Monthly Archives: February 2014

Alberta Seeking Public Input on Municipal Government Act

The Municipal Government Act (MGA) is the law under which all Alberta municipalities are empowered to shape their communities. One of the key functions of any municipal legislation is its ability to allow a given municipality to make and implement decisions concerning planning and development within its borders. These decisions can have a direct impact on the environment.

The Government of Alberta is currently in the process of reviewing the MGA with a view to amending it, and wants public input.

So, why is pubic input important?

The MGA sets out local laws pertaining to governance, taxation, property tax and assessments. On the environmental side of things, the MGA addresses land use planning, land use decisions/appeal processes, and environmental considerations. Southern Albertans should have plenty to say about land use and land use planning in the wake of the June 2013 floods.

To date, the Province has already heard from Edmonton, Fort McMurray and Vermillion. Additional in-person consultations are as follows:

            Lethbridge: February 26-28, 2014

            Edson: March 5-7, 2014

            Red Deer: March 12-14, 2014

            Brooks: March 26-28, 2014

            Grande Prairie: April 2-4, 2014

            Calgary: April 9-11, 2014

In addition to in-person consultations, the public can also complete surveys and workbooks at http://mgareview.alberta.ca. You can also learn more about the public consultation at the same site.

By James Early.

Green Energy vs Conservation

It is unfortunate when environmental litigation pits two “green” battles against one another. In this case, it is green energy against conservation.

This legal battle stems from a decision made by the Ministry of Environment for Ontario (“MOE”) to issue a Renewable Energy Approval (“REA”), which authorized Ostrander Point GP Inc. (“Ostrander”) to construct and operate nine wind turbines in Prince Edward County in Ontario (the “Project”).

As a result of the MOE’s decision, the Prince Edward County Field Naturalists (“PECFN”) and the Alliance to Protect Prince Edward County (“APPEC”) filed appeals, arguing that the Project would cause serious and irreversible harm to animals and human health.

Between March and June 2013, for a period of forty days, the Environmental Review Tribunal (“Tribunal”) heard the appeal, hearing evidence from thirty-one experts, along with a number of fact witnesses.

In a decision dated July 3, 2013, the Tribunal allowed the appeal of PECFN and revoked the MOE’s decision to grant a REA. The Tribunal found that the Project would cause serious and irreversible harm to the Blanding’s turtle. The Tribunal rejected PECFN’s arguments relating to birds and alvars, and rejected APPEC’s argument regarding the impact to human health.

With the Project at risk, Ostrander and the MOE appealed the Tribunal’s decision, arguing that the Tribunal was incorrect when it found that the Project would cause serious and irreversible harm to the Blanding’s turtle.

Not to be outdone, PECFN appealed the Tribunal’s decision as it related to the dismissal of PECFN’s argument that the Project would bring serious and irreversible harm to birds and alvar. APPEC also appealed the Tribunal’s decision as it related to the dismissal of their argument that the Project would impact human health.

On January 21, 22 and 23, the Ontario Superior Court of Justice heard the appeals.

The Court conducted a thorough review of the particulars of the Blanding’s turtle, its predators, and its threatened status. It seemed to the Court that, based upon the evidence available, it was “unquestionable” that there was a risk of serious harm to the Blanding’s turtle from the Project. The question, however, was whether the harm was irreversible.

In reviewing the Tribunal’s decision, the Court found numerous errors in the Tribunal’s analysis and decision making including:

– making findings with no factual foundation;

– failing to interpret and apply the Endangered Species Act (“ESA”) harmoniously with the Environmental Protection Act (“EPA”); and

– failing to separately consider the issue of irreversible harm.

In particular, the Court found that the Tribunal did not have a handle on the population size of the Blanding’s turtle, or where the population was located, or what impact vehicular traffic would have on the turtle. The Court also ruled that the Tribunal erred by considering the issue of irreversible harm in conjunction with serious harm when those lines of analysis should have been separate.

The Court opined that the Tribunal failed to give sufficient weight to the fact that Ostrander had obtained an ESA permit in relation to the Project. While the Court expressly noted that the Tribunal does have jurisdiction to consider the issue of Blanding’s turtle mortality, even in the face of the ESA permit, the permit was relevant and significant evidence relating directly to the issue that the Tribunal had to decide and, by failing to give sufficient weight to the permit, the Tribunal failed to ensure harmonious interpretation and application of the ESA and EPA.

Based upon these errors, the Court set aside the Tribunal’s decision.

With regard to the remaining appeals, the Court found that the Tribunal’s decision with regard to birds and alvar was reasonable and was entirely within the scope of the Tribunal’s statutory mandate. The Court also found that the Tribunal’s decision on the issue of human harm was also a reasonable. All of the remaining appeals were, therefore, dismissed.

Subject to an appeal of the Court’s decision, Ostrander’s Project now has the green light to proceed despite the “unquestionable” serious harm that it may cause to the Blanding’s turtle.

Wind trumps turtle in this battle. However, at the time of writing, it appears that PECFN is considering seeking leave to appeal to the Court of Appeal. The war may not be over. To read the full text of this decision, see: Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974 (CanLII)

By James Early.

Government Fails in Species Protection

On February 14, 2014, the Federal Court of Canada determined that the Ministers of Environment, and Fisheries and Oceans, acted unlawfully in failing to propose recovery strategies for the Pacific Humpback Whale, the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou within the statutory timeframes prescribed in the Species At Risk Act, S.C. 2002 c. 29 (“SARA”).

SARA requires that, where a species is identified as being endangered, threatened or extirpated, the competent minister must publish a proposed recovery strategy within a fixed period of time, and publish a final recovery strategy shortly thereafter.

A number of Environmental NGO’s, including the David Suzuki Foundation, Greenpeace Canada and the Sierra Club of British Columbia Foundation, commenced Judicial Review proceedings in the Federal Court of Canada seeking declaratory relief regarding the Ministers’ conduct and orders of mandamus to compel the Ministers to perform their statutory duties.

The action prompted the Government to begin to fulfill its duties including publishing proposed recovery strategies for three of the four species before the hearing commenced, as well as the publication of the final recovery strategy for one of the species. These were, however, several years after the expiry of the relevant statutory timeline.

Of course, one of the species at risk is the Pacific Humpback Whale. It was in relation to this species that the final recovery strategy was released on October 21, 2013 – more than four years after it was due. It was released, however, two months prior to the Joint Review Panel for the Enbridge Northern Gateway Project (“JRP”) decision to recommend approval of the construction of the Northern Gateway Pipeline, which would facilitate the transport of bitumen, by tanker, through identified critical Pacific Humpback Whale habitat.

Pursuant to s. 2 of SARA, critical habitat is defined as habitat that is necessary for the survival of the species in question. As a result of the final recovery strategy, the Pacific Humpback Whale benefits from mandatory (as opposed to discretionary) protection.

As it relates to the Northern Gateway Pipeline, the JRP suggests that, in deciding to recommend approval, it took a precautionary approach and found that the project would not have a “significant adverse impact” on the Pacific Humpback Whale.

So, to take stock for a moment: the Pacific Humpback Whale is threatened; protected by a final recovery strategy; and its “critical habitat” has been identified. As such, shouldn’t SARA prevent any adverse impact if it is to achieve its goal? Let us remind ourselves that the goal of SARA is to:

…to prevent wildlife species in Canada from disappearing, to provide for the recovery of wildlife species that are extirpated (no longer exist in the wild in Canada), endangered, or threatened as a result of human activity, and to manage species of special concern to prevent them from becoming endangered or threatened.

The JRP concluded that there would be an adverse impact to the threatened Pacific Humpback Whale. In any event, however, it made a decision to create a greater risk, for a species already at risk. There is something fundamentally wrong with this. For a further discussion, see here. For legal proceedings that have arisen as a result of the JRP decision and its implication for Pacific Humpback Whales, see here.

Back to the matter at hand, the Federal Court of Canada, in addition to declaring that the Minsters’ actions were unlawful, also permitted the applications for manadamus to be adjourned sine die (essentially meaning: sometime down the road). This looming threat of further court action should, hopefully, keep the Federal Government on its toes with regard to completing the long-outstanding final recovery strategies for the Nechako White Sturgeon, the Marbled Murrelet and the Southern Mountain Caribou.

By James Early.

Freedom of Speech vs. Blockade

The Mathias Colomb Cree Nation (“MCCN”), located in Manitoba, disputes the right of Hudson Bay Mining & Smelting Co., Limited (“Hudson Bay”) to conduct certain mining operations because it claims it was not consulted and has not consented to those operations.

In response to Hudson Bay’s continued operation, protests were held at Hudson Bay’s ‘Lalor Project’. MCCN also takes issue with Hudson Bay’s ‘Reed Project’ operations.

Hudson Bay applied for, and obtained, an interlocutory injunction against MCCN to prevent further interference with its access rights to the Lalor and Reed Projects. The injunction was appealed by MCCN and, on January 20, 2014, the Manitoba Court of Appeal dismissed MCCN’s appeal.

MCCN had argued that Section 57 of the Court of Queen’s Bench Act (Manitoba) prevented the Court from issuing an injunction where to do so would restrain a person from exercising the right to free speech. The Appeal raised two primary issues:

            (i) did Section 57 prevent the issuance of an injunction; and

            (ii) did the judge err in exercising discretion to grant the injunction?

Background

The first of the MCCN protests occurred on January 28, 2013 at the Lalor Project. It lasted for almost five hours, during which time Hudson Bay closed the gate to its operations. A peaceful protest ensued, and the protestors were not asked to leave. The RCMP had been notified of the protest and Chief Arlen Dumas, of MCCN, advised the RCMP that he would allow access to the site in an emergency. Chief Dumas also allowed staff to leave the site on two occasions. Finally, Chief Dumas delivered a Stop Work Order to staff at the site.

On March 5, 2013, Chief Dumas delivered a Stop Work Order to the Reed Project, before participating in a protest during the afternoon of March 5, 2013 at the Lalor Project. Once again, Chief Dumas delivered a Stop Work Order and the protestors restricted access to the Lalor Project.

Hudson Bay commenced its legal proceedings on March 11, 2013. The judge concluded that, although the protests were of short duration, they constituted a blockade and, as such, awarded the injunction. The judge found that the injunction was necessary as Hudson Bay would suffer irreparable harm without it owing to MCCN’s limited financial resources to properly compensate Hudson Bay for any damages.

The Appeal

The granting or refusal of an interlocutory injunction is a discretionary order and, as such, an appeal court will only interfere with an earlier order if the decision was “clearly wrong”, “unreasonable” or a “palpable and overriding error” was made.

Based upon the evidence available, the Court of Appeal found that there was sufficient evidence to establish that the protests at the Lalor Project constituted a blockade. The bigger question, however, was whether blockades are a permissible exercise of the right of freedom of speech.

The Court of Appeal noted that it had no concerns with the protestors objectives of raising public awareness, nor any concerns as to the truth of the statements being made by the protestors. It was the conduct of the protestors that was in question. That conduct consisted of three things:

            (i) assembly and demonstration with signs at the Lalor Project;

            (ii) leafleting (Stop Work Orders) at the Lalor and Reed Projects; and

            (iii) blocking ingress and egress at the Lalor Project.

Quite quickly, the Court of Appeal found that both (i) and (ii), above, were permissible actions during the course of a protest and, as such, there should be no limitation of free speech.

With regard to (iii), the Court of Appeal equated a blockade during a protest to a blockade during a labour dispute and strike. The Court of Appeal noted that, in the context of a labour dispute, a blockade is an unacceptable method of dissent. While protestors do not have to be “rational or polite”, the Court of Appeal found that the actions of the MCCN protestors amounted to a substantial and unreasonable interference with Hudson Bay’s use or enjoyment of the Lalor Project.

The Court of Appeal did allow a part of the appeal as it related to the Reed Project. An injunction should impose only such restraint as is necessary to stop the mischief complained of and preserve the status quo and, as MCCN had not blockaded (or even protested) at the Reed Project, the scope of the injunction was found to be too wide. The injunction as it related to the Lalor Project, however, was upheld.

Of the three injunction criteria (serious issue to be tried; irreparable harm to the moving party; balance of convenience) the appellants only contested the irreparable harm strand. In dismissing this argument, the Court of Appeal opined that “a finding of a complete blockade of a lawful business strongly suggests irreparable harm”. The appellants conceded that MCCN had insufficient resources to compensate Hudson Bay for any harm caused.

The Lesson?

While your protest need not be rational or polite, and while your protest can involve signs, leaflets and other written documents, it cannot equate to a blockade. Freedom of speech is guaranteed in Manitoba legislation, but does not extend to peaceful blockades of business premises.

To read the full decision, see: Hudson Bay Mining & Smelting Co. v Dumas et al 2014 MBCA 6.

By James Early.

Treating the Symptom, not the Cause

On February 11, 2014 the federal government tabled the 2014 – 2015 federal budget. In addition, Finance Minister, Jim Flaherty, announced a federal plan to create a National Disaster Mitigation Program where, over a period of five years, the government would contribute $200,000,000.00.

This follows on from my post, yesterday, where I commented on the $1,700,000,000.00 damage caused by the June 2013 Alberta floods. What I did not mention was that, as the flood waters receded in Alberta, torrential downpours in Ontario caused flood damage in Toronto estimated to be in the region of $940,000,000.00 and that, according to the Insurance Bureau of Canada, bad weather in 2013 cost Canadian insurers approximately $3.2 billion (yes, that’s $3,200,000,000.00).

In fact, the Insurance Bureau of Canada reported that the 2013 losses came in the wake of four straight years of natural disasters where losses exceeded $1 billion.

The $200,000,000.00 investment announced by the government is to “support mitigation measures, such as infrastructure to control floods that can reduce the impact of severe natural disasters.” In addition, the government will consult with the insurance industry on how best to create a national approach to residential flood insurance.

Adaptation and preparedness for future natural disasters is a positive step taken by the government. It equates, though, to addressing the symptoms of climate change and not the causes.

On that issue, the government is falling behind. While Environment Canada suggests that “significant progress” is being made on Copenhagen Accord targets, the truth is that in its own report, entitled “Canada’s Emissions Trends”, it acknowledges that emissions, by 2020, are projected to be 122 megatonnes higher than the target set by the Accord.

Perhaps the government’s announcement of the National Disaster Mitigation Program is an attempt to cushion the blow of another failure to live up to an international treaty on emissions reductions?

By James Early.

Climate Change in Canada’s Courts?

In a recent article, the BBC reported that the United Kingdom Met Office’s chief scientist, Dame Julia Slingo, believes that climate change is likely to be a factor in extreme weather. She said: “…all the evidence suggests there is a link to climate change,” and continued “there is no evidence to counter the basic premise that a warmer world will lead to more intense daily and hourly rain events.” This comes on the heels of some of the worst flooding in recorded history in the United Kingdom.

Closer to home, the floods that ravaged Calgary and Southern Alberta in June 2013, caused at least $1.7 billion (yes, that’s $1,700,000,000.00) in damage and losses making it the most costly Canadian natural disaster on record.

To date, however, climate change litigation has not made a significant appearance in the Courts of this country. The same cannot be said for the United States.

In the U.S., an increasing number of climate change related cases are being advanced at the State and Federal level, with mixed success. Generally, at this early stage of climate litigation, the claims have been unsuccessful. They are, however, requiring targeted defendants to pay significant sums in defence costs.

It must be remembered, also, that tobacco and asbestos litigation took some time to develop before actions became successful. Increased scientific knowledge went hand-in-hand with the increasing success of tobacco and asbestos litigation. Perhaps it is only a matter of time before the generally accepted climate science is accepted in court in game-changing climate change litigation.

The first American climate change case was not commenced until 2004. In American Electric Power Co. v Connecticut (“AEP”) the plaintiffs pursued nuisance claims against American Electric Power Co. and sought an injunction limiting greenhouse gas emissions. The plaintiffs were ultimately unsuccessful. Before long, however, several other climate-change related claims were filed.

As it relates to natural disasters, a notable case stemmed from the aftermath of Hurricane Katrina. In Comer v Murphy Oil USA, Inc., (“Comer”) the plaintiffs were a number of property owners who claimed against a variety of oil and chemical companies, amongst others, for damage caused to their properties as a result of the business activities of the defendants. The court noted a “sharp difference of opinion in the scientific community concerning the causes of global warming” and foresaw evidentiary problems for the plaintiffs.

Of course, subsequent IPCC reports have established that there is an increasing consensus amongst the scientific community on this issue.

In Comer, the plaintiffs’ claims were based upon demonstrable changes in the Earth’s climate as a result of the defendants’ greenhouse gas emissions. For technical reasons, and without getting into the science of climate change (and its evidentiary hurdles), the court dismissed the plaintiffs’ claim.

It can surely be only a matter of time before a significant legal challenge is brought in Canadian courts on the issue of climate change. One could argue that there are 1.7 billion reasons to explore that possibility in the coming months.

In the meantime, we keep our eyes to the south to wait for the next development in this emerging area of law.

By James Early.

Battle Commences Over Yukon’s Peel Watershed

The Peel River Watershed is an approximately 77,000 square kilometre watershed, approximately 68,000 square kilometres of which is located in Yukon. The Peel River Watershed is one of North America’s largest intact ecosystems, consisting of mountains, deep canyons, plateaus, wetlands and rolling hills interlaced by free-flowing rivers. It supports a number of wildlife species including grizzly bears, wolverines, wolves, Dall sheep, caribou and moose. The Peel River Watershed is an ancient cultural landscape and provides an important fish and wildlife harvesting area for First Nations.

You would think that this introduction is a cut-and-paste from a travel brochure or the script for a Sir David Attenborough-esque voice over as his helicopter camera pans across the majestic Yukon landscape. It is not. In fact, it is a cut-and-paste from paragraph 25 of a Statement of Claim filed by various environmental groups and First Nations against the Yukon Government.

What Happened?

On December 2, 2009 a Recommended Peel Watershed Regional Use Plan (the “Plan”) was submitted to the Yukon Government by the Peel Watershed Regional Planning Commission (the “Commission”). In the Plan, the Commission recommended that 80.6% of the Peel Watershed be given a high degree of protection as designated Special Management Areas. Those areas included heritage management, fish and wildlife management, watershed management and general environmental protection.

Following a series of consultations, and following some proposed modifications by the Yukon Government, a Final Recommended Plan was released by the Commission on July 22, 2011, which designated approximately 80% of the Peel Watershed as “Conservation Area”. Approximately two-thirds of the Conservation Area were designated Special Management Areas, and the remaining portions were designated Wilderness Areas.

Following the Commission’s Final Recommended Plan, the Yukon Government commenced a consultation process that lasted into February, 2013.

Ultimately, on January 20, 2014 the Yukon Government announced its approval of a regional land use plan (the “Land Use Plan”). It was vastly different to the Final Recommended Plan. Instead of protecting close to 80% of the Peel Watershed, the Land Use Plan, in fact, leaves about 71% of the Peel Watershed unprotected.

Hence, immediately following the release of the Land Use Plan, a Statement of Claim was filed.

The Claim

The Plaintiffs are seeking a declaration that the Final Recommended Plan is, in fact, the binding regional land use plan. The Claim alleges that the Yukon Government has purported to impose a land use plan which is not based on or derived from the Recommended Plan, or from the Final Recommended Plan and that the Yukon Government has no authority to reject the Final Recommended Plan.

The Claim is centred around Chapter 11 of an agreement called the Umbrella Final Agreement (the “UFA”). The UFA is an agreement between Canada, the Yukon and Yukon First Nations, signed on May 29, 1993. The UFA is described as a common template for negotiating First Nation Final Agreements. Ratification of the UFA signified the parties’ intent to negotiate Yukon First Nation Final Agreements (“Final Agreements”).

Chapter 11 of the UFA governs the issue of land use planning. The objectives of Chapter 11 are, amongst other things, to encourage the development of a common Yukon land use planning process and to ensure that social, cultural, economic and environmental policies are applied to the management, protection and use of land, water and resources in an integrated and coordinated manner so as to ensure Sustainable Development.

The Commission, formed in 2004 to address the Yukon portion of the Peel Watershed, was formed pursuant to section 11.4.1 of the UFA. Chapter then describes the obligations of the Commission to prepare and recommend a regional land use plan, and sets out the guidelines to be followed in developing a regional land use plan. Following these guidelines, the Commission issued its Plan pursuant to section 11.6.1.

The crux of the claim relates to section 11.6, more specifically, section 11.6.3.2. It is worth setting out part of section 11.6 here:

“11.6.2 Government, after Consultation with any affected Yukon First Nation and any affected Yukon community, shall approve, reject or propose modifications to that part of the recommended regional land use plan applying on Non-Settlement Land.

11.6.3 If Government rejects or proposes modifications to the recommended plan, it shall forward either the proposed modifications with written reasons, or written reasons for rejecting the recommended plan to the Regional Land Use Planning Commission, and thereupon:

11.6.3.1 the Regional Land Use Planning Commission shall reconsider the plan and make a final recommendation for a regional land use plan to Government, with written reasons; and

11.6.3.2 Government shall then approve, reject or modify that part of the                  plan recommended under 11.6.3.1 applying on Non-Settlement Land, after Consultation with any affected Yukon First Nation and any affected Yukon community.”

Following the release of the Plan by the Commission on December 2, 2009, the Yukon Government submitted proposed modifications to the Plan. This was done by letter dated February 21, 2011. This was in accordance with sections 11.6.2 and 11.6.3, above.

After taking into account the proposed modifications, the Commission issued its Final Recommended Plan on July 22, 2011. This was in accordance with section 11.6.3.1, above.

The essence of the Plaintiffs’ claim is that the Yukon Government, after proposing modifications to the Plan pursuant to section 11.6.2 and 11.6.3 of the UFA, was not legally entitled to propose further modifications to the Final Recommended Plan beyond those first proposed modifications on February 21, 2011, as this would “amount to a new plan and violate the terms of the constitutionally-protected Final Agreements”.

To put it another way, the Plaintiffs argue that section 11.6.3.2 limits the Yukon Government to addressing those modifications proposed on February 21, 2011 and does not allow the Yukon Government to propose new modifications following the Final Recommended Plan.

In correspondence to the Yukon Government prior to the end of the consultation process, the First Nations claimed that the Government “introduced sweeping proposals and concepts [that undermined] the process set out in Chapter 11 of the Umbrella Final Agreement”. Further, “to put a new land use planning process forward [following the Final Recommended Plan] would amount to a rejection of the constitutionally protected land use planning process provided for under the Umbrella Final Agreement and a rejection of the Final Recommended Plan”.

In short, the Yukon Government’s Land Use Plan is significantly different from the Final Recommended Plan that was many years in the making, and which followed extensive consultations. The First Nations and environmental groups are not happy.

What’s Next?

A Case Management Conference is presently scheduled for March 11, 2014. At that conference, such matters as the simplification of the issues, directions for the conduct of the litigation, and the requirement and length of examinations for discovery, amongst other things, may be considered.

It may be some time before this issue is resolved. In the meantime, the Yukon is open for business and the Yukon Government’s Land Use Plan is now in effect.

By James Early.