Duty to Report / Transfer of Responsibility: Saskatchewan’s new Environmental Legislation

Saskatchewan’s Environmental Management and Protection Act, 2010 (“EMPA 2010”) came in to force on June 1, 2015 and has a couple of new features of interest to those involved in the development and transfer of real estate.

First, the EMPA 2010 contains a duty to report a “discovery”. That duty attaches to: any person who discharges or allows the discharge of a substance that may cause, or is causing, an adverse effect; any person who owns or occupies lands on which a substance is discovered; any person who, while conducting work on the lands, discovers such a substance; and any police officer or employee of a municipality or government agency who is informed of, or investigates, a discharge or discovery of a substance.

This is a significant expansion of the scope of the duty to reporter from the EMPA’s predecessor legislation.

Second, responsibility for an environmentally impacted site may now be transferred by a person responsible to another person if:

(a) the other person has agreed to accept responsibility for the environmentally impacted site;

(b) a site assessment has been conducted;

(c) a corrective action plan has been prepared;

(d) an estimate of the costs to carry out the corrective action plan has been prepared;

(e) the other person has agreed to undertake the corrective action plan within the time frame contemplated in the corrective action plan; and

(f) the other person has provided the minister with a financial assurance in the amount and in the form acceptable to the minister equal to:

(i) the anticipated costs of reclaiming the site; and

(ii) an additional contingency amount.

As a result, when land transactions are being contemplated between parties in Saskatchewan, the parties should be cognizant of these new changes, and turn their minds to both the duty to report, and to determining whether there ought to be a transfer of responsibility for any environmentally impacted site.

James Early

The Person Aggrieved vs. The Busybody | Standing When Challenging Decisions

In 2014, the British Columbia Supreme Court was asked (in Gagne v British Columbia, 2014 CarswellBC 3312, 2014 BCSC 2077), once again, to rule on the issue of “standing”.

Standing, from the Latin locus standi, determines whether a person has the right to bring a legal action. That person has to be sufficiently effected or harmed by an action or law in order to bring an legal claim. That person should not, however, be a “busybody”.

First, some background. On April 23, 2013, the Director of the Northern Region of the B.C. Ministry of Environment (the “Director”), granted an amendment to a multi-media permit, which increased the allowable daily emission of sulphur dioxide from 27 tonnes per day to 42 tonnes per day from an aluminum smelter operated by Rio Tinto Alcan (“Rio Tinto”) in Kitimat, B.C. This amendment was authorized in connection with Rio Tinto’s modernization of its Kitimat smelter.

This amendment was challenged by six individuals, the Skeena Wild Conservation Trust (the “Trust”), and the Lakelse Watershed Stewards Society (the “Society”). Two residents of Kitimat, B.C., were granted standing by the Environmental Appeal Board (the “Board”). Of those denied standing, four (including the Trust and the Society) petitioned the British Columbia Supreme Court for an order directing the board to grant them standing.

Ultimately, the British Columbia Supreme Court set aside the Board’s decision and directed the Board to reconsider whether the petitioners were “persons aggrieved”.

The Court found:

– that there was no doubt that the amount of sulphur dioxide emitted into the atmosphere was subjectively of significant importance the petitioners, and indeed the public in general;

– that the Trust and the Society “cannot be summarily excluded from the possibility of being a person aggrieved on the basis that they are not persons”.

– the burden on an applicant when applying for standing must only involve demonstrating to a prima facie (“at first sight”) standard that they are a person aggrieved, not a “balance of probabilities”. Note: a prima facie standard is lower, and therefore easier to achieve, than a balance of probabilities.

– a person aggrieved must demonstrate some form of prejudice to their individual interest, albeit only on a prima facie basis.

In addition to its comments on “persons aggrieved” and the test for determining standing, the Court also determined that the Board must rigorously comply with its own procedure manual. It did so because it found that, following the conclusion of written submissions in relation to the standing hearing, the Board requested extra records from Rio Tinto in breach of its own procedural manual.

Despite the fact that it was evident that the Board and Rio Tinto had acted in good faith throughout the “standing” proceeding, the Board’s breach of its own procedural manual had seriously breached the petitioners’ right to procedural fairness.

Following on from this decision, the Board then reconsidered the petitioners’ application for standing. The Board first noted that the test to establish standing as a “person aggrieved” is:

– Whether the person has disclosed sufficient information to establish, objectively and on a prima facie basis, that the appealed decision prejudicially affects the person’s interests.

Regardless, however, the Board found that none of the petitioners were “persons aggrieved” and, ultimately, the petitioners efforts were all for naught. The common reason appears to be the Board’s determination that Rio Tinto had provided unchallenged information that, under the Permit amendment, the level of sulphur dioxide emissions was predicted not to exceed BC Provincial Pollution Control Objectives outside of Kitimat and that the petitioners were resident some distance away from Kitimat.

James Early

State of Caribou in Ontario

The Ontario government has released its State of the Woodland Caribou Resource Report 2014 on “five years of research, monitoring and assessment to promote the recovery of woodland caribou and support sustainable forest management”.

The forest-dwelling woodland caribou was listed as threatened under the Endangered Species Act (Ontario) in 2008. The report reviews the progress made towards the protection and recovery of caribou in Ontario, outlines the findings of the monitoring and assessment of caribou and caribou habitat, and identifies details and findings of its caribou research program.

In furtherance of the Caribou Conservation Plan, the Ontario government has invested over $11 million, and had researchers contribute to over 50 research projects on various topics including genetics, habitat use, diet and predation.

Time will tell whether enough was done to protect this iconic species.

James Early

 

Changes to Ontario Greenhouse Gas Emission Reporting Regulation

The Ontario Government is seeking comments on various suggested changes to the Greenhouse Gas Emissions Reporting Regulation. The aim of the changes is to simplify greenhouse gas emission reporting in Ontario. Diane Saxe (here) has summarized some of the changes as including:

  • changes to the Global Warming Potential (GWP) values to adopt internationally-accepted values
  • clarification on verification statements
  • clarification on temporary and partial closures
  • changes to the guideline to remain consistent with requirements in other provinces
  • streamline director approvals in the guideline

The Ontario government has provided a blackline draft of the changes, here. The comment period closes on January 19, 2015.

James Early

Happy New Year…

…and all the best for a happy and healthy 2015.

2014 has been the most busy, satisfying and rewarding year to date. It was marked by personal achievements, festive celebrations and a well-earned lengthy break from work to the Galapagos Islands, and the beautiful city of Quito, Ecuador.

Thank you to those of you who have taken the time to learn a little about recent environmental law developments through this site, for your support, and for your ongoing interest in the protection of our environment.

From my family to you and your loved ones, enjoy the New Years celebrations, and I look forward to our continued contact into 2015.

James Early

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

 

 

Site C Dam Faces Alberta Opposition

Two Alberta First Nations have filed legal proceedings in Federal Court seeking a judicial review of the approval of the Site C dam project by the British Columbia government earlier this fall.

The Mikisew Cree and Athabasca Chipewyan allege that they were not consulted by government, and that the decision to approve the Site C dam was made without considering the downstream effects of the dam on the Peace-Athabasca Delta, a UNESCO World Heritage Site and one of the largest freshwater deltas in the world.

This judicial review application follows of the heels of an earlier application by several Treaty 8 First Nations in B.C. In that application, the B.C. First Nations allege that the Ministry of Environment failed to fully consider the effects that the dam will have on First Nations’ treaty rights. The Peace Valley Landowners Association is also part of a judicial review application in relation to Site C.

The approval of the Site C dam came despite a Federal-provincial Joint Review Panel report which found that the dam would produce impacts on First Nation treaty rights that could not be mitigated. That same Panel found that Site C “would not have any measurable effect on the Peace-Athabasca Delta,” and that there are not any direct links between the Site C project and effects on the Delta.

James Early