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.

The Federal Government Takes a Stand on Carbon Emissions in Coal- and Natural-Gas Fired Generation

Joanna RosengartenKimberly J. Howard

On December 17, 2016, the federal Ministry of Environment and Climate Change Canada (ECCC) announced its intention to address carbon dioxide (CO2) emissions in electricity generation to meet its greenhouse gas reduction commitments made as part of the United Nations Framework Convention on Climate Change (Paris Agreement). The Notice of intent published in the Canada Gazette (Notice) outlines a plan to amend the already-existing Reduction of Carbon Dioxide Emissions from Coal-Fired Generation of Electricity Regulation (Coal Regulation) and to develop new regulations to address electricity generation from natural gas (Proposed Natural Gas Regulation).  The Proposed Natural Gas Regulation will be enacted under the Canadian Environmental Protection Act, 1999. Continue Reading

Compliance with Flexibility: Ontario Releases Regulatory Proposal for Offset Credits under Cap-and-Trade Program

Selina Lee-Andersen

As Ontario puts the finishing touches on its cap-and-trade program, which will commence on January 1, 2017, the Ministry of Environment and Climate Change (MOECC) has released its Compliance Offset Credits Regulatory Proposal (the Regulatory Proposal) for a 45-day public comment period that will end on December 30, 2016.  Under the cap-and-trade program, capped facilities will be required to either reduce their greenhouse gas (GHG) emissions or meet their compliance obligations through other regulatory tools, including the use of offset credits. As a compliance mechanism, offset credits provide emitters with greater flexibility and potentially lower cost options to meet their compliance obligations.  Continue Reading

Paving the Route to 2050: Canada Releases Mid-Century Strategy for a Clean Growth Economy

Selina Lee-Andersen

The Paris Climate Change Agreement came into force on November 4, 2016 and as global efforts get underway to implement the agreement, the Canadian federal government continues to craft its strategy to shift Canada to a low-emissions economy. At the recent United Nations climate change conference (COP 22) in Marrakech, Morocco that was held from November 7 – 18, 2016, the Minister of Environment and Climate Change announced Canada’s Mid-Century Long-Term Low-Greenhouse Gas Development Strategy (the Long-Term GHG Strategy) at COP 22, making Canada one‎ of the first countries to do so. Continue Reading

The Protection of Species At Risk and Social and Economic Interests: Case Comment on The Ontario Court of Appeal’s Decision in Wildlands League v. Ontario (Natural Resources and Forestry)

Joanna RosengartenLjiljana Stanic

On October 11, 2016, the Ontario Court of Appeal (“Court”) released its decision in the Wildlands League v. Ontario (Natural Resources and Forestry) case.[1] The decision provides helpful commentary and guidance on the interpretation of the Ontario Endangered Species Act, 2007 (“Act”).[2] The Court dismissed the appeal and recognized that the protection of species at risk and their habitats under the Act is not absolute and occurs in the context of human activities. Continue Reading

British Columbia Court of Appeal Confirms Province’s Jurisdiction over Mining

Paul R. CassidyJack Ruttle

On November 3, 2016, the British Columbia Court of Appeal (BCCA) issued reasons in Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016 BCCA 432. The case was an appeal from a British Columbia Supreme Court (BCSC) decision to grant injunctive relief to the Cowichan Valley Regional District (CVRD) against Cobble Hill Holdings Ltd. (Cobble Hill). In essence, the injunctions prevented Cobble Hill from continuing reclamation activities on a quarry it owned on the basis that this activity was prohibited by a CVRD bylaw. This decision is significant because the court held that:

  • the Province has exclusive jurisdiction over mining and mining activities; and
  • under the Mines Act, a quarry is a “mine” and site reclamation is a “mining activity”.

Cobble Hill is the fee simple owner of land in the Cowichan Valley. It operates a rock quarry on this land pursuant to a permit issued by the British Columbia Ministry of Energy and Mines (MEM) under the Mines Act, R.S.B.C. 1996, c. 293. An integral part of quarrying is reclamation, which is the restoration of the land to its pre-quarry state by backfilling the cavity with soil. In 2006, Cobble Hill’s permit allowed it to reclaim its quarry site using “clean” soil. However, the MEM and the British Columbia Ministry of Environment (MOE) subsequently granted an amendment to the permit allowing Cobble Hill to use contaminated soil to backfill the quarry cavity. The amended permit also authorized an alternative facility that would permit Cobble Hill to undertake bioremediation of the contaminated soil on site. Continue Reading

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

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