To Regulate or Not to Regulate: BC Environmental Appeal Board Confirms that Provincial and Municipal Laws Designed to Regulate Air Emissions Do Not Impede on Federal Jurisdiction

Paul R. CassidySelina Lee-AndersenElizabeth Steele

A decision released by the British Columbia Environmental Appeal Board (EAB) on May 12, 2017 has clarified the relationship between federal lands and provincial environmental legislation and confirmed Metro Vancouver’s jurisdiction to regulate air contaminants from a facility located on federal lands. Decision Nos. 2016-EMA-175(b) & 2016-EMA-G08 addressed  the constitutional question raised by Harvest Fraser Richmond Organics (Harvest), which had challenged the jurisdiction of the District Director of the Greater Vancouver Regional District (also known as Metro Vancouver) to regulate the discharge of air contaminants from Harvest’s composting anaerobic digester and combined heat and power facility (the Facility), which is located on federal land leased from the Vancouver Fraser Port Authority (VPA). Continue Reading

Giving the Coast a Wide Berth: Federal Government Introduces Proposed Oil Tanker Moratorium Act

Selina Lee-Andersen

On May 12, 2017, the federal Minister of Transport introduced Bill C-48 into Parliament. Bill C-48, also known as the Oil Tanker Moratorium Act (the Act), seeks to implement the proposed moratorium on crude oil tankers on the northern part of British Columbia’s (BC) coast that was announced by the federal government in November 2016. The proposed moratorium would prohibit oil tankers that are carrying more than 12,500 tonnes of crude oil or persistent oil as cargo from stopping, or unloading crude oil or persistent oil, at ports or marine installations located along BC’s north coast from the northern tip of Vancouver Island to the Alaska border. Specifically, the proposed moratorium area extends from the Canada/United States border in the north, down to the point on BC’s mainland adjacent to the northern tip of Vancouver Island, and also includes Haida Gwaii. Vessels carrying less than 12,500 metric tonnes of crude or persistent oil as cargo will continue to be permitted in the moratorium area to ensure northern communities can receive critical shipments of heating oils and other products. Continue Reading

California Dreaming: The Golden State Considers Overhauling its Cap & Trade System

Selina Lee-Andersen

California continues to blaze a climate change policy trail in pursuit of a state-of-the-art carbon pricing mechanism. Bill SB 775 (California Global Warming Solutions Act of 2006: Market-based Compliance Mechanisms) was introduced into the California Senate on May 2, 2017, and follows the introduction in February 2017 of SB 584 (which would require 100% of the state’s electricity to come from renewable sources by 2045) and the passage of SB 32 in 2016 (which, beyond the current emissions reduction target of returning to 1990 emission levels by 2020, mandates a reduction of an additional 40% in emissions by 2030). Continue Reading

Expert Panel Recommends Significant Changes to Canada’s Environmental Assessment Regime

Joanna RosengartenBryn Gray

On April 5, 2017, Environment and Climate Change Canada released the report of an external Expert Panel that was established in August 2016 to review the scope and process of federal environmental assessments under the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). The Expert Panel’s Report contains numerous recommendations which, if implemented, would result in a fundamentally different federal environmental assessment (“EA”) process to the one that is currently in place.

This review stemmed from an election platform commitment of the Trudeau government and included a review of a number of changes introduced by the previous federal government in 2012 to Canada’s EA process, which, among other things, reduced the number of projects subject to federal EAs. From September 2016 until mid-December 2016, the Expert Panel held in-person and online “engagement events” across Canada in various cities. The Expert Panel noted in its report that the views it heard about the federal EA process ranged from support to all-out opposition.  The Panel concluded that the current EA process is “incapable of resolving these disparate points of view” and that Canada needs to “improve the way we plan for development in our country.”

The Expert Panel sets out a number of recommendations, some of which would significantly alter the current approach to federal EAs. Such recommendations include: Continue Reading

Change on the Horizon for Aboriginal Consultation and Involvement in Mining Projects

Bryn GrayDaniel Goudge

The rapidly evolving legal landscape for Aboriginal consultation and involvement in mining and other resource development projects in Canada is likely to see a number of significant changes in 2017. In addition to three anticipated Supreme Court of Canada decisions on the duty to consult, 2017 will likely bring legislative and policy changes to the nature and extent of expected Aboriginal involvement in the assessment, permitting and monitoring of resource development projects that require federal approval. Also expect changes to federal and certain provincial Aboriginal consultation policies, as well as the implementation of the Extractive Sector Transparency Measures Act for payments to Aboriginal groups.

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Fueling a Lower Carbon Future: Environment and Climate Change Canada Releases Discussion Paper for a Clean Fuel Standard

Selina Lee-Andersen

In November 2016, Environment and Climate Change Canada (ECCC) announced that it would be kicking off a process to develop a clean fuel standard (CFS) in support of Canada’s commitment to meet its greenhouse gas (GHG) emissions reduction target of 30% below 2005 levels by 2030. The CFS, which is included as part of the Pan-Canadian Framework on Clean Growth and Climate Change released in December 2016, would require reductions in the carbon footprint of fuels supplied in Canada, based on a lifecycle analysis. On February 24, 2017, ECCC released a discussion paper for consultation on the proposed new CFS. Continue Reading

Changes to Canada’s environmental emergency regulations are coming in 2017

Claire SeabornJoanna Rosengarten

The Environmental Emergency Regulations (the “Current Regulations”) under the Canadian Environmental Protection Act, 1999 (“CEPA”) aim to enhance the protection of the environment and human health in environmental emergency situations by promoting prevention and ensuring preparedness, response and recovery.[1] They require companies or persons who own or manage specified toxic and hazardous substances at or above the specified thresholds to provide required information on the substance(s), their quantities and to prepare and implement environmental emergency plans. Continue Reading

Legal Challenges to Site C Dam by BC First Nations Dismissed by Federal Court of Appeal and BC Court of Appeal

Selina Lee-AndersenBryn Gray

Two separate court challenges of the federal and provincial environmental assessment approvals for the Site C hydropower project in British Columbia have recently been dismissed by the federal and BC appellate courts. The two appellate courts separately upheld earlier decisions of the BC Supreme Court and the Federal Court which had dismissed applications for judicial review by the Prophet River First Nation and the West Moberly First Nation (the First Nations) of the provincial and federal environmental assessment decisions approving Site C.  The First Nations argued that the approvals infringed their treaty rights under Treaty 8 and that there was inadequate consultation and accommodation.

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Ontario’s Cap-and-Trade System: In Effect and Moving Forward

Selina Lee-AndersenCindy VaillancourtJoanna Rosengarten

On January 1, 2017, Ontario’s cap-and-trade system came into effect. As we have outlined in previous blog posts, January 1, 2017 is the start of the first four-year compliance period for the cap-and-trade program, which compliance period will end on December 31, 2020. Thereafter, the cap-and-trade program compliance periods will be three-years long, aligning with the compliance periods in the Québec and California cap-and-trade markets. The Government of Ontario has stated its intention to link with the Quebec and California markets in 2018. Continue Reading

No Duty to Consult in the Legislative Process – Courtoreille v. Canada, 2016 FCA 311

Bryn GrayStephanie AxmannSelina Lee-Andersen

The Federal Court of Appeal recently released a significant decision that limits the scope of Crown conduct that may trigger itsduty to consult with Aboriginal peoples and reinforces parliamentary privilege. In Courtoreille v. Canada, released on December 7, 2016, the Federal Court of Appeal concluded that the entire legislative process – from the discussion of policy options to the introduction and passage of legislation – cannot trigger the duty to consult regardless of whether the legislation at issue has the potential to adversely impact asserted or established Aboriginal or treaty rights.

This decision overturned a previous ruling by the Federal Court (2014 FC 1244) which held that the federal government had a duty to consult the Mikisew Cree following the introduction of the contentious Omnibus legislation (Bills C-38 and C-45) in 2012 that made changes to Canada’s environmental assessment regime through CEAA 2012, as well as related environmental legislation including the Fisheries Act, Species at Risk Act, and the Navigable Waters Protection Act (now Navigation Protection Act).  This Omnibus legislation sought to streamline certain regulatory processes and reduce the number of projects that were subject to federal environmental assessment.  At the Federal Court level, the Mikisew Cree argued that the duty to consult was triggered by the development and introduction of the new legislation because it reduced federal regulatory oversight on works or projects that may affect the Mikisew Cree’s treaty rights to hunt, fish, and trap.  The Federal Court found that the Crown did have a duty to consult the Mikisew Cree – but only after the two bills were introduced in Parliament, not before.  The scope of the duty was limited to providing notice and a reasonable opportunity to make submissions, and the relief granted by the Federal Court was solely declaratory in nature since the Omnibus Bills had already passed into law

In overturning the Federal Court decision, Justice De Montigny of the Federal Court of Appeal concluded that the legislative actions at issue were immune from judicial review, stating that “[i]f there is one principle that is beyond any doubt, it is that courts will not supervise the legislative process and will provide no relief until a bill has been enacted.” (at para. 59). Even if the actions were not immune from judicial review, Justice De Montigny held that it would be an undue interference with Parliament’s process and sovereignty for the courts to impose a duty to consult in the legislative process. He held that requiring a duty to consult at any stage of the legislative process would be “impractical and cumbersome”, “potentially grind the legislative process to a halt”, and would “fetter ministers and other members of Parliament in their law-making capacity” (at para. 60).

Justice De Montigny noted that this obviously does not prevent governments from consulting with Aboriginal groups on legislation as a matter of good public policy and politics, nor does it prevent Aboriginal groups from advancing their interests through lobbying or submissions to parliamentary committees (at paras. 61-62). Justice De Montigny further acknowledged that consultation and accommodation may be necessary when carrying out statutory regimes, during which time strategic planning decisions may affect Aboriginal rights and interests (at para. 63).

In concurring minority reasons, Justice Pelletier decided the case more narrowly, holding that the duty to consult is not triggered by “legislation of general application whose effects are not specific to particular Aboriginal peoples or to the territories in which they have or claim an interest”. Justice Pelletier’s reasons suggest that this more qualified ruling took into consideration the risk of governments legislating around the duty to consult for a specific undertaking:

Putting the matter another way, the duty to consult would undoubtedly be triggered by the executive’s approval of a project which adversely affected a First Nation’s interest in a given territory. Can it be said that the duty to consult would not be triggered if the same project were approved and set in motion in a special law passed for that purpose?  While this is not the case we have to decide, it does highlight the point that the argument that the legislative process is indivisible, from policy development to vice-regal approval, may be problematic in other circumstances.

It remains to be seen whether the Mikisew Cree will seek leave to appeal to the Supreme Court of Canada, which expressly left the issue of whether government conduct for the purposes of the duty to consult includes legislative action “to another day” in Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43.  This decision is unlikely to significantly alter the current varying and case-by-case approaches of the federal and provincial governments when it comes to consulting Aboriginal groups regarding legislation.  However, it could have had significant implications for the legislative process if the initial ruling was upheld or if the Court of Appeal went further and found that there was a duty to consult prior to the introduction of legislation.  It could have also created further regulatory uncertainty and delay for resource development proponents if there was a risk that future legislative reforms to provincial and federal environmental assessment and energy regulation processes (including federal legislative reforms anticipated later this year) could be struck down for a failure to meet the duty to consult.

This decision will likely be seen as a setback for the many Aboriginal groups across the country that have been seeking much greater consultation and collaboration than the status quo approaches to the development of legislation in Canada.

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