Tag Archives: species

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

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

 

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

Reintroduction of Wildlife: No Basis for Liability for Motor Vehicle Collisions

Imagine driving along a highway on the island of Newfoundland on a fine summer’s evening. Suddenly, seemingly out of nowhere, a moose bounds onto the road. Before you have time to avert the inevitable collision, 600 to 1,000 pounds of animal hits your car. Because the moose stands on long, spindly legs, the car proceeds through the legs and under the moose, resulting in its massive body coming over the hood of your car and crashing down on your windshield and roof. If the moose has not been killed instantly, it thrashes about in your car, making a horrific situation for you even worse. The result can be catastrophic – serious injury, paralysis and even death.

The Supreme Court of Newfoundland and Labrador Trial Division (General) (the “Court”), last week, rendered its decision in George v Newfoundland and Labrador, 2014 NLTD(G) 106. After opening his decision with the paragraph, above, Mr. Justice Robert P. Stack proceeded to the matter at hand.

This class action lawsuit concerned the introduction of moose to the island of Newfoundland and the Province’s subsequent management of the moose population as it relates to highway traffic safety.

The introductions of moose to the island of Newfoundland occurred first in 1874-75 in Gander Bay and later in 1904 at Grand Lake Station. It is not clear, however, whether the current moose population derives from the first attempted introduction or only the second. Moose were introduced for food for the residents and sport for hunters.

The Province has authority over the management of wildlife within Newfoundland and Labrador, as well as the development and maintenance of the highway system throughout the Province. The plaintiffs alleged that the Defendant Province was liable in strict liability, public nuisance, and negligence for personal injuries and loss of human life that were caused by moose-vehicle collisions outside national park boundaries in insular Newfoundland during the class period.

The plaintiffs’ action failed. The Court found:

(1) The Province is not liable to the plaintiffs in the tort of strict liability.

(2) The Province is not liable to the plaintiffs in the tort of public nuisance.

(3) The Provice does not owe a prima facie duty of care to the owners and occupiers of motor vehicles to mitigate the risk of moose-vehicle collisions, Even if the Province did, such a duty of care would be negated because it has adopted policies of moose population management and moose-vehicle collision risk mitigation that are neither irrational nor were made in bad faith.

In addition to other arguments around the principle of strict liability, as an alternative, the plaintiffs argued that the Province was strictly liable for harm caused by moose on the highways by virtue of the emerging principle of strict liability for abnormally dangerous activity. In support of this, the plaintiffs cited academics who postulate that a new basis of strict liability should be adopted, whereby liability flows from the defendant engaging in abnormally dangerous activities (Linden, et al).

While the Court found that it cannot be said that there will never be presented to the Court facts that would result in further evolution of the common law of strict liability, at this time, at least, such a tort is not recognized in Canadian law, and was specifically rejected in Smith v Inco Ltd., 2011 ONCA 628.

As you are no doubt aware, Parks Canada is in the process of reintroducing plains bison to Banff National Park. This decision should be welcome news for Parks Canada.

James Early

A Battle Line is Drawn | Maligne Lake Development Faces Opposition

The Canadian Parks and Wilderness Society (“CPAWS”) and the Jasper Environmental Association (“JEA”) have commenced judicial review proceedings in Federal Court, challenging a decision to approve the development of tent cabins at Maligne Lake in Jasper National Park.

Jasper National Park’s long-term ecological vision for the area is set forth in a 2010 Management Plan which, in part, states:

“[n]o new land will be released for overnight commercial accommodation outside the [Jasper town site]”.

Despite this prohibition on further development, the proposal for development was nevertheless approved.

CPAWS and JEA have applied for judicial review on a number of grounds including:

1. the 2010 Management Plan prohibits the type of development that has been approved;

2. the proposed development does not constitute a “change in circumstances” that would warrant an amendment to the 2010 Management Plan; and

3. the decision was made without regard for the continuing decline of the Maligne caribou herd and the status of both Southern Mountain Caribou and grizzly bear populations.

The Jasper National Park decision continues the Federal Government trend of overdeveloping national parks, often contrary to on-the-ground policy. In his article, “Developers once again eager to pave paradise”, CPAWS Board Member, and Troy Media Editor-in-Chief, Doug Firby, explains some of the background of the history of development of our national parks.

The battle line has been drawn at Maligne Lake.

James Early

Final South Saskatchewan Regional Plan Released

Alberta’s Land-use Framework (LUF), released in December 2008, established seven land-use regions and called for the development of a regional plan for each. The Alberta Land Stewardship Act (the “Act”) supports the LUF and establishes the legal basis for the development of regional plans.

The South Saskatchewan Regional Plan (the “Plan”) is one such plan and was released today by the Alberta Government. To review the Plan, just click here.

While the Plan establishes a long term vision for the South Saskatchewan region and places various commitments and requirements on those who make land-use decisions in Alberta, it is largely toothless when it comes to enforcement by the public. The Act provides that a regional plan, while binding the Crown, local government bodies and decision-makers, does not

– create or provide any person with a cause of action or a right or ability to bring an application or proceeding in or before any court or in or before a decision‑maker,

– create any claim exercisable by any person, or

– confer jurisdiction on any court or decision‑maker to grant relief in respect of any claim.

A person may, however, make a written complaint to the secretariat that a regional plan is not being complied with. If, following the investigation of the secretariat, the stewardship commissioner is satisfied that there has been non-compliance with a regional plan, the stewardship commissioner may apply to the Court of Queen’s Bench for an order, inter alia:

– to stop something being done, to require something to be done or to change the way in which something is being done;

– to manage the conduct of a person who is non‑compliant;

– declaring that any regulatory instrument of a local government body does or does not comply with a regional plan and, if necessary, ordering compliance;

– to take any action or measure necessary to remedy or rectify non‑compliance with a regional plan and, if necessary, an order to prevent a reoccurrence of the contravention;

– to amend or repeal a regulatory instrument of a local government body that does not comply with a regional plan.

As for the Plan, itself, criticism is already being directed at it in terms of its failure to fully protect the Castle Special Place and the headwaters of the Oldman River. Criticism is also aimed at the Plan’s failure to stand up to industry and motorized recreation groups, although, in turn, those recreation groups are also complaining that the Plan would make some off-roading trails off limits.

As expected, few appear to be happy with the final plan. So far, industry has been silent.

James Early

Public Feedback Requested on near-Urban Energy Development in Alberta

According to a media release from June 16, 2014, the Government of Alberta is inviting Albertans to provide input on issues relating to energy development in urban areas through an online forum.

The online feedback form is available until July 15 and will be supplemented by discussions with local stakeholders in Grande Prairie, Red Deer, Calgary, and Lethbridge between June 16 – 24.

The Province has not yet made any decision with respect to the South Saskatchewan Regional Plan and how the SS region’s land use might be governed over the coming years, but already it appears that continued development of energy close to urban centres in on the cards.

There are concerns about the draft SSRP and its failure to properly protect the environment in which we live. This energy development consultation provides Albertans yet another chance to voice their thoughts and concerns over Alberta’s environmental policy.

By James Early