Tag Archives: eco

BREAKING: Peel Watershed Protected by S.C.C.

BREAKING: The Supreme Court of Canada has ruled in favour of Yukon First Nations in their fight to protect the Peel watershed region. This follows my earlier post of November 4, 2015 following the Yukon Court of Appeal decision. More to follow.

James Early

Calgary SDAB Quashes Inglewood Bird Sanctuary Development Permit

The Development Authority of The City of Calgary (“Development Authority”) had approved a development permit for a new community recreation facility located on a site known as the Inglewood Bird Sanctuary (“Sanctuary”). The Sanctuary is a Regional Park in Calgary’s Park system and the site id designated Major Public Open Space.

The Appellants in this matter (SDAB2015-0159 (Re), 2015 CGYSDAB 159 (CanLII)) were the Inglewood Community Association and Nature Calgary. These two organizations challenged the approval of the development permit for an ‘outdoor classroom’ on the grounds that:

(a) necessary stakeholders were not circulated and/or consulted before development permit filing; and

(b) facilities at the Bird Sanctuary may be well need to be augmented but the location and design can be considerably improved in a way that is not prejudicial to the sensitivity of the Bird Sanctuary.

In particular, the appellants contended that the location of the proposed development was in contravention of the Municipal Development Plan, the Urban Parks Master Plan, the Natural Area Management Plan, the Biodiversity Strategic Plan, and the Inglewood Bird Sanctuary Master Plan.

The Sanctuary has a Federal Migratory Bird Sanctuary designation which confers special significance that helps to protect it from potentially destructive whims of a local community. It hands the Sanctuary a wider purpose and establish it as a keystone migratory bird habitat within the patchwork of international conservation areas (Inglewood Bird Sanctuary Master Plan, page 51). In the City’s Natural Area Management Plan the Bird Sanctuary is listed as a “Special Protection Natural Area”. It is listed as having the characteristics of “high overall sensitivity, provincial/regional significance and highly productive habitat”.

The Development Authority argued that the Inglewood Bird Sanctuary Master Plan, Calgary Urban Park Master Plan and Natural Area Management Plan are not relevant to the development at hand and, therefore, outside of the Board’s jurisdiction. The Board, however, disagreed, finding that section 35(a) of the Land Use Bylaw refers to “plans and policies affecting the parcel” and, further, that this section applies to policies of statutory and non-statutory plan documents of The City of Calgary. The section is not limited solely to statutory plans.

The Board placed, what it termed, “pivotal weight” on point 4.8 of the Biophysical Impact Assessment, which states:

“4.8       Environmentally Significant Areas

The Sanctuary is within the provincial ESA # 289. This ESA includes the Bow River Valley and is of national significance as it encompasses unique landforms, observations of species of concern, important wildlife habitat, intact riparian areas and headwater streams, and large natural areas (Fiera Biological Consulting Ltd. 2009).

The Sanctuary is considered “Special Protection Natural Area” by The City of Calgary with the Natural Environment Park designation. This designation is meant to describe areas of high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation (City of Calgary 1984). In particular, the balsam popular forests of the Sanctuary are of high conservation value (City of Calgary 1994). The Inglewood Bird Sanctuary is also listed as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations (Government of Canada 1994).

[…]

In the Board’s view this statement astutely described the importance of the “Special Protection Natural Area”. The Sanctuary was found to be an area of a high environmental sensitivity, including high wildlife habitat quality and primarily native vegetation. This was a significant factor considered by the Board.

Further, the Board was persuaded on the significance of the Sanctuary by the fact that it is protected as a Federal Migratory Bird Sanctuary under the Migratory Bird Sanctuary Regulations which, to the Board, spoke volumes about the unique status of the Sanctuary and the special environmental significance of it.

Finally, the Board cited the evidence of famed environmental educator Brian Keating, and the Canadian Parks and Wilderness Society (“CPAWS”) as corroborating that evidence, wherein Mr. Keating stated:

“The Sanctuary needs to be respected for the purpose intended: the preservation of some of the best and most diverse bird habitat within the City It is a preserve we need to protect as a sanctuary, a celebration of high-quality, critical riparian wildlife habitat. More structures will only degrade, not enhance the small treasure of Calgary”.

As a result, therefore, the Board overturned the decision of the Development Authority to approve the development permit, and declared that permit null and void.

James Early

Ontario’s Great Lakes Protection Act

Today, October 7, 2015, Ontario passed the Great Lakes Protection Act (the “Act“). The Act is designed to strengthen Ontario’s ability to keep the Great Lakes and St. Lawrence River clean, as well as to protect and restore the waterways that flow into them.

According to the provincial government’s news release, the Act enables the province to address significant environmental challenges to the Great Lakes, including climate change, harmful pollutants and algal blooms. The Act will also:

  • Establish a Great Lakes Guardians’ Council to provide a collaborative forum for discussing and gaining input on issues and priorities relating to the Great Lakes.
  • Allow the Ministry of the Environment and Climate Change to set environmental targets and enable communities to address local problems.
  • Require the establishment of monitoring programs on a number of water quality indices where needed, as well as regular public reporting.
  • Require consideration of Traditional Ecological Knowledge in decisions made about the health of the Great Lakes if offered by First Nations or Métis communities.
  • Enshrine Ontario’s Great Lakes Strategy the province’s action plan on the Great Lakes, as a living document to be reviewed every six years and reported in the legislature every three years.

This is extremely positive news given the declining health of the Great Lakes, particularly with regard to recent toxic algal blooms and the availability of clean drinking water for those people reliant on the Great Lakes’ fresh water supply.

According to Environmental Defence, who has championed this Act for a number of years, the Act will lead to:

  • Empowered communities through consultation and new opportunities for involvement;
  • Consideration of traditional ecological knowledge in research and decision-making;
  • Provincial commitment to meeting targets that will reduce or eliminate harmful pollutants and address algal blooms; and
  • Accountability, through improved monitoring and reporting.

The Great Lakes basin is home to 98 per cent of Ontario’s population, 95 per cent of its agricultural lands, 80 per cent of its power generation capacity and 75 per cent of Canada’s manufacturing sector. Additionally, Ontario has 10,000 kilometres of Great Lakes and St. Lawrence shoreline, the longest freshwater coastline in the world. This is reason enough to celebrate the passing of the Great Lakes Protection Act.

James Early

Environmental Contamination: Proof of Disclosure

Yesterday, the Ontario Court of Appeal (the “Court”) dismissed an appeal by Crosslink Bridge Corp. (“Crosslink”) who was seeking to get out of a transaction to buy property from Canadian National Railway Company (“CN”).

On December 18, 2006, the property in question was owned by CN, and was made subject to a Director’s Order issued pursuant to the Environmental Protection Act (the “EPA”) requiring that certain remedial work be completed. In addition, before “dealing with” the property in any way, CN was under an obligation to give a copy of the Director’s Order to any person who acquires an interest in the property.

By May 2007, Crosslink had offered to purchase the property and the sale was complete by November 2008. Four years later, in 2012, Crosslink sought to avoid the transaction by relying on s. 197(4) of the EPA:

“A dealing with real property by a person who is subjected to a requirement imposed under section (1) or (3) is voidable at the instance of a person who was not given the copy of the order or decision in accordance with the requirement.”

Essentially, Crosslink argued that it was never provided with the Director’s Order and, as such, the transaction is voidable. CN refused to void the transaction.

In considering all of the evidence, Justice Murray of the Superior Court of Justice concluded that an inference could be drawn that Crosslink or its solicitors were provided with a copy of the Director’s Order prior to the closing of the transaction. He listed twelve facts that “overwhelmingly” led to such inference.

On appeal, Crosslink argued that the statutory onus rests on the proposition that CN was required to establish precisely when, where and how it had given Crosslink a copy of the Director’s Order. The Court, however, determined that the boxes of information provided by CN to Crosslink in advance of the transaction contained very detailed information relating to the environmental problems for the property and that it would have been apparent, from the Certificate of Requirement on title, that an order requiring remediation work had been made.

The Court found the following to be instructive:

– Crosslink knew that the Director’s Order had been made;

– there was full disclosure of the environmental reports that led to the Director’s Order;

– following a lengthy due diligence period, Crosslink waived all conditions with respect to the environmental condition of the property, acknowledged that CN had delivered all environmental reports in its possession and conclusively waived all requisitions concerning any matters relating to the property; and

– before closing the transaction, Crosslink requisitioned a copy of the Order “[t]o the extent not already provided” and then failed to respond to CN’s reply: [p]lease advise us if your client has not yet received a copy of this Order”.

On those facts, the Court found a sufficient evidentiary record to support Justice Murray’s finding that CN had given Crosslink a copy of the Director’s Order. The Court awarded costs of the appeal to CN in the amount of $35,000.00.

Word of warning, a vendor does not need to establish precisely when, where and how it provided a Director’s Order for remediation. An assessment of the facts, as a whole, may be sufficient to establish that provision of the Director’s Order occurred.

The full decision can be read here: Crosslink Bridge Corp. v Canadian National Railway Company 2014 ONCA 247 (CanLII).

By James Early.