Monthly Archives: April 2014

New Plan to Recover Threatened Caribou

Today, the Manitoba government released its draft strategy to recover its woodland caribou populations. Here is what CPAWS Manitoba had to say about the announcement:

Boreal woodland caribou are listed as “threatened” across Canada, requiring provincial governments to develop action plans for recovery of local populations. Upon initial analysis, CPAWS believes Manitoba’s strategy is the strongest in the nation.

“Manitoba’s unprecedented commitment to establish large areas of caribou habitat that are exempt from forestry is good news for this threatened species.” said Ron Thiessen, Executive Director of the Manitoba Chapter of the Canadian Parks and Wilderness Society. “We all need the boreal ecosystems where caribou live to be healthy as we plan for vibrant economies with First Nations and others.”

Manitoba’s strategy exceeds all of Canada’s other recovery plans with a commitment to protect and manage for 65 to 80 per cent intact suitable boreal caribou habitat in each caribou management unit.

Scientists consider caribou, the Canadian icon on our 25 cent piece, as indicators of the health of the boreal forest. If caribou no longer inhabit an area, it is an indication that the boreal forest there may no longer be fully-functioning as a significant part of earth’s life support system. The biggest threat to caribou’s survival is habitat loss and fragmentation, which increases access by predators.

Implementation is the key to success with any strategy or plan. There are other Canadian jurisdictions, such as Ontario and Quebec, that have developed conservation strategies for caribou but they are failing to live up to them.

An outstanding concern is a lack of timelines for achieving the indicated benchmarks. The good news is that we have time to make this important change.

The draft Manitoba’s Boreal Woodland Caribou Recovery Strategy is available for public comment on Manitoba Conservation and Water Stewardship’s website until August 1st, 2014. All comments will be considered during preparation of the final strategy for future release.

We believe that conserving boreal woodland caribou habitat across the country is possible while also ensuring prosperous forest-dependant communities. CPAWS is working to achieve both goals through the Canadian Boreal Forest Agreement (CBFA). Through the CBFA, environmental groups and the forestry sector, with involvement of affected First Nations, are working together on producing effective caribou conservation recommendations that we hope governments will consider when implementing the caribou strategy.

The boreal forest is bountiful with wildlife and resources. As the ancestral home of First Nations, it is key that planning for caribou and the boreal’s future is done in partnership with First Nations, recognizes treaties and rights outlined in the United Nations Declaration on the Rights of Indigenous Peoples, and with free, prior, and informed consent.

Boreal woodland caribou still inhabit the majority of their historical range in Manitoba but a significant band that used to be the southern part of their range is no longer inhabited by them due to human encroachment. The most notable area where they no longer occur is Whiteshell Provincial Park.

The caribou boreal forest home is the world’s largest source of fresh water, the northern lungs of the planet, and its massive carbon stores help to curb climate change.

Boreal caribou were listed as threatened in Manitoba in 2006 under the Endangered Species Act. Boreal caribou can be affected by a variety of factors including:

– habitat destruction or alteration from forest fires;
– habitat fragmentation if roads, trails, transmission lines, logging operations or mineral exploration are not properly planned;
– increased access for predators;
– over-hunting; and
– disease.

The recovery strategy includes an impressive commitment to protect 65% to 80% of intact suitable boreal caribou habitat in each management area. The strategy is a 10-year plan and will be reviewed every ten years henceforth. Members of the public now have 60 days to comment on the plan.

This is a great step in the right direction, and congratulations to Manitoba, and Manitobans in that regard. Here’s hoping that Manitoba lives up to expectations created by this strategy.

By James Early

Municipal Government Act Public Feedback Deadlines

As I posted last month, the Government of Alberta is conducting a review of the Municipal Government Act (“MGA”).

Albertans are able to provide their input by way or workbook, until April 30, 2014, or by email submissions to: mga.review@gov.ab.ca by June 13, 2014.

The province is encouraging Albertans to share feedback and ideas and what is working, what isn’t working and what sort of revisions you would like to see so that the MGA can best support building strong communities.

To get to the workbook, you can visit: mgareview.alberta.ca, scroll to the bottom of the page and click on “workbook.”

By James Early

Environmental Protection Order issued by Alberta Government

Earlier this month, Alberta issued an environmental protection order to Locke Stock & Barrel Company Ltd. that outlined necessary steps to reclaim an oil and gas wellsite in the Municipal District of Foothills No. 31.

Under the environmental protection order, Locke Stock & Barrel Co. Ltd. must:

– conserve and reclaim the site in accordance with the 2010 Reclamation Criteria for Wellsites and Associated Facilities;

– remediate any contamination on site, or off-site which originated from the well or any of its activities;

– undertake soil and/or groundwater sampling at appropriate intervals to demonstrate acceptable remediation;

– submit a final report to Environment and Sustainable Resource Development (“ESRD”) summarizing all work that has been undertaken to remediate any contamination;

– apply to ESRD for a reclamation certificate for the well; and

– conduct weed spraying and maintenance on the site at least twice a year until ESRD issues a reclamation certificate to the company.

As the Environmental Law Centre recently noted, though, there were 16,975 wells abandoned between 1963 and 2002, and an additional 35,856 since 2002 in Alberta. Hopefully we will begin to see a lot more remediation orders issued in the coming months, and with greater diligence than in the past.

That begs the question: what is the effect of an environmental protection order in the case where the company or entity required to remediate declares bankruptcy? A recent Lexpert article noted:

“Many a stakeholder has been stunned by the broad powers of the Companies’ Creditors Arrangement Act (“CCAA”) to stay – and then compromise – nearly all clams against an insolvent company. This power has recently been confirmed to extend even over remediation orders issued by provincial ministries of environment (“MOEs”)…

“[The issue of insolvency vs. remediation orders is s]o hot that counsel for MOEs have suggested that CCAA is in danger of becoming a “regulatory car wash,” arbitrarily cleansing debtors of environmental obligations and leaving taxpayers to pick up the tab.”

The decision reached by the Supreme Court of Canada in Abitibibowater in 2012 set a worrying precedent. In that case, the Supreme Court held that there are three requirements orders must meet in order to be considered claims that may be subject to the insolvency process.

First, there must be a debt, a liability or an obligation to a creditor. The first criterion was met because the MOE had identified itself as a creditor by resorting to environmental protection enforcement mechanisms.

Second, the debt, liability or obligation must be incurred as of a specific time. This requirement was also met since the environmental damage had occurred before the time of the CCAA proceedings.

Third, it must be possible to attach a monetary value to the debt, liability or obligation. The Supreme Court determined that it was possible.

In Nortel Networks v MOE, litigation that has been working its way through the Ontario courts, the Ontario Court of Appeal lifted stays of remediation orders that had been put in place pursuant to the CCAA. Nortel applied for leave to appeal this decision to the Supreme Court, but last week Nortel’s application for leave was dismissed.

In assessing the Supreme Court’s reasoning in Abitibibowater the Ontario Court of Appeal summarized its interpretation of the ruling as follows:

“In determining whether a regulatory order is a provable claim, a CCAA court must apply the general rules that apply to future or contingent claims. As I read it, the Supreme Court’s decision is clear: ongoing environmental remediation obligations may be reduced to monetary claims that can be compromised in CCAA proceedings only where the province has performed the remediation work and advances a claim for reimbursement, or where the obligation may be considered a contingent or future claim because it is “sufficiently certain” that the province will do the work and then seek reimbursement.” [my emphasis]

In other words, if a province wishes to avoid the ‘car washing’ of its remediation order against a bankrupt polluter, it should not take steps to remediate the contaminated site itself, nor show any intent to remediate.

In terms of the Locke Stock & Barrel Co Ltd. environmental protection order, it is good to see Alberta utilizing some of the tools available to it to fix environmental problems. In some circumstances, however, it could be all for naught if the party subject to a remediation order declares bankruptcy and the obligation to remediate is “car washed” away by the CCAA. Remediation would likely then be left to the province in question, and, consequently, taxpayers like you.

By James Early

Carbon Capture, Alberta’s Licence to Drill

Last week, the Government of Alberta announced that, as part of “Budget 2014”, Alberta will continue to invest in two carbon capture and storage projects that, it says, will reduce greenhouse gas emissions from oil sands upgrading.

The report added that these two projects will commence in 2015 and will store 2.76 million tonnes of carbon dioxide per year, the equivalent, Alberta says, of taking 550,000 cars off the road each year.

What happens to the carbon dioxide once it is pumped underground? Is it safe? Will it leak? What energy has to be expended to actually pipe the carbon dioxide to its final resting place? Perhaps these questions need to be asked, and answered. Likely the carbon dioxide will be used to extract even more oil from the ground – adding more gas-using vehicles to our roads?

One thing is for sure, carbon capture and storage is being used by industry and the Alberta and Canadian governments as a licence to continue along the unsustainable path of developing the Alberta tar sands.

By James Early

Green Transit Projects Get Green Light in Alberta

In an announcement made by the Alberta Government on April 15, 2014, Alberta municipalities were advised that they may now submit new GreenTRIP applications.

The Green Transit Incentives Program (“GreenTRIP”) is a program that financially assists municipalities with the development of sustainable public transit alternatives.

This second call for GreenTRIP funding applications means municipalities can now apply for capital grant funding to support their new or evolving public transit projects. The deadline for receipt of applications is November 30.

GreenTRIP has already led to transit projects in 15 municipalities, worth more than $1 billion, and reported $1 billion remains in the program.

GreenTRIP is designed to provide Alberta residents with a wider range of sustainable and accessible public transit alternatives for local, regional and inter-municipal travel. This second call, and the length of the application period, gives municipalities time to consider their local transit priorities and opportunities for regional collaboration. It may also allow those communities with plans in place to move ahead sooner than expected.

Municipalities can apply for GreenTRIP funding to help purchase transit vehicles and technologies, build transit terminals and expand light rail transit services. Applicants for GreenTRIP funding are required to contribute at least one-third of the capital cost of a project.

By James Early

Costs: Public Interest Litigation

If you have been reading this blog for the last two months you will have seen reference to the conservation vs. wind energy battle that is playing out in Ontario courts at present. If you haven’t, see here and here.

In relation to the February 20, 2014 appeal (where Ostrander Point GP Inc. (“Ostrander”) was successful in putting the wind energy project back on track) the court asked for written submissions with regard to the issue of costs for that appeal.

Prince Edward County Field Naturalists (“PECFN”) and Alliance to Protect Prince Edward County (“APPEC”) argued that no costs should be awarded as their litigation was in the “public interest” and raised novel issues. Ostrander argued that costs should be awarded in the amount of $150,000.00 ($120,000.00 of which against PECFN, the rest against APPEC).

The court accepted that there was a measure of public interest engaged by the appeals, and that the issues raised were matters that had not previously been considered by the court. However, that was not the end of the decision.

In deciding whether a particular proceeding constitutes public interest litigation, five factors are to be considered:

(1) The nature of the unsuccessful litigant.
(2) The nature of the successful litigant.
(3) The nature of the lis – – was it in the public interest?
(4) Has the litigation had any adverse impact on the public interest?
(5) The financial consequences to the parties.

In response to these five factors, the court found:

“While the outcome of these factors in this case is mixed, overall they do not support a conclusion that this was public interest litigation. First, PECFN and APPEC had a direct and personal interest in the outcome of this litigation. They represent one element of the interests of the residents of Prince Edward County. They clearly have a view about the wisdom of this wind turbine development. They are entitled to pursue that view but not with impunity. Second, Ostrander is a private actor, not a public one. It is more difficult to deny costs to a successful private actor than it is to a public one. The third factor is more favourable to PECFN and APPEC. As we have already said, there is a measure of public interest in this litigation. The fourth factor is more neutral. While there is no serious adverse impact on the public interest from this litigation, there is nonetheless an adverse impact associated with the delay that is occasioned in having a project go forward that has been either directly or indirectly approved by two provincial ministries. Fifth, while undoubtedly Ostrander is better suited financially to absorb the costs of the litigation, that alone is not a reason to deny costs. One of the functions of costs is to ensure that all parties consider the wisdom of pursuing litigation and understand that there are consequences to doing so. PECFN and APPEC chose to pursue this matter before the Tribunal and then chose to pursue it further in this court. They must have been aware that there would be costs considerations engaged by pursuing their appeals in this court. There is no compelling reason to treat PECFN and APPEC any differently than any other party to litigation in that regard. In particular, PECFN and APPEC are not general public advocacy groups whose work elsewhere might be adversely affected by a costs award.”

What the court added, however, was that the five factors also have an impact on the quantum of costs to be awarded. In particular, costs should be fair and reasonable. As there was a measure of public interest involved in the litigation, the court saw fit to reduce the costs sought by two-thirds, resulting in costs awards of $40,000.00 against PECFN and $10,000.00 against APPEC.

The costs are payable within 30 days. To review the costs decision, you can click here.

By James Early

Ski-Resort to Proceed, Despite Challenge

On March 20, 2012, a Master Development Agreement (“MDA”) was signed by Glacier Resorts Ltd. (“Glacier”) and the Minister of Forests, Lands and Natural Resource Operations for British Columbia (“Minister”) which permits Glacier to develop a year-round ski resort on Crown land near Invermere, B.C.

The Ktunaxa Nation are an Aboriginal people who have inhabited the Columbia and Kootenay River valleys since before contact with Europeans. The proposed ski resort is located on Ktunaxa Nation traditional territory.

In this judicial review application, the Ktunaxa Nation asked the Supreme Court of British Columbia (the “Court”) to find that the MDA violates two of their constitutionally protected rights:

(i) the duty to consult; and

(ii) their right to freedom of religion.

Specifically, it was argued that “the Minister failed to fulfill the duty to consult in respect of the Ktunaxa’s aboriginal right to exercise a spiritual practice which by its nature requires the protection of a sacred site”.

The Court undertook a lengthy discussion of the history of the proposed ski resort development from its origins (a March 1991 initial proposal) to the MDA of March 20, 2012. The Court also noted the Ktunaxa Nation’s lack of involvement and delay in relation to the consultation process.

The first hurdle for the Ktunaxa Nation was an evidentiary one. It sought to introduce expert evidence as part of the judicial review application. These five reports were not before the Minister when the MDA was approved and, as a general rule, the scope of admissible evidence in a judicial review proceeding is limited to the record that was before the decision-maker whose decision is under review.

The Ktunaxa Nation argued exceptions to this general rule. For example, extrinsic evidence may be admitted where relevant to an allegation concerning a defect in procedural fairness or jurisdictional error. Despite this, the Court found that the expert opinions fell outside of the exceptions to the general rule against the admissibility of extrinsic evidence on judicial review.

In reviewing the case law on point, the Court concluded that, to the extent that the expert reports were tendered to illustrate the nature of the consultation that occurred, the reports could be admitted. An analysis of whether the duty to consult has been fulfilled is, in part, one of procedural fairness. However, in the Court’s opinion, none of the reports spoke to this issue.

Duty To Consult 

A duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. Three basic factors determine whether the duty to consult is triggered in any given situation:

(i) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right;

(ii) contemplated Crown conduct; and

(iii) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right.

While the scope of the duty to consult varies with the circumstances and exists along a spectrum, generally it depends on (a) a preliminary assessment of the strength of the Aboriginal rights asserted and (b) the seriousness and likelihood of the potential adverse effect of the contemplated Crown conduct on those asserted rights.

Good faith consultation may reveal a duty to accommodate to minimize impacts, but the duty to accommodate does not give Aboriginal groups a veto over all activities pending final proof of the Aboriginal claim.

The ultimate question in each case is whether the consultation was sufficient. The duty to consult is focused on process not outcome.

Analysis

In this case, the Court found that deep consultation was undertaken by the Minister. Following the consultation a significant accommodation was offered to Ktunaxa Nation, though Ktunaxa Nation argued that only cessation of the development would fulfill this duty. The Court considered the accommodations to be within a “range of reasonable responses which upholds the Crown’s honour and satisfied the Crown’s duty to consult and accommodate”.

Freedom of Religion

Section 2(a) of the Canadian Charter of Rights and Freedoms provides for every persons’ right to the freedom of conscience and religion.

The Ktunaxa Nation argued that, during the consultation process, it raised this Charter issue several times. Despite this, the Ktunaxa Nation argued, the Minister “never even put his mind to the Charter right at issue”. In the opinion of the Court, however:

 “…it does not matter whether the Minster’s Rationale contains the specific language of the Charter. What matters is that the Minister’s actions and the accommodations offered address the substance of the asserted Charter right where necessary.” [Emphasis in original]

In the Court’s view, the Minster’s Rationale and the preceding consultation process addressed the substance of the Ktunaxa Nation’s asserted Charter right.

Infringement of a Right

The Ktunaxa Nation did not argue that the development would interfere with the conduct of their ceremonial dances, or prevent them embarking on vision quests, or engaging in prayer or worship. The argument was premised on the asserted “loss of meaning” to actions that are otherwise unconstrained.

In addressing this argument, the Court found that freedom of religion does not extend to prevent otherwise lawful land use that might deprive a particular religious belief or subjective fulfillment. Certainly, interference cannot exceed the threshold of being beyond “trivial or insubstantial”, but the infringement must be based on facts that can be established and determined objectively. A subjective loss of meaning does not meet that threshold.

Regardless of this finding, the Court also determined that the MDA reflected a reasonable balance of this Charter right and that the development does not interfere with the Ktunaxa Nation’s freedom of religion in a way that is unreasonable or disproportionate.

In Summary

The Court dismissed Ktunaxa Nation’s judicial review application. Development of the proposed ski resort will proceed.

For more, or to review the full decision, see Ktunaxa Nation v British Columbia 2014 BCSC 568 (CanLII).

By James Early