ERT Allows Wind Farm Appeal on the Basis of Harm to Little Brown Bat and Concerns Regarding Aerodromes

Sam RogersJoanna RosengartenBryn Gray

Another wind farm in Ontario has had their Renewable Energy Approval (“REA”) revoked by the Environmental Review Tribunal. This time, it is the Fairview Wind Farm in Clearview Township. The ERT concluded that the Fairview project would cause serious and irreversible harm to an endangered species of bat, the little brown bat. The ERT also concluded, for the first time, that there would be harm to human health due to the close proximity of the project to two aerodromes. Continue Reading

Turn Down the AC and Fasten your Seatbelts: Two Global Agreements Reached to Curb Emissions from HFCs and International Aviation

Selina Lee-Andersen

October continues to be a busy month for international environmental agreements. After the threshold for entry into force of the Paris Agreement was reached on October 5, 2016 (which will now enter into force on November 4, 2016), nearly 200 countries struck a landmark agreement on October 15, 2016 to reduce the emissions of hydrofluorocarbons (HFCs). In what is considered the most significant achievement on the climate change file since the Paris Agreement, it is anticipated that the Kigali Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer could prevent up to 0.5 degrees Celcius of global warming by the end of the century. The agreement reached in Kigali is significant because HFCs, which are widely used in refrigeration and air conditioning as substitutes for ozone-depleting substances, represent an extremely potent class of greenhouse gases, emissions from which are growing by up to 10% each year. There are several different types of HFCs, the most persistent of which can be several thousand times better at absorbing heat than carbon dioxide. According the United Nations Environment Programme, the current mix of HFCs being used has an impact that is 1,600 times stronger than carbon dioxide per tonne emitted. Continue Reading

Taking the Bull by the Horns: Federal Government Introduces Pan-Canadian Carbon Price and Ratifies Paris Agreement; Paris Agreement to Come into Force in November 2016

Selina Lee-Andersen

The week of October 3, 2016 was an eventful one for Canadian climate change policy as the federal government introduced a pan-Canadian carbon price and ratified the Paris Agreement. Following the federal election in October 2015, indications were that all provinces and territories would be expected to price carbon. This was confirmed on October 3, 2016 when Prime Minister Justin Trudeau announced that the federal government will set a minimum price on carbon starting at $10 per tonne of carbon dioxide equivalent (CO2e) in 2018, which will increase by $10 per year until it reaches $50 per tonne of CO2e by 2022. This approach will be reviewed in 2022 to confirm the path forward, including continued increases in stringency. Continue Reading

Target 2050: BC Releases Updated Climate Change Action Plan

Selina Lee-Andersen

The BC government released its long awaited Climate Leadership Plan (the Plan) on August 19, 2016. The Plan, which updates the province’s 2008 Climate Action Plan, contains 21 new actions to reduce emissions across the following sectors: (i) natural gas, (ii) transportation, (iii) forestry and agriculture, (iv) communities and built environment, and (v) public sector. The Plan follows the release of the Climate Leadership Team’s report in November 2015. The CLT, which was appointed by the BC government in May 2015 to provide advice for the development of the Plan, made 32 recommendations including, among others, the establishment of a mid-term 2030 greenhouse gas (GHG) emissions reduction target and a reduction in the provincial sales tax from 7% to 6%, which would be offset by an increase in the carbon tax by $10 per year commencing in July 2018.  While the Plan reflects some recommendations made by the CLT and feedback received through public consultation and stakeholder engagement sessions, the Plan bypasses BC’s 2020 target of achieving a reduction in GHG emissions of 33% below 2007 levels and instead charts a path for BC to reach its 2050 target of 80% below 2007 levels. In addition, the BC government has decided to keep the province’s revenue neutral carbon tax at $30 per tonne until the details for a pan-Canadian climate change policy, including the federal government’s approach to carbon pricing, are more clear. Continue Reading

R. v. Jordan – The Supreme Court of Canada Dramatically Alters the Framework Applicable to the Right to a Criminal Trial Within a Reasonable Time

Peter BradyMichael RosenbergTrevor Courtis

For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:

Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if the public comes to view the system with distain and contempt, then the system will have lost its reason for being. And the consequences, I fear, will be serious.[1]

In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada, on which Justice Moldaver now sits, recently made broad and sweeping changes to the framework that determines whether an accused has been tried within a reasonable time under s. 11(b) of the Charter. The decision, by a 5-4 majority, has the potential to radically alter the way that criminal cases are litigated, particularly for corporate defendants. Continue Reading

North American Leaders’ Summit Yields Tri-Lateral Climate, Clean Energy, and Environment Partnership Action Plan

Selina Lee-Andersen

During the North American Leaders Summit held in Ottawa on June 29, 2016, Prime Minister Justin Trudeau, United States (US) President Barack Obama, and Mexican President Enrique Peña Nieto announced the North American Climate, Clean Energy, and Environment Partnership, which reflects the leaders’ shared vision for a clean energy economy. The Partnership is supported by an action plan (the Action Plan) that details the activities to be pursued by the three countries in order to achieve a “competitive, low-carbon and sustainable North American economy”. Continue Reading

Northern Superior Appeals Dismissal of Aboriginal Consultation Claim Against Ontario

Bryn GrayAdam Goldenberg

Northern Superior Resources Inc., a Sudbury-based junior mining company, is not giving up on its $110-million lawsuit against the provincial government. It has recently asked Ontario’s highest court to reverse the dismissal of its claim, which seeks damages from the Crown for allegedly failing to properly discharge its duty to consult.

What is noteworthy about the case is that the plaintiff is the project proponent, not an Aboriginal group. The litigation thus raises the question of whether a corporation can bring a successful claim against the Crown arising out of the latter’s constitutional obligations to Aboriginal peoples. Continue Reading

Amendments under the Pipeline Safety Act Come into Force

Paul CassidyMonika SawickaMel Garipoglu

On June 19, 2016, the amendments under the Pipeline Safety Act (the “Act”), which amend the damage prevention provisions in the National Energy Board Act and the Canadian Oil and Gas Operations Act, came into force. These amendments set out the specific obligations of individuals and pipeline companies with respect to preventing pipeline damage. Under the recent amendments, pipeline companies must ensure that individuals know how to safely conduct activities such as excavation and construction near pipelines, and individuals planning to conduct activities near pipelines must report plans to a one-call centre before beginning the activities. The amendments pertain to absolute liability and financial resource requirements, abandonment, pipeline releases, damage prevention, as well as audit and enforcement powers. Some of the most noteworthy changes resulting from the amendments include:

  • Pipeline companies with the capacity to transport at least 250,000 barrels per day of oil will be liable for all costs and damages for an unintended release, up to $1 billion, regardless of fault. The limits of absolute liability for the remaining pipeline companies under the jurisdiction of the National Energy Board (“NEB”) will be set by regulation.
  • The jurisdiction of the NEB has expanded to include oversight of pipelines post-abandonment; however, companies remain liable for post-abandonment costs and damages. The NEB is also granted new powers for inspection officers, and authority to assume control of an abandonment or abandoned pipeline if a company is not complying with an NEB order.
  • In the event of a pipeline release, the Governor in Council has been provided the authority to “designate” a company if it either does not have the ability to pay for the release or does not comply with a Board order, and for the NEB to take over spill response.

Continue Reading

Contaminated Site Update: Rough and Ready Allocation of Liability

Nicholas Hughes

On May 5, 2016, the Supreme Court of British Columbia released its decision in Domovitch v. Willows, 2016 BCSC 1068 (CanLII) in which the court allocated liability amongst a number of “responsible persons” under the Contaminated Sites provisions of the B.C. Environmental Management Act, S.B.C. 2003, c. 53 (the “EMA”).

Despite the reasons for judgment being pronounced orally, the decision in Domovitch contains a rare, succinct and clear treatment of a number of provisions in the EMA, including the “innocent purchaser” exemption from liability and the allocation of liability amongst responsible persons.  Continue Reading

And So it Begins – Federal Government Launches Review of Environmental and Regulatory Processes

Peter BradyDominique Amyot-BilodeauKimberly HowardKimberly MacnabGordon Nettleton

On June 20, 2016, the Federal Government launched a comprehensive review of four key environmental and regulatory processes, namely:

  1. The federal environmental assessment processes under the Canadian Environmental Assessment Act, 2012 (CEAA 2012);
  2. The National Energy Board (NEB);
  3. The Fisheries Act; and
  4. The Navigation Protection Act.

Continue Reading