12 Jan Cindy’s List – Noteworthy environmental cases of 2009
Cindy’s List – Noteworthy environmental cases of 2009
By Cindy Chiasson
It’s that list time of year…you know, top movies/songs/shows/stories/etc, etc, etc of the past year. While most of those lists seem to be little more than space fillers for the media, every so often an item will catch my attention and I’ll think “Wow, I forgot all about that!” Interestingly, I was asked last week for my thoughts on significant environmental law cases of 2009. Now there’s a list that gets my notice! See what you think
- Kelly v. Alberta (Energy Resources Conservation Board), in which the Alberta Court of Appeal held that the ERCB was too narrow in deciding who was eligible to participate in sour gas hearings. It appeared that this decision would significantly expand public participation in future hearings until the ERCB issued its response, which corrected an error in their process that also happened to narrow the scope of those who might be eligible to participate in the future. For more on the ELC’s position on this decision, read Court of Appeal Opens ERCB’s Standing Door a Crack and watch Cindy Chiasson on Alberta Primetime.
- Alberta Sulphur Terminals Ltd. dealt with a proposed project to develop a sulphur forming and shipping facility. The Natural Resources Conservation Board reviewed the project and approved it as being in the public interest. Its detailed discussion of why and how it reached that decision is noteworthy, as that was rarely done in past decisions. I like this development because it’s consistent with recommendations the Centre made previously on decision-making in the public interest.
- Alberta Wilderness Association v. Canada (Environment) deals with the federal Species at Risk Act and how the Minister of Environment must identify and designate critical habitat in an endangered species recovery plan. The Federal Court held that the Minister must take a precautionary approach, as required in the Act, and use the “best information available”.
- Environmental Defence Canada v. Minister of Fisheries and Oceans is another case under the Species at Risk Act that dealt with critical habitat. The Federal Court confirmed that the Minister has no discretion in identifying critical habitat of endangered species and must do so based on the best available information to the extent possible.
- Great Lakes United v. Canada (Environment) affirms the duty of the federal Minister of Environment, under the Canadian Environmental Protection Act, to inform Canadians about the state of the environment by collecting and publishing pollution data.
Potential cases to watch for 2010 include the prosecutions of the duck deaths on Syncrude’s oil sands tailings pond and of the oil spill by CN into Lake Wabamun, as well as the anticipated ERCB decision on Petro-Canada’s proposal to run a pipeline near Kananaskis Country.
What environmental happenings did you find important in 2009? What will you be watching for in 2010?
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Cindy Chiasson
Posted at 13:44h, 18 JanuaryWe’re still getting the hang of this, as our blog is fairly new, but we plan to keep commenting on environmental law and policy news, including cases and laws. Our areas of focus are: water; land use; cumulative effects; public participation; and climate change. Let us know if there’s anything you’d like to see us blog about – thanks for your comments.
Adam Driedzic, ELC (Edmonton)
Posted at 15:41h, 15 JanuaryMiningWatch will likely impact public participation in the federal EA process, perhaps positively. The issue is whether the comprehensive study list applies before or after a project is scoped. It will determine whether administrative discretion can allow for a project to be downgraded before an otherwise mandatory public consultation takes place.
The case concerns the Red Chris mine in Northern BC. The proposed project consists of: (1) a tailing pond in a hanging valley, (2) a dam to seal off the mouth of the valley, and (3) the primary operations. The mine was listed and would have required public consultation, but the project was scoped as being the dam.
The Federal Court of Appeal held for the Minister, relying on Prairie Acid Rain v. DFO (True North). At the SCC, the Appellant MiningWatch argued that the duties prescribed in CEAA required scoping the larger project, arguing that s.4 codifies principles of international environmental law including the precautionary principle and a need for meaningful public participation throughout the process. It also drew attention to US environmental assessment law, which prohibits splitting large projects into components that lack significance on their own.
The Respondent Attorney General countered that a “project” should be interpreted as the “project as scoped” rather than the “proposed project”. It argued that EA is a planning process requiring flexibility to address specific circumstances, that without re-scoping the federal report would have duplicated a provincial report, and that the responsible authority had referred the matter to the discretion of the Minister. The Court questioned whether harm would have result from holding a public consultation, and noted that a project is defined as “the proposed project” in both the Act and Regulations.
The Respondent DFO submitted that CEAA is to be read as a numerical sequence and that this sequence was properly followed: s.5 provides a trigger, s.15 provides for scoping, s.18 provides that where a project is not listed the RA may determine the level of public input, and that s.21 requires public consultation for listed projects only if the sequence continues to that point. The Court suggested that it might not be seduced.
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Laura may know about Ted Moses. It is also concerned with when both provincial and federal assessments are required, and it may be a test case for CEAA infrastructure exemptions. It has an added dimension as it involves the interpretation of a modern treaty, the James Bay agreement.
Laura Bowman
Posted at 09:38h, 13 JanuaryI will also be watching for decisions in the following Supreme Court of Canada Cases heard in 2009 with decisions expected in 2010 regarding the application and interpretation of the Canadian Environmental Assessment Act:
– MiningWatch v. Minister of Fisheries and Oceans
– Attorney General of Quebec v. Grand Chief Dr. Ted Moses, et al.