Responsible Energy Development Act, which will set out process and rules for the new Alberta Energy Regulator (AER). The workshops will be completed by mid-March. Earlier this week, we set out some broad reasons why Albertans should get involved in the consultations. Having gathered more information to let you know what Alberta Energy is asking and how these workshops are carried out, we’re back with a couple more reasons why you should speak up. Remember, you don’t need to read the Act, just have some opinions and ideas about how energy development in Alberta works and doesn’t work; how it should work responsibly in the future; and what you want your Alberta and your environment to look like going forward.

So what should you expect if you’re thinking of going to a workshop? These sessions are set up as 3-hour public meetings with facilitated discussions. The workshop begins with a brief introduction by an Alberta Energy official, who provides some background on the single energy regulator initiative, the Act and the AER. This is followed by break-out discussions on three topic areas that parallel the broad questions being asked in the government’s online survey.

One topic area is titled “engagement in the process” and deals primarily with communications from the AER: How should notices and AER decisions be communicated? What timelines should apply for people to respond? A second topic area is “protecting the interest of Albertans” and deals with procedural questions. What should the AER consider in making decisions? What circumstances should move applications to hearings? How should the AER use alternative dispute resolution, such as mediation?

This brings us to a gap that needs filling and another reason to speak up and participate: none of the questions being asked address who should be allowed to participate in the AER processes. When the Act was before the Legislature, we and many others raised concerns that the system being created was too narrow; that it took away long-standing procedural rights for Albertans related to energy decision-making; and that it would limit the ability of Albertans to raise environmental concerns caused by energy development. The questions being asked in the consultation do not directly deal with participation rights. It’s key for Albertans who are concerned about the limits and reductions that the Act will create on public engagement in energy regulatory decisions to speak up about this gap and how it should be fixed.

The third topic area to be addressed is the landowner registry, a tool created by the Act to allow landowners to register and seek enforcement of private surface agreements with energy companies. The government is asking how the registry and AER should be set up to honour these agreements, and what these agreements should contain to make them eligible for registration. While the creation of a registry is a positive step to assist landowners, an important detail will make a big difference for many landowners and is another gap we see: the registry is not available for private surface agreements that pre-date the Act. This means that only agreements created after the Act comes into effect will have the benefit of registration and enforcement assistance from the AER. Landowners with agreements created before the Act are in the same position as they were before; they will see no benefit from the creation of this registry. The consultations give these landowners an opportunity to express their opinions on whether and how they should be able to use the registry.

What if you can’t make it to a workshop? How can you make yourself heard? There are a couple of options available to Albertans beyond the workshops. One step is to complete the online survey (see the link above); the questions are largely the same as those being discussed at the workshops. Another step is to send your written comments to Alberta Energy’s Policy Management Office, to the attention of either Wade Clark (wade.clark@gov.ab.ca) or Cynthia Farmer (cynthia.farmer@gov.ab.ca) by e-mail or regular mail. The mailing address is: Alberta Energy, Policy Management Office, 3^rd Floor, Terrace Building, 9515 – 107 Street, Edmonton, AB, T5K 2C3.

Have you participated in the consultations so far? We want to hear about it! Share your experience and thoughts with us by posting a comment below.

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Environment or economy? The divergent perceptions of the purpose of environmental assessments

This blog was triggered by a recent media report that a mining company in BC was planning to sue the BC government over the refusal to issue an environmental assessment certificate for a project.  It was a reminder of the divergent perceptions of why we undertake environmental assessments (EA).

On the one side we have those (like many environmental groups) viewing EA as a tool to inform environmental decision making; a mechanism to determine whether a project should proceed.

On the other we have those (primarily activity proponents) viewing EA as a way to identify and mitigate environmental impacts of a project so that it can proceed; a mechanism to determine the relevant conditions and mitigation measures for a project.

In one scenario it is planning and decision making tool for deciding whether environmental impacts are acceptable, while for the other it is more of a regulatory hurdle or check box that precedes project approval.

The litigation in BC is not the first, nor will it be the last.  In 2007 a three member joint panel recommended against a basalt quarry at Whites Point, Nova Scotia.  The recommendations were agreed to by the provincial Minister of Environment and the project was rejected.  The company subsequently brought an action under Chapter 11 of the North American Free Trade Agreement.  (This arbitration continues, with the most recent procedural order being issued on Nov. 15, 2012).

Similarly, the Government of Alberta was unsuccessfully sued over a decision that found an activity proposed in Kananaskis Country (in 2000) was not in the public interest.   In that case, a full EA had yet to be completed.

Refusals to issue permits are typically a valid exercise of government discretion under environmental legislation, albeit sparingly used.  When governments do refuse to issue permits it may spark litigation for various reasons, from attempts to recover some funds that have been otherwise spent to meet EA requirements, to a perception that governments have acted in a biased fashion or in bad faith, insofar as the process (and the actors in it) may have created certain expectations of a positive decision.  This is not to say that a given litigation is not without merit, only to note that when governments (and tribunals) do refuse permits they are likely assessing the risks associated with being sued over the decision, something which is counterproductive when considering good environmental decisions.

Should we empathize when a project is refused?  In most instances, I would argue not, as there are plenty of examples of EA not being treated as a mechanism to earnestly discuss ways of mitigating environmental harm.  Rather the process is often a calculated effort by the proponent to minimize costs, often through proclamations that environmental impacts are insignificant.  These proclamations are often accompanied by unsubstantiated and untested (through rigorous scientific and statistical assessments) expert opinion.

One need only consider the times when a proponent, faced with a negative decision or the potential of one, shifts what is “feasible” in terms of environmental protection.  No doubt this is a reflection of proponents trying to conserve money and maximize shareholder return, but it often comes off as being disingenuous in terms of corporate claims of concern for the environment.

Several recent examples stand out including:

• rerouting of the Keystone XL pipeline around environmentally sensitive areas which was earlier reported as not being  feasible,
• reapplication for a mine that had previously been turned down, premised on avoiding impacts on a formerly expendable lake; and
• alterations to safety measures proposed as part of the Northern Gateway pipeline project.

In the end, starkly different perceptions of what EA should accomplish need to be addressed.  EA should bring science to decision making.  This science creates a cornerstone for a fulsome discussion of societal values that should go into planning, policy and project approvals.

The difficulty of course is having sufficient scientific knowledge to know current and future impacts on complex ecological systems.  In the absence of sufficient scientific knowledge deferral or refusal of projects is justified; as is the case when environmental impacts are irreparable, when biodiversity is significantly impacted or where the resilience of a system is exceeded.

The perception that economic arguments always justify the impacts of projects must end.  Granted, it doesn’t help when you get rhetoric out of the federal Minister of Natural Resources labeling those validly participating in hearings as “environmental and other radical groups” with their “radical ideological agenda”.   Such rhetoric only acts to emphasize these divergent perceptions and, more fundamentally, taints the EA process.

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Another government consultation? Why Albertans need to speak up about the new energy regulator.

Image courtesy of Victor Habbick / FreeDigitalPhotos.net

Many of you may have missed the most recent news about Alberta’s single energy regulator, just before the Family Day long weekend. The Alberta government issued a press release on Valentine’s Day, announcing 18 public consultation sessions throughout the province and an on-line survey. This initiative is intended to gather public input on the regulations to be made under the Responsible Energy Development Act, which created this new body, the Alberta Energy Regulator (AER), scheduled to begin work and decision-making June 2013.

Now, I know there are those of you who look at government consultations the same way you look at those mushroom fairy rings that keep popping up on your front lawn each summer: you can never really predict when they’re going to show up; they always seem to create more work and hassle than you expect; it usually feels like you don’t have any control over the situation; and often the effort you put into dealing with them doesn’t match the result you see. Plus, it’s the middle of another long Alberta winter; who can win against “big energy”; and have I seen how long that Responsible Energy Development Act is anyhow?? (Yes, it’s 73 pages long and I’ve read it several times – for work, not for pleasure).

Admittedly, government consultations are not things that excite most Albertans. However, below are a few reasons why you should get involved and speak up on this initiative. You don’t need to read the Act. Just think about your concerns about energy development; what you think needs to happen to ensure that energy development takes place responsibly in  our province; and most importantly, what you want your Alberta and your environment to look like in the future.

Reason #1:  This is your chance to let the government hear your concerns, thoughts and ideas about energy development, including how its activities and impacts should be regulated and managed. Energy development is a key economic engine and influence in Alberta. The provincial government hears consistently from industry operators and associations about their concerns and their ideas for solutions. You know, better than anyone, what your concerns and questions about energy development are, but the Minister of Energy and his staff aren’t mind readers. If you don’t take the chance to speak up, you won’t have the chance to be heard and the Department of Energy won’t know your issues and ideas.

Reason #2:  This consultation is your chance to influence the substance of Alberta’s new energy regulatory system. Remember the talk and news stories last fall about this Act being a “Frankenbill”? Much of the buzz arose due to uncertainty about exactly what the AER would look like, how its processes would work and how the environment and individual interests would be protected in the face of energy development. It’s probably more accurate to liken the Act to a skeleton, as it provides the bare bones that this new regulatory system will need to work. The focus of this consultation, the regulations, is putting the meat on those bare bones. The regulations will provide the details for the following matters:

• How far the AER’s responsibilities will reach, as compared to Alberta Environment and Sustainable Resource Development or other decision-makers;
• Who can be involved in the AER’s decision-making processes;
• What the AER will have to consider in making decisions;
• How the AER’s decision-making processes will work; and
• How information about energy development and the AER’s decisions will be made public.

Reason #3:  The AER will take on responsibility for many topics and issues; odds are there’s at least one that will affect you or that you’re otherwise concerned about. Looking only at the energy aspect, the AER will regulate exploration, recovery, construction (where relevant), closure and processing for:

• Oil;
• Gas;
• Oil sands;
• Coal; and
• Pipelines (within Alberta only).

The AER will also be responsible for regulating the environmental aspects of this energy development. This is equally broad:

• Environmental assessment; substance releases; contaminated land; preservation of soils and cleanup of contamination (reclamation and remediation); and authorizations for processing activities (Environmental Protection and Enhancement Act);
• Allocation of water rights; and regulation of activities affecting water (Water Act); and
• Regulation of exploration activities, such as seismic; and authorizations for activities on public land (Public Lands Act).

Can you be sure that someone else will raise the same concerns that you have? Or that they’ll suggest the same solutions that you want to see?

So, how can you participate in this consultation? One option is to engage in the structured processes set up by the Department of Energy: either by going to one of the consultation sessions being held around the province from now till mid-March, or by answering an on-line survey. More information about these processes is available here. Another option is to get your input directly to the Minister of Energy by letter, e-mail, fax or phone call. If you take this route, consider sending a copy to your MLA as well. Regardless of how you participate, if the government’s questions don’t address your concerns, take steps to ensure you make your issues and ideas are heard. This is an important initiative and no one is going to take away points if you color outside the lines.

Interested in the ELC’s views on the Responsible Energy Development Act, potential regulations and this consultation? Watch the blog for future posts in the coming weeks.

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An environmental tune to celebrate the season

Last year we had “Twas an Alberta night before Christmas” – this year is a much shorter environmental round up – sung to “Let it Snow”

 

Oh the omni-bus bills were frightful

But the PR is so delightful

And since the fish have no place to go

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

It doesn’t show signs of stopping

And funds for science, they keep on dropping

Environmental assessments are turned way down low

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

Caribou get a kiss goodnight

Now wolves hate going out in the storm!

But if EA models are proven right

The environment will be all out of form

 

Statutory rights are slowly dying

And, my dear, we’re still a crying

But as long as you love me so

We’ve been snowed! We’ve been snowed! We’ve been snowed!

 

Happy holidays everyone!

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Creditor protection versus polluter pays: Laws leave environment cash strapped

The Environmental Law Centre promotes the polluter pays principle as central to effective environmental law. Inherent in the polluter pays principle is the assumption that, if you can’t afford to clean up a mess, you shouldn’t be in business to begin with. Of course nothing is as simple as that, as environmental impacts (and pollution) and economic growth often come hand in hand; Government, for its part, promotes and regulates both.

The competing aims of growth and environmental protection are often most starkly viewed through a polluter pays lens. This will lead one immediately to discussions of financial security for remediating environmental harm, environmental impacts of insolvent and bankrupt polluters, and efficient and timely remediation of environmental harms. This was the focus of the recent Supreme Court of Canada case of Newfoundland and Labrador v. AbitibiBowater Inc., 2012, SCC 67.

The case revolved around whether environmental cleanup orders issued by Newfoundland were rightly considered “claims” under the Companies’ Creditors Arrangement Act, and thus could be stayed and subjected to the claims procedure under the Act. The Supreme Court found that the lower courts had correctly decided that the orders may be viewed as monetary in nature and thus subject to the claims procedure.

In coming to that conclusion the majority upheld the lower court’s finding that the intent of the government was to remediate the contaminated lands and seek recovery of those costs. This was a point of dissent in the decision as there appeared to be minimal evidence that the Province intended to clean up the land and recover the costs of cleanup. (It should be noted that the Province had previously expropriated certain AbitibiBowater property which undoubtedly played a role in the judgment).

The primary, and unsurprising result of the case, is that costs associated with remediating the environment are treated as any other debt of the polluter. The court noted that, if the environment were to be a priority in insolvency proceedings, Parliament would have clearly given it priority under the Act (which it has done to a limited extent).

This decision raises various public policy questions, both from the perspective of how provinces can ensure remediation takes place, and a broader debate about whether bankruptcy and insolvency laws should be reformed. On the latter point, why shouldn’t the environment be considered the ultimate creditor?  The environment is the driver of all resource driven economies and the benefits gained by polluters and creditors alike are derived from “natural capital.” For this reason the polluter pays principle should not simply be applied to the polluter but also to those who enable the polluter to pollute.

On this point the Court commented that “in the insolvency context, the Province’s position would result not only in super-priority, but in the acceptance of a ’third party-pay’ principle in place of the polluter-pay principle.” But therein lies the point: to create a system in which pollution risks are properly assessed and reflected in the market, it would seem that attributing these environmental costs to those assisting the polluter would be progressive environmental policy.

Granted some “involuntary creditors” (“those whose claims lie in tort or in the law of extra-contractual liability” as characterized by the court), may be in a worse position where the line of creditors is to cover off environmental remediation costs. Then again, the risk of tort claims arising may be diminished as creditors expect (and demand) increased diligence on the part of the polluter (or potential polluter).

It is readily admitted that such an approach to attributing environmental costs to creditors would effectively flip the current system on its head. Yet, from a public policy and sustainability perspective there are reasons why reform initiatives could prove effective for environmental protection. It would make creditors more thorough in their assessment of environmental risks, it would increase costs of capital for highly polluting activities, it would increase the pressure to minimize pollution and, in turn, advance mitigation technologies. It would also augment economic growth (perhaps negatively in the initial instances).

The second question that arises as part of the decision is how those governing environmental harms should respond to ensure environmental remediation costs are not transferred to the public purse in the case of an insolvent polluter. This requires regulatory approaches to require environmental remediation in timely fashion (ideally as the pollution occurs) and to create systems to assess the financial position of polluters on an ongoing basis. Pollution regulators are likely to balk at these moves as it would create problems for industry and government alike (such as remediating land that is still under use  and incurring the (likely high) costs associated with monitoring polluters’ financial health).  Assuming that regulators do not want to take on this role leads us back to reform of insolvency laws to ensure that a polluter pays.

The AbitibiBowater case acts as a reminder that the polluter pays principle is often curtailed rather than upheld by our law. If we don’t change, one might wonder when the environment might start foreclosing on our bad debts.

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Single energy regulator bill a poor deal for Alberta’s environment

Last week, the Alberta government introduced Bill 2, the Responsible Energy Development Act,which is intended to create aone window regulator that will “improve the energy regulation system for landowners, industry and the environment.” While this new regulator would address energy development from initial applications to reclamation, it should be noted that this is not a cradle to grave initiative, as the process of issuing mineral rights is not included.

Why is government making this change?

This move to a single energy regulator has its roots in steps the Stelmach government took seeking to ensure the competitiveness of Alberta’s energy sector. It began with a strict energy focus coming from 2010’s royalty review and competitiveness review. In the wake of those reviews, the Regulatory Enhancement Task Force was created in 2010 to oversee “regulatory improvement efforts.” The task force looked at processes and policies related to upstream oil and gas development; its recommendations to the Minister of Energy included “creating a single oil and gas regulatory body.” This is an initiative that has been expanding in scope since its creation. What started as a process examining the competitiveness of the upstream oil and gas sector has evolved to encompass creation of a new regulatory body that will address not only oil and gas recovery, but also pipelines, extraction and processing activities (including all related environmental aspects) for oil, gas, oil sands and coal resources in Alberta.

What will Bill 2 create?

Bill 2 proposes to abolish the Energy Resources Conservation Board (ERCB) and replace it with a new regulatory body named the “Alberta Energy Regulator” (the Regulator). In addition to carrying out the ERCB’s current regulatory responsibilities, the Regulator would also take on environmental regulatory responsibilities related to energy development that are now dealt with by Alberta Environment and Sustainable Resource Development. This includes regulation that takes place under:

•  Environmental Protection and Enhancement Act (environmental assessment; substance releases; contaminated land; reclamation; authorizations for industrial processing activities);
• Water Act (allocation of water rights; regulation of activities that affect water); and
• Public Lands Act (regulation of exploration activities; authorization of activities on public land).

The Regulator would be a corporation with board members appointed by the provincial Cabinet. This board of directors would be responsible for the general business of the Regulator. Bill 2 explicitly states that the Regulator is not a Crown agent. The Cabinet would also establish a roster of hearing commissioners to carry out hearings as required under Bill 2. It appears that the types of energy development matters to be regulated would remain the same and what little process is set out in the Bill draws from current energy legislation and regulation. However, most of the details of this new system are left to be set out in rules to be made by the Regulator or in regulations to be made by Cabinet. As such, it is difficult to get a clear picture of future energy and environment regulation in Alberta from the Bill alone.

What’s the ELC’s initial reaction?

From our first readings of Bill 2, it’s unclear where the environment will gain under this new system. Bill 2 appears to ignore many of the long-standing concerns and problems related to energy development and environmental protection in Alberta, such as standing and public input limitations; the separation of the mineral rights licensing process from the balance of energy, environmental and land use decision-making; and transparency and accountability concerns, including the need for independent review of regulator decisions.

While this initiative has been touted as addressing energy and environment as two sides of the same coin, it seems the coin is loaded in favor of energy. Existing environmental regulatory processes would be curtailed and limited:

•  the current standing test of “directly affected” under the Environmental Protection and Enhancement Act (EPEA)and Water Act would be changed to the narrower “directly and adversely affected” test for energy developments; and
• appeals under EPEA and the Water Act to the Environmental Appeals Board, an independent quasi-judicial body, would be eliminated for energy developments and replaced with self-reviews by the Regulator of its own decisions.

The Bill would also give Cabinet the ability to modify how environmental legislation applies to the Regulator.

In the Legislature, Energy Minister Hughes stated: “The new regulator will provide effective processes for Albertans to be heard and respected on an ongoing basis.” However, on its face Bill 2 appears to place greater limitations on public engagement and participation in environmental decision-making related to energy development. As mentioned above, the use of “directly and adversely affected” as the test for standing narrows the standing currently provided under EPEA and the Water Act; it is also inconsistent with the Kelly trilogy of cases from the Alberta Court of Appeal, which moved to expand standing in sour gas hearings. In addition, the Bill specifically excludes consideration of the adequacy of First Nations consultation from the Regulator’s jurisdiction.

We also have concerns regarding the potential transparency and accountability of the Regulator. Bill 2 specifically states that the Regulator is not a Crown agent. There is no clear accountability of the Regulator directly to the public. It will be required to report to the Minister of Energy upon request, but there is no further obligation on either the Minister or the Regulator to make such reporting public. The checks and balances on regulatory action are also limited. The ability to seek judicial review of the Regulator’s actions, as well as related legal remedies, is excluded by the Bill. Options for other review are somewhat limited: the Bill provides for two forms of self-review by the Regulator, as well as appeals on questions of law or jurisdiction to the Alberta Court of Appeal.

What happens next?

Bill 2 is now at second reading stage, which means it will be debated in relation to its broad principle. Once a bill passes second reading, it is referred to Committee of the Whole (effectively meaning the whole Legislature), where it is reviewed clause by clause and can be amended. Following this review, a bill is then put to third reading for final approval (or not) by the Legislature.  The current legislative session is scheduled to continue through the first week of December 2012. The government’s intent is to have the Regulator operative by mid-2013.

When he introduced Bill 2 for second reading, Minister Hughes indicated that the government is in the process of developing the regulations to support this legislation and stated: “This is essential work that will require feedback and consultation from Albertans to ensure we’re hitting the mark by providing for effective participation.” Given the framework nature of Bill 2 and the significant implications for our environment and all Albertans, we believe these regulations should be publicly released in draft before Bill 2 is passed, to allow all concerned parties to review and understand the proposed system as a whole.

At the ELC, we’re preparing a detailed analysis and critique of Bill 2, which will be sent to Minister Hughes and other decision-makers and made publicly available. Watch for our brief and further blog posts on Bill 2 in the near future.

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Navigable waters may be litigable waters if Bill C-45 passes

As has been widely reported, the second omnibus budget bill has been tabled in Parliament (Bill C-45).  Part of the Bill is aimed at amending the Navigable Waters Protection Act (NWPA) to focus its regulatory application on impacts on prescribed navigable waters (listed in a schedule of the Act) as opposed to all navigable waters.  The NWPA has been viewed as having significant environmental value due to the fact that it preserves the intactness of our water ways by preserving navigation rights.

The Government has been cited as saying that the narrowed scope in Bill-45 should not be of concern as the non-scheduled water ways are protected by other federal and provincial laws.  This however raises an interesting legal question:  Can provinces authorize impacts to navigable waters?  Navigation is part of the federal jurisdiction under the Canadian Constitution (at s.91(10)).

So, what happens when you have a public right that is curtailed by a government with an apparent yearning to shirk its Constitutional powers?  Litigation appears likely and here’s why.

A right to have navigable waters remain navigable has been noted as a public right in case law.  Justice La Forest in Friends of the Oldman River Society v. Canada (Minister of Transport), (1992 CanLII 110 (SCC), [1992] 1 SCR 3) notes,

The common law of England has long been that the public has a right to navigate in tidal waters, but though non-tidal waters may be navigable in fact the public has no right to navigate in them, subject to certain exceptions not material here.  Except in the Atlantic provinces, where different considerations may well apply, in Canada the distinction between tidal and non-tidal waters was abandoned long ago; see In Re Provincial Fisheries (1896), 26 S.C.R. 444; for a summary of the cases, see my book on Water Law in Canada (1973), at pp. 178-80.  Instead the rule is that if waters are navigable in fact, whether or not the waters are tidal or non-tidal, the public right of navigation exists.  That is the case in Alberta where the Appellate Division of the Supreme Court, applying the North-West Territories Act, R.S.C. 1886, c. 50, rightly held in Flewelling v. Johnston (1921), 59 D.L.R. 419, that the English rule was not suitable to the conditions of the province.

La Forest goes on to note that the passage of the Navigable Waters Protection Act permits the interference with the public right of navigation, thereby making a public nuisance lawful.  It is further noted of the “public right of navigation — that it can only be modified or extinguished by an authorizing statute, and as such a Crown grant of land of itself does not and cannot confer a right to interfere with navigation; see also The Queen v. Fisher (1891), 2 Ex. C.R. 365; In Re Provincial Fisheries, supra, at p. 549, per Girouard J.; and Reference re Waters and Water-Powers, [1929] S.C.R. 200.”

On its face it would appear that only the federal government has the Constitutional authority to create a “public nuisance” by interfering with this public right.  As Professor Hogg notes in Constitutional Law of Canada (5^th Edition Supplemented, at 30-12) “provinces may not authorize the obstruction of navigable rivers” (citing Queddy River Driving Boom Co. v Davidson (1883) 10 S.C.R. 222).    Provinces and activity proponents may be faced with litigation if they attempt to hinder navigation rights on those lakes and rivers which are effectively shoved aside if Bill C-45 passes. Indeed, if (a big if) litigation is successful and injunctive remedies are granted by a court, the navigable waters excluded by Bill C-45 may find themselves more “protected” than those that are the focus of the proposed legislation.

Legal arguments around this may revolve around s. 3 of the Bill, which states:

It is prohibited to construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule except in accordance with this Act or any other federal Act.

Does this section, by implication, mean that activities that impact non-scheduled waters don’t require a permit?  If the notion of a public right of navigation is upheld it could be argued that the navigable waters that do not appear in the schedule are still governed by a common law right.  The creation of a lawful public nuisance would require specific statutory language.

(This issue may also be why there is an “opt in” provision at s.4 of the Bill, which invites the application of the Act to any navigable water).

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Rio + 20 = 1867? Canada’s interesting math.

On the verge of the end of Rio +20 and the passage of the federal budget bill (C-38), I felt it worthwhile to do some math.  Rio +20 is intended to move “sustainable development” into 2012 and beyond.  Yet, Canada has just referred its sweeping budget bill, which revamps our federal environmental laws, to the Standing Senate Committee on National Finance.  The drafters of the Bill, it appears, had Cher’s “If I could turn back time” blaring in the background; to a time when approaches to environmental management and understanding of species habitat requirements were rudimentary at best; to a time when our Constitution was enacted, 1867.

Bill C-38 amends one of the most protective fish habitat protection provisions in the country to a provision requiring proof that a  “work, undertaking or activity” results in a “serious harm to a fish” that is part of a commercial, recreational or Aboriginal fishery (or a fish that supports such a fishery).  (This provision come into force at a date fixed by Order in Council).  The Bill also adds a provision that guides administration of the Fisheries Act with a focus on impacts on specific fisheries.   This, in essence, is a throwback to the narrow terms of section 91(12) of the Constitution Act that provides federal jurisdiction over “Sea Coast and Inland Fisheries”.

The approach ignores the relevance of habitat and creates substantive evidentiary issues.  Specifically, rather than acknowledging the scientific linkages between protected habitat and fish  (under current legislation) the approach requires the Crown to establish (beyond a reasonable doubt) that there is “serious harm to fish” and that “harm” is the direct causal result of a work, undertaking or activity.  The provision is tantamount to saying “if the fish aren’t dying, we don’t care”.   While “serious harm” includes permanent alteration to habitat this ignores the ongoing requirements of fish for intact habitat.  Is this approach reflective of our current knowledge of ecosystems and species habitat requirements? Not quite.

Similarly, the restructured Canadian Environmental Assessment Act seeks to limit federal environmental oversight and assumes that provinces have the capacity and wherewithal to effectively manage environmental matters.  (Ignoring for the time being whether federal-provincial delegation and substitution around environmental assessments and decision making regarding “inland fisheries” is even feasible).  Again, the Bill appears to be an attempt to simply and erroneously isolate environmental impacts based on a narrow jurisdictional view and reflects a direct rejection of the scope of jurisdiction granted by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport).

The RIO + 20 website notes:

Sustainable development emphasizes a holistic, equitable and far-sighted approach to decision-making at all levels. It emphasizes not just strong economic performance but intragenerational and intergenerational equity. It rests on integration and a balanced consideration of social, economic and environmental goals and objectives in both public and private decision-making.

Being “far-sighted” in one instance and joining the 19^th century in the other just doesn’t add up.   The courts of our land have done the math and have clearly indicated that Parliament has the power to manage and legislate environmental matters in a way that reflects 21st century knowledge.

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Environmental Shock Doctrine

The 2012 federal Budget Bill is out. Once again it will change environmental laws in ways not directly related to government spending or savings. The bill is certain to pass, so why all the supporting rhetoric? If anything, zealous arguments in favor of a sure thing expose the motivation for this style of lawmaking. Changes to federal environmental law in Canada have become a textbook example of how democratically elected governments pursue policies that, if widely understood, would be widely unpopular.

First consider the lead up to the 2012 bill. Since 2009, the federal environmental assessment regime has been changed by:

• Not using the regulatory advisory committee,
• Exempting government-supported infrastructure from assessment;
• Making regulations to speed up comprehensive studies;
• Changing the law to avoid a Supreme Court of Canada decision that favored public participation;
• Cutting funding to the Canadian Environmental Assessment Agency;
• Cutting funding to the Canadian Environmental Network;
• Conducting a Parliamentary review selective invitation;
• Closing the review without hearing from environmental organizations that requested to appear, and
• Expediting a report that is disproportionately supported by regulated industries.

Now consider the effects of the 2012 bill.  These may include:

• Moving environmental concerns from the regulatory sphere to the political sphere. Powers to not require environmental assessments will intensify lobbying. Project reviews will be fewer and more frequently assigned to industry regulators. As for big pipelines, the final say will go to Cabinet and this change may apply to hearings in progress.
• Limiting the ability of environmental representatives to operate in any official sphere. In the regulatory sphere, participating in pipeline reviews will require proving that one is directly affected or possesses the right information and expertise. In the political sphere, the activities of charities will be regulated, monitored and enforced against.

The supposed trigger for this overhaul is that environmentalists did something wrong at the Northern Gateway Pipeline hearings.  Never mind that the intervention of environmental organizations is a different issue from the sheer number of participants. The big contest is not about the project review, it’s about the law of project reviews. Take that view, and a bill that leaves the environmental sector reeling looks more proactive than reactive.  The script is disturbingly familiar: eliminate public discourse, cut program spending, and liberate corporate action. Attribute broad public concern with certain private projects to a narrow, anti-social element. Confirm the existence of that element through surveillance tactics, and use the findings as grounds to suspend legal and political rights. Don’t worry if the effect is to breed more radicals. The appeal of this war is that it never ends. Just be sure to avoid ideological statements, especially faith in trickle-down economics. I would definitely not point out that disasters like the Exxon Valdez oil spill create jobs and GDP. Staying reasonable is what allows any backlash to be blamed on individual strong-armed leaders. A rational understanding of the long-term requires that “we” act now.  This is just “responsible resource development”.

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