Category Archives: Charter Rights and Environment

Wind Power Gets Go-Ahead in Ontario

Yesterday the Ontario Superior Court of Justice dismissed the appeals of a group of residents who lived close to proposed wind turbines, paving the way for those turbines to be built: Dixon v Director, Ministry of the Environment, 2014 ONSC 7404 (CanLII).

The residents had argued that the turbines would cause serious harm to human health if constructed, and suggested that prior hearings before prior Tribunals were procedurally unfair.

A number of ‘grounds of appeal’ were argued, including suggestions that: the “harm” test contained in the Environmental Protection Act violated the Charter; the Tribunals erred in their treatment of the “post-wind turbine witnesses”;  the Tribunals erred in finding that they lacked jurisdiction to assess whether a Director’s decision, or the process in making a decision, is Charter compliant; and the Tribunals failed to follow the principles of fairness or natural justice. On each ground, the residents failed.

To view the decision in its entirety, click here.

James Early

 

 

Right to a healthy environment for Richmond, B.C., residents

The City of Richmond, B.C., has become the second municipality in Canada (after Montreal borough of Rosemont-La Petite-Patrie) to adopt a municipal declaration of an individual’s right to live in a healthy environment. The full text of the declaration is as follows:

City of Richmond Municipal Declaration
The Right To A Healthy Environment

Whereas the City of Richmond understands that people are part of the environment, and that a healthy environment is inextricably linked to the well‐being of our community;

The City of Richmond finds and declares that:

1. All people have the right to live in a healthy environment, including:

The right to breathe clean air.

The right to drink clean water.

The right to consume safe food.

The right to access nature.

The right to know about pollutants and contaminants released into the local environment.

The right to participate in decision‐making that will affect the environment.

2. The City of Richmond has the responsibility, within its jurisdiction, to respect, protect, fulfill and promote these rights.

3. The City of Richmond shall apply the precautionary principle: where threats of serious or irreversible damage to human health or the environment exist, the City of Richmond shall take cost effective measures to prevent the degradation of the environment and protect the health of its citizens. Lack of full scientific certainty shall not be viewed as sufficient reason for the MUNICIPALITY to postpone such measures

4. The City of Richmond shall apply full cost accounting: when evaluating reasonably foreseeable costs of proposed actions and alternatives, the City of Richmond will consider costs to human health and the environment.

5. By Dec 31st, 2015, the City of Richmond shall specify objectives, targets and timelines and actions the City of Richmond will take, within its jurisdiction, to fulfill residents’ right to a healthy environment, including priority actions to:

a. Ensure equitable distribution of environmental benefits and burdens within the municipality, preventing the development of pollution “hot spots”;

b. Ensure infrastructure and development projects protect the environment, including air quality;

c. Address climate change by reducing greenhouse gas emissions and implementing adaptation measures;

d. Responsibly increase density;

e. Prioritize walking, cycling and public transit as preferred modes of transportation;

f. Ensure adequate infrastructure for the provision of safe and accessible drinking water;

g. Promote the availability of safe foods;

h. Reduce solid waste and promote recycling and composting;

i. Establish and maintain accessible green spaces in all residential neighbourhoods.

The City of Richmond shall review the objectives, targets, timelines and actions every five (5) years, and evaluate progress towards fulfilling this declaration.

The City of Richmond shall consult with residents as part of this process.

This is part of a greater push across Canada for a change in the Canadian Charter of Rights and Freedoms to specifically recognize the right of all Canadian’s to live in a healthy environment. An in depth and comprehensive analysis of this issue was recently undertaken by Professor David R. Boyd in his book: The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment.

James Early

Northern Gateway Dealt Another Setback

In a unanimous decision, the Supreme Court of Canada has expanded land-title rights for aboriginal communities. Indirectly, it has created yet another significant hurdle for Enbridge’s Northern Gateway pipeline, and other similar projects.

Speaking for the Court, Chief Justice Beverley McLachlin wrote that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders…”.

Further, “if the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified” under the Constitution.

In concluding, the Court found that the appeal of the Tsilhqot’in would be allowed and declared “that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations”.

For the full text of the decision, simply click here.

By James Early

Kinder Morgan: Who Participates?

While thousands of interested parties participated in the Northern Gateway hearings, the same cannot be said of the Kinder Morgan National Energy Board (“NEB”) pipeline review.

More than 2,100 people applied to participate in the Kinder Morgan hearings, though as few as 400 will be permitted to appear as intervenors at the hearing. New rules enacted by the federal government now limit participation to only those who are directly affected by the project.

In order to participate, the NEB must be satisfied that an applicant:

-is directly affected by the granting or refusing of a project application

-has relevant information or expertise for the NEB to consider; or

-both.

As part of the new rules, the NEB is to determine who is directly affected by considering the following two factors:

1. The nature of the person’s interest.

2. Whether the granting or refusing of a project application causes a direct effect on the person’s interest.

The first enquiry addresses whether a person has a specific and detailed interest, rather than a general public interest. Examples of interests that could support participation are: commercial, property or other financial interest (including employment); personal use and occupancy of land and resources; or use of land and resources for traditional Aboriginal purposes.

In relation to this second stage, the NEB will consider the degree of connection between the project and the interest, the likelihood and severity of harm a person is exposed to, and the frequency and duration of a person’s use of the area near the project.

The interpretation of these rules, however, is proving contentious.

In challenging the rules on participation, this week Forest Ethics Advocacy, amongst others, filed an application with the NEB alleging:

“…[the restriction on participation] is a draconian, undemocratic limitation of their constitutionally guaranteed freedom of expression…”

The applicants also allege that the NEB used a very narrow definition of the phrase “directly affected”, and that the NEB refuses to hear submissions on climate change or fossil fuels:

“This board cannot determine whether the proposed pipeline is in the public interest without a full consideration of the environmental effects… …[th]e project is being proposed in order to increase pipeline capacity in support of growing oil production. Without acknowledging that increased production of oil sands is having a devastating effect on the environment, and resulting in climate change, this board cannot even begin to address the issues which it has deemed relevant

The NEB application follows on the heels of a Tsleil-Waututh application, filed just a few days earlier in the Federal Court of Appeal. In this case, the First Nation claims that the NEB review process is unilateral and one-sided.

The First Nation has stated:

“…serious legal errors made by the federal Crown and NEB have led to a flawed and unlawful review process that puts Burrard Inlet and all peoples who live here at risk.

“The Crown and NEB are running roughshod over our Aboriginal Title and Rights. The process to review Kinder Morgan’s proposed pipeline expansion and tanker project was designed without First Nations consultation or public participation. The timelines appear to have been designed to rush through approvals,” says Chief Maureen Thomas, Tsleil-Waututh Nation.

“Legal materials to be filed in the Federal Court of Appeal will demonstrate that, among other things, the NEB lacked legal authority to start its review process because of the federal government’s failure to first consult Tsleil-Waututh on key decisions about the environmental assessment and regulatory review of the project.”

Regardless of the disposition of the NEB and Federal Court applications, what appears to be certain is that litigation in relation to the Kinder Morgan project is not likely to stop. Currently the Northern Gateway project is facing litigation on at least 10 fronts from a range of parties including First Nations and environmental groups.

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

Protests: Where’s the line?

This past Friday marked the end of the most recent wild horse cull in Alberta. During that cull, five protestors were arrested and charged with mischief. It begs the question, when a group protests, what can and cannot be done?

The answer, as ever, is typically “grey”, but here are just a couple of Canadian decisions on the issue of protests. These protests, like those that shadowed the wild horse cull, were conducted on Crown land, and were protests against action that was legally permitted.

In Nalcor Energy v NunatuKavut Community Council Ltd. a group of protestors opposed the construction of hydro-electric stations. These protestors initially held peaceful protests outside of the construction area but their activities eventually escalated toward a blockade which prevented access to the worksite.

The construction company, Nalor Energy, was contracted to build these stations pursuant to lawful authority granted by an order in council as per the Environmental Protection Act.

The court in Nalor noted that the protestors had a Charter-protected right to protest. However, the interruption to Nalor Energy’s operations amounted to a risk of irreparable financial harm (primarily because of the very unlikely chance of recovery of money damages from the protestors). By blockading the construction site, the protestors had interfered with a lawful exercise of rights and an injunction was issued preventing them from engaging in specific blockade-related activates.

The court’s ruling sought to strike a fair balance between the right to a peaceful protest and the right to undertake lawful construction activities. The court required Nalor Energy to construct a safety zone adjacent to the construction area to allow the protestors to exercise their Charter rights.

The lesson from Nalor is that whenever a person is exercising lawful activities that are authorized by statute or regulation, protestors must avoid direct interference with the exercise of these activities. In other words, if the act of protesting has a direct or material effect on the activity in question (i.e. unreasonable delay or financial costs) then the protest activities causing this effect will likely be prohibited by an injunction.

Another case illustrating the application of the above principle is International Forest Products Ltd. v Kern. In Kern, International Forest Products Ltd. was lawfully authorized to harvest timber on certain Crown lands. Protesters sought to bring public attention to these activities. Their interference escalated from peaceful protests to vandalizing access roads, removing boundary markings and standing in close proximity to trees.

International Forest Products Ltd. was successful at obtaining an injunction restricting access by the protestors to the area. The court stated that “the protestors are free to exercise their views and protest in any lawful way they wish but they cannot engage in unlawful activities that deny or affect the capacity of another member of the public to exercise a lawful right.”

Furthermore, one of the protest leaders was arrested by the Royal Canadian Mounted Police and charged with mischief. The court reasoned that the power to charge a person with a criminal offence was the proper jurisdiction of the Attorney General and the court would not interfere. The court’s purpose is to resolve a civil dispute between two citizens.

In Kern, the court held that an injunction was appropriate because of the obvious safety hazards to both the workers and protestors as well as the financial costs incurred by International Forest Products Ltd. in the exercise of a lawful right that had become extremely difficult to exercise due to protest activities.

A protest, therefore, should bring public awareness to the issues or actions complained of, but should not directly or materially impact on the legal rights of others.

By James Early.