Tag Archives: politics

Ontario’s Neonicotinoid Law Survives Appeal

In October 2015 I reported on how Ontario’s neonicotinoid law, which dramatically reduces the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, was to remain in place despite a challenge to that law by the Grain Farmers of Ontario (“GFO”).

As you probably know, there are strong links between neonicotinoids and bee colony collapses, and neonicotinoids are known as being toxic to bees.

In that post, I referenced the fact that the GFO was “reviewing its legal options”, and the GFO ultimately opted to appeal the Ontario Supreme Court’s decision.

Well today, I’m pleased to report that the appeal was heard, and dismissed, by the Ontario Court of Appeal (the “Court”). For a full review of the decision, just click here.

At the appeal, the GFO raised two issues. It submitted that the motion judge erred in finding that:

(1) Ontario Regulation 139/15 made under the Pesticides Act, R.S.O. 1990, c. P.11 (“the Regulation”) does not limit the farmers’ property rights; and

(2) the relief sought is not the determination of rights through the interpretation of a regulation.

In dismissing the appeal, the Court did find that the Regulation narrows the farmers’ range of legally permitted options of treated seeds, and so affects the farmers’ rights. However, the limitation of a right does not, standing alone, create a justiciable issue (an issue that can be tried in a court of law).

The GFO argued that the justiciable issue in this case was found in r. 14.05(3)(d) of the Regulation, which provides:

“(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;”

However, the Court noted that this rule was a procedural rule, and is not a mechanism whereby a person could simply challenge the wisdom or fairness of a governmental action. The Court agreed with the reasoning of the motion judge, citing the Alberta Court of Appeal in Trang v. Alberta (Edmonton Remand Centre) which provided:

“Private litigants are not entitled to use the courts as an indirect method of altering public policy decisions, especially those involving the expenditure of public funds. Just because a private party has a sincere concern about the validity of a public policy does not entitle him or her to litigate its legality: Canadian Council of Churches v. Canada (Minister of Employment and Immigration). As a corollary, the superior courts are not to use their powers to grant generally worded declarations as a method of controlling or influencing governmental operations.”

In the result, Ontario’s neonicotinoid law remains, and its bees are safer for another day.

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

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

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

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